Opposed Bill Committee on London Local Authorities and Transport for London Bill Corrected Minutes of Evidence


Evidence Session (paragraphs 1-66)

26 JUNE 2006

1. CHAIRMAN: Good morning, everybody. Welcome to the proceedings, thank you for coming along. We have got rather abbreviated proceedings today compared to that which we thought we were going to be dealing with. We just have petition number one to hear, which is in the matter of Clive and Anna Wolman, who are opposing clause 9 of the Bill which we have in front of us. As you will be aware, there is a challenge to their entitlement to make that petition on the basis that they have no locus standi in the matter. We will hear that matter any moment now but first of all we will go round the Committee here and each person will introduce his or herself and we will state whether or not we have any interest in the matters in front of us. If I could ask Baroness Thomas to begin, please.

 2. BARONESS THOMAS OF WINCHESTER: I am Baroness Thomas of Winchester and I am a council taxpayer in Lambeth. That is my only interest.

 3. VISCOUNT CRAIGAVON: I am Viscount Craigavon. I am a council taxpayer in Westminster. I also have been a member in this building of what is called the All-Party Motorcycling Group, which is a rather loose friendship of people interested in motorcycles but I have not actually owned a motorcycle for the last five years.

 4. CHAIRMAN: I am Baroness Prosser. I am a council taxpayer in the Borough of Camden.

 5. LORD DUBS: I am Lord Dubs. I am a council taxpayer in the Borough of Westminster and many years ago I was a councillor on Westminster City Council.

 6. EARL OF LIVERPOOL: I am Lord Liverpool. I am a council taxpayer in the Royal Borough of Kensington & Chelsea. I am a member of the All-Party Parliamentary Motorcycle Group. I do own a motorcycle but only ride it infrequently. I think that has already been notified to the Promoters and the Petitioner.

 7. CHAIRMAN: Thank you very much indeed, everybody. I am not going to invite counsel for the Promoters of the Bill to put forward the arguments against the locus standi of the Petitioner.

 8. MR CLARKSON: Thank you, my Lord Chairman. Can I make two points of introduction before I turn to that. The first is in respect of clauses 15, 16 and 17. I need not trouble the Committee with them at all. It is just that Mr Wiggs, the parliamentary agent for the Petitioners in those matters, that is the Royal College of Surgeons, the Sir John Soane's Museum and the Honourable Society of Lincoln's Inn, have withdrawn their petitions, and they have asked me to say that, on terms not involving amendment of the Bill. That is all I need to say.

 9. Second, by way of introduction may I also declare an interest as a retired motorcyclist.

 10. May I turn to the issues. What clause 9 is concerned about is to change the text of existing legislation; no more than that. Section 15 of the GLC (General Powers) Act 1974 has the effect of prohibiting parking on footways and verges which form part of an urban road. That is existing, set, longstanding legislation, you cannot park on the footways unless the highway authority says you can. What clause 9 does is tidy up abuses. I think we have got copies we can circulate just to simplify it for the Committee. We have put in the text that we are changing. This is important to have it understood because we can understand best Mr Wolman's concern. (Same circulated)

 11. In clause 15(1) of the underlying legislation, what is proposed is to take out the words "with one or more wheels on any part of an urban road" and just leave it as "parking on any part of a road" or "on a footpath". Simple as that.

 12. The reason for that approach is an adjudicator has found that a motorcycle on a stand or a motorcycle with one wheel on a tree root is not in some way parked. In the process of tidying up, and this is not, I do not think, germane to the issue you have to resolve, footpaths are now included, not just footways, and all roads, not just urban roads, again clearing up a lacuna when an adjudicator has said an urban road is a road with street lamps and a cul-de-sac with one lamp is not an urban road.

 13. I turn to Mr Wolman's petition. I can summarise it. If you look at his petition, the first area that he is interested in, and only area, is in clause 3 of this petition: "The only clause of the Bill to which objection is made is clause 9 sub-clause 2 which seeks to amend clause 15.." dealing with footway parking. What he says is, and he will flesh it out, but I deduce it in these terms, is that he has had motorcycles stolen historically so he has an approach that he uses at his own home because he says the causation of theft is a ban on footway parking, as we see it.

