Lord Justice Pitchford :
The Claim
- This is a CPR Part 8 challenge to the validity of parking orders made by Westminster City Council, (hereinafter also referred to as the "Council" or the "Authority" or "Westminster") on 18th January 2010. They are:
The City of Westminster (Motorcycle Parking Places) (No. 1) Order 2010 (WCC 2010 No 7).
The City of Westminster (Parking Places) (Further Provisions) (No. 1) Order 2010 (WCC 2010 No. 8.)
The City of Westminster (Waiting and Loading Restrictions) (Amendment No. 408) Order 2010 (WCC 2010 No.9).
The Orders were made under the powers given by section 45 Road Traffic Regulation Act 1984. Challenge may be made to a designation order under paragraphs 34-36 of Schedule 9 to the Act. The grounds of challenge permitted under paragraph 35 are:
(a) that the designation order is not within the relevant powers: or
(b) that any of the relevant requirements has not been complied with in relation to the order.
The Court may, under paragraph 36, quash the Order if it is not within the relevant powers; or it may quash the Order or any provision of it if the applicant has been "substantially prejudiced" by a failure to comply with the relevant requirement.
- The claimant is the chairman of a campaign group formed to oppose charges for motorcycle parking in the city of Westminster. In summary the grounds of the claimant's challenge to the validity of the Orders are:
1. Westminster City Council failed to use its powers for legitimate statutory purposes, and exceeded its powers under the Act by using them for a non-statutory purpose, namely the raising of revenue. As an alternative to Ground 1 it is claimed that the officers of Westminster City Council misrepresented to its committee and cabinet members the revenue implications of the proposed Orders. While they attempted to give the appearance of revenue neutrality it was or must have been obvious to the officers that considerable excess revenue would be generated. The Authority's members were therefore misled and their decision is vitiated by mistake.
2. Westminster City Council failed to carry out a satisfactory consultation exercise before making the orders.
The Statutory Scheme
- Section 45 of the 1984 Act provides in its relevant parts:
"45(1) A local authority may by order designate parking places on highways ... in their area for vehicles or vehicles of any class specified in the Order; and the authority may make charges (of such amount as may be prescribed under Section 46 below) for vehicles left in a parking place so designated. ...
(2) An order under this section may designate a parking place for use (either at all times or at times specified in the Order) only by such persons or vehicles, or such persons or vehicles of a class specified in the Order, as may be authorised for the purpose by a permit from the authority operating the parking place or both by such persons or vehicles or classes of persons or vehicles and also, with or without charge and subject to such conditions as to duration of parking or times at which parking is authorised, by such other persons or vehicles, or persons or vehicles of such other class, as may be specified ...
(3) When determining what parking places are to be designated under this section, the authority concerned shall consider both the interests of traffic and those of the owners and occupiers of adjoining property, and in particular the matters to which that authority shall have regard include –
(a) the need for maintaining the free movement of traffic;
(b) the need for maintaining reasonable access to premises; and
(c) the extent to which off-street parking accommodation, whether in the open or under cover, is available in the neighbourhood or the provision of such parking accommodation is likely to be encouraged there by the designation of parking places under this section. ..."
- The Authority's duties in the exercise of the powers conferred by the Act are set out in section 122 which, in its relevant parts, reads:
"122(1) It shall be the duty of every local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in section (2) below) to secure the expeditious, convenient and safe movement of the vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway ...
(2) The matters referred to in sub-section (1) above as being specified in this sub-section are:
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and, without prejudice to the generality of this paragraph, the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(bb) the strategy prepared under Section 80 of the Environment Act 1995 (national air quality Strategy);
(c) The importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the local authority to be relevant. ..."
- By Section 9 of the Act the Traffic Authority may, for the purposes of carrying out an experimental scheme, make an order under the section which shall not continue in force for longer than 18 months.
- Section 55 of the Act contains provisions by which the local authority must keep a financial record concerning the provision of parking places, deal with any deficit and dispose of any surplus. Section 55, in its relevant parts, reads as follows:
"55(1) A local authority shall keep an account of their income and expenditure in respect of parking places for which they are the local authority and which are -
(a) In the case of.... the council of a London borough ... parking places on the highway ...
(2) At the end of each financial year any deficit in the account shall be made good out of the general fund ..., and (subject to sub-section (3) below) any surplus shall be applied for all or any of the purposes specified in sub-section (4) below and, in so far as it is not so applied, shall be appropriated to the carrying out of some specific project falling within those purposes, and carried forward until applied to carrying it out.
(3) If the local authority has so determined, any amount not applied in any financial year, instead of being or remaining so appropriated, may be carried forward in the account kept under sub-section (1) above to the next financial year.
(3A) ... the council of each London borough ... shall, after each financial year, report to the Mayor of London on any action taken by them, pursuant to sub-section (2) or (3) above in respect of any deficit or surplus in their accounts for the year. ...
(4) The purposes referred to in sub-section (2) above are the following, that is to say -
(a) the making good to the general fund ... of any amount charged to that fund under sub-section (2) above in the four years immediately preceding an actual year in question;
(b) meeting all or any part of the cost of the provision and maintenance by the local authority of off-street parking accommodation whether in the open or under cover ..."
There follows at section 55 (4) (c) – (f) a list of further projects and purposes to which a surplus may be put.
- The effect of sections 45, 55, and 122 was considered by McCullough J in Cran & Others v Camden London Borough Council [1995] RTR 346. The London Borough of Camden had a policy of introducing on-street parking charges throughout the Borough. The subject of the claim was their resolution to designate streets in the Primrose Hill area as a controlled parking area with charges. Members of a residents association sought the quashing of the designation on the grounds that Camden was in breach of its statutory duty under section 122(1) and that it had failed properly to consult. The judge was invited to consider whether the designation of controlled parking areas for revenue-raising purposes was a legitimate exercise of the statutory power. He noted that Camden's on-street parking account showed a surplus of £4.3 million in 1991/1992, of which £3 million was spent on concessionary fares. In 1992/93 the surplus was £5.2 million of which £3.8 million was spent on concessionary fares. For the year 1993/94 the surplus was expected to be some £7 million and a similar proportion was to be spent on concessionary fares. If the Primrose Hill scheme went ahead the additional surplus was estimated to be £207,000 odd per annum.
- The claimants' case was that the Act contemplated charging only for the purpose of defraying the cost of the on-street parking provided. It did not permit charging for the purpose of raising revenue for other, section 55(4), transport purposes. The claimants had a subsidiary argument, namely that it was impermissible to raise revenue from residents if the costs of the scheme could be fully met from metering. At page 360 McCullough J said:
"[the claimant] submits that, whatever may be the lawfulness of budgeting to make from the charges for pay and display and enforcement, a surplus greater than would be required from on-street parking alone, it is not lawful for a council to budget to make such greater surplus from permits issued to those who reside or carry on business in its area.
I accept that there is a distinction between the exercise of setting charges to be made for the use of pay and display bays and charges for enforcement on the one hand and the exercise of setting charges for residents on the other hand. Enforcement charges will not achieve their purpose unless they are high enough to deter, and this fact may of itself lead to the on-street parking account having a surplus greater than that which would be required if the aim was merely to cover expenditure on on-street parking and budget for a prudent margin of excess.
