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I draw the Committee’s attention to the areas where the draft regulations now improve on the current procedures. As recommended by the House of Commons Transport Committee, the penalty charge notice will itself state the procedures for representations and appeals. The committee was of the view that there is widespread ignorance of the challenge procedures and that putting them on the penalty charge notice would help to resolve this.

The circumstances in which a representation and an appeal can be made have been widened specifically to include instances where the enforcement authority has not followed the correct procedures. This ground would cover things such as an authority’s failure to observe the correct time limits or include the right information in notices, or a case where a local authority had served a penalty charge notice by post when it was not authorised to do so.

Finally, the adjudicator will have the power to return to the local authority for reconsideration of a case where a contravention has taken place but in mitigating circumstances. That could cover cases where a driver had to pull over because someone in the car had become ill or the cheque for a resident’s parking permit had been banked by the local authority but the

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permit had been lost in the post. Local authorities have long had the power to cancel a penalty charge notice in such circumstances but a few have shown some reluctance to use this power. The adjudicators will now be able to ask them to consider the case again.

The regulations will be widely welcomed by local authorities and the public. It has taken a lot of hard work to balance the needs of local authorities for a strong and effective enforcement regime and the needs of motorists for one that is flexible and fair. The regulations are based on the successful regime put in place by the Road Traffic Act 1991 but make a few key changes to help to deliver a fairer and more transparent system of effective parking enforcement by local authorities. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. 26th Report from the Statutory Instruments Committee.—(Baroness Crawley.)

4 pm

Lord Hanningfield: We support the thrust and the policies behind the regulations and behind the whole legislation. We support what we hope will be an improvement in road safety and congestion problems, as well as a reduction in carbon emissions that would follow as a result. Therefore, we support the theme and ideas behind the regulations.

As many know, I am the leader of a local authority and therefore welcome the local authority part of the regulations and the strength that they give local authorities. However, I have one or two points to raise about natural justice and how the public can appeal. At the end of her statement, the Minister went to some lengths to present the result of the various negotiations and discussions on the regulations in the House of Commons Select Committee and elsewhere, but my understanding is that there is still some unease about how the public might get treated by local authorities.

As we have just been told, there is an appeal process, which will be mentioned on the ticket displayed on the car. If motorists are unhappy, they can make an appeal to the public adjudicator, who will consider it; they can then ask the local authority to reconsider, but the local authority is not bound to do that. There could be a problem with natural justice there. The local authority should be bound to reconsider the matter if the adjudicator goes back to it and says that there is a problem. At the moment, as I understand it, the local authority could just ignore that. I do not think that that is right in terms of natural justice. If the adjudicator feels that there is a real problem, the local authority should be bound to reconsider. I hope that the Minister will consider that further because I have received representations that there is a little flaw in the regulations. Apart from that point, I support the whole recommendation.

Lord Bradshaw: I, too, support the regulations. I believe that the duties placed on local authorities better to manage the highway, which we will move on

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to in a moment, are quite onerous. Some local authorities are taking them seriously but I am not sure that all are doing so. However, anything that keeps matters out of the courts, simplifies procedures and, in particular, takes them out of the hands of the police I warmly welcome.

Baroness Crawley: I thank noble Lords for their support, with one or two reservations, for the regulations. It is generally a good news story—and the covenant between government, local authorities and the public always needs to be monitored continually so that the public feel that they are being fairly treated on parking and other issues relevant to these regulations.

The noble Lord, Lord Hanningfield, said that there was still some disquiet that the public could not appeal, in that local authorities were not bound to take the decisions of the adjudicator into account in the last resort. Perhaps I may go over with him the mitigating circumstances that are now part of the regulations but were not there before. Although it may not answer his point completely—I do not think that I can do that—it may give him a little more confidence.

An adjudicator will have the power to refer a case back to the enforcement authority for reconsideration where a contravention has taken place but in mitigating circumstances. The department’s statutory guidance makes it clear that such a case should be referenced to the local authority’s chief executive so that, when it is referred back, it goes not simply to one department but gets a wider view by the local authority. The thinking behind that is that other voices may then come in on the side of the person whose case has been referred back because of that wider view.

