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and the Honourable Society of Lincoln's Inn, have withdrawn their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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