A somewhat similar consideration applies to pay and display charges which may properly reflect a policy of encouraging the owners of private cars to use other means of transport, so long as this is balanced against the interest of those who have no real alternative but to use pay and display bays. Clearly pay and display charges should take into account pay and display charges in neighbouring localities; otherwise undue numbers of motorists may want to visit the cheaper localities. So, for this reason too, a council may inevitably find that it is budgeting for a more substantial surplus than it would need if it had to think of nothing but covering its expenditure for on-street parking and providing for a prudent margin of excess. These considerations reflect the policy and objects of the Act. They do not apply to residents or businesses within the area."
- Upon the principal issue as to whether raising revenue was a legitimate objective the judge observed:
"... the Act of 1984 is not a fiscal measure. It contains no provision which suggests that Parliament intended to authorise a council to raise income by using its powers to designate parking places on the highway and to charge for their use. To adapt the words used by Nolan LJ in Reg v Manchester City Council, ex parte King [1991] 89 LGR 696,712, had this been the intention of Parliament the extent of the fund-raising powers conferred on the council would be enormous, since they would have a monopoly over the granting of permits for on-street parking within their area and would have golden opportunities to augment their revenue.... All [of the Act's] provisions, leaving aside section 55(4) for the moment, are concerned in one way or another with the expeditious, convenient and safe movement of traffic and the provision of suitable and adequate parking facilities on and off the highway. This is reflected in the wording of section 122 (1). There is its policy; there are its objects."
- The judge did not accept the submissions made on behalf of Camden to the effect that Camden was permitted to take an holistic approach to the financing of its traffic management, highway and environmental projects. The judge noted that at paragraph 11.6 of 'Traffic management and parking guidance for London', published by the Secretary of State in August 1992 pursuant to Section 63 of the Road Traffic Act 1991, appeared:
"Local Authorities should not seek to use parking charges primarily as a means of raising additional revenue or as a means of local taxation. They should, instead, see the charges primarily as a means of securing the traffic and parking objectives discussed in this guidance." [emphasis added]
Notwithstanding that Camden's submissions were consistent with the guidance, the learned judge declined to accept them. He said:
"Mr Hockman's [for the Authority] submission leads inevitably to a balancing exercise that leaves undesirable scope for argument. Further, it does not follow that, because section 122 (1) refers to the exercise of the "functions conferred" on local authorities by the Act, every such function must be exercised with reference to every factor which might, however indirectly, secure the expeditious, convenient and safe movement of traffic. One sees that the encouragement of the provision of off-street parking facilities ... is one of the matters to which section 45(3) requires the local authority to have regard. section 45(3) is not directed to the determination of charges, only to the determination of what parking places are to be designated. ...
Looking at the Act as a whole, it is difficult to believe that Parliament intended, for example, that the desirability of funding concessionary affairs for the elderly and disabled, or the desirability of building an underpass, should be taken into account in deciding whether or not to designated parking places, and Mr Hockman has not gone so far as to suggest that this conclusion would be wrong. On his interpretation of the provisions, one would have to say that concessionary fares could be lawfully taken into account, but reasonableness required that the weight to be given to them should be nil.
By contrast, Mr Cran's [one of the objectors] submission gives full recognition to the fact that the Act of 1984 is not a revenue raising Act. Where there is ambiguity the citizen is not to be taxed unless the language of the legislation clearly imposes the obligation.
By analogy, if not indeed direct application, I conclude that the difficulties of interpretation presented by these provisions must be resolved by adopting a narrower construction for which Mr Cran contends; it was the intention of Parliament that local authorities in determining charges to be made in pursuance of the designation of parking places, should not have regard to the manner in which section 55(4) of the Act of 1984 would permit any resulting surplus to be spent. And manifestly, the same would apply to the decision whether or not to make a designation order."
- The judge went on to examine the evidence upon which he was invited to infer that Camden had unlawfully sought to raise revenue by means of the designations at Primrose Hill. Although Camden admittedly budgeted for a modest surplus and proposed to impose residential charges so as to achieve equality across the borough, the judge was not persuaded that either in deciding to introduce a controlled parking zone in Primrose Hill or in setting the charges under the scheme, Camden took into account any factor which it ought not, or that it failed to take into account any factor that it should. Criticisms were made by the claimants of the inadequacy of research conducted by Camden into the need for designation orders. On this subject the judge said:
"Clearly the Council could have conducted more surveys than it did; but it must be a matter for the discretion of the local authority to decide whether or not it has acquired sufficient material to enable it to formulate a designation order. Resources are not unlimited; nor is time; and professional officers have experience on which they can properly draw.
While the Court could no doubt interfere in a case where a local authority had made a designation order on the basis of data which was manifestly grossly insufficient, that has not been shown to be so here. In any event, it should be remembered that the Council decided that the operation of the Primrose Hill controlled parking zone should be reviewed after six months. Clearly this was with a view to proposing a further order making such amendments to the scheme as by then appeared desirable. I reject the submission that the research here was so deficient that the Court could properly hold that the Council acted unlawfully in deciding to act upon it and in this way acted without the relevant powers."
- I am content, as were the parties (save in one respect for the defendant), to follow McCullough J's construction and interpretation of the statutory provisions. Section 45 is plainly not intended to provide a general revenue raising power. It must be exercised for the statutory purposes set out in section 122, namely, "to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway". If there is not a statutory justification for the exercise of powers, then the fact that they will raise revenue through charging will not render them compliant. I also agree with McCullough J that the statutory purpose of providing "suitable and adequate parking facilities on and off the highway" applies to the designation of parking places on and off the highway. However, section 45 provides, without qualification, that the authority may designate parking places on-street, with or without charges and the production of a surplus is specifically contemplated by section 55. Accordingly, as it seems to me, the Authority is not bound, when setting a charge, to reflect only the immediate statutory purpose of providing sufficient on-street parking or of paying for it. As McCullough J recognised in Cran, charges may need to be set at a level which has the desired effect, namely to ration the availability of on-street parking with the intention of encouraging the use of off-street parking (which is one of the matters to be considered under section 45(3)). Furthermore, section 45 provides an Authority creating a charging scheme with wide powers to differentiate between users of on-street parking facilities, vehicles and periods for charging.
- Ms Lieven QC, for the defendant, sought to support the Secretary of State's guidance of August 1992 (paragraph 10 above) to the effect that raising revenue may be a secondary purpose of the exercise of the section 45 power. In my view, when designating and charging for parking places the Authority should be governed solely by the section 122 purpose. There is in section 45 no statutory purpose specifically identified for charging. Charging may be justified provided it is aimed at the fulfilment of the statutory purposes which are identified in section 122 (compendiously referred to by the parties as 'traffic management purposes'). Such purposes may include but are not limited to, the cost of provision of on-street and off-street parking, the cost of enforcement, the need to "restrain" competition for on-street parking, encouraging vehicles off-street, securing an appropriate balance between different classes of vehicles and users, and selecting charges which reflect periods of high demand. What the authority may not do is introduce charging and charging levels for the purpose, primary or secondary, of raising section 55(4) revenue. In this aspect too, I agree with McCullough J's interpretation of the statutory intention.
