R (on the application of Attfield) v Barnet London Borough Council

Parking charges – Residents’ parking permits – Road Traffic Regulation Act 1984 – Defendant council deciding to increase charges for permits and visitors’ vouchers in controlled parking zones – Claimant resident seeking judicial review of decision as unlawful –Whether increase to generate surplus exceeding defendants’ statutory powers – Application granted The claimant, who was a resident of East Finchley, applied for judicial review of the decision of the defendant local authority, which was the highway authority for the areas, made on 14 February 2011, to increase the charges for residents’ parking permits and visitor vouchers in controlled parking zones (“CPZ”) in the borough. A notice of variation was given on 24 March 2011, bringing the new charges into effect on 18 April 2011. By section 45 of the Road Traffic Regulation Act 1984, a local authority had power to designate parking places on the highway, to charge for use of them, and to issue parking permits for a charge. The claimant’s case was that, on this occasion, the increase in charges was unlawful because its purpose was to generate a surplus, beyond the monies needed to operate the parking scheme, to fund other transport expenditure, such as road repair and concessionary fares. The defendants submitted that, under the terms of the 1984 Act, they were entitled to exercise their powers under section 45 for the purpose of raising a surplus to use for any transport functions, provided that they came within the scope of section 122 of the 1984 Act. Section 122 imposed a general duty on local authorities exercising any functions under the 1984 Act to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) on and off the highway. Held: The application was granted. It was a general principle of administrative law that a public body had to exercise a statutory power for the purpose for which the power was conferred by Parliament, and not for any unauthorised purpose. An unauthorised purpose might be laudable in its own right, yet still unlawful. The issue was not whether the public body has acted in the public interest, but whether it had acted in accordance with the purpose for which the statutory power was conferred. Where a statutory power was exercised both for the purpose for which it was conferred and for some other purpose, the public body would have acted unlawfully unless the authorised purpose was its dominant purpose: R v Richmond upon Thames London Borough Council, ex parte McCarthy & Stone [1991] EGCS 118; [1992] 2 AC 48, Porter v Magill [2002] 2 AC 357, In the present case, the defendants had express statutory authority to charge for the issue of parking permits pursuant to section 45(2)(b) of the 1984 Act. Although the permit charges generated revenue for the local authority, the 1984 Act was not a taxing statute. Local authority charging powers were extensive but the general powers to charge for discretionary services in section 93 of the Local Government Act 2003 and section 3 of the Localism Act 2011 did not apply to charges under section 45(2)(b) of the 1984 Act. Accordingly, the court accepted the claimant’s submission that the 1984 Act was not a fiscal measure and did not authorise the defendants to use their powers to charge local residents for parking in order to raise surplus revenue for other transport purposes funded by the general fund. The defendants’ purpose in increasing the charges for resident parking permits and visitor vouchers was to generate additional income to meet projected expenditure for road maintenance and improvement, concessionary fares and other road transport costs. The intention was to transfer the surplus on the special parking account to the general fund at year end, to defray other road transport expenditure and reduce the need to raise income from other sources, such as fines, charges and council tax. That purpose was not authorised under the 1984 Act and therefore the decision was unlawful: Cran v Camden London Borough Council [1995] RTR 346 applied; Djanogly v Westminster City Council [2010] EWHC 1825 (Admin); [2010] PLSCS 204 considered. Martin Westgate QC and Lindsay Johnson (instructed by Anthony Gold) appeared for the claimant; James Goudie QC and Edward Capewell (instructed by HB Legal) appeared for the defendants.   Eileen O’Grady, barrister