 14. At the bottom of page two in the petition he says that he is "directly and specially affected". Of course, he picks up what he has to show to the Committee if he is allowed to have locus. Therefore, and he will introduce his case in due course, his case culminates on page seven of his petition, ending at six and beginning at page seven: "The petitioners' preferred solution would be for Parliament to take this opportunity to repeal, rather than to amend, section 15 of the 1974 Act and its complex provisions and exemptions." That starkly underlines the point that all the clause in the Bill as promoted is seeking to do is to amend, tidy up, existing legislation. This is not creating a new parking regime.

 15. I turn now to our Notice, which I hope the Committee has, or should have. The points are simply set out there. First, at paragraph two: "The petitioners do not allege in their petition that their interests are specially or directly affected by the Bill." They purport to allege that, but we say that is not established.

 16. At three, they do not represent amenity, educational, travel or recreational interests, that is to say they are not an umbrella group.

 17. Four, they are householders and they have received a number of penalty charge notices in respect of the parking of a motorcycle, et cetera.

 18. It is further alleged that Mr Wolman has successfully appealed against penalty charge notices and litigation is outstanding in relation to those appeals. He will emphasise to you, I have no doubt, that his challenge in the County Court for a declaration as to what the law was to assist him had an adjudication against him. He will flesh that out and, if he does not, I will.

 19. At five: "The petition alleges that clause 9 of the Bill will create uncertainty and it is alleged that the effect of Section 15, whether amended or not by clause 9, is unfair".

 20. Six: "The petitioners are in no different position than any other council taxpayer in Greater London. Some five million penalty charges notices are issued by London Borough Councils every year, and many thousands of appeals are made.

 21. "Practice and precedent in this House over many years has established that the locus standi of individual council taxpayers who are not specially and directly affected by a private bill should generally not be allowed." There is no such specific allegation of injury as would entitle the Petitioners to be heard against the Bill.

 22. "The Petition does not disclose, nor is it a fact, that the Petitioners' rights would be interfered with…"

 23. Why do we bring this locus? The obvious reason first, we would say there is not locus, but by way of understanding and preface there is clear advice from the Joint Committee on Hybrid Bill Procedure which was ordered to be printed on 20 July 1988, paragraph 101, where there was recommendation that "….promoters should be encouraged to police the rules of locus standi, and that private bill committees should not treat a reasonable and unsuccessful challenge as a point of prejudice". Consistent with our duty we bring this forward saying this is a question of locus that has to be examined and here we say simply there are no interests directly and specially affected by the Bill. There is no land taken, there is no difference from any other motorcyclist that Mr and Mrs Wolman have. The logic of their approach is that motorcyclists should be allowed to park where they want. There has to be a regime, and there is one, Mr Wolman does not like it and because of it has had 50 or so parking contravention notices. The regime, we say, must be made to work and not be abused, that is why there is the amendment to the statute, whereas, on the other hand, the Petitioner wants the abuse to continue. He is in no way specially affected.

 24. We have sent to the House a number of precedents as far as they go. There is one that I think it is helpful for the Committee just to flick through. That is a Hybrid Instrument Committee which was West Northampton Development Corporation in 2004 which may have some familiarity to Lord Craigavon who was on the Committee. I hope the Committee has got it. I am not going to ask you to go through the whole document but there are a few points in it that are useful as a steer as to the way these have been addressed before.

 25. It is one where I might say individuals were granted locus. When one looks at why they were granted locus we have an understanding of perhaps why this Petitioner should not be granted it. It is a print-off from the parliamentary website so page numbers are not easy, but if I could ask you to go to paragraph four of it. I have not got page numbers on mine but if I could ask you to go to paragraph four, it begins on page 14 of the bundle. "It has been brought to our notice that the Private Bill Office information pack addresses only the position of individuals. It tells prospective petitioners that in order to be granted locus standi they must show that they will be directly and specially affected by the provisions of the Order. That is, of course, correct as regards the fourth petitioners, Mrs Adams, Mr Bass and Mr Gibson…."

 26. Over the page at paragraph 19: "I have handed in a pack of Government Submissions…" and then there is the quote that I have just referred to, "…the Clerk of the House of Commons suggested that such proceedings are less common that they ought to be: Promoters have been a little reluctant to raise objections to the locus standi of petitioners because the impression might be given that they are taking technical points against petitioners, as opposed to tackling their case on its merits. The Committee consider that it is a fundamental principle of private legislation procedure that only parties specially affected should be entitled to be heard and that the rules of locus standi must be upheld. If they are allowed to lapse, more of members' time will be taken up in private bill committees. They recommend that promoters should be encouraged to police the rules of locus standi, and that private bills committees should not treat a reasonable and unsuccessful challenge as a point of prejudice." That is the important quote.