This provision was introduced into Section 80 of the Traffic Management Act at the specific request of Parliament, which was at one with the noble Lord, Lord Hanningfield, over this concern. The Government believe that their response is as far as we can go on this at the moment. There will, of course, be a review to ensure that it is working properly.

Government policy is that the function of the adjudicator is to determine whether any of the statutory grounds of appeal apply and to allow appeals only where he or she makes a finding to that effect. Local authorities have wide discretion to cancel a PCN—they always have had. Giving this power to the adjudicator would strongly discourage local authorities from deciding cases involving mitigating circumstances. It would also substantially increase the number of penalty charge notices that motorists take to appeal.

Judges who have looked at cases involving mitigation have taken the view that decisions on cases such as these should be based on policies but that those policies should not be used rigidly or formulaically. Adjudicators are not in a position to make policies, let alone follow them consistently. Making policy is the responsibility of elected councillors, and that is why it should ultimately come back to the council’s decision.



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A High Court challenge to an adjudication can be made only on a point of law. Very few cases have been to the High Court since this system was introduced. If adjudicators can use discretion, there will a substantial increase in the number of cases going to the High Court because their decision will be seen as random rather than based on a balance of probabilities as to whether a contravention took place. That is not what parking enforcement should be about. On that basis, I hope that I have answered noble Lords’ questions.

On Question, Motion agreed to.

Traffic Management Permit Scheme (England) Regulations 2007

4.08 pm

Baroness Crawley rose to move, That the Grand Committee do report to the House that it has considered the Traffic Management Permit Scheme (England) Regulations 2007.

The noble Baroness said: These regulations introduce a new way for highway authorities in England to manage works on the public highway. We all recognise the importance of our roads for businesses and communities, and for moving people and goods around towns and cities and across the country. We are also all familiar with works that create hold-ups on those roads, whether carried out by utility companies or by highway authorities which themselves are responsible for, and have a duty to, manage the road network. Permit schemes will provide highway authorities with a more effective tool to help them manage these works and thus reduce the delay and congestion that they cause. Permit schemes were introduced under Part 3 of the Traffic Management Act 2004, which included a provision, in Section 39(4), that the first regulations about permit schemes,

These regulations provide a detailed framework for applications for permit schemes and for the content and operation of those schemes. Highway authorities may prepare and administer individual permit schemes within that framework only. Permit schemes prepared by local highway authorities will take effect only when they are approved by the Secretary of State following extensive local consultation.

Under a permit scheme, any utility or highway authority wanting to carry out works in a street specified in that scheme would need to obtain a permit before the relevant works are begun. A local authority may choose to attach conditions to a permit, such as specifying the days or times when work may be done. Local authorities will be able to make exceptions to permit requirements in certain circumstances, which will enable emergency works to be dealt with promptly. Utilities will pay a fee for a permit which will cover the cost of administration in relation to their works.



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The draft regulations have been drawn up following extensive consultation, particularly with the permits working group, which consists of representatives from local authorities and utility companies. It has resulted in a number of changes in the draft regulations now before the Committee.

The policy objective behind permit schemes is to give highway authorities greater control over work in the street that may cause disruption. While those works may be necessary, how they are planned, co-ordinated and carried out can make a great difference to their impact. The intention is that the highway authority should be proactive in managing and co-ordinating its own and other promoters’ works, enabling authorities to have better managed local road networks and reduced local congestion.

We believe that permits will be a valuable new tool to achieve those ends. For example, permit schemes can be arranged so that where gas or water companies want to maintain pipes in the same street they will have an incentive to work together and perhaps co-ordinate their work with the highway authority street maintenance programme. Even if it is not physically possible for works promoters to combine their activities, local authorities will be better able to manage and co-ordinate all works to minimise the overall impact and reduce disruption and congestion.

It will not be mandatory for highway authorities to run permit schemes, nor do we expect that all highway authorities will wish to do so. The regulations provide a framework for permit schemes. We have also issued statutory guidance and a code of practice. While the regulations will require a degree of standardisation in permit schemes—for example, all schemes must include utility and highways works and they must be treated equally—there will also be some flexibility. Authorities will be able to choose whether to operate a permit scheme over all or some of their roads in all or some of their area.