- At the commencement of the submissions made on behalf of the claimant by Mr Coppel QC, it was a repeated complaint that budgeting for a surplus was evidence of an improper purpose. I disagree, and in the course of his submissions Mr Coppel appeared to concede that there was nothing to prevent budgeting for a surplus provided that the designation of parking spaces and the decision to charge were justifiable in pursuit of the Section 122 purposes. It follows, in my view, that the Authority's decision-making process should be examined for the application of the statutory purposes. The mere fact that the likelihood of a surplus was recognised or that the mandatory application of a surplus under the terms of section 55(4) was acknowledged, is not determinative of the legitimacy of the parking orders.
Emergence of Policy
- The officers of the Council first introduced the concept of charging for motorcycle parking on-street in January 2002 when a report, under the hand of the Director of Planning and Transportation, was submitted to the Cabinet Member for Transportation. Although the proposal was, at that time, rejected, its contents assist an understanding of the background to the present claim. Across the United Kingdom motorcycle registration increased by 28% between 1995 and 1998. Westminster had increased provision of parking spaces for motorcycles by 50% between 1998 and 2001 but the City Council continued to be inundated with requests for more. It was noted that the Mayor of London's proposed congestion charge would not apply to motorcycles, not because there was a policy justification for exemption, but because the technology was insufficiently sophisticated to be adapted for motorcycles. The Report proposed that there were strong arguments for reducing pressure on on-street parking by the introduction of charges for motorcycles and by greater provision of off-street parking places. The Report advised the Cabinet Member that there was likely to be opposition from the well organised motorcycle lobby. Complaints had already been received in response to the Council's trial run at Victoria. The objections usually fell into one or all of three categories:
i) Motorcycles are more friendly to the environment;
ii) Motorcycles reduce congestion;
iii) Meters will reduce space.
The Report noted that "there is no clear argument for treating motorcycle riders differently from car drivers except insofar as a motorcycle, when parked, does not take up as much room as a car". Indeed, the City Council's UDP ("Unitary Development Plan") soon to be on second deposit made specific reference to this observation. It proposed that with regard to restraint motorcycles should be treated in a similar way.
- The Court has been provided with the documentary history of internal reporting and consultation which led to the making of the permanent orders on 18 January 2010. However the parties are agreed that the two principal reports are those prepared by Mr Alistair Gilchrist, Director of Parking Services to the Built Environment Overview and Scrutiny Committee on 9 October 2006 and the six month review report from the Assistant Director of Parking to the Cabinet Member for Environment and Transport dated 12 May 2009. It is upon these reports that I shall concentrate my summary of the background facts, although I shall flesh out the Council's progression towards the parking orders as necessary.
Introduction of Proposal
- In his report to the Committee of 9 October 2006, Mr Gilchrist gave a factual and policy background to his recommendations. The City Council then provided some 480 designated motorcycle parking bays offering some 4,500 spaces. They were marked only with yellow lines unsupported by signing and posts which, in the experience of the Council, made enforcement difficult. Motorcycle parking in the West End and Soho had been in high demand for some time. With the introduction of the congestion charge, the subsequent increase of the charge and the planned western extension of the congestion charge area for 2007 (introduced in February 2007), regular requests had been made for additional bays by members of the public. Numbers of motorcycle rides into Central London had increased. The parking team had carried out several surveys/consultations, the results of which were appended to the Report at Appendix 1. Appendix 1 represented an analysis of trends and comments by motorcycle users. Mr Gilchrist stated that:
"The results are conclusive in that there is an overwhelming agreement that there is need for additional provision of motorcycle parking. However, there is not a consensus on how or what type of provision should be made available, e.g. short stay vs. commuter bays, charging, secure devices, etc."
Mr Gilchrist noted that the trial in the New Scotland Yard area in 2001 was unsuccessful because the introduction of modest charging contemporaneously with the provision of 98 additional spaces had resulted in a boycott.
- Mr Gilchrist set out the policy context for motorcycle parking. The City Council's replacement UDP Policy TRANS 11 stated that the Council would "seek to maintain an adequate supply of parking facilities for motor-cyclists" and "in recognising the safety and environmental problem caused by motorcycles relative to other modes, it will be necessary to apply a level of restraint through parking policies". The Mayor's transport strategies proposal sought "to extend the provision of motorcycle parking, particularly in areas of high demand. This has been incorporated into Westminster's approved Local Implementation Plan".
- Mr Gilchrist included in the Report a discussion of the environmental and safety aspects of motorcycle use. He noted that there were no current plans to extend the congestion charge to motorcycles. He believed that motorcycles were therefore unlikely to reduce in numbers in the central areas. There were a number of options which could be considered and these were described in detail in Appendix 3 to his Report. In summary he described them as:
"1. Convert current bays to "parking places".
2. Create extra space on street;
(a) By extending existing bays
(b) by adding new bays
(c) Commuter and short stay parking
3. Extra space in car parks;
(a) by converting spaces
(b) by providing Moto-safes
4. Provide security devices
5. Make any of these options chargeable."
- Mr Gilchrist proposed:
"There is a need to increase parking spaces for motorcycles in Westminster in line with the increasing demand and rising numbers of this type of vehicle being utilised for commuting. The legality of the current bays also needs to be resolved after several years of indecision. It is therefore proposed to formalise and extend the existing bays to resolve these two key issues. The provision of additional space and the protection of the spaces are significant benefits to the motor-cyclist parking within Westminster. Two further important benefits are:
Vehicles other than motorcycles will not be able to park in the bays at any time, improving safety for riders; also the conversion will make it easier for both the Council and customers to locate the bays as they will require a post and sign, whereas currently the bays are only marked by paint on the roads which can often be obscured.
Charging for motorcycle parking is additionally proposed. It is felt that it is not equitable to charge one type of motorist for parking and not another. By introducing a charge this would make parking policy fair regardless of vehicle type, and will also help to fund the cost for the legalisation and extension of bays, as well as the ongoing enforcement costs."
- It was noted in Appendix 3 that occupancy levels at standard metered parking spaces (by motor cars) had fallen. Some current meter bays could therefore be converted to motorcycle parking. It was also noted that charging for motorcycle parking had in the past caused problems since any form of paper ticket could be displayed inside a car; there was no such facility for a motorcycle. A new option had emerged, namely the use of the "pay by phone" solution. He continued:
"Care would need to be taken regarding pricing levels set. Ideally these should cover the costs of providing whatever parking facility is being charged for, and also for the enforcement of the bays by parking attendants. Views from riders are that charging would probably be received without too much opposition, provided that an additional service (such as a security device) was being provided for the charge."
The Report gave examples of possible security devices. As to the financial implications, these depended upon which of Mr Gilchrist's proposals were adopted. If his recommendation (to convert current bays to parking places for motorcycles, to extend existing bays in high occupancy areas, and implement a charging scheme for all motorcycle parking city wide) was adopted, the cost was anticipated to be £305,000 with a revenue cost of £99,000 and a revenue benefit of £363,000. In year 2 and thereafter there would be a revenue benefit of £264,000.