 27. Over the page, just to introduce it and remind, at 21 on page 16: "An example of a petitioner directly and specially affected by private or hybrid legislation would be one whose property was proposed to be compulsorily required by legislation or a local authority whose powers were proposed to be curtailed or transferred by it."

 28. The next paragraph we need not read out other than to understand the proposal there was the designation of three areas in West Northamptonshire as an urban development area and a Development Corporation. It says at the end of paragraph 22: "It merely creates a body which may do such things subject to the relevant procedures."

 29. Going forward to page 18, the advocate for the Promoters: "I would like to deal first of all with the individuals' petition, that is of Mrs Pauline Adams, Mr John Bass and Mr Ashley Gibbons.

 30. "Under Standing Order 118, which is at exhibit 3, a Committee has discretion to admit inhabitants of an area which it is alleged in the petition to be injuriously affected by the legislation. A petitioner must show that they are affected over and above other inhabitants in the area, that is to say they are specially and directly affected by the Order."

 31. Over the page at 40, on page 19, those three individuals allege: "…they will be injuriously affected by the proposed Order. However, to the Government's thinking they do not demonstrate that they will be affected to any greater extent than any other local resident".

 32. Then a number of examples are introduced. One has to identify - it is not easy but there is some detail, if you go forward to paragraph 95 - and what I am looking for is what their allegation was and it was summarised by Mr Brown of the Government: "Finally, may I conclude by saying the Petition of Mrs Adams and Messrs. Bass and Gibbons fails because they are not specially and directly affected. The Government's view is that the parish council of Weedon Bec does not show that it has been materially affected. Daventry Villages Together is an ad hoc organisation et cetera". What the Government was saying - it does not summarise it in great detail - in their submission was that they were not specially directly affected.

 33. A few pages on we come to paragraph 134, after discussion with the Promoters the Chairman said, "let us here from the individuals". This is on page 32. Mr Dexter, on 137, says how they are affected. They are all private individuals living on the outskirts of Daventry, inside the proposed UDC boundary which is shown on a map: "…all three live in high-value, country properties on large plots surrounded by fields with fine rural views. Your petitioners are not represented by any local authority already petitioning against the Order. One does live in the parish of Norton, which is a member of DVT, but that parish has not signed up to the DVT Petition or been named in the requisite public notice".

 34. Over the page at 143, Mr Dexter says: "Your Petitioners submit they would all be correctly and specially affected by virtue of the change to the rural, or perhaps semi-rural in two of the cases, nature of their environment through the increase in traffic, of pollution - that is pollution of the air, noise pollution, pollution by light at night - and litter, and the increase in crime associated with proximity to urban areas. Already, one of my Petitioners has to overnight several nights a week in his garage business to deter night-time crime, which just shows what the situation is in a market town in our country today".

 35. That was how it was summarised by Mr Dexter. If you go forward from 156 to 159, the Chairman says at 156: "There do not seem to be many properties like this in the country areas within the boundary". Then Lord Luke says at 159: "I notice that all three of the properties concerned have a view towards the reservoir. Presumably that is part of the amenity. Are they suggesting that the areas between them - 1, 2 and 3 - and the reservoir are going to be covered by developments if the UDC goes through?" Over the page, Mr Dexter says: "One of my Petitioners has seen plans, my Lord, showing development over that area, and it is of interest; it is a very scenic part of the countryside. Five years ago he was denied authority to put an extension on his property because of the view, and he was told also that this land would never be built on as it was part of the green wedge. Now along comes the UDC. There have been changes".

 36. Supposing then what was laid before the Committee was really dire circumstances - and if one is looking at it in terms of town and country planning legislation - here were three residents who were uniquely affected. They had their views likely to be affected one way or another by the enhanced powers of an urban development corporation. It is perhaps not surprising that at 168, after adjudication and discussion, that the Chairman says: "We have reached our decision and that is, Mr Dexter, you have made the case that these three individual Petitioners are specially affected and, therefore, their locus is accepted and they will be able to appear before the Committee".

