Thursday, July 23, 2009

One small step for a motorist giant leap for justice

In an upstairs function room in the Marriott Hotel on Tuesday a little ray of sunshine shone through the window as the waves crashed onto Seaburn beach below.

The room was set out for a Traffic Penalty Tribunal hearing. There were various appellants v Sunderland City Council before Traffic Penalty Tribunal adjudicator Mark Hinchcliffe, who reassuringly stated that he also sat as a judge.

Sunderland were represented by Parking Services' Julie Tunstall and also present were Assistant City Solicitor Elaine Waugh and Highways Engineer Paul Robinson who clutched a very dusty version of the 1985 Traffic Signs Manual (repealed more times than a Groundhog day apple) as if his whole career depended on it to attempt to justify Sunderland's use of non-compliant bays.

Sunderland City Council's Parking Services Manager Earl Belshaw was conspicuous by his absence.

Mr. Belshaw has presided over Sunderland's shambolic decriminalised parking enforcement regime since its inception in 2003 and has been in the national media spotlight since the first Trevor McDonald 'Tonight' Special which was followed by a BBC expose which led to the sacking of a large number of Parking Attendants and the removal of National Car Parks Ltd. from the enforcement contract. The programme provided convenient scapegoats for the council and a welcome diversion from the council's unlawful restrictions.

Ever since the DfT were misled into granting DPE powers Sunderland has been continually correcting and covering up their mistakes and amending incorrect Traffic Orders. However, after over 4 years of investigation and evidence (including documents from the DfT reminding the council that their actions were unlawful) we appear to be seeing the beginnings of justice finally prevailing.

As we have always maintained, there are some very good councils out there who endeavour to act in accordance with the law and apply a sensible and fair approach to enforcement. However, there are some officials who have forgotten that they are public servants and who think that they have the power to behave in the most Draconian manner and with a cavalier and reckless approach to the law.

The decisions...

Unlawful Traffic Regulation Order
One of the first cases heard on Tuesday was Herron v Sunderland ... for a PCN issued in a dual-use loading / parking bay in Derwent Street. Now this location was one challenged previously before adjudicator Andrew Keenan and was where Sunderland City Council had misled the Secretary of State into granting Special Authorisation for the 'non-prescribed' dual-use bays by stating that they would mark the bays to the minimum required ... 2.7m.

The bays are only 2m wide and not wide enough to fit a HGV into!

Documents obtained under FoI showing this deception were submitted to the tribunal. Officers at the Government Office for the North East had previously suggested that the use of narrow loading bays could be considered 'entrapment.'

However, the critical point came when the adjudicator was taken to the description of the location at Item 548 in the TRO. Sunderland had become a little muddled in their drafting ... getting their east confused with their west (or using legal terminology not knowing their arse from their elbow).

Mrs. Tunstall said it was simply a 'typing error.' Christopher Latham Sholes shifted uncomfortably in his grave. Perhaps he put the 'w' 'e' 'a' and 's' a little too close together. (He invented the typewriter).

Wonder why Sunderland didn't spot the error when it had been pointed out in every single representation for this location that they kept rejecting? Perhaps if they had it would have undermined the adjudicator's decision. Perhaps if they had then everyone would have started digging a little further. Perhaps if they had all the traders in Park Lane Village shopping village who had been persecuted by Parking Attendants would have been even more aggrieved. Perhaps Captain D W Green who had spent years trying to expose Sunderland council's legal department's incompetence might have finally been vindicated.

Good job they hadn't ended up trying to defend that one with £50,000 of public money in the High Court (FoI response in October 2008 indicated that Sunderland had spent £36,000 of Sunderland ratepayer's hard earned cash on Stephen Sauvain QC and others legal advice in relation to issues arising from the council's parking shambles). I am sure that the Sunderland Echo will be requesting an up to date figure of the money spent on lawyers and a number of councillors will now be demanding the full external investigation that was promised by the previous Chief Executive. No more whitewash ( or yellow paint wash). No more sweeping matters into the gutter.

How much cheaper in the long run would ' We are sorry, we got it wrong' have been?

One day's news, a few refunds and respect. As a nation we are the hardest to fight but the first to forgive.

No-one at all criticised Sheffield City Council when they did it, and that was £350,000 for one ambiguous, confusing sign ... and the man whose tickets sparked the victory, Alan Bangert, despite being a mature student, did the admirable thing and donated his 'windfall' to the local children's hospice.

So finally, after over three years and half a rainforest of repeated evidence all of which had been before Sunderland's solicitors, their parking team and Adjudicator Andrew Keenan OBE, the restriction in Derwent Street was ruled unlawful.