- Mr Gilchrist's recommendation was accepted by the Policy Committee which resolved as follows:
"1. We agree to the options for increasing motorcycle parking provision with the exception of providing security devices given the view that although they are a good idea in principle, they do not necessarily work well in practice;
2. We support charging motorcycle riders a reasonable sum for parking provision;
3. There should be a differential between charges for Westminster residents and motor-cyclists visiting the city.
4. That we would like to see proposals developed to encourage the use of less polluting types of motorcycles."
- On 18 December 2006, the Director of Parking Services submitted a further report to the Cabinet Members for (1) Finance and (2) Economic Development and Transport. By this stage further work had been done on costs. At paragraph 6.4 of the Report, the Director said this:
"The motorcycle parking proposals represent an "invest to save" scheme and as such there is no specific provision within the current approved capital programme. The net revenue benefit of £585k has not been included in savings proposals currently being considered by the Overview and Scrutiny Committees. Assuming Cabinet member approval to the proposals is received before Christmas 2006 then the necessary Traffic Management Orders should be in place for the Capital Investment to commence in April 2007 with full implementation of the scheme from July 2007. This would result in additional net revenues of 2007/2008 of £439k (9 months review benefit) with total capital expenditure of £985k pounds in the same year. Therefore the first full year benefits will be realised in 2008/09. The additional revenue can be utilised on further transportation schemes; for example, providing motorcycle training, additional signage etc."
The figures were based upon an assumption that no additional penalty charge notices would be issued.
- Mr Coppel submitted that the mere use of the "invest to save" tag betrayed the unlawful nature of the scheme proposed. I do not agree. The term was plainly used to convey the sense that capital expenditure would be recouped and would not have to be found from general revenue. As I have already observed I do not regard the estimated or planned generation of surplus revenue in future years as, without more, any evidence of unlawfulness provided that the statutory purpose was being applied. The expenditure of £985,000 was approved by the Cabinet Members on 8 January 2007. Between this date and August 2008 when the charging scheme was first introduced under the experimental orders, the number of motorcycle parking spaces was increased by 44% to 6550. 400 of those spaces were provided in secure off-street car parks. These changes were achieved by the amendment of Schedule 7 to an earlier 2002 Order.
- Having obtained approval from the two Cabinet Members, the Director of Parking Services issued a report in similar terms for general release dated 5 September 2007. In it the proposed charging regime approved by the Cabinet Members was circulated. The flat rate would be £1.50 per day. An annual permit for £150 would be available. The Report proposed a weekly permit of £5 and a monthly permit of £20, together with a quarterly permit of £50. The charge would apply to controlled hours between 8.30 am and 6.30 pm Monday to Friday. The charge would apply to motorcycle parking bays. Motor-cyclists would be prohibited from parking in any other bay type. Electric motor-bikes would be exempt from the parking fees.
- On the subject of consultation the Director reported:
"The City Council recognises that the implementation of this motorcycle initiative is contentious. As such, three consultation sessions were held with the motor cycle action groups in order to inform the Cabinet Member Report. The City Council continues to be pro-active in its consultation by continuing to engage the Motor Cycle Action Groups throughout the implementation process. Furthermore, the City Council is undertaking the statutory public consultation required before any changes are made to our Traffic Management Orders. This public consultation will be conducted with the major stakeholder groups, including residents, businesses and action groups."
On 5 September 2007 the Overview and The Built Environment Overview and Scrutiny Committee resolved to note the Report.
- On 1 October 2007 a survey at 631 motorcycle parking spaces found that there was an occupancy rate of 91%.
- In a statement of decision published on 5th November 2007 the Cabinet Member approved the charging regime proposed by the Director of Parking. Delays in implementation then followed because not until January 2008 was the Council able to award a contract to a company called Verrus for the management of a mobile phone payment scheme.
Experimental Orders and Further Consultation
- On 3 July 2008 the Director of Parking submitted to the Cabinet Member for Environment and Transport, an enhanced scheme which would create 900 additional off-street motorcycle parking spaces and the provision of security measures for residential parking. It was noted that delay had put back the income flow from parking charges to the 2008/09 financial year. The Report noted at paragraph 2.2 that:
"Occupancy surveys conducted in March/ April 2008 indicate that on-street motorcycle kerb side remains over-subscribed despite a 25% increase in provision. In order to address this it is proposed that up to an additional 900 off-street motorcycle spaces would be created. This equates to a further 15% increase on top of existing on and off-street provision. Also it will offer customers more choice and flexibility, as well as improved security off-street."
The Committee approved the revised approach.
- On 23 July 2008 the Council made the experimental orders under section 9 of the 1984 Act and the charging scheme came into effect on 4 August 2008. By that stage, 89 security devices had been installed. On the same date, the Council sent out a consultation letter to 102 organisations and individuals seeking their responses to the experimental implementation of the charging scheme. No significant replies were received. The consultation period was six months. No response was received from the British Motorcycle Federation. The Council did, however, receive objections in the form of a petition containing 310 signatures submitted by the leader of the opposition group, Councillor Paul Dimoldenberg, on 20 January 2009. The petitioners sought the provision of sufficient secure motorcycle parking at no cost to the motorist. By 18 February 2009 the Council had received 2931 letters of objection and only one favourable response.
- On 13 March 2009 a report was prepared under the hand of the Assistant Director for Parking for the Cabinet Member for Environment and Transport. In Section 2 of the Report the following appeared:
"2.2 The current approach to motorcycle parking reflects the demands made on Westminster's infrastructure by increasing numbers of people using motorcycles and scooters in recent years. It is not based on environmental or congestion related concerns, regardless of recently published statistics on motorcycle emissions from the Department for Transport ("Transports Statistics Great Britain" 27 November 2008).
2.3 The City Council's motorcycle parking policy reflects the number of motor-cyclists entering Central London. According to the Department for Transport, motorcycle ownership in the London region has increased by 50% between 1997 and 2007. A variety of environmental factors have contributed to this increase which is reflected in nationwide trends. However, the impact of the congestion charge, from which motorcycles are exempted, is probably the most contributing factor to their growing popularity in London.
2.4 This increasing use of motorcycles does present a series of challenges to the City Council. The City Council has to address the demand for kerb-side space and road resources from the thousands of road users who enter the city every day. Although the footprint of a motor-cyclist is considerably smaller than that of a car, these vehicles still take up road space when driving or parking."
It was proposed that no immediate action should be taken in response to the objections. A six month review was taking place which would culminate in a further report.
- On 31 March 2009 the Interim Director of City Management submitted a report to the Built Environment and Policy and Scrutiny Committee. It was this report which led the way to the making of the permanent orders. The Report noted that some 600,000 vehicles entered Central London every day. There were 44,000 businesses in Westminster. The City Council provided 41,000 on-street parking places, 6,550 of which were designated for motorcycles. The 50% increase in motorcycle ownership in London was noted. There was attached to the Report an area map showing the distribution of parking space across the City. The Report continued:
"1.8 The motorcycle charging scheme has been designed to be revenue neutral. Local Authorities are legally bound to re-invest all income from parking fees and charges in the transport infrastructure. It is acknowledged that the motorcycle parking scheme has raised significantly more revenue than had been originally expected - £1,030,223 as at the end of February. The scheme was anticipated to generate £675,000 gross, and £261,000 net once operating costs are taken out for the year ending 31 March 2009 (this excludes revenue from PCNs).
