House of Commons - Transport - Written Evidence

Select Committee on Transport Written Evidence

APPENDIX 17

Memorandum submitted by The London Motorists Action Group

1. INTRODUCTION

The London Motorists Action Group Limited has been formed recently by a group of professional people, see annex. We welcome the Committee's inquiry into the effectiveness of parking provision and enforcement policy. Although we wholeheartedly support effective traffic management and commonsense and considerate enforcement of parking regulations, we are concerned both as individual motorists and as businessmen at the way in which parking enforcement is operated by some London Boroughs as the uncompromising enforcement of trivial rules—the martinet approach to enforcement—and in significant measure as a revenue raising activity; traffic enforcement has become tax farming. This approach results in penalties that are often disproportionate and in many cases clamping and towing that entirely unwarranted and does not achieve the objectives of the legislation. We support the recommendation in the report by the former Transport Committee that there should be proportionality in enforcement. Three of our directors have been visited by bailiffs (which is the ultimate unpleasantry in the current approach to parking enforcement), and have been forced to pay exorbitant (and possibly fraudulent) charges, an issue we discuss below.

We focus on London because 80% by value of Parking Charge Notices (PCNs) and 75% by value of parking account surpluses are in London[1]. Much of our evidence relates to the London Borough of Camden because several of us live and/or work in the borough, and we have extensive, expensive, and time consuming experience of its unpleasant behaviour. We are, however, aware that similar practices are employed in a number of other boroughs.

2. THE LEGAL BACKGROUND AND SECRETARY OF STATE'S GUIDANCE REGARDING CONTROLLED PARKING ZONES AND PARKING ENFORCEMENT

The legal basis of controlled parking zones and parking enforcement is the Road Traffic Regulation Act 1984. Section 122 subsection (1) as amended sets out the purposes of the powers provided in the Act as "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 introduction of decriminalised parking was accompanied by "streamlining" the procedure to collect fines. Although the penalty was increased to £100, councils were allowed to offer a discount to £50 for prompt payment and to charge a further increase to £150 for very slow payment. While recourse to the court was eliminated, the Parking and Traffic Appeals Service (PATAS) was created and motorists could appeal on seven narrowly defined grounds. There are shortcomings in these arrangements:

— appealing to PATAS loses the £50 discount, which discourages many people from appealing;

— the allowed grounds of appeal are too narrow;

— we are concerned that PATAS offers two standards of service. There is a high standard for the illustrative cases that are on their website, and are well thought out and address all of the arguments. And a cursory standard for many others;

— the lack of court check has allowed abuses by bailiffs, see below:

We are campaigning for:

— legislation to constitute PATAS as a proper tribunal and requiring fully reasoned deliveries;

— motorists not having to pay to appeal to PATAS;

— legislation that parking appeals to PATAS should not be limited to seven grounds, and adjudicators should be required to exercise proportionality, commonsense and consideration in determining parking appeals. The touchstone in determining parking appeals should be whether or not they achieve the objectives of the 1984 Act, not whether there are trivial contraventions of the parking regulations; and

— motorists should be able to appeal to a court if a council proposes to send in bailiffs.

Part II of the Road Traffic Act 1991 deals with traffic management in London. Sections 51 and 63 empower the Secretary of State to issue guidance to London authorities with respect to the management of traffic. Para 2.23 of "Traffic Management and Parking Guidance for London" (February 1998) states that:

"The level of parking charges must be set for traffic management reasons . . . rather than to maximise revenue. This is because section 122 of the Road Traffic Regulation Act 1984 does not include the maximisation of revenue from parking charges as one of the relevant considerations to be taken into account in securing safe, expeditious and convenient movement of traffic".

Mr. Justice McCullough[6] observed (at p23) "the 1984 Act is not a fiscal measure. It contains no provision which suggests that Parliament intended to authorise a council to raise income by using its powers to designate parking places on the highway and to charge for their use . . . the fact is that the 1984 Act is not a revenue raising Act. Where there is ambiguity the citizen is not to be taxed unless the language of the legislation clearly imposes the obligation" (at p34).

