This will allow any investigation into the legality of the Traffic Orders governing the Hospital car parks and the issuing of penalties and receiving of monies for permits and pay and display to be fully in the public domain.
Questions will also need to be raised with the Secretary of State for Transport as to what he now intends to do with regard to the Civil Enforcement Area for Devon should it be shown the he was given false reassurances by council officers.
The letter ...
Roger Coombes,
Head of Administration & Parking Services
Exeter City Council
Civic Centre
Paris Street
Exeter
Devon
EX1 1JN
28th October 2009
Dear Mr Coombes
This letter is divided into two parts:
PART I … The first part is made in response to the answers given by Exeter City Council (ECC) in reply to my Freedom of Information (FoI) request dated 6th September 2009 (copy below).
PART II … The second part is a formal complaint against Exeter City Council for maladministration in their administration of regulating the car parks on land owned by the Royal Devon & Exeter Healthcare NHS Trust (RD&E Trust) and the Devon Partnership NHS Trust (DP Trust).
* Please note that where I request information in Part I, it is to be treated as a formal request under the Freedom of Information Act 2000.
* Where the term “Trust’s” is used in either Part I or Part II, then this term is to be taken to mean the Royal Devon & Exeter Healthcare Trust and the Devon Partnership NHS Trust jointly.
PART I
In my FoI request I asked to be provided with a copy or copies of any contract between ECC and the RD&E Trust that empowered ECC to make a Traffic Regulation Order (TRO) under Section 35 of the Road Traffic Regulation Act (RTRA 1984) in regard of this land that is privately owned. Unfortunately ECC declined to provide any copy or copies. The reason given was that this information is exempt as it contains commercially sensitive information.
It is my understanding that any contract was never put out to tender and that there are no plans for any contract to be put out to tender in the immediate future. For these reasons I do not agree that any “commercially sensitive” exemption applies to this information and I ask once again that you provide me with the copy or copies of any contract between ECC and the RD&E Trust. I am not unreasonable and I do not mind if ECC blackout the financial figures. If you continue to decline my request then I will ask the Information Commission to assess your refusal.
I also request that you provide a copy or copies of any contracts made between ECC and the DP Trust in relation to the car parks ECC regulate on the DP Trust’s land. Once again I do not object if ECC blackout any financial figures.
I must make you fully aware that it is essential that a contract does exist in each case and that it is made under section 33(4) of the RTRA 1984. This requirement is supported by section 35(1) of the RTRA 1984. If any contract fails to have been correctly drafted then the financial repercussions for ECC could cost in excess of £8,000,000. Taking the seriousness of this matter into account you will understand that the matter of any contract or contracts is paramount and it is in ECC’s interest to clarify the legal status of any contract or contracts. Failure to provide any copies will result in inference that is likely to lead to the detriment of ECC’s reputation.
In my FoI request I specifically asked that I be provided with all plans pertaining to The City of Exeter Hospital Parking Places Order 1994 and any subsequent amendments. ECC failed to comply with this reasonable request and an offer to make a personal viewing is not an acceptable response to a request for information. Since the plans are necessary to evaluate the schedule, I must insist that ECC provide me with all plans that accompany any order relating to the land owned by RD&E Trust and the DP Trust. Any continued failure will be raised with the Information Commission. I am quite will to pay any reasonable copying and postage costs.
I also require copies of all ECC internal correspondence, made in electronic format or otherwise, that has been communicated since the 6th September 2009 and concerns the RD&E Trust car parks and the DP Trust car parks. This request also extends to all ECC correspondence sent to and received from external bodies that has been communicated since the 6th September 2009 and concerns the RD&E Trust car parks and the DP Trust car parks. I do not doubt for one moment that significant communications will have been made internally between the Parking Department, the Legal Department and senior council officials and externally between ECC and the RD&E Trust. Previous experience has alerted me to the fact that some councils believe that they can get away with disclosing sensitive information by withholding, denying or deleting it. I must clear you of any doubt that I will not hesitate to report any suspicion I have, as to ECC’s compliance with this request, to the Information Commission as well as consult with my lawyers.
In addition to the points above, I wish to submit a Subject Access Request under Section 7 of the Data Protection Act 1998 for the release of all personal data the council may hold, including emails where I am referenced or discussed. The Information Commissioner will confirm that emails also constitute structured data. Please let me know if there is a fee to be levied for this and I will forward a cheque by return.
