R David Attfield v The London Borough of Barnet
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 22 July 2013 |
| Neutral Citation | [2013] EWHC 2089 (Admin) |
| Docket Number | Case No: 3325/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2013 |
[2013] EWHC 2089 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: 3325/2011
Martin Westgate QC & Lindsay Johnson (instructed by Anthony Gold) for the Claimant
James Goudie QC and Edward Capewell (instructed by HB Legal) for the Defendant
Hearing date: 2 nd July 2013
Introduction
The Claimant, who is a resident of the London Borough of Barnet, applies for judicial review of the decision of the Defendant, made on 14 th 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 th March 2011, bringing the new charges into effect on 18 th April 2011.
By section 45 of the Road Traffic Regulation Act 1984 ("RTRA 1984"), a local authority has 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 is 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 Defendant submits that, under the terms of the RTRA 1984, it is entitled to exercise its powers under section 45 for the purpose of raising a surplus to use for any transport functions, provided that they come within the scope of section 122 RTRA 1984.
On 9 th November 2011, Lord Carlile QC, sitting as a Deputy High Court Judge, refused the Claimant permission on the papers. The Claimant renewed his application before Mr Robin Purchas QC, sitting as a Deputy High Court Judge, on 8 th February 2012. On further renewing his application to the Court of Appeal, the Claimant was granted permission on one ground only by Richards LJ, by order dated 24 th April 2012. Richards LJ stated:
"The grant of permission to apply for judicial review is limited to ground 1 of the grounds for judicial review (that the decision to vary parking charges was outwith the powers conferred by the statute). I take the view that there is an arguable case on that issue.
Permission is refused on ground 2 (inadequacy/irrationality of reasons) and ground 3 (irrationality of the decision) which I consider to be unsustainable."
Facts
The Claimant lives in a CPZ in East Finchley in the London Borough of Barnet. He lives in a quiet residential road on which there were no parking restrictions prior to the introduction of the CPZ in 2001. When the CPZ was first introduced its operational hours were limited to 2 pm to 3 pm Monday to Friday, to prevent commuters parking in the streets in order to use the nearby underground station. The cost of a permit for a first car was £20 and visitor vouchers cost 35p each.
In 2004, the restrictions were extended from 10 am to 6.30 pm, Monday to Saturday. Charges were increased in about 2006. In 2011, in the decision which is the subject of this claim, the cost of a resident's permit for a first car was raised from £40 to £100. The cost of visitor vouchers increased from £1 to £4 each. The increases made the Defendant's charges among the highest in London. The charges, combined with the extensive restricted periods, mean that residents suffer considerable inconvenience and financial disadvantage, particularly those with low incomes.
At the time that these proceedings were issued, there were some fifteen CPZs in the Borough, covering relatively small areas. 14,483 residents' permits had been issued; 25% of these were for second or third cars in the same household. There were about 138,483 households in the Borough as a whole. I accept the Claimant's estimate that around 8% of households in the Borough had residents' parking permits. However, the percentage of households with resident parking permits has probably increased since that date, as the Defendant has introduced new CPZs.
The Defendant is the highways authority for its area and the entire Borough has been designated a "Special Parking Area" for the purposes of the Road Traffic Act 1991, the effect of which is that parking controls are de-criminalised and enforcement is a matter for the local authority and not the police.
The Defendant is required under s. 145 of the Greater London Authority Act 1999 to produce a local implementation plan setting out its proposals for implementation of the Major's transport strategy. The relevant plan covers the years 2005/06 to 2010/11. Chapter 7 deals with "parking and enforcement". It states:
"7.2.5 CPZs are the primary tool for managing parking. However, in areas where CPZs are not introduced but the streets are adversely affected by high volumes of daytime parking as a result of commuting or other pressures, the Council will seek to implement waiting restrictions at appropriate locations leaving other kerbside parking uncontrolled so as to promote safety and assist traffic movement."