 37. Returning to the substantive issue of a London motorcyclist, a London motorcyclist, like Mr Wolman, cannot park on the pavement. What has developed is an abuse. We seek through an amendment of Section 15, clause 9, to address the abuse of the elevating of motorcycle, so to speak, and there is no extra dimension with this Petitioner. Quite simply on that basis we say because it is covered by existing legislation there is no locus and the matter should not proceed any further.

 38. Unless I can help the Committee anymore? I have not gone into Human Rights Act issues, I can summarise it in a sentence if it would help. All the boxes have been ticked by all the process to get here and if we had not we would have a problem. Not surprisingly, this is compliant because all it is doing is addressing an underlying legislative provision so it is not a new matter.

 39. CHAIRMAN: Thank you very much. We shall now hear from Mr Wolman.

40. MR WOLMAN: Can I start by saying that I did prepare a set of written submissions purely on the locus issue, at the suggestion of Ms Bolton, for the Committee. It was supplied on Thursday, but I was told the clerk had decided not to hand it out to you because of the other cycle amendments in there. Nevertheless, it is here now and I would like to hand it out and to some extent talk you through that. Before I do that, I would like to address a few of the more general points which Mr Clarkson made about the nature of the Bill and the nature of this provision. Also I have one point in which I think the Committee may have been inadvertently mislead by one of the points made about the adjudication and the legal process we are going through.

 41. What we say is this is not just a mere tidy-up issue, it is quite a fundamental issue, it is the whole nature of parking enforcement, both generally to all vehicles but in particular there is still a distinction between motorcycles and cars.

 42. The Committee will perhaps be aware that on Thursday the House of Commons Transport Committee produced a paper called Parking Policy and Enforcement, which was quite critical of the anomalies in the parking regime and, in particular, the anomalies which exist between London and the rest of the country.

 43. Perhaps you will be aware that in the vast majority of the country there was no prohibition on motorcycles parking on parts of the pavements, either on those stands or off those stands. Other parts of the country do have other provisions which would catch, and might catch, the sort of situation in which we have been and which led me to park the motorbike where I have. The important thing is it does deal with pavement parking, albeit it only addresses the issue of cars, it seems not to have been asked to consider the issue of motorcycles, but it does say the whole regime has to be overhauled. Therefore the Committee might consider it appropriate that this amendment should be deferred until the whole question raised by that Transport Committee is considered on a holistic basis for the whole country, as it suggests, and to start making amendments of this nature is not appropriate at this point in time.

 44. The reason that we say it is not just a tiny amendment is this is since 1974, when this Act was first introduced and when it was amended, this specific clause was amended again in 2000, in both cases at the behest of the same Promoters as today or their predecessors, so basically a London local authority in both cases. The key criterion here, which is something which pervades the whole parking enforcement in London, is the wheels on the ground, it is not the parking of the vehicle. I said that perhaps there was some misunderstanding in the submissions just made to the Committee about what the adjudicator at the Parking Appeal Tribunal said. He did not say, contrary to what was presented to you, that a motorcycle is not parked if its wheel is resting on the stump of a tree. In another case another adjudicator did not say that a motorcycle is not parked if it is on its centre stand so that its wheels are not resting on the ground. That is not at all what was said. I do have the key adjudication here. (Same handed) I am happy to read this out. This is one of the adjudications in my favour. This refers back to an earlier adjudication. This adjudication is by Martin Wood, who is the chief adjudicator of PATAS, the Parking Appeal Tribunal, and he says: "It is clear from the local authority's photographs that the motorcycle was on its stand and the lifts were lifted clear of the footway, neither of its wheels were therefore resting on the footway as required by the terms of the contravention. That there is no contravention in those circumstances has been long established in this Tribunal, I allow its appeal". That is what he said and that was my appeal in March 2005. That refers right back to the case - unfortunately I only have one copy but if necessary photocopies can be made - of Ian Anderson and Westminster Council in 1998. That makes quite clear that there were two separate criteria to the 1974 Act, one was that there should be a motorised vehicle parked and the second criteria was not only that it should be parked but that at least one of its wheels should be resting on the pavement. It is two separate criteria.

 45. There is no dispute, and there was no dispute in my case or in anyone's cases, that the vehicle was parked. It satisfied the criterion, it was not put in any unusual position, it was just parked and left there on a temporary basis with a view of the user going back and driving it away at some point in the near future. I am trying to flesh out what the definition of parking is in following the courts.