3. CAMDEN'S PARKING ACCOUNT

Camden's parking account for 2003-04 made a surplus of £18.8m[7]. Its projection for 2004-05 and draft budget for 2005-06 forecasts a surplus of £17.5 million and £17.7 million respectively. Camden is not only planning for a continuing surplus, it is budgeting how to spend it[8]. No organisation makes a surplus (which has been increasing steadily for a decade) of £18 million as an oversight. The surplus is a direct consequence of policies which the council adopts, namely setting:

— high charges for pay and display parking—anecdotal examples suggests Camden's pay and display charges can be higher than Westminster's for less up-market streets;

— high charges for residents parking permits—at £90 pa. Camden's permits are the third highest in London; neighbouring Haringey charges £25 pa;

4. CAMDEN'S POLICY ON DISCRETION

Camden's policy is to allow no discretion because, according to the Executive Member for Environment[12]:

"The Council are obliged to administer the Road Traffic Act 1991 in a uniform and consistent manner. Not to do so could leave the Council open to legal challenge for being selective".

The latter statement has no legal validity. In reality the contractor has no incentive for parking attendants to exercise discretion—the contractor wants PCNs—and the council's back-office is reluctant to exercise discretion[13] because 1) to do so could create conflict with the contractor's targets, and 2) the council wants to generate revenue. The council's approach runs directly counter to the advice of the former Transport Committee which advised proper discretion in applying measures, and to other official guidance including in 2004 by the Local Government Ombudsman[14], who noted that "The Parking Adjudicators for England & Wales advised:

". . . we would stress again . . . the importance of a council recognising the existence of its discretion and considering whether or not to exercise it outside of the statutory grounds. If it fails to do either, then it does not act with fairness towards an owner."

Clearly if Camden exercised discretion to ensure that motorists only paid PCNs when they contravened the purpose of the Act, rather than the technicalities of the parking regulations, it could reduce its surplus.

We are campaigning that parking attendants and council back offices should exercise discretion and considerate enforcement in accordance with the objectives of the Act, rather than compliance for the sake of compliance.

5. CLAMPING AND TOWING IN PRACTICE

The Code states in para 4.5:

". . . each authority should consider which offences might result in vehicles being clamped or removed as part of its enforcement strategy. For example, clamping and removal might be reserved for persistent contravention, safety reasons, relieving congestion, removing obstruction of crossovers, controlling parking generated by special events, controlling parking during busy seasonal shopping periods, and deterring commuter parking".

The effect of giving contractors indiscriminate targets for towing and clamping is that they go out to seek for "business" regardless of the circumstances. Thus to give examples from our personal experience:

— clamped at 8pm for parking by mistake in a residents parking bay;

— clamped in a side road on a Saturday morning at 10.45 when displaying a visitors permit in a pay and display space while visiting a Member of Parliament for 50 minutes;

In no way does indiscriminate clamping further the objectives of section 122 subsection (1) of the 1984 Act—indeed it achieves the contrary objective by ensuring that a vehicle remains in a parking bay for a hour or so longer than necessary. Indiscriminate clamping is merely an unpleasant method for the council to generate revenue from "contraventions of the parking regulations"[17].

It is noteworthy that Glasgow City Council never clamped, nor has Lancashire County Council. Mr Andrew Vaughan, Head of Street Management of Manchester City Council, states the council has "Ceased clamping as a means of an enforcement—why do it?"[18]. Islington has stopped clamping, and following a review of practices Westminster has removed targets from its contracts and deferred clamping for an hour. In consequence the number of clampings in June, July and August reduced by 60% from 12,900 in 2004 to 5400 in 2005[19], which is a significant step in the right direction. Camden is now comfortably top of the clamping league. We are campaigning for an end to clamping.

Similar considerations apply to indiscriminate towing based on arbitrary targets—one of us was towed from a pay and display bay three minutes after being ticketed. Mr Vaughan has observed[20] that with targets "If the contractor could not find vehicles for towing that were dangerously parked, it would remove vehicles for other reasons—although these vehicles may not have been causing an obstruction . . . Our new approach is based on the mantra of being "reasonable and proportionate" in all that we say and do . . . Towing is concentrated on vehicles that are parked in dangerous places and those that are untaxed—the number of vehicles towed halved".

We are campaigning that there should be no target for towing, and towing should be limited to vehicles causing an obstruction, untaxed vehicles, and those parked in residents' parking bays for more than a day.

