Djanogly v Westminster City Council

Parking charges – Motorcycles – Road Traffic Regulation Act 1984 – Defendant council introducing charges for on-street motorcycle parking under section 45 of 1984 Act –Charges part of scheme for increasing provision of on- and off-street motorcycle parking to meet increased demand – Whether scheme introduced for impermissible purpose of raising revenue – Whether failure to consult adequately – Claim dismissedThe claimant was the chairman of a campaign group that opposed motorcycle parking charges introduced by the defendant council. In 2006, the defendants, as traffic authority, obtained a report into motorcycle parking in their area. The report identified an increase in the use of motorcycles and scooters for commuting and a consequent higher demand for on-street parking. It proposed greater provision of designated on-street motorcycle parking and the introduction of charges both to fund the associated costs and out of fairness to other motorists who had to pay to park. A later report also suggested additional off-street parking. Charging levels for on-street parking were calculated on a basis that would generate surplus revenue. In August 2008, the defendants introduced an experimental charging scheme under section 9 of the Road Traffic Regulation Act 1984. They sent a consultation letter to various organisations and individuals inviting responses to the scheme and received approximately 3,000 letters of objection and only one favourable reaction. In the light of those replies, it was proposed that no immediate action should be taken, but that a six-month review would be conducted resulting in a further report. The second report, dated May 2009, noted further increases in the number of parking spaces occupied by motorcycles and that surplus revenue receipts were higher than expected. Following consideration of the report, it was proposed that: (i) the scheme would be retained; (ii) that increased off-street parking would be introduced; (iii) all charges for such parking would be removed; and (iv) charges for on-street parking would be reduced by one-third. Following a 21-day period of consultation, which elicited again around 3,000 objections and one favourable response, it was decided to make the scheme permanent In January 2010, the defendants made permanent parking orders, pursuant to section 45 of the 1984 Act.The claimant brought proceedings under CPR 8 and section 36 of the 1984 Act to challenge the validity of the orders. He contended that the defendants had: (i) exceeded their powers under the Act by using them for a purpose that was not permitted by the statute, namely the raising of revenue; and (ii) failed to carry out a satisfactory consultation exercise prior to the making of the orders, in that although inviting representations from interested parties, they had dealt with them inadequately or failed to identify any substantial grounds for rejecting them.Held: The claim was dismissed.Section 45 was not intended to provide a general revenue-raising power, but had to 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 and to provide suitable and adequate parking facilities on and off the highway. When designating and charging for parking places, an authority should be governed solely by section 122 purposes. Charging might be justified provided that it was aimed at fulfilling the statutory traffic-management purposes set out in that section. Such purposes included: (i) covering the cost of providing on- and off-street parking; (ii) covering the cost of enforcement; (iii) the need to restrain competition for on-street parking; (iv) encouraging the use of off-street parking; (v) securing an appropriate balance between different classes of vehicles and users; and (vi) selecting charges that reflected periods of high demand. Section 45 permitted authorities to designate parking places on-street with or without charges, and the production of a surplus was specifically contemplated by section 55. Accordingly, authorities were not bound, when setting a charge, to reflect only the immediate statutory purpose of providing or paying for sufficient on on-street parking, but could set charges at a level that would ration the availability of such parking in order to encourage the use of off-street parking, that being one of the matters to be considered under section 45(3). An authority could not introduce charging for the purpose, whether primary or secondary, of raising section 55(4) revenue: Cran v Camden London Borough Council [1995] RTR 346 applied.The defendants had sought to achieve two objectives by introducing the parking orders, namely improving the availability of on-street parking for motorcyclists so as to meet actual and anticipated increased demand and ending discriminatory treatment as between the drivers of motorcycles and cars. Those were legitimate objectives. There was no evidence that the defendants had had an ulterior motive of generating revenue. The fact that they had budgeted for a modest year-on-year surplus did not render the scheme ultra vires and nor, in itself, was it evidence of an ulterior motive. The evidence showed that the defendants’ objective was to make the improvement of parking facilities for motorcyclists self-financing. Having generated a surplus, the defendants had acted appropriately in reducing the charges. They had used their statutory powers for legitimate section 122 purposes.Although proper consultation implied a willingness to be receptive to reasonable argument, that did not mean that the consulting authority were involved in a headcount of those for and against a scheme. It was unsurprising that the motorcycle lobby had produced a vociferous response to the consultation. That did not demonstrate that the arguments pursued by that lobby were such as to justify their acceptance by the defendants. The defendants had not been unaware of the arguments advanced and the evidence did not show that their policy had been immovable. One of the claimant’s argument was the lack of a traffic-management justification for charging. Contrary to that argument, the evidence of steadily increasing demand for parking demonstrated the continuing need for measures of restraint. That trend was consistent with the defendants’ case that continuing with the charge was justified. The defendants had been assiduous in the performance of their responsibility to consult. Far from ignoring responses to consultation, they had analysed the arguments for and against the scheme. The objections had failed to undermine the judgment that the volume of traffic using the roads in the Westminster needed to be managed by selectively introducing charging for on-street parking contemporaneously with providing free off-street parking. That the objections had not prevailed did not demonstrate a failure of the consultation process.Philip Coppel QC and Heather Emmerson (instructed by Khakhar & Co) appeared for the claimant; Nathalie Lieven QC (instructed by the legal department of Westminster City Council) appeared for the defendants.Sally Dobson, barrister