 46. The additional criterion was that the wheels should be on the footway. The Promoters have said to you that they have been encouraged by the Committee, and they cited the section from the Hybrid Bill that, in fact, they should be encouraged to challenge the locus of people such as myself because the Committee does not want to waste its time hearing lots of people who may not have any interest directly or specially affected. You may feel, in fact, I am sure, but I have not found chapter and verse, that it is also the duty of the Promoter of a private bill when that Promoter wants to explain why they are seeking to amend the bill that at the very least you would expect them, even if it is only a matter of courtesy and respect to this House, to explain why the original bill set what it set and why they want to remove those words. The question here, which the Promoters have totally failed to deal with, is why the 1974 Bill introduced this wheel on the footway criterion, and, again, in 2000 the Promoter, using their privileged access to Parliament in the way that most other private groups do not have, to have another bill before Parliament to deal with this section 15 again a second time. This was after the adjudication which I just referred you to of 1998, the case of Mr Anderson, where PATAS specifically said if a motorbike is parked with its wheels off the ground then it is not caught by this legislation. The Local Authority of Westminster said, "We cannot leave it like that because it is going to have a very wide implication. We will have to deal with it further". They had an opportunity to deal with it further in 2000 when this clause was amended, but Parliament chose not to amend it in the way they are now proposing. On the contrary, Parliament has kept in the wheel on the footway criterion.

 47. CHAIRMAN: Mr Wolman, forgive me for interrupting you, but can I ask you to remember that before considering the substantive matters here we need to consider whether or not you do have the locus, so if you can take us through that.

 48. MR WOLMAN: My Lord Chairman, I fully appreciate that and I was aware of that. I would not have gone into this at all except that the Promoter did say several times that this is a mere tidying-up amendment and so on, and abuse a simple matter. My opening remarks were merely to address that. In view of what you have said, let me go straight into the contents of my written submission.

 49. As I have set out in paragraph 2, what we have to establish is that either our property is affected by this and/or our interests, and by interests I assume it means economic interest. There is another case which the Promoters did not refer you to, it does not mean our leisure interests or the fact that motorcycling may be a hobby, although it is not particularly, it is economic interests. It clearly is interests separate from property interests, otherwise there would be no purpose in introducing interests, the criterion would just be property without interests. Those are the two, and as long as we satisfy one of those two that is sufficient. Thirdly, it must be affected directly and, fourthly, it must be affected specially and that is the issue on which the Promoters are particularly focused.

 50. Perhaps I can take you through each of these four criterion. The property at issue is two-fold. One it is personal property, ie chapels, ie the motorbike. It is obvious that what is being sought by this amendment is something which would affect our motorcycles as well as the motorcycles we accept of everybody else who wishes to park it in London or if they ever consider parking it on a footway. The second point is that we also say our interests as landowners are affected as well.

 51. Clearly we are not claiming that our land is being confiscated for compulsory purchase nor are we claiming anything like the view, but what we are saying is that in this particular case the motorcycle is parked on our private land. The local authorities have pushed this point a lot over the last year, certainly over the last ten years and maybe longer, and it is clearly established now and perhaps in the Parking Appeal Tribunal that even if you park the motorcycle - and it is only in the case of motorcycles, although in theory it could come up with cars - on private land, if it is parked on the public highway, in other words, if the private land forms part of the highway - and the highway means an area where the public have the right to pass and you pass - then it does not matter if it is private land and it does not matter if the motorcycle is parking on the owners private land, the parking regulations are still engaged and the vehicle owner can still be fined.

 52. PATAS has accepted the position which is being pushed by the local authorities to try and extend the ambit of their regime. By doing so, to some extent it raises difficulties and it has given me notice by the very proactive stand taken by the local authorities. The fact is my motorcycle has received more than 50 parking tickets when it has been parked on our land.