1.9 Calculations before the launch of the scheme had assumed that regular motor-cyclists would take advantage of the cheaper, longer term parking options such as monthly or yearly permits. In fact, 81% of motor-cyclists have continued to purchase a daily pass, and this has resulted in WCC generating more income than projected.
1.10 All income generated from the Scheme is re-invested back into the transportation infrastructure and no profit is made from the Scheme. Projects funded either entirely or partly through parking revenue include:
- Concessionary fares, including the freedom pass (£5.5 m)
- Highway maintenance (£3.8 m)
- Traffic management projects (£700,000)
- Disabled/elderly travel scheme (£1.2 m)
- New parking carers parking scheme."
The Report repeated the assertion previously made that the case for additional motorcycle spaces and charging was not based on environmental or congestion related concerns. However, the Report went on to give details of the effect upon air quality of particulate emissions from both motor cars and motorcycles.
- At section 5 the Report dealt with the process of consultation and objections received. An analysis was carried out of the distribution of objections received between those with an address in the Westminster area, those with an address in the London area, and those with an address in England. The different categories of objections were sorted by number and complaint. In the context of the present dispute it is noteworthy that significant numbers were still complaining that there were insufficient motorcycle parking spaces available in Westminster. It was noted that although there was a demand for increased spaces, 6,000 spaces were occupied daily by comparison with 4,000 before the scheme was implemented. An illustrative graph revealed that at the time of the report demand was still increasing. The Council had adopted a policy of issuing warning notices to motor-cyclists upon implementation of the scheme. The first penalty charge notice would be cancelled. The number of PCNs received by motor-cyclists had fallen by two-thirds between September 2008 and January 2009. Numbers were currently running at the pre-scheme rate. Included in the Report at Section 8 was an analysis of the results of a survey carried out for the Council in January and February 2009 by consultants, Steer Davis Gleave. Of 628 motorists interviewed, only 68 were Westminster residents. 295 were motor-cyclists of which 17 said they lived in Westminster. It was noted that 52% of motor-cyclists wanted to see more ground anchors, the most popular form of security.
- A number of options were placed before the Committee including the removal of charging for motorcycles altogether, the introduction of residential concessions, the reduction in the level of charges and the introduction of security devices. The Report drew attention to the fact that although the numbers of PCNs was falling, since the introduction of the scheme they had produced an income of £1,481,415.
- On Monday 31 March 2009, the Report was discussed at a meeting of the Built Environment Policy and Scrutiny Committee. The Committee was addressed by several members of the "No To Bike Parking Tax" campaign group of which the claimant is chairman. They included Dr Leon Mannings, Mr Chris Hodder, Mr Kilian Klissman, and the claimant himself. The principle ground of objection was that the scheme was unnecessary. There was no demonstrable need for charging, which therefore represented a tax. Councillor Bush noted the amount of revenue being raised. Counsellor D'Cruz said that in his view motorcycles relieved congestion; this was the rationale for exempting motor-cyclists from paying the congestion charge and a similar exemption should apply to related parking matters. He observed that much of the expenditure incurred by the City Council represented one-off costs. A large surplus was likely to be generated in future years. It was therefore inaccurate to describe the scheme as revenue neutral. Contrary arguments were put forward by other counsellors including: Westminster residents should not have to subsidise the cost of providing parking for visiting motor-cyclists. Motorcycles were pollutants too. There was a chronic shortage of parking on Westminster's roads. There were benefits to the daily charge but motor-cyclists should take advantage of the monthly or annual permit. Another view was that the charge had been set too high although there was nothing intrinsically unreasonable in seeking a charge from motor-cyclists for parking facilities. In response, the Assistant Director of Parking explained that the cost of enforcement was approximately 75% of the PCN income by value. The net surplus on PCNs was £350,000. He confirmed that the scheme was originally proposed on expectations which then prevailed. Those expectations had been considerably exceeded by reason of the much larger than expected purchases of day permits. He noted that only 5.8% of the objections came from Westminster residents. He acknowledged some of the problems identified by the objectors and pointed to options which had been raised in Section 9 of the Report to deal with them.
- The Committee resolved, "as there was much competition between parking user groups for kerb space in the City of Westminster, and as the motorcycle policy was consistent with the City Council's approach to parking charging generally, charging motor-cyclists for parking was reasonable". It was agreed that the revenue raised was unexpectedly large and that charging rates should be reduced. The Committee supported further options set out in Section 9 of the Assistant Director's Report to meet some of the criticisms raised by the objectors. It was recommended that a parking users' forum should be set up. The evidence was that there were environmental and health impacts from particulate emissions from both cars and motorcycles. The Committee supported a review of parking policies to consider the implications. The Committee requested that its views should be forwarded to the Cabinet Member for Environment and Transport before he considered whether to make the scheme permanent.
- In compliance with the resolution of the Committee, the Assistant Director submitted a six month review report to the Cabinet Member for Environment and Transport. The Report posed the question: "Why charge at all?" The answer to the question drew attention to the UDP Policy TRANS 11 which recognised the "safety and environmental problems caused by motorcycles relative to other modes" of transport and, thus, the need to "apply a level of restraint through parking policies". The Report continued:
"The current approach to charging for motorcycle parking reflects the demands made on Westminster's infra-structure by the increasing numbers of people using motorcycles and scooters. It was not an explicit aim of the pilot to address environmental or congestion related concerns ... rather, the approach attempted to fairly balance the finite amount of kerb-side provision between all the different motorist types and uses. Moreover, it is also the case that as the volume of motorcycle traffic grows the wider issues of environmental and congestion will increasingly come to the fore. The City Council's policy on motorcycle parking reflects their use of these limited resources and the increasing demand for them; overall we believe the policy is fair, reasonable and informed."
- At Section 5 the Assistant Director repeated the analysis of objections received during the consultation and provided the Cabinet Member with a full list of objectors at Appendix 4. The representations made to the Policy and Scrutiny Committee on 31 March 2009 were summarised and answered. In particular it was acknowledged that the scheme had raised significantly more revenue than had been forecast. In answer to the specific objection that "the scheme delivers no sustainable transport benefits to residents or visitors", the Assistant Director responded as outlined at paragraph 37 above. It was noted that the City of Westminster was "unique in terms of demand for parking and use of its kerb-side space". Some form of motorcycle charging existed in twenty-one other boroughs. The Council acknowledged that motorcycles created relatively less congestion than larger vehicles. However, they still took up scarce kerb-side space and should pay a fair charge along with other road users. In answer to the criticism that the scheme deterred casual visitors to the City, it was reported that occupancy levels were based on the number of permits issued and remained above 80%. The charge was modest. The daily rate for purchase of an annual permit represented as little as 49p per day. It was not accepted that the scheme was based "on misleadingly false assumptions". All previous Cabinet reports on the subject and the UDP had been subjected to the necessary scrutiny and clearly set out the reasons for introducing the scheme. At paragraphs 7.4 – 7.25 the Assistant Director set out a number of proposals for the amendment and improvement of the scheme. The Cabinet Member approved the continuation of the scheme which, subject to further consultation, he was minded to make permanent. There would, however, be significant changes including increased provision of off-street motorcycle parking spaces, removal of all charges for off-street motorcycle parking, reduction of charges for on-street motorcycle parking by one-third, concessions to residents, improvement in the alternative methods of payment provided, the stepping up of installation of security devices, the continuation of the "first PCN cancellation" policy, and refunds to holders of periodical permits to allow for the reduction in charges. The amendments to the scheme were incorporated commencing 1 June 2009.
