Djanogly v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford |
| Judgment Date | 16 July 2010 |
| Neutral Citation | [2010] EWHC 1825 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 July 2010 |
| Docket Number | Case No: CO/2775/2010 |
[2010] EWHC 1825 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Pitchford
Mr Justice Maddison
Case No: CO/2775/2010
Philip Coppel QC and Heather Emmerson (instructed by Khakhar & Co—Solicitors) for the Claimant
Nathalie Lieven QC (instructed by Westminster City Council) for the Defendant
Hearing dates: 24th and 25th June 2010
Approved Judgment
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 18 th 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...
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