"Charges"
"7.3.4 In designating parking the Council sets charges for permits, vouchers and for paid-parking. In setting the former the Council recognises that the ownership of a permit gives the holder a right to use a vacant parking space – a right that a person without a permit does not have. This right has a value and Barnet therefore may set a permit charge that is greater than that required to cover the operational costs of running a permit parking scheme. The same principle applies to vouchers."
"7.3.5 In considering whether permit and voucher charges should vary in different parts of the borough, or for different hours of operation, or different levels of congestion and "useability" the Council considers that the fairest and most equitable methodology is to levy a standardised flat-fee across the borough."
"7.3.6 The Council recognises that parking charges must not be set for the purpose of raising revenue but, having invested in the parking service such revenue as is considered necessary, will use any surplus generated as a result of its charging strategy for the purposes set out in the RTRA as amended."
"7.3.7 Barnet does not designate specific projects as being funded by the parking surplus – rather the surplus contributes to the overall expenditure on permitted uses. This ensures residents do not feel that any contribution that they may have made to the surplus is being used in an area that does not affect them. The surplus is instead seen as being used throughout the borough."
……
"Resident Permit Parking"
……
"7.6.14. In setting the charge the Council does so on the basis that aside from covering operational costs, the value of a permit to a holder may also be considered. The ownership of a permit gives the holder a right to use a vacant parking space – a right that a person without a permit does not have. Consequently Barnet sets a permit charge that is greater than that required to cover the operational costs of running a permit parking scheme in reflection of this value. Consideration will be given to affirming this by making a policy statement "freezing" the permit value in real terms, increasing it only in line with inflation."
Income received from parking charges is paid into a Special Parking Account ("SPA"), to comply with section 55(1) RTRA 1984. The Defendant's SPA has generated a surplus for some years. Any surplus is appropriated into the Defendant's General Fund at the year end. The Defendant's expenditure from the General Fund includes expenditure on matters such as highways investment, roads and footways, highways maintenance, concessionary fares and transport for pupils with special educational needs. The General Fund is funded from a variety of sources, including council tax. Total expenditure on these matters has consistently been greater than the surplus generated on the SPA, creating what Ms Wharfe, Interim Director of Environment Planning and Regeneration, described as a "shortfall".
The SRA surplus is shown in the table below:
| YEAR | SPA SURPLUS £ |
| 2000/1 | 2,004,549 |
| 2001/2 | 1,797,400 |
| 2002/3 | 3,371,600 |
| 2003/4 | 5,790,814 |
| 2004/5 | 4,858,722 |
| 2005/6 | 5,169,000 |
| 2006/7 | 4,506,321 |
| 2007/8 | 5,263,000 |
| 2008/9 | 4,404,193 |
| 2009/10 | 2,745.000 |
| 2010/11 projected | 4,709,420 |
| 2011/12 | 5,708,000 |
In November/December 2009 the Defendant commissioned Price Waterhouse Coopers (PwC) to look into all council services, including the parking service and to report on "options and ways to optimise revenue". This was part of an exercise known as Revenue and Income Optimisation, the object of which was, according to Ms Wharfe to "help to address and plug the gaps created by the reduction in SPA surplus and the resulting shortfall to enable the Council properly to pursue the statutory traffic management purposes and fulfil its functions in that regard" (paragraph 4, witness statement). The instructions to PwC did not, however, expressly refer to the SPA. Instead they were asked to look at "all possible areas of revenue" and to produce "high level business cases" for recurring income opportunities that demonstrate the potential for Barnet Council to achieve £7.5m net additional income over a 3 year period" (email dated 4.1.12, Defendant to Claimant).
PwC produced a "high level business case" for parking enforcement. It recommended an increase in parking permits in CPZ from £40 to £60 for the first permit, £90 for the second permit and £120 for a third permit. It recommended that visitor permits should increase from £1.00 to £2.00. It provided comparisons with charges in other Boroughs.
On 14 June 2010 a paper relating to the SPA was discussed with...
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