6. TICKETING IN PRACTICE

Camden's ticketing enforcement is driven by the financial incentive on the contractor to achieve a target, which is passed on to the individual parking attendant. Though Camden's contract with its contractor prohibits payment of a bonus related to the number of PCNs a parking attendant issues, according to a statement made by a former traffic warden[21], the same result was achieved by favouring with overtime parking attendants who issue more than an average number of tickets. The statement also observed that wardens are encouraged to cheat motorists by issuing "ghost tickets"[22] in order to generate fines. National Car Parks Limited (which now has the concession to tax farm all of the borough) offered gifts from Argos if they help to "increase revenue"[23].

In "Dispatches: Confessions of a Parking Attendant" shown on Channel 4 on Thursday 3 March 2005, a reporter went undercover working as a parking attendant in Southwark for APCOA. The programme reported:

"At his base in Southwark our reporter sees a company circular . . . [which] shows there was a target of fines drawn up last December. In other words enforcement responds not to the actual number of offences committed but to targets drawn up in advance".

"Our reporter is told the job is about keeping the traffic moving, but his team leader leaves him in doubt that it is about issuing tickets" . . . "As a business the company needs tickets . . . The nature of the business is tickets . . . At bottom the culture is about issuing tickets . . . There is occasionally talk about keeping the traffic flowing . . . But the first question you ask on meeting another parking attendant is how many tickets have you issued".

The programme also gave several examples of "dodgy" practices (ie stealing from motorists), and films a parking attendant generating "ghost tickets".

The consequences of the financially driven targets and lack of discretion in Camden are:

— A high level of dodgy tickets, many of which have no traffic management purposes:

— two of us have had "ghost tickets";

— one of us watched and waited as a parking attendant started the ticketing process two minutes before the time of a CPZ (09.00) on a Saturday morning when traffic was negligible;

— a ticket was put on a car 1½ hours out of time;

— a ticket was put on a car because it was supposedly in a suspended bay—there was no sign around;

— tickets were put on the cars of a couple outside their house although they displayed residents' permits;

— a resident was clamped outside her house displaying a residents' parking permit;

— a resident was ticketed outside his house displaying a resident's permit. Although the council checked the car had a valid permit, the appeal was rejected because the council thought it likely that the permit had been lent to someone else;

— having received a succession of tickets which he paid to avoid the hassle and inconvenience of appealing, one of us decided that enough was enough and decided to pursue each ticket. Over 18 months he appealed nine tickets (one from Westminster), including two that went to PATAS. Seven were successfully overturned. In none of the cases did the local authority exercise discretion other than at the end of multiple letter exchanges when it became apparent that they were likely to lose at PATAS.

"Due mainly to increases in parking income, there is likely to be an additional £3.1 million available in the Environment department's budget in 2004-05. The Executive on 25 February 2004 agreed that this be earmarked for improvements to the quality of the physical environment. This surplus is likely to be £2.6 million in 2005-06 and remain at this level in future years. There is a degree of uncertainty over the 2005-06 figures as the parking contracts will be re-tendered and renewed in April 2005.

— "the successful contractor is expected to reach a clamp achievement level of 28,000 per annum.", which generates an income of about £1.7 million per annum;

— "the successful contractor will be expected to reach a removal level of 7,000 p.a.", which will generate an income of about £1.2 million per annum.

— historic information of PCNs issued;

— levels of traffic and parking stress within the borough;

— the design of the CPZs and the type of parking contraventions found within the CPZs;

— the enforcement rules, for enforcing each type of parking contravention".

The first, third, and probably fourth criteria are circular—a contractor has an incentive to beat the target, which ups the ante next time round.

Motorists should not be put to the inconvenience of spending their time dealing with the incompetence of parking attendants driven to hand out tickets. We are campaigning that councils compensate motorists £15 for each dodgy ticket.

Some examples where discretion should have been—but was not—exercised:

— A priest went to give the last rites to someone in a hospital. The nearby bays were suspended; he parked in one. Neither Islington nor PATAS allowed his appeal.

— Despite advising a traffic warden what he was doing, a father was ticketed for picking up his daughter from a friend's house.

— A mother was stopped briefly in a suspended bay to drop off her three very small children at the hairdresser. After doing that she returned to her car to see a warden beginning to ticket. She explained what she was doing and asked him to stop issuing the ticket. He lied and said he could not stop.