I am sure that, in the public interest you will wish to be transparent on this issue and, if a mistake has been made, issue the necessary apologies. From experience, previous councils that have attempted to obfuscate end up creating even more problems and suffer public embarrassment and financial penalties as a result. I am sure that this council will not wish to add your name to this list of councils.
PART II
My complaint of maladministration applies to all the car park sites owned by the RD&E Trust and the DP Trust and on which ECC regulate by order, made under section 35 of the RTRA 1984.
For now I will assume that such an order is founded on a contractual agreement made under section 33(4) of the RTRA 1984. If it is later established that any contractual agreement fails to meet the legal requirement then there will be a dire need to add further to this complaint of maladministration.
In my FoI request ECC declined to answer my question seeking an explanation as to why ECC had continued to enforce the Trust’s car park sites under the provisions of the RTRA 1984 when, since the 5th May 2008, the County of Devon has been designated as a Civil Enforcement Area for parking contraventions by Statutory Instrument (S.I). ECC also declined to offer a simple view on whether the continued issue of Standard Charge Notices under the RTRA 1984 was considered by them to be lawful.
My questions were not complex and a competent council ought to know why they are enforcing parking regulations under a certain piece of legislation and certainly they ought to be able to express a view on whether their actions are lawful. The fact that ECC chose not to offer any explanation is because they are either incompetent and do not know the answers or have a cavalier and reckless approach towards their legal responsibilities. It has nothing to do with the fact that such questions are not considered to be information accessible under the FoI Act 2000 which is the excuse given.
Since ECC do not appear to know the answers I will provide them. The answer is that since 5th May 2008 ECC have been legally obliged to cease enforcing any parking contravention under the RTRA 1984 and to commence enforcement under the Traffic Management Act 2004 (TMA 2004). Therefore the continued issue since 5th May 2008 by ECC of Standard Charge Notices has been unlawful.
· Under the TMA 2004 any car park within a Civil Enforcement Area (CEA) that is regulated by a Traffic Regulation Order made under section 35 of the RTRA 1984 requires the local authority to serve penalty charge notices and thereby allowing the recipient, access to an appeal procedure that is far more favourable than the old criminalised system operated under the RTRA 1984.
· The Trust’s car park sites are clearly within the designated CEA that S.I 2008/1051 gives authority to. The only exemption is for land owned by the MoD.
· Devon County Council’s CPE application clearly instructs the Department for Transport under paragraph 3.1.1 that the CEA will include all off street car parks administered by the districts. The Trust’s car parks are administered by ECC. Paragraph 1.5 provides the definition for “the districts” and this definition includes ECC. Paragraph 3.1.4 advises that a map attached to appendix C defines the CEA and this map includes all the Exeter area. The evidence confirming the Trust’s sites are within a CEA is conclusive.
· Schedule 7, Part 1, paragraph 4(2)(d) of the TMA 2004 clearly confirms that it is a civil parking contravention to contravene section 35A of the RTRA 1984. The City of Exeter Hospital Parking Places Order 1994 clearly makes reference to section 35A in relation to contraventions and as such this is further evidence that parking enforcement should, since 5th May 2008, have been under the provisions of the TMA 2004.
· It should also be noted that the 2007 General Regulations made under the TMA 2004, quite clearly instruct under paragraph 7 that “no criminal proceedings may be instituted” within a CEA.
Now that I have helped ECC to ascertain that they have acted unlawfully since 5th May 2008, I demand that ECC publicly acknowledge their unlawful actions and that ECC make every effort to reimburse those members of the public that have, since the 5th May 2008, been required to pay an unlawful Standard Charge Notice.
Further to this, I require to know what action ECC intend to take to remedy such maladministration and what disciplinary action will be taken against those members of staff that were incompetent in their decision making to allow such a travesty to occur?
The maladministration complaint does not end here as there are further matters relating to The City of Exeter Hospital Parking Places Order 1994 to raise.