 53. In order to explain this point, one needs to understand- and this really goes partly to the issue of the wheel on the footway criterion as well - what it is that creates a highway or a road or a public footway. They are all the same, a public footway is part of the road and is part of the highway. The definition which has been long established - which I have cited occasionally and perhaps I do not need to detain you on it, but the key quotation from it is set out in my paragraph 9 of the written submission I have given you - says: "A public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and re-passing". In other words, when our predecessors in title created the pavement outside our house and agreed to dedicate it to public use, what they agreed to dedicate to public use, as in most cases (although there are many other statutory ways in which this could happen but in common law and that is what happens here) was the surface of the land. It was quite clear that the subsoil beneath the surface of the land and the air above are not part of the public highway. It is true that the local authority, for the purpose of passing and re-passing, can stop obstructions in the air space above interfering in that passing and re-passing, but the actual ownership by means of its dedication is only in the surface of the land. In our case it is particularly obvious because beneath that pavement are the cellars of our house and they extend more or less to the extent of the pavement. They certainly are underneath the part where my motorcycle was parked, which is hard up against the railings of our house, in other words, at the very edge of the pavement.

 54. What we say is that the land beneath the surface of the highway and the air above it remain at all times our property The only part which is not our property any more as a result of the dedication is the surface, and if the wheels of a vehicle (and this is what defines a vehicle) are above the surface of the highway then the wheels too are in our private property; they are not on the surface If you do grant us locus I will come back to this point in more detail because that goes right to the heart of the 1974 Act and why it does say "wheels on the highway", but the point as far as locus is concerned is that the wheels are what make a vehicle a vehicle There are other Acts which they have but they are subject to other circumscriptions which prohibit other articles, ie, not vehicles, being placed on the pavement, including a lot which are sanctioned by the local authorities themselves or which are there by the default of the local authorities One classic example, of course, is rubbish bags which often accumulate on there because the local authorities have failed to pick them up at the time they are supposed to pick them up because of poor management of the refuse collectors, and there are many other examples What makes a vehicle a vehicle and subject to this Act is the wheels, and if the wheels are not on the ground but in somebody's private property then clearly that person's private property is affected.

 55. As the Promoters have accepted, we have had a number of motorcycles stolen over the last few years. This has not been given any priority by the police in terms of investigating. In some cases the motorcycles have been discovered in a destroyed state and there have been fingerprints on them but the police have decided not to investigate any further even though in one case they sent me a letter offering me trauma counselling for the destruction but were not willing to investigate. In one case we had an eye-witness to who did it but the police have taken the stance, guided in this by the local authority, as I say, not to investigate this any further, so that motorcycle theft is a major problem which affects our property in particular Of course, it affects other motorcyclists as well but we as a matter of fact have been affected, so that is why we are specially affected as far as the ownership of the motorcycle is concerned. More importantly, we have chosen the only way we feel we can use - and this is formally advanced by the police themselves - to try and protect our motorcycle against further thefts by locking it to the railings outside our house where it can be seen and where it can be well locked to strong railings which are difficult to cut through. That is why it is there and we say we are entitled to use our land for that purpose and that the powers of the local authority are only engaged if there is something in our use of the land which means we place it on the highway, ie, on the surface of the highway.

 56. That, I submit, deals with our issue of being directly affected. There are perhaps two other points I should make. One is that the Promoters have mentioned the Human Rights Act We say that this issue, because it affects our property and our right to use our property as we want, is caught by Article 1 of the First Protocol on the Convention on Human Rights and Fundamental Freedoms That allows us to enjoy our property to its full extent as permitted after due consideration and due process of law, and therefore to say that this amendment is purely a tidying up amendment to stop abuse is wholly wrong. What it is doing is clearly restricting our freedom to use the property in the way we want, so it would have to be relied on by the Promoters as a proper due process of law if the amendment went through to protect them against this allegation if and when the matter came to court.

 57. The other point worth making is that two of the cases, including the case to which I have just referred you, the adjudication before PATAS, were cases where the motorcycle was towed away and impounded, and that is, of course, a further infringement or interference with property rights. Again, there have been suggestions made, including by the chief adjudicator of PATAS, about whether towing away a vehicle in circumstances where there was no danger to the public and no obstruction to the flow of traffic can be also justified under the Human Rights Act and the European Convention, and that, of course, has happened in a couple of cases in which we have been directly involved.

 58. I would now like to go back to specially affecting criteria which is in paragraph 12 of my submissions. I list there a number of ways in which we say that our property interests are specially affected. First, we are the owner of the motorcycle but we accept that that is still a very large group because there are lots of people who own motorcycles. Second, as I indicated before, we have had our motorcycles stolen on four occasions in 11 years when parked outside our home on at least three occasions and on another occasion within the area of the Bill's Promoters, ie, within the local authority area, so that already, we say, puts us into a specially affected category and different from that of most motorcyclists, although I dare say that lots of motorcyclists have had at least one motorcycle stolen over the last few years. Thirdly, what puts us in a special position is that is that in order to protect our property, ie, the motorcycle, we feel we have been obliged to park the motorcycle within the curtilage of our property, our land, that is, except that the centre stand rests of the surface of the pavement which, as I have indicated before, is dedicated to public use, but certainly the wheels and the rest of the vehicle are and remain on our private land.