— A person was short of change, and put the minimum amount in a meter while she went to get more change. On her return she saw a parking attendant observing the car—which was the only one in the street—it was surrounded by empty spaces. Not realizing that she was contravening the parking regulations, she bought a ticket for the full amount of time that she intended to stay. The attendant observed the whole process and said nothing. Within a minute of her leaving the car, the attendant had issued a PCN. The ticket was appealed and Camden was asked to exercise discretion. The appeal was rejected by Camden.

— A car broke down in the evening, and was pushed to the side of the road and a sign placed prominently in the window saying that it would be collected as soon as possible. When the garage came to pick it up, it had been ticketed.

A consequence of the pursuit of trivial contraventions to the parking regulations is that the importance of trivial hair splitting distinctions become important[26].

Parking controls in Camden are enforced without regard to the legitimate interests of retailers. Thus since the implementation of the CPZ in Kentish Town in 1999 there has been a catastrophic downward trend of business in a once lively and vibrant high street which boasted a good mix of retail outlets. Over 17 businesses have vanished, giving way to a melee of fast food outlets, estate agents and charity shops. The audited accounts of the business (established in 1949) of one of our directors shows a 41% drop in turnover in the last six years. Another director has run a business collecting from offices waste for recycling using five vans. In two years he has received 107+ PCNs of which 88+ have been cancelled with 10 more in the system. Another director runs a building business which renovates old quality houses in Camden. He comments:

"It is impossible to run a building company without using vehicles to load and unload materials. Some sites do not have easy access and parking on a yellow line or at bus stop is unavoidable. Permits for suspending a bus stop take 14 days to obtain, which is too far ahead to plan, and if the job only takes an hour then the disruption to the buses is minimal. The system is too unwieldy to work properly. Also permits have to be queued for, thus wasting time. The council have recently increased the price of the parking permits from £5 to £16, and clients are complaining that they already have enough to pay to the council in rates and parking fees.

The parking attendants target the vehicles which are loading and unloading, making the builder write to the council to prove with documentation each time. Most companies waste about half a day a week doing this, and all because the parking attendants are desperate to fulfill a quota. Since 2003 we have received about 90 PCNs of which 80 have been cancelled".

Manchester City Council and Westminster have abandoned setting targets for contactors. According to Mr Vaughan using a "London type" contract with targets resulted in conflict, and "Issuing PCNs was a technocratic approach . . . Under the new contract (which has no targets) the wardens are focused on traffic management and are expected to exercise discretion to ensure a reasonable and proportionate response. Our new approach is based on the mantra of being reasonable and proportionate in all we say and do".

We are campaigning that:

— The Government make it clear in its promised revision to the Guidance that uncompromising martinet enforcement is not intended by the Act. Rather councils should be proportionate and exercise commonsense and considerate discretion, and focus their parking enforcement on achieving the objectives of the legislation.

— To remove the financial incentive that is driving uncompromising enforcement, legislation should be introduced to prohibit councils making a surplus on their parking account, and the promised guidance should ban target setting for contractors.

— Penalties should be graduated—there should be a grace period of 10 minutes; up to the first hour over time should be charged £20; two hours and beyond should be charged £40; late payment should increase in two stages to £100.

— As some councils are clearly abusing their power, the number of tickets a council can issue be capped on a monthly basis—and that this cap be set very low. This would force councils to "ration" their tickets to address serious issues. Any application for more tickets would have to be accompanied with evidence that they are achieving real objectives with their current quota.

— An independent audit be carried out periodically on the issue of tickets to achieve certain traffic management/environmental goals. The audit should show that definite improvement has occurred through the issue of fines. The auditor would be empowered to instruct a reduction in ticketing activity if it was thought that the same could be achieved with less tickets.

7. EXPERIENCE WITH THE BAILIFF COMPANY EQUITA

Three of us have had councils instruct Equita to collect PCNs that reached £150. We all had similar experiences:

— Neither the council nor Equita advised us that a warrant had been issued.

— The fees of certified bailiffs are set by a statutory instrument which allows £11.20 plus VAT for sending a letter and for levying distress 28% of the amount up to £200 and 5.5% of fines above £200. The fees charged were well above that amount. The first challenge on the £1,060 resulted in repayment of £141.