The Trust’s car park sites are regulated by a Traffic Regulation Order made under section 35 of the RTRA 1984. Section 35 makes provision for the local authority to set the charges to be paid in connection with the use of the car parks. It has come to my attention that the Trust’s staff members are charged a fee for a staff parking permit and that the total income obtained from these permit fees since 1994 is approximately £2,000,000. However, The City of Exeter Hospital Parking Places Order 1994 (the “original order”) and its subsequent amendments do not contain any provision permitting such a fee to be charged for a staff parking permit. All parking charges must be contained within the order when those charges apply to land that is regulated by the order. This does not appear to have been the case with staff parking permit fees.
My inquiries have discovered that the Trust’s seem to be allowed to regulate these permit fees independently from The City of Exeter Hospital Parking Places Order 1994. As the land is regulated by an order, this independent action is unlawful and ultra vires to what section 35 of the RTRA 1984 makes provision for.
Since the Trust’s and ECC have acted ultra vires and hence unlawfully in obtaining fees for parking without them being contained within the order then this maladministration also needs to be investigated. I urge that immediate action be taken to reimburse all current staff that have purchased staff parking permits and that appropriate action is taken to reimburse all ex-staff where they can be traced. It is important that ECC realise that although the land is privately owned, that they are legally responsible for all regulation upon it due to the order made in their name. I require to know why ECC believed it unnecessary to include these permit charges within their order and what action they will take to remedy this maladministration?
I note that “The City of Exeter Hospital Parking Places Order 1994 (Amendment) (No.4) Order 2003 attempted to amend the original order so that charging and regulation could commence at further car park sites. These being Wonford House, Cedars/Delderfield and Hospice. Unfortunately the person that drafted the amendment No 4 order failed to do it competently.
This amendment order simply advises that the area of land on plan 1 is to be increased to include these further sites and completely fails to amend column 1 of the Schedule so that these further sites are added to it. Since this amendment order failed to add the sites to the Schedule these sites are not ‘parking places’ as defined by the original order. The consequence of this incompetence is that since 4th February 2003 all income from parking tariffs and standard charges accrued from the car parks at Wonford House, Cedars/Delderfield and Hospice have been acquired without any legal foundation, making it all unlawfully derived income.
Once again an explanation from ECC is required to clarify why they failed to correctly draft the amendment No 4 order to allow lawful regulation and charging at these sites. Details are also required of what ECC intend to do to remedy this unlawful action and how they intend to compensate those members of the Trust’s staff and the general public that have been charged or penalised by ECC since 2003, when their order made no provision for this.
Another matter brought to my attention is that ECC issue a Standard Charge Notice within the trust’s car parks where a vehicle is parked beyond the time stamped on the displayed parking ticket. On close scrutiny of the original order it appears that such action by ECC is ultra vires to what power the original order and its amendments bestow.
The Standard Charge Notices issued by ECC give a list of offences numbered 1-8 (the original order under paragraph 5 only prescribes 5 offences to be listed on the Standard Charge Notice, so the increase of a further 3 offences without any legal basis is a point of further maladministration and needs to be explained). Number 2 in this list refers to a situation where “only expired tickets were displayed on the vehicle”. Neither the original order nor any of its subsequent amendments define what an expired ticket is nor do they make any reference to the term “expired” in relation to the receipt of a Standard Charge Notice. It is paragraph 4.5 within the original order that instructs when a Standard Charge is to be payable and we are told that it is when a vehicle is left “otherwise than in accordance with paragraphs 4.1 to 4.4”. These paragraphs make no reference to an “expired” ticket and therefore ECC have no enabling power to issue a Standard Charge for the reason of displaying an expired ticket.
I am also aware that ECC issue Standard Charges where a ticket is considered invalid because the vehicle has parked beyond the time stamped on the displayed ticket. Once again on close scrutiny of the original order and its amendments, it is clear that ECC is not bestowed with the legal authority to penalise in such circumstances.
Within the original order, paragraph 4.2(iv) instructs that a ticket, “shall only be valid on the date when purchased or on the dates stated on such ticket or tickets”. Therefore, so long as a ticket has the correct date it is valid and validity, according to the order, has nothing to do with the time stamped upon the ticket.
Since the original order and its amendments bestow no power on ECC to penalise “expired” tickets or tickets considered invalid due to “time” rather than “date” issues, it is reasonable to conclude that ECC have once again acted ultra vires and unlawfully. I require ECC to once again explain the reasons for their unlawful actions and to confirm how they intend to remedy this situation as well as state what action they intend to take to compensate those that have been treated unjustly by their unlawful actions.