 59. Fourthly, what puts us in a special category is that as a result of that we have been subjected, as the Promoters concede, to more than 50 penalty charge notices in less than two years by one of the Promoters of the Bill, and also, as I indicated before, on two occasions the motorcycle has been impounded. The sixth special effect is that, although I have had to appeal to PATAS on numerous occasions and have had to appear on three occasions, PATAS has always vindicated our position. Seventh, there have also been legal proceedings started. It is correct to say that there was a county court judgment made in March, which is currently being appealed in the Court of Appeal, which went against PATAS and said that the existing law is good enough for the local authority's purposes in the sense that when it says that the wheels have to be on the footway that could also mean over the footway. That, of course, goes against all the PATAS authority and in the appeal it is put that "on" must mean on and not over. One of the bits of definition of "on" quite clearly means that it must be supported by a resting block, having its weight transferred through to the ground. Perhaps I do not need to detain you on that; that is a matter subject to appeal. Of course, what one could say, turning the issue round, is that there was no need for this amendment Of course, if ultimately the Court of Appeal were, we would say, perversely to uphold the judgment at first instance and go against the authorities in PATAS --- incidentally PATAS are not bound by the authority of a county court judge, but clearly if it goes to the Court of Appeal they will be, so that matter is going to be resolved, one would hope, at an appeal over the next few months.

 60. It is worth looking at what the local authorities have said about this point and this does relate to another way in which we are specially affected. If you go to paragraphs 13 and 14 you will see that there have, in fact, been four adjudications of PATAS on this matter. One is the one I first referred to, which goes back to 1998, and that admittedly was before the Act was amended in 2000 in such a way as to preserve the wheel-on-the-footway criterion. There was then a further judgment in 2003/2004 against a company called 0800 Handyman, which had its motorcycles parked on the stand with their wheels off the footway. There have been two adjudications by PATAS in my favour in two separate cases, both of which upheld the PATAS view. I read out one to you before at the suggestion of the Promoters but there has been another one as well.

 61. It is quite clear that the purpose of this Bill, and I am not sure that this is even denied, is to close what the Promoters call an abuse of a loophole. Of course, I do not call it an abuse of a loophole; it goes to a fundamental issue, and that is set out by Nick Lester who I understand is a witness here before you today. He says the following: "This is the only explanation, the only rationale, that has been given for the introduction of this clause", and this is what he said before the Commons Select Committee on the Bill: "The way the legislation is worded at present you need to have at least one wheel on the footway. There has been a ruling by an adjudicator in the case of a motorcycle that had a tripod stand so that no wheels were actually touching the footway, not resting on the footway, and therefore that restriction did not apply and sub-clause 2 corrects that to make it absolutely clear. You cannot put a piece of paper underneath your wheel and escape the penalty in that way."

 62. Of course, our position is not that. It would be absurd for the courts to say that if you put a piece of paper under the wheel the wheel is no longer on the footway. It clearly still is on the footway because its weight is still being borne and supported by the footway. The point is that when it is on its centre stand the wheels are suspended in the air and the only thing that is on the footway is the centre stand of the motorcycle. That explanation, we say, is spurious. More important is that it is wrong in the sense that there is not one adjudication by PATAS. There have, as I have indicated, been four, but two of those four adjudications have been in favour of me personally. To that extent also I would say that clearly, as the amendment is specifically designed to reverse two PATAS decisions in my favour, I clearly am specially affected by this amendment and that is the purpose of the amendment, to try and reverse an adjudication which expressly permitted me to continue the activities that I have done. Therefore, on top of the property criteria that I set out before, we would say that we are specially affected in that sense as well in the way that the Promoters have themselves explained and rationalised their case.