Permanent Parking Orders
- A 21 day period of consultation commenced on 11 June 2009. The Council received 3,033 objections and 1 favourable response. The Assistant Director of Parking prepared a further Report dated 1 October 2009 for the Cabinet Member for City Management. In it the contents of previous reports was noted, including the policy context which had appeared in Section 3 of the Report of 12 May 2009. The bulk of the Report is taken up with responses to objections made by, and on behalf of, the NTPBT campaign group whose pro-forma objections were handed in to City Hall on 1 July 2009. In the main, the complaints made were those addressed to the Committee in March 2009. There was, it was suggested, no traffic management benefit from charging and the public had been misled in the provision of financial information.
- Further responses were addressed in the Report by the Strategic Executive Director of City Management, dated 21 December 2009, to the Cabinet Member. On 6 January 2010 the Cabinet Member announced the permanent traffic orders which were made on 18 January 2010 and became effective on 25 January.
Ground One
- I turn to consider the claimant's grounds of challenge. The first ground is that the Orders are ultra vires the Council's powers under sections 45 and 122 of the Road Traffic Regulation Act 1984. In written form the Claimant's argument was encapsulated at paragraphs 57 and 58 of Mr Coppel's skeleton argument.
"57. Where a local authority proposes to convert existing on-street parking places from non-pay parking to pay parking the issue will be the extent to which the change (i.e. the charge) secures the objectives identified in Sections 45(3) and 122. Unless the re-designating of existing on-street parking to pay parking improves the attainment of those objectives, then the re-designation will not have "secured" the objective, nor will the interest in Section 45(3) have been "advanced".
58. The parking orders did not "secure" any of the statutory objectives nor did they advance any of the interests identified in Section 45(3) or Section 122."
- As Mr Coppel's submissions were developed, two arguments emerged: first, he submitted that in essence all the City Council did was to convert bays formerly provided for motorcars to motorcycle use only. The City Council was able to do that because the demand for motor car parking decreased following the introduction of the congestion charge. While there may have been a traffic management advantage in re-designation of parking spaces already available, there was no justification for introducing a charge for parking for motorcyclists. Mr Coppel submitted that the object to be achieved, namely, the calming of demand was met by the provision of further spaces. There was, by the time the Cabinet Member approved the permanent orders, no justification for the introduction of the charge.
- During the course of the current proceedings, the claimant had been seeking further information from the defendant. It is the duty of the defendant, within reason, to give proper disclosure of those matters which explain and justify its decision-making process. The Authority has responded properly to those requests in particular in a document dated 3 June 2010. One of the claimant's requests was for any evidence on which the officers of the Council relied to support the assertions made in reports to members on or after 31 March 2009 that there continued to be a high and ever-increasing demand for on-street parking within the Westminster area. At the time of the request the staff who could respond to the request were on leave until 7 June 2010. The defendant intended to provide a response on the return of their staff from leave. That response has not been forthcoming. Both parties are content that the Court should assume, for the purpose of assessing the claimant's case upon the availability of evidence to support the statutory purpose, that the evidence is limited to that revealed by the reports themselves. I shall not, therefore, assume that there was any further underlying evidence to support mere assertion.
- It seems to me almost self-evident that there will be a need to designate spaces for on-street parking in a London borough with a profile such as Westminster's. The evidence is overwhelming that on-street parking in Westminster requires rationalisation. A need for on-street parking provision is recognised in the statutory purposes identified in section 122 (1). The terms of section 45(3)(c) are informative. One of the relevant considerations is the degree to which motorists will be encouraged to use off-street parking by the designation of parking places under section 45(1) and (2). A scheme by which the Authority charges for the use of on-street parking is certainly a scheme which may tend to encourage motorists to use alternatives, particularly if off-road parking is available without charge or for a lesser charge. The underlying policy justification for introducing a charge to motorcycle users for the improved provision of on-street parking, namely that there was a need to strike an equitable balance between vehicle users, seems to me to be entirely unexceptional. There was a finite capacity for kerb-side parking. Motor-cyclists needed more space. That space would be provided partly by re-assigning bays formerly used by motor cars and partly by extending them. While there were traffic management and environmental arguments for and against treating motorcycles as a special case it does not seem to me reasonably arguable that the Authority acted outside its statutory powers by resolving that all road users should pay their fair share for on-street provision of spaces.
- It is not suggested that the Authority fell foul of the matters to be considered in section 45(3) or section 122(2). The concentration of the claimant's submissions has been towards the alleged failure of the scheme either to promise or to deliver the traffic management benefit referred to in section 122(1). In my view, the evidence demonstrates two clear objectives the Authority sought to achieve by the introduction of the parking orders. The first was to improve on-street parking availability for motor-cyclists in order to meet actual increased demand and anticipated increased demand. The existence of that need cannot, in my view, be seriously challenged. The evidence was overwhelming. It is most helpfully captured in the Report of the Director of Parking of 9 October 2006 in paragraph 3.2, the Report of 18 December 2006, the Report of 3 July 2008, paragraph 2.2, and the response of the Assistant Director of Parking to objections dated 13 March 2009 paragraphs 2.3 and 2.4. Contrary to the submission now made by the claimant, the objectors were still complaining that insufficient motorcycle parking spaces were available on the street during the currency of the experimental orders. (Report of Interim Director of City Management 31 March 2009 to the Policy and Scrutiny Committee, paragraphs 5.6 and 6.9, referred to above). The submission that the City Council was engaged only in an exercise of re-designating motor car parking spaces for the use of motorcycles ignores the evidence of the extension of existing bays to accommodate motorcycles. The figures referred to in the reports contradict Mr Coppel's assertion.
- The second objective revealed by the evidence was the termination of discriminatory treatment between motorcycles and cars. Pressure on kerb-side parking spaces was created both by motorcycles and cars. The Authority considered it right to balance the interests of both by introducing charges for motorcycles while, at the same time, providing free off-street parking on its secure parking sites. This objective was expressed in Section 3 of the Report of the Assistant Director of Parking dated 12 May 2009 to the Cabinet Member for Environment and Transport. It was again expressed in the Report of 1 October 2009 for general release. There was a third but, in my view, less pressing need to provide adequate security for motorcycles using the designated parking spaces. The evidence reveals that there was a consistent concern expressed by motor-cyclists that they had inadequate secure facilities. Those provided during the experimental period were inconsistently used yet there was a persistent demand for facilities to be provided. One of the objectors' complaints was that contrary to promises security devices had not been installed. This was the reason why the Cabinet Member amended the scheme to provide further devices.