In my FoI requests to ECC, RD&E Trust and Devon County Council, I requested copies of any consultations sent or received in regard to the alleged contract made between ECC and RD&E Trust as well as all consultations made in relation to the original order and any subsequent amendments. The result of this request was that neither ECC, RD&E Trust nor Devon County Council were able to provide a single document to prove any formal statutory consultation was ever made.
Taking this failure into consideration, it is rational to conclude that no proof could be provided because ECC did not observe its legal obligations to consult concerning the contract, the original order and its amendments.
This legal obligation is based on section 39(3) of the RTRA 1984. ECC are not permitted to exercise any power under the RTRA 1984 unless Devon County Council has given their formal consent. It must also be noted that under paragraph 6 of S.I. 1996/2849, ECC are legally obliged to consult other statutory bodies in relation to any order.
Since there is no evidence of any statutory consultation having been undertaken, it can be argued that ECC are guilty of further maladministration and any contract, order or amendment pertaining to the Trust’s car parks is unlawful. I request that ECC either provide conclusive evidence that their statutory duties were observed or offer an explanation as to why they failed in their legal duty and to elucidate on what actions they intend to take to compensate those that suffered as a consequence of any unlawful action by ECC.
From all the very serious matters raised in this letter, it is clearly evident that ECC are guilty of gross maladministration in their regulation of the Trust’s car park sites. Where ECC disagree with any statement, comment or accusation then I expect them to explicitly confirm the legal rationale behind any such disagreement.
It is unacceptable that ECC as a public authority can disregard and break the law while harshly penalising members of the public they believe to have broken the law. Not only is such behaviour unlawful, it is immoral and hypocritical and the public of Exeter deserve to learn the truth as to the extent of ECC’s maladministration.
I expect your full reply shortly.
Please acknowledge receipt of this communication and I would be grateful if you could provide contact details for the Head of Internal Audit and the District Auditor.
Yours sincerely,
Neil Herron
cc. Lord Lucas
cc. Lord Adonis, Secretary of State for Transport
cc. Sadiq Khan MP, Minister for Transport
cc. Norman Baker MP, Shadow Minister for Transport
cc. Theresa Villiers MP, Shadow Minister for Transport
cc. Complaints Department RD&E
cc. Anne Byrne, Express and Echo
cc. Marilyn Waldron, Department for Transport
cc. Bruce Luxton, Head of Policy, Exeter City Council
cc. Philip Bostock, Chief Executive
cc. Cllr. Yolonda Henson
cc. Cllr. Peter Edwards
cc. Cllr. Adrian Fullam
cc. Ben Bradshaw MP
cc. Newsdesk, BBC Spotlight
NOTES:
Statutory Instrument 2004 No. 3082 The Local Authorities (Indemnities for Members and Officers) Order 2004
THE RESPONSE TO THE ORIGINAL FoI REQUEST
Dear Mr Herron,
Thank you for your request made under the Freedom of Information Act, received in this office on 6 September 2009.
Please see below the responses to the questions you have raised (highlighted in blue).
If you have any complaints about the way your request has been handled please write to the Complaints Monitoring Officer of the City Council or complete the online complaint form that can be found at www.exeter.gov.uk/complaints. If your complaint is not resolved to your satisfaction you have the right to apply to the Information Commissioner for a decision.
Kind regards
Carrie
Carrie-Anne Bainbridge
Policy Officer
Exeter City Council
Civic Centre
Paris Street
Exeter, EX1 1JN
Tel: 01392 265875
Fax: 01392 265268
From: Neil Herron [mailto:neil@parkingappeals.co.uk] Sent: 06 September 2009 14:32To: Parking EnforcementCc: Luxton, Bruce; 'Parking Appeals'Subject: FW: Devon CC Traffic Order
F.A.O. Freedom of Information OfficerExeter City CouncilCivic CentreParis StreetExeterDevonEX1 1JNUnited Kingdom
6th September 2009
Dear Sir / Madam,
I hereby request under the provisions of the Freedom of Information Act 2000 that you release all the information detailed below:
1) Please confirm the name and locations of all the RD&E hospital car park sites in which Exeter City Council enforce parking regulations and issue a standard charge notice where it is deemed that a parking contravention has occurred.
