Supplementary memorandum submitted by
the National Parking Adjudication Service
REQUEST FOR
SUPPLEMENTARY INFORMATION
With reference to your letter asking for clarification
of issues arising from my evidence to the select committee, I
have set out my response to each question below:
How often have the adjudicators made cost and
compensation awards to motorists against local authorities; and
what level of award has been made? Typically what have been the
reasons for making an award?
We do not have precise figures, but we make
between 25 and 30 orders of costs against local authorities each
year. We only have power to award costs where the adjudicator
finds that either party has acted frivolously, vexatiously, or
acted wholly unreasonably in the conduct of the case. Surprisingly
few appellants ask for costs. The adjudicator can suggest indicate
if he or she considers the case falls within one of the three
categories.
Typically costs are awarded where the council
patently has not considered the original representations and so
the appellant has had to appeal, usually preferring to attend
a hearing with the adjudicator. We have had a few shocking cases
where evidence has been fabricated, both by council officers and
appellants. Costs are awarded when these cases come to light.
Costs are also awarded where the council either
submits no evidence, or decided not to contest a case at the last
minute, causing the motorist to come to hearing unnecessarily.
Appellants can also apply for costs where the council does not
contest the case at an early stage and the allegation is that
they were wholly unreasonable to reject the initial representations.
We suspect that many more cases would fall within this category
than come to our attention. For this reason we now ask councils
to give a reason when they do not contest an appeal. Our 2004
Annual Report gives an analysis of uncontested cases involving
towed away cars.
At Question 291 in the transcript you mentioned
that the magistrates can give an absolute or conditional discharge
and have an ability consider mitigation and proportionality. Should
the adjudicators have the same powers? What would be the implications
of this?
My short answer to this would be no, but we
believe the best solution would be for adjudicators to have powers
similar to those which could be exercised on judicial review.
The essence of the scheme is that it that the
penalty is fixed and that councils should be responsible and accountable
for all their parking operations, from the making of the appropriate
regulations to enforcing then and dealing with appeals against
that enforcement. It must involve each council being responsive
to local conditions and consequently their policies must be formulated
on that basis. In those circumstances it is right and proper in
principle that councils should make discretionary decisions based
on their own policies, and, again in principle, adjudicators should
not need to interfere in those decisions.
However, there are many examples where councils
are, for example, applying unpublished policies, or applying policies
inflexibly, which would be against the principles of public law
and could be subject to Judicial Review. The adjudicators consider
that it is important that appellants have a remedy in these cases
but that it is disproportionate to a parking ticket dispute for
them to have to go to the High Court.
Can you give an update on progress in developing
an electronic database of council Traffic Regulation Orders? How
often are revisions made in order to keep the database up to date?
The electronic database of Traffic Regulation
Orders is compiled at NPAS as is for internal use only at the
moment. Our new case management system has a link to the index
of TROs for the council in the appeal. Each participating council
is requested to send in a complete set of their TROs which are
then scanned and indexed in the NPAS database for adjudicators
to consult. Not all the councils comply with the request. Some
send in a selection of their TROs, but not all.
Therefore there is no question of NPAS keeping
the database "up to date"—all we can do is catalogue
those that are sent to us. Therefore NPAS cannot be responsible
for the accuracy or completeness of the TROs library; it is simply
a library of those TROs that are submitted by the councils.
The TROs themselves are baffling in their complexity,
prolixity, outmoded language and number of amendments. Astonishingly,
there is no standard drafting format and each county, city, town
and district has reinvented the wheel. Despite the Secretary of
State's Guidance (LA Circular 1/95) requiring local authorities
to consolidate their TROs prior to taking on the DPE powers, in
numerous cases they have not done so. Some councils have consolidated
their on-street orders but neglected their off-street ones. There
is no evidence that the DfT requests a council to confirm that
they have consolidated their TROs in accordance with the Guidance
before granting DPE powers.
We are considering making the library available
on our website, however it would have to come with a long list
of disclaimers so that NPAS would not be held responsible for
these problems.
The fact remains that in an era of e-government
each council should be able to put all their TROs (and other byelaws)
on their own websites. We know of no council that has done this.
This should be a further matter to be contained in the Secretary
of States' Guidance as a mandatory requirement.
Although the existing Guidance requires all
councils to check and consolidate their TROs before taking on
DPE powers, many simply did not do so.
We have been told that the burden of evidence
required by local authorities in enforcing parking regulations
is increasing, and the adjudicators are less likely to accept
parking attendants' statements without corroborating evidence.
Is this accurate, and if so, can you explain the reason behind
this shift?
First, the onus is the council to show that
there was a parking contravention and that the person they are
pursuing for payment of the penalty charge was the owner of the
vehicle. We do not believe that councils are being asked to produce
ever more burdensome evidence bundles. They should have assembled
all their evidence, e.g correspondence, parking attendants' notes,
machinery faults logs, etc when the original representations are
submitted. All they need do when the appeal is lodged is to send
a copy of their existing file.
The adjudicator exercises a judicial function
and must consider the quality of the evidence provided. Over the
years adjudicators have encouraged the use of photographs, and
always appreciate a map where it is material to the issue. The
task is to make findings of fact based on the evidence in any
particular case. There is no requirement for corroboration of
the parking attendant's evidence but where the adjudicator is
required to consider two conflicting accounts the decision will
necessarily be made at least in part on the quality of the evidence
presented. We believe that this has always been the case and that
there has been no "shift."
23 January 2006
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