When it comes to considering applications from authorities to operate a permit scheme, a key factor will be the expected balance of costs and benefits. The Government are aware of the concerns of utility companies about fee levels. The regulations constrain the level of fees so that only the costs associated with running a permit scheme attributable to utility works can be recovered by fees and an absolute upper limit is imposed on fees. We are equally aware that some local authorities have concerns about fee levels from the opposite perspective: that the cap on fees will not enable them to cover the relevant share of the costs. The Government consider that the maximum fee levels proposed should enable authorities to go ahead with setting up permit schemes. We will be reviewing the first permit schemes after a year to look at their operation and see whether they are achieving their objectives. The appropriateness of fee levels will be part of that review.

As we see it, the benefits of successful permit schemes will be substantial, with reduced disruption and delay. Reduced occupation of the road by activities helps to reduce congestion and maximises the efficiency of the existing highway network, improving reliability and making journeys more

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predictable, as well as faster. This makes journeys easier to plan and reduces the amount of wasted or unproductive time. With reduced congestion comes reduced local pollution, with benefits for air quality and other aspects of the environment. Public transport can also operate more reliably and provide a better service to the public, potentially further relieving congestion on the road by attracting motorists on to public transport.

In conclusion, the regulations will, I am sure, be widely welcomed. It has taken a great deal of hard work to achieve the right balance between the needs of road users and the need for effective and well-maintained infrastructure. I am grateful to everyone who has contributed so far to trying to find that balance, and I commend the regulations to the Committee. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Traffic Management Permit Scheme (England) Regulations 2007. 25th Report from the Statutory Instruments Committee.—(Baroness Crawley.)

4.15 pm

Lord Hanningfield: Again, we welcome these regulations. This sort of scheme could reduce congestion considerably, and anything that reduces congestion reduces carbon emissions and improves quality of life. The AA has estimated that on any one day 4 million holes are dug in this country. If that number can be reduced so that things work better, then we will have achieved something. I think we all want to work towards that.

I totally support the general thrust of the regulations. I almost wish that it was mandatory for local authorities to take part in the scheme and I hope that most of them will. There would be a slight problem if one local authority took it up but a neighbouring one did not when a new sewage or water system was being put through the two authorities. It has been suggested that that could be dealt with through the new multi-area agreements between local authorities, which will come into force under different legislation. It will obviously make sense for two or three local authorities to work together when they are all involved in a major scheme.

I have a few questions for the Minister. The legislation currently allows up to three months for permit applications to be processed. I come from a local authority background and want to ensure that enough time is allowed in that regard. Could a three-month delay sometimes hold up major infrastructural maintenance and the introduction of new services, particularly to a new estate, for example, which needs new services? Is three months too long for a utility company to wait for a permit? I hope that local authorities can turn round applications quickly, but sometimes we are not allowed three months for a planning application and it might be too long to wait for a permit to be processed.

The noble Baroness mentioned that she would look at how the scheme was working after a year. I like to think that the Government will find out whether it is reducing delays, congestion and carbon emissions and

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whether the utility companies are co-operating with it. I hope that the Government will carry out a comprehensive review after a year, as the Minister mentioned.

Has any thought been given to how many local authorities will take up the scheme? As I said earlier, I hope that they all do. I shall certainly encourage them to do so and I hope that the Local Government Association will too.

Finally, the fine for non-compliance is only £500. Will a major company doing infrastructure work be deterred from getting on with a big project with a fine of £500? I know that one can resort to the courts and so on, but could there not be more latitude on the level of the fine for non-compliance? It will have very little effect on a £1 billion business. Perhaps the noble Baroness could answer those points. Having said that, we support the thrust of the regulations. We hope that the scheme will work and I shall do my bit to encourage it from a local authority point of view.