- In my view, these were perfectly legitimate objectives. The claimant has set out to establish that there was no evidence before the Authority of increased demand; accordingly, that there was no occasion to manage demand by charging. For the reasons which appear in my summary of the procedural background, I accept both the existence of increased demand and the need to level the playing field between motorcyclists and other vehicular traffic. Furthermore, the fact that the traffic management objective appeared to be in the process of fulfilment is supported by the claimant's own evidence to which I shall refer below. That is not to say that the preservation of discriminatory treatment in favour of motorcycles might not have been justified if members were agreed that further motorcycle usage should be encouraged, but those members were in the minority. One of Mr Coppel's complaints was that while not purporting to address environmental issues, the Report did contain information about the effect of motorcycles on air pollution and the like. It does not seem to me that this is a complaint with merit. One of the matters which the Authority was obliged to consider under section 122(2)(bb) of the 1984 Act was the effect of the exercise of powers upon a strategy prepared under Section 80 of the Environment Act 1995 which concerned national air quality. The material contained in the Reports relating to air quality and pollution generally was significant because some members plainly were interested in the differential effects. The officers simply informed Committee Members and Cabinet Members that they were not attempting to justify the scheme on environmental grounds.
- The claimant set out to establish that the Respondent had an ulterior motive for the introduction of charging, namely the generation of revenue. This argument the claimant seeks to justify by demonstrating that from the outset the Authority had budgeted for a surplus of income over expenditure. The Authority explicitly considered to what uses any surplus might be put in compliance with section 55(4) of the Act. It is plain from the documentary evidence that the objective of the Authority was to make the improvement of parking facilities for motor-cyclists self-financing. It is not suggested that this was an improper objective. As originally conceived, the scheme would provide a comparatively modest year on year surplus. In my judgment, budgeting for a modest surplus does not render the scheme ultra vires, nor does it, of itself, comprise evidence of ulterior motive. It was, and is, accepted by the Authority that charging measures may not be introduced for the purpose of increasing, either its general income, or its income to be applied for transport policy purposes. The obvious consequence of the unexpected size of the surplus produced by the experimental orders was that the charge had been set too high and it was, accordingly, reduced. Having regard to the underlying objectives of managing demand and balancing the interests of different categories of motorists, it seems to me that this was an appropriate response.
- It is submitted that an excessive "profit" having been identified, the Authority should have given consideration to the removal of the charges altogether. The generation of significantly greater revenue than anticipated was recognised in the Report of 31 March 2009 by the Interim Director of City Management to the Built Environment Policy and Scrutiny Committee. Included in the options placed before the Committee and, later, the Cabinet Member, was the removal of the charges. The recommendation of the officers at paragraph 9 was that the charges policy should not be abandoned "for the reasons detailed in this Report". Mr Coppel submitted that there were no reasons, or permissible reasons, detailed in the Report. I disagree. Section 1 of the Report deals with background. That background included the number of vehicles using the centre of London daily. It recorded the 50% increase in motorcycle ownership in the London area between 1997 and 2007. It noted that there had been no change in motorcycle exemption from the congestion charge; that motorcycles have a footprint in the urban environment although significantly smaller than the footprint of a car. The Report noted that although 2,000 more parking spaces had been provided for motorcycles, demand was still strong. The City Council's policy towards motorcycle parking was set out in paragraph 3.2, namely managing "the demands made on Westminster's infra-structure by the increasing numbers of people using motorcycles and scooters". This assertion was properly made on the basis of evidence available to the Council when the experimental orders were introduced. As appears below there is no evidence of slackening of demand. The justification for the charging scheme was also considered in the context of responses to objections at paragraph 5.6 of the Report. A demographic breakdown of the use of parking spaces was considered in Section 8 of the Report. In particular, motor-cyclists wanted to see more ground anchors. Mr Coppel's submission that the Report was devoid of reasoning which supported a traffic management objective is not demonstrated by the Report itself.
- The flip side of the same argument, as Mr Coppel put it, was that the Authority used its statutory powers for revenue-raising purposes, while the "decision-making process was directed to ensuring that the scheme appeared to be revenue neutral". This appeared to be an assertion that the officers of the Authority had set out to misrepresent to members the effect of motorcycle charging. Mr Coppel was reluctant to pursue an argument so expressed. It could not have succeeded having regard to the express acknowledgement by the officers after the commencement of the experimental orders that they had misjudged the revenue stream from charging. Contrary to the implication of ulterior motive, the officers placed before members all the information, including financial information, on which they proposed that the orders be made permanent.
- As it developed, Mr Coppel's argument appeared to be putting the alternative, namely that the information provided by the officers to members was so woefully inaccurate that they took into account a mistaken view of the scheme, namely that it would be revenue neutral when it was plainly not. The difficulty with this argument also is that well before the orders were made permanent, members knew perfectly well that the scheme would not be revenue neutral unless there was a further change in experience over expectation. They were addressed on this express basis by the claimant and others at the meeting attended on 31 March 2009. Councillors for and against the scheme referred to the fact that the revenue being produced exceeded what was required to meet its costs. There was, it seems to me, no question of the Council approving the scheme under a mistaken apprehension of its financial consequences.
- Mr Coppel's analysis of the financial information provided in the Reports of 31 March 2009, 12 May 2009, and 1 October 2009 was aimed at demonstrating the weakness of the original claim for revenue neutrality. However, it is an inevitable consequence of his analysis, based as it is on figures disclosed by the officers to their members, that all the relevant information was placed before members before they made their decision. At section 11 of the Report of 31 March 2009 total expenditure on the scheme was calculated at about £320,000. Revenue, calculated to 19 March 2009, actually received was some £2 million. The very considerable increase in revenue was explained as I have set out in my summary. Those figures appeared as adjusted in the Report of 12 May 2009. Both the projected and actual figures were included so that members were well aware of the differences. Mr Coppel sought to criticise the projected figures for 2009/10 but the basis for the projection was explained for all to see in notes accompanying the table in which they appear. At paragraph 4.6.3 of the Cabinet Member Report of 1 October 2009 the officers, in dealing with a complaint by the objectors that the implementation costs suggested were considerably higher than reality, set out in tabular form capital expenditure demonstrating that "the capital costs for implementing the Scheme are on track to meet budget". At section 5 of the Report of 1 October 2009 dealing with finance, the budgeted figures for 2009/10 and the projected figures for the same period were set out side by side. Explanations were given in the marginal notes. Mr Coppel had criticisms to make of almost all of these figures. New costs had been brought into the projection column which he submitted were unjustified either in principle or by evidence. In essence, his criticism was that the projected income from motorcycle charging was unjustifiably deflated while the projected figures for year on year expenditure were unjustifiably inflated. The repeated implication of his submissions was that the Cabinet Member was misled. Having considered his criticisms, it does not seem to me that they are capable of giving rise to a suspicion that the Cabinet Member was in any sense misled. Each of the figures was accompanied by a side note which provided its justification. It can be safely assumed that the Cabinet Members for City Management and Environment and Transport were well aware of the background and able to seek clarification of the financial information provided, if needed. The probable generation of surplus had been recognised from an early stage. It was for this reason that the Cabinet Member accepted the Committee's recommendation that charges to motorcycles should be substantially reduced. In its response to the claimant's request for further information dated 10 February 2010, the finance department of the City Council calculated that costs of enforcement were running at 134% of enforcement income. While Mr Coppel has observations and criticisms to make of each of the City Council's responses, it does not seem to me that they do more than justify the argument made on behalf of the City Council by Miss Lieven QC, that projection of this kind cannot be an exact science in the light of experience. In my judgment, the criticisms come nowhere near demonstrating that the Cabinet Member made any mistake of fact capable of vitiating his decision, still less that the figures were massaged for the purpose of concealing the true motive for charging.