Should Sunderland consider spending another tranche of public money to try and avoid repaying those fined unlawfully? Or will they be advised that monies derived from PCNs issued at this location will have to be refunded (Woolwich Equitable Building Society v Inland Revenue Commissioners) and enforcement suspended immediately? Certain lawyers have already dispensed this advice to various councils and District Auditors across the land.
A couple of phone calls and a sharing of legal opinions will ensure that all councils concerned know that they will not be able to benefit or be 'unjustly enriched' from a mistake in law.

We would encourage anyone in Sunderland receiving a parking ticket refund to share their 'windfall' with the Grace House Appeal or any other worthy cause.

Unlawful 'instant' pay and display tickets
The second council blunder concerns all the on-street pay and display bays. Quite a simple one and the appellant's argument (a city centre Estate Agent) was that he was loading and unloading in the pay and display bays adjacent to his premises.
The Council's own Parking Charter shows that vehicles on commercial business are allowed 20 minutes observation

This is also allowed in the TRO where it states that loading and unloading is permitted for up to 20 minutes.

The Council had however, instructed its Civil Enforcement Officers to issue 'instant' tickets meaning that there was no observation period, in breach of its own Parking Charter and contradicting its own legal document, the Traffic Order.

Have the Council's lawyers and Parking Managers ever taken the trouble to read the Parking Charter and the TRO or was this a deliberate attempt to raise revenue after a disastrous drop in PCN numbers in the aftermath of the BBC documentary?

No observation period means no evidence that no loading or unloading was taking place and therefore the PCN has been issued incorrectly.

It's a pretty fundamental thing when financially penalising motorists to at least read your own legal documents. If they have read them and understood them then who issued the instruction to the CEOs to issue 'instant' tickets directly contradicting the Charter and the TRO?

However, such a decision is not accidental or an oversight. This MUST have been a deliberate policy decision by at least one individual.
Who was it and who else was involved?
Was it the Parking Services Manager? Was it the Service Director? Was the Policy Decision supported by the legal department and Chief Executive?

Former National Car Parks Ltd. Parking Attendants and management have confirmed that it was policy when they were in post to allow 5 minutes constant or 20 minutes casual observation.
So when did the policy change and who changed it and why? Was the legal department aware?

Were the same council officers involved in this decision as allowed the enforcement contract with National Car Parks Ltd. to be transferred to NCP Services Ltd. without anything in writing? Without anything being minuted? Without any parent company guarantees or indemnity?

No stone must be left unturned when investigating this fundamental piece of incompetence and misconduct. The vicarious liability for all this resides with the Chief Executive who has been given ample opportunity to initiate a full investigation into the Parking Service Department's failings over the past four years.

More will be revealed shortly about the District Auditor's investigation into the breach of the council's own constitution with regard to the 'transfer' of the contract ... but the Council's accounts for 2007 -2008 have yet to be signed off and the District Auditor is seeking counsel's opinion for the second time.

Meanwhile, everyone who has ever had a Code 05 or Code 06 PCN in a pay and display bay should write to the council and request a refund and all monies derived from such errors . Their address is here or simply give them a call on 0191 520 5555 and ask how they intend to refund you.
Any assistance needed just drop us an e-mail at

All single yellow line tickets in the City Centre Controlled Parking Zone suspended Finally, and perhaps the most significant were the PCNs issued on single yellow lines issued within the Controlled Parking Zone (CPZ).
This matter has been granted leave at the High Court with 2 days being set aside for the case after a High Court Judge, Justice Keith decided that the case needed to be heard before a Senior High Court Judge.
The implications are far reaching and will affect EVERY PCN issued on a single yellow line in any CPZ. The implications are so enormous that the Treasury Solicitors have requested that the Secretary of State for Transport intervene and be allowed to give evidence.

What that evidence might be is yet to be disclosed.

However, adjudicator Mr. Hinchcliffe ruled that as the PCNs were issued on a single yellow line in a CPZ and seeing that this matter was now before the High Court he would grant the request for an adjournment.

One more step forward for a motorist ... one giant leap towards justice for Britain's motorists ... against what has become a lawless, out of control 'industry' without any judicial checks or balances.

Thanks to all those who continue to support the campaign. Please spread the word and turn The Motorists Legal Challenge Fund into the public defender and watchdog that Britain's motorists are in desperate need of to hold rogue authorities to account and to expose injustice across the country and get such matters before the courts where all of this can be exposed under the brightest spotlight.

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