Freedom of Information Request from DfT in relation to Scarborough's CPZ

This is the Freedom of Information request from former Police Officer Richard Bentley to the Department for Transport and the response from Ian Boddington.

In the public interest it has been reproduced in exactly the same format as it was provided by the DfT.

The only information 'missing' is believed to be the FIRST advice provided to Scarborough and North Yorkshire Councils from Stephen Sauvain QC. This advice was shared with Government officials and is understood to condemn councils who had not complied with the strict definition of a Controlled Parking Zone.

The DfT has refused to disclose this evidence to the High Court.


DfT FOI & Additional Evidence 1

Definition of a CPZ ... and the implications of non-conformity

DEFINITION OF A CONTROLLED PARKING ZONE
… and the implications of the Neil Herron / Parking Appeals Ltd. challenge.

At the outset of the decriminalised parking process, the then relevant 1994 TSRGD provided a variable definition of a Controlled Parking Zone.

The definition was provided by the Secretary of State for Transport in his direction 23(3) within TSRGD 1994:

(3) In this direction and direction 24, "controlled parking zone" means either
(a) an area
(i) in which, except where parking places have been provided, every road has been
marked with one or more of the road markings shown in diagrams 1017, 1018.1,
1019 and 1020.1; and
(ii) into which each entrance for vehicular traffic has been indicated by a sign shown in
diagram 663 or 663.1;


Being a ‘Direction’ of the Secretary of State for Transport, the constraints relating to the provision of ‘Controlled Parking Zone’ (CPZ), primarily that all roads must either have prescribed parking bays or, they are to be controlled by one of the designated parking restrictions were variable, under the powers granted to the Secretary of State for Transport by the Road Traffic Regulation Act 1984 (the Act).

1 By definition should any area of highway be uncontrolled, there could not be a CPZ unless of the Secretary of State for Transport provided approval by site or area specific amendment to his direction.

2 It is my understanding that in the 2002 revision of TSRGD however, both the powers of the Secretary of State for Transport in defining and modifying what is or is not a CPZ have been removed.

The requirements for the provision of a CPZ have now been incorporated into Regulations approved by Ministers, to be precise it is now contained within Regulation 4 of the Traffic Signs Regulations and General Directions 2002

To quote: (we are only dealing with type (a) CPZs)
"controlled parking zone" means ¬
(a) an area -
(i) in which, except where parking places have been provided, every road has been
marked with one or more of the road markings shown in diagrams 1017, 1018.1,
1019 and 1020.1; and
(ii) into which each entrance for vehicular traffic has been indicated by the sign
shown in diagram 663 or 663.1;

It is my firm understanding and conclusion that this current Regulatory definition of a Controlled Parking Zone (CPZ) is not variable unless there is a change to the Statutory Instrument, that the pedantic requirements are precisely constrained and there is no legislative or legal latitude for either error or flaw.

Extract from a Report prepared for Parking Appeals by Signing Consultant and Accredited Expert Witness Richard Bentley of RMB Consulting.

Therefore, if any area of highway is not marked with a single yellow line, double yellow line (or single or double kerb blips) or a parking space (which may be a pay and display bay, resident’s bay, disabled bay, loading bay etc.) then a Controlled Parking Zone cannot exist in law because of the precise constraints of the definition of a CPZ in Regulation 4 of TSRGD 2002.

The problem with this strict definition is that it does not take into account areas of highway within the CPZ which could be marked with School Keep Clears, Taxi Ranks or Bus Stop Clearways which are not parking spaces.

Furthermore, if any of the parking spaces do not comply with the strict and pedantic requirements of diagrams 1028.4 / 1028.3 / 1032 etc. then they too are areas of uncontrolled highway.

If the CPZ falls the the restrictions at each location therefore MUST be correctly signed in accordance with TSRGD 2002 to still be enforceable.

- A double yellow line can be enforced 24 hours a day seven days a week and therefore
remains unaffected.

- A parking space correctly signed (with upright plates showing the times of operation will
be similarly unaffected).

The main ‘casualty’ therefore is the single yellow line. If, the CPZ does not exist by virtue of the fact that there are areas of uncontrolled highway contained therein (School Keep Clears, Bus Stop Clearways, road studs, non-compliant parking spaces), then the single yellow line must be accompanied at each location by the upright plate (Diagram 639 TSRGD 2002 ... left) to be enforceable because the CPZ entry plates (Diagram 663 TSRGD 2002 ...top of page) no longer have any effect (CPZ Entry Signs can only be erected to give effect to a CPZ)

Implications
The implications for local authorities across the country are enormous and potentially fatal to every Controlled Parking Zone in the country.
Initially CPZs were intended for small areas to allow the reduction in street clutter (and remove the necessity for the repetitive ‘639’ plates showing the times of operation of the single yellow line restrictions. The times of operation would be shown on the entry plates.