- I conclude that the defendant Authority used its statutory powers for the legitimate section 122 purposes identified; that the claimant has failed to demonstrate that the Authority used its powers for the purpose of raising general or section 55(4) revenue or that the Authority was misled by its officers into the belief that the scheme would be revenue neutral.
Ground Two
- I turn to the claimant's second ground of challenge, which is that the Authority failed to carry out the necessary consultation before resolving to make the orders permanent. It is conceded on behalf of the claimant that the Authority provided him and those whom he represents with proper opportunities to make representations to them. The complaint is that they failed to deal adequately with the objections advanced. In practice, Mr Coppel submitted, the City Council failed to have regard to the fact that the overwhelming response to consultation was objection by the motorcycle lobby. Secondly, the City Council failed to identify any substantial grounds upon which the objections raised could be rejected.
- I agree with the submission made on behalf of the claimant that proper consultation implies a willingness in the authority to be receptive to reasonable argument. I do not accept, however, that the Authority is involved in a head count of those for and those against. It is a matter of no surprise that the vociferous response to consultation came from the motorcycle lobby. That does not demonstrate that the arguments pursued by and on behalf of that lobby justified their acceptance by Council Members. I do not accept the submission that the defendant Authority was oblivious to the arguments pursued; nor do I accept that the evidence demonstrates that the policy was immovable.
- The nature of the objections as they were distributed between objectors was, as set out in the summary of the background facts, analysed and the officers' responses to those objections were recorded. For example, 669 objectors with addresses in London complained that an inadequate number of security devices had been installed. Ironically, it is the claimant's present case that the security devices which had been installed had been under-used.
- In the Report of the Assistant Director of Parking dated 12 May 2009 the same exercise was repeated. It was also reported that the objectors had given a presentation to the Policy and Scrutiny Committee on 31 March 2009. The chief grounds for objection, and the responses, were recorded at paragraph 5.12 and I have already referred to them in the factual summary. Observations by the objectors and the responses by the Assistant Director of Parking led to changes to the scheme, for example, charges were reduced and the Cabinet Member directed that the Council should continue to install security devices and that the programme for their installation should be stepped up. In the Report of 1 October 2009 to the Cabinet Member for City Management, the subject of consultation was re-visited. It was noted that while amendments had been made to the temporary scheme, there remained considerable opposition from some sections of the motorcycle community. Many of the objections came from the claimant's campaign group. Seven specific objections were identified. Each of them was listed and discussed in the Report. Contrary to the claimant's assertion that the objections were ignored, it is clear that the officers went to a good deal of trouble to identify them, to respond to them on their merits, and to provide the Cabinet Member with full information. Of the complaint that the promised security devices had not been installed, the response was that the City Council had trial "Sheffield stands" at nine sites and had installed a number of ground anchors across nine locations in Bayswater and Queens Park. It was observed that despite the fact that usage of the security devices installed remained low, the City Council remained committed to providing them and would install more devices if and when the orders became permanent.
- I have referred already to the claimant's argument that the scheme had no traffic management objective. In a witness statement dated 10 June 2010 Mr Djanogly says that his personal experience was that competition for kerb-side space by motorcycles had stabilised from about 2005. On 8 June 2010 he carried out a spot survey of his members with a view to ascertaining whether in their experience parking of motorcycles had become more or less difficult since the introduction of the congestion charge. Members were asked to score the difficulty between 1 and 5 for four distinct periods, the first before introduction of the congestion charge in February 2003, the second in the twelve months immediately after implementation of the congestion charge, the third in the twelve months before the introduction of the experimental orders in August 2008 and, finally, the fourth, during the period of the experimental orders between August 2008 and January 2010. The results have been produced in graph form. The average difficulty of parking in 2003 was between 2.0 and 2.5. The average in 2004 was between 2.75 and 3.4. That average remained constant until 2007. In 2008 the average was between 3.0 and 3.6 and has remained steady ever since. In his witness statement, Mr Djanogly suggests that he can only conclude that the increase in difficulty between 2007 and 2008 was caused by a reduction in on-street motorcycle parking bays under the experimental order.
- On the contrary, the evidence is that there was no decrease in the provision of parking spaces for motorcycles on-street. There was an increase as recorded in the background summary. Of more significance, in my view, is the steadying in the degree of difficulty experienced by the claimant's members between 2008 and 2010. Contrary to the claimant's argument that there was no justification for imposing and maintaining a charging policy for motorcycles, the steady increased demand by contrast with experience before the congestion charge in February 2003 demonstrates the continuing need for measures of "restraint" which was the basis for the Authority's policy in the first place. I must be circumspect about drawing conclusions from the precise returns from Mr Djanogly's questionnaire. However, the trend is such as to be consistent with the Authority's case that they were right to anticipate increased demand following the congestion charge, and that they have been right to conclude that a continuation of the charge is justified, not only by the views of many of the objectors that parking spaces remain in significant demand, but also by the flat line in the graph since 2008. I see no reason to doubt the empirical experience of the Authority's parking team and of the members themselves, expressed in their meeting of 31 March 2009, and I reject the proposition that the objections were not properly considered.
- Mr Coppel argued that the Council had long ago adopted the policy of charging and that it was simply a question of "when" rather than "if" the scheme would be implemented. This assertion needs to be viewed in its historical context. It is clear that for some 7/8 years the Council's officers had been considering the introduction of such a policy. It is not without significance that it was rejected by the responsible Cabinet Member in 2002. This is a demonstration, both of the early disclosure of the case for charging in the light of the forthcoming congestion charge, and of the democratic process prevailing. It became clear during the Council's preparation of its UDP Policy that the matter would need to be reconsidered in view of the significant increase in demand. The UDP Policy itself was the subject of prolonged consultation and public examination by an inspector. I appreciate, as Mr Coppel submitted, that UDP Policy was concerned primarily with planning the urban environment, but the accompanying text demonstrates how the City Council saw its policy impacting on the City environment. It is clear from the documents provided to the court that the Council has been assiduous in the performance of its responsibility to consult specifically upon the motorcycle parking and charging scheme. Far from ignoring the responses received, appropriate concessions have been made and the scheme amended. The arguments for and against the scheme were painstakingly analysed. It was ultimately for the Cabinet Member to make a judgment upon the competing arguments. The judgment which objections have failed to undermine is that the volume of traffic using the roads in the City of Westminster requires management by the selective introduction of charging for on-street parking contemporaneously with the provision of free off-street parking. That the objections have not in the end prevailed does not, in my judgement, demonstrate a failure of the consultation process.
- For these reasons I conclude that these Orders were properly and legitimately made and I would dismiss the claim.
Maddison J:
- I agree
