R Attfield v London Borough of Barnet
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 08 February 2012 |
| Neutral Citation | [2012] EWHC 645 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3325/2011 |
| Date | 08 February 2012 |
[2012] EWHC 645 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Robin Purchas QC
(Sitting as a Deputy High Court Judge)
CO/3325/2011
Mr M Westgate QC and Miss L Johnson (instructed by Anthony Gold) appeared on behalf of the Applicant
Mr J Goudie QC and Mr E Capewell (instructed by Barnet Council) appeared on behalf of the Respondent
The claimant renews his application for permission to apply for judicial review of the decision of the defendant borough council to increase charges for residents' parking permits and visitors' vouchers within its controlled parking zones. The application was refused on the papers by Lord Carlile Of Berriew QC sitting as a Deputy High Court Judge on 9 November 2011.
Martin Westgate QC, who appears for the claimant, relies upon two related grounds: first, that the decision was ultra vires in that it was used by the defendant essentially as a revenue raising power and therefore outside the provisions of the Road Traffic Regulation Act 1984 and, second, that in any event the decision was irrational.
I remind myself at this stage that the only question is whether there is an arguable ground or grounds for challenge.
I turn to the relevant provisions in the Road Traffic Regulation Act 1984. By section 45(1), an authority may by order designate parking places on highways and the authority may make charges (of such amounts as may be prescribed under section 46) for vehicles left in a parking place so designated; and by section 45(2) the order may designate a parking place to be used by a permit with or without charge and subject to such conditions as duration of parking and otherwise.
By section 46(1A) the authority is able to impose charges to be paid either by the designated order or by a separate order; and by section 46A, which applies in this case, as I understand the position, subsection (1) enables variation of the charges by notice.
Section 122 applies the duty on the exercise of functions by authorities, of which charging for parking is one, as follows:
"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 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."
The matters specified include matters such as the desirability of maintaining access to premises, the effect on amenities, the strategy for air quality, facilitating the passage of public service vehicles and other matters appearing to the local authority to be relevant.
The provisions have been considered by this court in the case of Djanogly v City of Westminster [2010] EWCA Civ 432, where Pitchford LJ said at paragraph 12:
"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."
He continues at paragraph 13:
" … 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 (commodiously 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 respect too, I agree with McCullough J's interpretation of the statutory intention.
(14) 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...
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