This was reaffirmed by the most recently published Operational Guidance to Local Authorities: Parking Policy and Enforcement especially at Annex E which states:











Local authorities however have seen CPZs as ‘cost saver’ and by simply erecting two 663 CPZ Entry Plates at every entrance to the zone the zones got bigger and bigger to the point that most motorists would not have a clue when they passed an entry plate and when the restriction applies. This all leads to increased confusion … and increased fine revenue for councils.

The problem is that because the zones got bigger so did the amount type of restrictions contained within … and because they were areas bigger than the legislators had intended they also contained Taxi Ranks, zig-zags, Bus Stop Clearways, road studs and unrestricted highway etc. not contained in the strict definition of a CPZ in Regulation 4.

Added to this, many councils have made fundamental errors with regard to the correct signing of the parking spaces and many have used unlawful hybrids (combinations of 1032 / 1028 series … and the Department for Transport have confirmed that such ‘hybrid’ bays are unlawful).

The Department for Transport has admitted (Roger Mackintosh in response to a question from Neil Herron at the Institute of Highways Engineers Conference in Loughborough September 20th 2007) that it is aware of the problem it has created with Regulation 4 and that are considering amending or re-drafting the legislation, but until they do it looks like that there may not be a valid Controlled Parking Zone anywhere in the country.
It must be noted that for a simple parking ticket case against a former market trader the defendant and interested parties are represented by the country's leading lawyers and the Treasury Solicitors have made submissions on behalf of the Secretary of State. The DfT's position seems to be at odds with their previous statements:

The extract below is from a presentation to local authorities and the Chief Adjudicator by officials from the DfT in 2004 (obtained under FoI)

More refunds to come ... this time Leicester City Council

If they are marking the bays 'so that they are clearer' according to the council's statement then there should be no alteration to the format. Anyone with pre and post photographs please forward them. We are building up evidence against many authorities.
Thanks also to council officials and Civil Enforcement Officers who continue to forward information of deliberate misconduct by colleagues. We can reassure you and others that such matters will be treated in the strictest confidence.

Drivers may get tickets refund over parking bay errors
Leicester Mercury
Wednesday, June 24, 2009,

Drivers given parking tickets may be able to claim a refund after it emerged the wrong measurements had been used for parking bays.
Leicester City Council workers are remarking many of the 240 bays in the city centre.
However, the authority has insisted it is only doing the work to make the bays clearer, and not because they are wrong.
It comes after a driver successfully appealed against a ticket he was given in a loading bay in the city because, he said, the dimensions of the space did not meet legal requirements.
The Leicester Mercury carried out its own checks on five random bays in the St George's area and found all were incorrectly marked out.

Under the Traffic Signs Regulations and General Directions Act 2002, lines marking out a pay-and-display bay must be 60cm long.
However, a slight leeway is allowed with gaps of a minimum of 60cm and maximum of 90cm between each one. However, in the city centre, several are not marked out in that way, which experts say makes them unenforceable. Therefore, tickets handed out are invalid.
See measures for Pay and Display bays
Measures for Disabled bays
Measures for split Pay and display bays
The council. however, said if the experts' comments led people to believe they could get their parking fines overturned, that would be "raising expectations which will almost certainly prove to be unreasonable".

Richard Bentley, a former North Yorkshire police officer, is now an expert witness on the issue.
He said: "The format for parking bays is set out in law and those laws cannot be ignored.
"A mistake in law means any money they have taken in those bays has to be repaid. Any tickets issued must also be repaid.
"Put simply, if the lines are wrong the fine is wrong."
Mr Bentley said there was no time limited on appealing against tickets handed out in incorrect bays.
It is not known how many people might be able to claim refunds on tickets given since the city took over parking from the police in January, 2007, but it could be thousands.

Between July 2007 and July 2008, the latest figures show more than 62,000 fines were issued in the city and drivers handed over about £2.7m.
It is also not clear how many of the bays are incorrectly marked, but the council said it was repainting up to 95 per cent.
The bays in question are disabled spaces, loading bays and on-street pay-and-display spaces.
City council traffic manager Andy Thomas said: "A person argued a loading bay was incorrectly marked. It was not contested because the issue was ambiguous and not because we recognised we were wrong.
"This work has not been prompted by any appeal.
"My main concern is all bays are clearly and accurately marked. While we are repainting, we will also check they are correct."
Mr Thomas said if any bay was wrong – adding he did not know of any – the council could rebuff appeals because there was "clear intent" to police parking.

Parking rule expert Barrie Segal, founder of AppealNow.com which has successfully appealed 50,000 parking tickets across the country, said that argument was "rubbish".
He said: "This argument that because there is intent to police bays, even if they are wrong, is the same rubbish councils trot out in these situations."
Mr Segal said the fact the council did not contest the appeal against the loading bay ticket "shows there is clearly something a miss".
He said: "They are measuring and remarking all of them, which suggests to me they are not sure if they are right.''