— Subsequent investigation by two of us revealed that Equita justified the fees by claiming that it had written initial bailiff's letters, and bailiffs had made earlier visits and left letters. Neither of us received any such letters through our letter box, and as we either work from home and/or have partners who are often at home, we have no reason to believe the visits were ever made. In the case cited Equita "charged £222 plus VAT attendance charges for attending with a vehicle to remove goods" for which sum one can hire a 7½ ton pentechnicon for five hours. As the bailiffs appeared to have come to collect money, we have no reason to believe that there was a vehicle in attendance. On being challenged about this charge Equita refunded the money in two days as "a gesture of goodwill"!

— Of the £750 original charge, Equita has returned £401.85—we are now about to work on that sum.

Equita's accounts filed at Companies House shows that it made the extraordinary pre-tax profit of £5.46 million on a turnover of £14.13 million, a margin of 40%; it made a pre-tax return on £10.8 million capital employed of 50%[28]. We doubt that it made such returns by issuing bailiffs letters for £11.20 each, nor indeed by collecting debts of £168.16 for £47.08 (excluding VAT), the amount it should charge for a visit related to a PCN. Did it achieve such a return from small recoveries by charging for multiple visits and vehicles, which may be fraudulent behaviour?

One of us has issued court proceedings against Equita, and a second has made a formal complaint to Camden seeking redress with a view to referring the issue to the Local Government Ombudsman. We have made a representation to the Office of Fair Trading that Equita should lose its licence.

Many people would be frightened by burly bailiffs appearing at their door demanding outrageous amounts of money, and threatening if they do not receive immediate payment to return with a warrant, break in, and take goods. And few would know how to take bailiffs apart if their behaviour warrants such treatment. But this is the inevitable outcome of decriminalised and uncompromising parking enforcement which allows no recourse to the courts.

We are campaigning that motorists should have the opportunity of recourse to the court before councils send in bailiffs. Furthermore the Minister for Constitutional Affairs should tighten the National Standards for Enforcement Agents and it should be given statutory force.

The majority of motorists are law abiding citizens who recognise the need for sensible traffic management control and common sense and considerate enforcement. Too often, in some boroughs motorists find they are caught out by irrelevant and banal technicalities, and can become enmeshed in a Kafkaesque world of petty minded triviality and little legislative trip wires where council officers have the upper hand from their familiarity with municipal rules and unfamiliar legislation that is divorced from what many people regard as sensible and fair. There is no proportionality, and some of the penalties may be in contravention of the European Union principle that penalties should be "proportioned"[29], an issue we will wish to explore.

The situation in some boroughs is verging on war in the streets, with many motorists angry with what they regard as quite unreasonable penalties for trivial offences and tax farming. This is leading to verbal and physical abuse of parking attendants. Many parking attendants are black, and so some councils are effectively creating an institutionalised framework for racial abuse.

In some boroughs the means to traffic management has become the end—penalties for "contraventions to the parking regulations"—to generating revenue. Some woolly minded and blinkered councilors and their officers have forgotten that the function of a borough is to help people, not to discipline and harass them with bureaucratic trivialities, still less to turn bailiffs on law abiding and ratepaying citizens.

1 Motoring Towards 2050 RAC Foundation. Back

2 Now the Environment and Transport Committee of the Association of London Government. Back

3 Case No: CO/4960/2004, Royal Courts of Justice, 18 May 2005. Back

4 Transport for London is appealing the decision. Back

5 Case No: CO/505/2002, 22 May 2002. Back

6 Regina v Camden Borough Council ex parte Mark Dyson, Gordon Cram and Others, High Courts of Justice, Wednesday 11 January 1995. Back

7 Source: The Parking Account, Alex Williams, Report to Parking Scrutiny Panel, 23 February 2005, Camden Council. Back

8 Paras 1.1, 1.2 and 6.4 of the Report of the Director of Environment dated 27 July 2004 read as follows: Back

9 The targets in the new contract commencing 1 April 2005 for the north of the borough includes the following: Back

10 In response to the question "What was the basis for increasing the target PCNs in the recent contract", the Manager of Parking Solutions responded "Officers carry out detailed research when setting out PCN estimates. This is based on: Back

11 The Assistant Director Environment has explained "Our objective is compliance", "Parking Scrutiny-An introduction", presentation given to Parking Scrutiny Panel meeting on 4 November 2004. Back

12 On 23 February 2003 in response to questions from members of the Scrutiny Panel. Back