 63. The other way in which we are affected, and this is getting away slightly from motorcycles, is that, of course, this is a general provision. The removal of the wheel-on-the-footway criterion, and by this I mean any vehicle parked on a footway, we say just introduces a whole element of uncertainty and we all have an interest, but we particularly have an interest, in having some degree of certainty in the law. If I am permitted locus I will certainly go on to explain that one of the other reasons for the 1974 wheel-on-the-footway criterion was that it created an easy non-judgmental way in which unskilled or inexperienced parking attendants who had not had the training of the police could enforce this because all they had to do was simply look and see, "If a wheel is in contact with the footway I give a parking ticket. If it is not I do not. I do not have to make judgments", which was the position before the 1974 Act, "about obstruction, public nuisance and so on." It is a very simple criterion. What this does now is remove that criterion and introduce a whole area of uncertainty, and in particular it affects us in the following way. Ironically, opposite our home, which is on Duncan Terrace in Islington, there is a patch of land - and I am perfectly prepared to concede that there may be other patches of land elsewhere in London, so we are not saying we are absolutely unique but we are certainly specially affected by this - which is deemed to be part of the footway and which is never used by pedestrians because it is a dead end, it is enclosed; it cannot go anywhere, it does not come from anywhere It is surrounded by railings on one side and the road on the other side and is cut off. We say that would be a very simple place to park but no-one is allowed to park there because it is deemed to be part of the pavement. If cars are parking on there, if they have two wheels on that so that they can park on that side of the road but still allow cars to pass down the middle of the road, which they could do if they were allowed to put two wheels on, does that count as parking on the footway? In other words, if you are slightly over the footway to the extent of having one wheel or two wheels but certainly not having four wheels on it, is that parking on the footway? Of course, whereas before, under the present law you have certainty because the only test is, "Is the wheel on the footway?", under this amendment - and the Promoters have totally failed to deal with this, and this relates back to their failure to explain the original provision - what is it supposed to mean if you are slightly parked on the footway, if you have got a wheel touching or slightly on the footway? Therefore, we are saying, it also introduces a whole new area of uncertainty and we are specially affected by this because we have unfortunately been embroiled in adjudications by PATAS and legislation because of the stance taken by the Promoters that this Act is not at all clear, so we have a special interest in having the clarity of this Act improved, not diminished, by replacing what was, we would say, a very clear criterion by a very vague criterion. To that extent also we would say that our interests are specially affected

 64. Finally, I deal in paragraphs 18, 19 and 20 with our fall-back position. If you decide despite everything I have said that we do not have locus here, you are clearly entitled, and I refer to another London Bill, the Greater London (Money) Bill 1976, LJ (1975-76), 623, to say that we should nevertheless be allowed to give expert evidence to this Committee on this issue because not only do we have direct personal experience of how this provision has been operating in practice in front of the courts but also, of course, I am a lawyer and so I have also got particular professional experience which is relevant to the construction and effect of this provision.

 65. Although, of course, the Petitioners say they accept that the Promoters have a duty to police the locus in this sort of case, in regard to not taking up the time of the Committee we are saying it is unfortunate that so much time has been taken up in trying to promote this Bill when they have not dealt with an issue which they should have dealt with and which would have avoided the time of the Committee being taken up, which was to set out the background to this Act and this provision, and in particular to explain why the wheel-on the-footway criterion was first introduced and why now, after 32 years, they want to remove it other than as a knee-jerk reaction to a particular ruling against PATAS, and that really Parliament and particularly the House of Lords, which is always regarded by the public (and has regarded itself) as an important advisory chamber to make sure that Acts do not just go through on the knee-jerk reactions of politicians and councillors, should make sure that it is understood in its proper historical context For that reason also we say we should be granted leave to bring expert evidence if you deny us locus, but our final case is that you should grant us locus

 66. CHAIRMAN: Thank you very much indeed, Mr Wolman. Do any members of the Committee have any questions of Mr Wolman on the question of his locus? No? Okay. We will now ask you all to leave us and we will consider the preliminary matter.

Counsel and parties were asked to withdraw and,

After a short time, were again called in

 67. First of all on behalf of the Committee, can I thank Counsel, Mr Clarkson, and Mr Wolman for their presentations to us this morning. Can I inform you that we have given full consideration to the matters that were placed before us and we have concluded that Mr Wolman does not have locus in this matter. Can I advise you formally also that this was the only Petition which we had to deal with this morning. The Petitions 2, 3, 4 and 5 have been withdrawn. Therefore, that concludes the business of this Committee. Can I thank you both for your assistance.






 
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