Djanogly v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Smith,Lord Justice Moore-Bick |
| Judgment Date | 19 April 2011 |
| Neutral Citation | [2011] EWCA Civ 432 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 2011 |
| Docket Number | Case No: C1/2010/1928 |
[2011] EWCA Civ 432
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, DIVISIONAL COURT
(Pitchford LJ and Maddison J)
Ref No: CO27752010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lady Justice Smith
and
Lord Justice Moore-Bick
Case No: C1/2010/1928
Mr Philip Coppel QC and Ms Heather Emmerson (instructed by Khakhar & Co) for the Appellant
Ms Nathalie Lieven QC and Ms Jacqueline Lean (instructed by Head of Council Legal Services) for the Respondent
Hearing dates: 14 and 15 March 2011
This case is concerned with charges for roadside parking of motorcycles within the City of Westminster. Until quite recently it was possible for them to be parked without incurring a charge. This was not the result of an express right but derived from an exemption from waiting and loading restrictions which apply to cars and other vehicles in "yellow line" areas. The City of Westminster (Waiting and Loading Restrictions) (No.1) Order 2002 permitted marked bays to be used by motorcycles during the hours of parking control in such areas. By 2006 there were spaces for about 4500 motorcycles in such bays. It is common ground that there was a need for more spaces by reason of increased demand, particularly following the introduction of congestion charging. Motorcycles are exempt from the congestion charge. Initially, additional spaces were created by adding bays pursuant to the Waiting and Loading Restrictions Order. However, Westminster City Council (the Council) introduced a new scheme on an experimental basis in 2008 pursuant to the City of Westminster (Motorcycle Parking Places) (No.1) Experimental Traffic Order 2008 (the Experimental Order). It took the regulation of motorcycle parking out of the Waiting and Loading Restrictions Order and provided designated parking places in roadside bays and in off-street car parks. Henceforth, roadside parking was subject to charging. The general daily rate was £1.50. There was no legal challenge to the Experimental Order.
In January 2010, the Experimental Order was replaced by a permanent scheme contained in the City of Westminster (Motorcycle Parking Places) (No.1) Order 2010 (the 2010 Order), the City of Westminster (Parking Places) (Further Provisions) (No.1) Order 2010 and the City of Westminster (Waiting and Loading Restrictions) (Amendment No.108) Order 2010. The 2010 Order provides for roadside parking at a general daily rate of £1, with provision for discounted weekly, monthly and annual rates. The charges are a fraction of those for roadside parking by cars which are calculated by the minute. Moreover, whereas the system for cars was originally based on "pay and display", a different system had to be devised for motorcycles because they lack the facility of secure, internal ticket display. A motorcyclist generally has to pay by way of a telephone transaction completed with a call centre. This system also now applies to cars. Since the introduction of the Experimental Order, the number of roadside spaces for motorcycles has been increased, as has the number of off-street spaces. In all there are now about 6500 spaces, of which some 400 are in off-street car parks. The latter are free of charge but are not always in locations convenient for users.
Mr Warren Djanogly is a motorcyclist. He is also chairman of the campaign group "No to Bike Parking Tax" which has over 7000 members. By these proceedings, which are brought pursuant to paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 (the 1984 Act), he seeks to challenge the validity of the 2010 Order or at least its charging provisions. His challenge was rejected by the Divisional Court (Pitchford LJ and Maddison J): [2010] EWHC 1825 (Admin). He now appeals to this Court, permission having been granted on all proposed grounds save for one upon which permission was refused. A renewed application for permission in relation to that ground is also before us. Before turning to the issues raised, it is necessary to set out the relevant statutory provisions.
The statutory framework
The primary statutory provisions relating to parking control are contained in Part IV of the 1984 Act which is titled "Parking Places". Under the heading "Parking on highways for payment" and the side-heading "Designation of Parking Places on highways", section 45 provides:
"(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 local authority may make charges (of such amount as may be prescribed under section 46 below) for vehicles left in a parking place so designated."
Section 46(1A) provides that charges must be prescribed by the designation order or by a separate order.
A local authority is required to keep an account of its income and expenditure in respect of parking places (section 55(1)). At the end of each financial year any deficit in the account has to be made good out of its general fund and any surplus has to be applied for all or any of the purposes specified in section 54(4). In so far as it is not so applied, it must be appropriated to the carrying out of some specific project falling within those purposes and carried forward until applied to carrying it out (section 55(2)). The list of purposes specified in section 54(4) includes the making good of amounts charged to the general fund above under section 54(2) in the previous four years, the provision and maintenance of off-street parking, public passenger transport services, highway improvement, environmental improvement and any other purposes for which the authority may lawfully incur expenditure. In the case of a London authority, it may also meet all or any part of the cost of doing anything in its area which (a) facilitates the implementation of the London transport strategy and (b) is for the time being specified in that strategy as a purpose for which a surplus may be so applied. Thus, there is no requirement of revenue neutrality, merely provision as to how a deficit or surplus must be dealt with.
Section 122, which lies at the heart of this case, provides (as amended):
"(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 … as (so far as practicable having regard to the matters specified in subsection (2) below) 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 …
(2) The matters referred to in subsection (1) above as being specified in this subsection are –
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected …;
(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."
The aims referred to in section 122(1) are generally known as "traffic management benefits".
The statutory right to challenge a designation order is governed by Part VI of Schedule 9 as follows:
"35. If any person desires to question the validity of, or any provision contained in, an order … on the grounds –
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order, he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court …
36 (1) On any application … the court –
(a) [interim orders], and
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order."
The 2010 Order
In addition to designating the many parking places by location, the 2010 Order prescribes the tariff of charges, provides an exemption for electrically propelled motorcycles, establishes the telephone payment parking system, provides for penalty charges in relation to contraventions, enables Westminster residents to obtain exemption permits on payment of a fee and makes various ancillary provisions. Although the application to the High Court was in terms a challenge to the 2010 Order as a whole and the hearing in the Divisional Court appears to have reflected that, in this Court Mr Philip Coppel QC has focused on those provisions in the Order which relate to charging. It is those alone that he now seeks to quash. It seems that Mr Djanogly is content with the provisions as to designation. His complaint is simply about charging.
The decision of the Divisional Court
The decision of the Divisional Court was explained in the careful judgment of Pitchford LJ with which Maddison J agreed. For the purposes of this appeal, the material parts of the judgment are contained in the following extracts:
"44. 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 … 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...
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