Lord Bradshaw: I, too, welcome the regulations; they have been a long time coming. There has been a lot of representation from the utilities about this, a lot of which has been somewhat febrile. The utilities basically make a lot of money: they post huge profits and get sold to one another for large profits. Against that, we are talking about permits—as the noble Lord, Lord Hanningfield, has just said—where the fines are almost derisory. In preparation for today, I have a note from the police on this issue. Some of the penalties currently levied, such as £30 for no seatbelts or driving a heavy lorry through country lanes, are ludicrously low. In fact, the operator, in the case of a heavy lorry, recoups that on one illegal journey, of which he makes many. Similarly, along with the noble Lord, Lord Hanningfield, I believe that the penalty level for not observing the permit regulations is too low and hope that it will be taken into account in the review.

The Minister mentioned that the schemes would have to be authorised by the Secretary of State. Why? If the permit scheme is designed in accordance with the regulations and put before a local authority—a county council in many cases, or a metropolitan authority—surely its officers should be able to decide whether the scheme has been advanced in accordance with the regulations before it. I deplore the Government’s attitude that everything has to go to the highest level. I know that the Secretary of State does not sign it, but an official on his behalf—but is that official any better qualified, for example, than the chief executive or director of a local authority? Will the Minister ruminate on this making a cumbersome process? I hope—again, with the noble Lord, Lord Hanningfield—that a lot of people take up this system.

I hear what the noble Lord says about a permit scheme possibly being needed within three months. However, from my knowledge of utility schemes, they are several years in the planning, as is a new estate. Utility companies would be well advised to get in their applications in a timely fashion and not resort to the use of emergency powers. They often do that, and

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say that they must dig up the road because of floods, gas leakage or electricity failures, and are therefore not properly controlled by any permit scheme.

I do not take the views of the utility companies into consideration any more. The Government have listened long and hard to them, and have possibly erred too far on their side. Like the noble Lord, Lord Hanningfield, I represent people who have to use the roads, whose journeys are constantly disrupted. They want to see proper planning of the highway brought in so that it can be managed in the most effective way.

The Earl of Erroll: I ought to say a few words on this, since I took part in the discussions on the Traffic Management Act when we put it together. First, including the highways authorities in these proposals is very welcome. One problem we pointed out was that much of the intention would be wasted if we did not include the highways authorities, since they are responsible for a lot of the works. After that, however, I am afraid that I immediately start to wonder whether we are just inventing a whole lot of bureaucratic bloat. We discussed the voluntary, collaborative approach that worked very well in Scotland, which was then called Susiephone—I know it has changed its name, and I have no idea what it is called now. Incentives tend to work much better than sticks—regulations. Regulations tend to include delaying processes and stop things happening, whereas with incentives people do things and things happen. They provide a different way of thinking.

On bureaucracy, the noble Lord, Lord Hanningfield, spoke of authorities working together. Back in 2005 when implementing electronic government stuff, trying to get one county and 12 districts to work together on e-procurement was impossible. We finally managed to get half of them to work together and the other half would not take part at all. The issue of common or joint permits going across county boundaries can be quite important if the counties do not collaborate properly. I see more problems, challenges, different timetabling, different forms to be filled in in different ways, and so on. If we have this system, the Minister will have to ensure that the forms are not totally incompatible across boundaries, which can easily happen.

I then started to think about the possible downside to this. There is a three-month delay. If one is trying to get a broadband connection into a new place, it is bad enough at the moment to get people to turn up to do it, but on top of that, one has another three-month’ delay while the local authority thinks about how it will schedule it. What will be the benefit? The critical benefit is that it will try to attack the 10 per cent of congestion caused by road works—we are not talking about the primary cause of congestion. We will try to co-ordinate road works better, so that the road is dug up only once instead of three times. That is why a long delay is needed to try to co-ordinate road works.

One is also delaying such matters as the green agenda and helping people to work from home. If people cannot get the communications, they cannot work from home. As a result, carbon production will

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go up. Such things will not aggregate properly. For some reason, the timescales will be wrong. I cannot believe that if it were that simple it would not have been done years ago, collaboratively. I think one will find that the challenges are too great and all that one is doing is introducing yet another bureaucratic layer and no improvements will be seen at the end.


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