Exeter City Council enforces regulations at the Wonford site (including the Orthopaedic Unit) and Heavitree site.
2) In relation to each of the above named sites, please provide full copies of any contract or contracts between Exeter City Council and the NHS Trust that enables such enforcement to be undertaken by Exeter City Council on land owned by the NHS Trust.
I am unable to provide copies of the agreements between Exeter City Council and the RD&E Hospital as these are exempt under Section 43 of the Freedom of Information Act 2000, because they contain commercially sensitive information.
3) If any contract was necessary, please confirm whether the contract or contracts in each case required consultation with any other party and if so please confirm their name and provide copies of all correspondence in regard to all consultations undertaken.
The Council does not hold this information.
4) Please provide a full copy (inclusive of site location maps) of ‘The City of Exeter Hospital parking Places Order 1994’ and in addition please provide full copies (inclusive of site location maps) of any order or notice that has since revoked, amended or varied the 1994 order.
I have sent you a hard copy of 'The City of Exeter Hospital Parking Places Order 1994' and amendments (No. 1-7). Please note, if you would like to view the plans which accompany the Order and amendment No. 4, please contact me to arrange a suitable time to view them at the Council's Customer Service Centre.
5) Please confirm whether any other parties were consulted in relation to making the 1994 order and any of the orders or notices revoking, amending or varying the 1994 order. In each case where consultation did occur please confirm the name of the party or parties consulted and provide full copies of all correspondence.
The Council does not hold this information.
6) Please confirm the name of the Head of Parking Services at the time when CPE (Civil Parking Enforcement) commenced.
The Council's Head of Parking, Engineering & Business Support is Roger Coombes and he was in post at the time the Council acquired CPE responsibilities in May 2008.
7) Please confirm the experience and qualifications held by the person named above that made his or her superiors consider this person suitably proficient to implement CPE.
I am unable to provide details of his experience and qualifications because it is exempt under Section 40(2) of the Freedom of Information Act 2000, as it is personal information. Section 40 of the Act states that information does not have to be released if it would contravene the Data Protection Act 1998.
8) Please explain why Exeter City Council has continued to enforce the RD&E hospital car park sites using a standard charge under the Road Traffic Regulation Act 1984 when, since 5th May 2008, the County of Devon has been designated a Civil Parking Enforcement area under the provisions made in the Traffic Management Act 2004.
This is not a request for information under the Freedom of Information Act 2000.
9) Please confirm whether Exeter City Council consider the issue of standard charges under the RTRA 1984 within the hospital car park sites since 5th May 2008 to be lawful and if they do then please explain on what legal basis this belief is held.
This is not a request for information under the Freedom of Information Act 2000.
10) Please confirm the number of standard charges issued by Exeter City Council within the hospital sites since 5th May 2008.
2,036
11) Please confirm the total revenue raised from these standard charges since 5th May 2008.
£33,498
12) Please confirm the total number of standard charges issued by Exeter City Council within the hospital sites since the commencement of the 1994 Hospital Parking Places Order.
14,080 (this includes the figure in 10 above)
13) Please confirm the total revenue raised from standard charges since the commencement of the 1994 Hospital Parking Places Order.
£177,834 (this includes the figure in 11 above)
14) Please confirm the total revenue raised within the hospital car park sites from parking tariffs since the commencement of the 1994 Hospital Parking Places Order.
The Council does not hold this information. This question should be re-directed to the RD&E Foundation Trust.
15) Please confirm the number of standard charges issued within the hospital car park sites since the commencement of the 1994 Hospital Parking Places Order that were for displaying an expired ticket.
The Council does not hold this information.
16) Please confirm the total revenue raised within the hospital car park sites since the commencement of the 1994 Hospital Parking Places Order from standard charges issued for displaying an expired ticket.
The Council does not hold this information. This question should be re-directed to the RD&E Foundation Trust.
*NB: Where appropriate in each case above, where you are unable to provide an exact figure please submit an approximation.
Please acknowledge receipt of this email and comply with this request within the statutory time of 20 working days.
Yours faithfully,
Neil Herron
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