When the Mercury put its measurements and the arguments of the parking experts to the council, a spokesman said: "If people feel they have been harshly treated, our advice is that they should register a complaint via the council's normal complaints procedure."

PAID A PCN in an incorrectly marked bay?
ASSISTANCE
Click on here to open up a Leicester City Council complaint form
Complaint text:
It appears that the bay in which I received my Penalty Charge Notice was not marked in accordance with the Traffic Signs Regulations and General Directions 2002. The use of non-prescribed signs is unlawful and therefore all monies derived from such a mistake in law are recoverable under the principle established in Woolwich Equitable Building Society v The Inland Revenue Commissioners [1993].
Under the Freedom of Information Act 2000 I would like copies of any internal communications the council holds with regard to the enforcement of non-prescribed bays and the instructions (including copies of any TSRGD 2002 drawings) given to contractors detailing what 'corrections' are to be undertaken.
Under the Data Protection Act I would like details of all PCNs issued to my vehicle(s) including any Parking Attendant or Civil Enforcement Officer notes, and any information the council holds on known signing deficiencies in the areas where my PCN(s) was/were issued.
Resolution text:
I would like a full refund of all monies paid for all PCNs issued to vehicle registration number...................(insert vehicle reg in bays which were not marked in accordance with TSRGD 2002 details)

... and it's back to those illegal fines in Yorkshire

In this BBC report (here) Leeds are still the main focus of this piece but now also involved are York, Scarborough, Harrogate, Sheffield.

In the clip it is claimed that a Leeds spokesman states:

" Never issued a ticket where signs or road markings are wrong."
Well, they have already cancelled one of mine because the restriction was not marked in accordance with the law, and we will have a little fun with an adjudication next week.

In addition to this highly misleading statement however, documents in our position refer to a report commissioned in 2005 in which expert witness and signing consultant Richard Bentley (left) highlights many area of deficient and unlawful signage ... and as such the Secretary of State was misled into granting Decriminalised Parking Enforcement powers to Leeds who have then taken advantage and 'unjustly enriched' the council's coffers.

Government Office and Department for Transport officials also confirmed the restrictions were unlawful and have recently stated that nothing has changed, if anything its got worse.

So, Leeds has a great deal of unlawfully derived income in their accounts derived from unlawfully marked restrictions ... and rumour has it that they are trying to convince the Department for Transport to allow their non-prescribed road markings. I am sure that the DfT will point out that even if, by a million to one chance, they allow non-compliant bays special authorisation the officials will point out that it can never be granted retrospectively. However, if Leeds try and pull the wool over the DfT and te public's eyes it will lead to local authority anarchy with the TSRGD 2002 (THE LAW!) being torn up and thrown out of the window (which will probably incur a £50 fixed penalty for littering).

Don't think we are right about the refunds ( especially all you doubting council officials ... we know you like to watch what we are up to ... sometimes one of your colleagues tips us off)?

Well, here is Barrister Oliver Mishcon being interviewed on the BBC Look North programme on the subject of 'unjust enrichment.'

Is Your Speed Ticket Legal?

It seems like a Nottingham Councillor is stating that it is alright to break the law to catch someone breaking the law. This is the same attitude we have witnessed in relation to local authorities using illegal signs to enforce parking restriction.
'Good enough, nearly, and no-one should be misled' is simply not acceptable for signing. The law is strict and pedantic for obvious reason ... so there can be clarity and no ambiguity. Local authorities have no excuse for getting it wrong.

Richard Bentley states:
" If Councillor Barber cares to read my website then he will find that I stand for honesty, integrity and the full application of English law, not the systematic abuse by authorities who seem to think that they are above government and statute. No-one, especially local authorities, can consider themselves above the law."

Click here for an example of exactly how potentially dangerous wrong signing can be when a council places a Loading Bay inside a pedestrian crossing's zig zags inciting motorists to commit an endorseable offence and obscure motorists and pedestrian's vision. Who would be responsible for a child getting knocked down here?

Who is breaking the law then?

IS YOUR SPEED TICKET LEGAL?
JON ROBINSON ENVIRONMENT CORRESPONDENT
25 February 2008

Thousands of motorists in Notts have been wrongly convicted of speeding.

That's the view of an expert who says many of our road signs are not lawful. Richard Bentley said Nottingham was a "disaster zone" for signing.

Mr Bentley, a traffic signs consultant and expert court witness, said police and highways chiefs were aware of the problems but still prosecuted.

A damning dossier of evidence seen by the Evening Post includes:

• An unenforceable 40mph limit on the A6514 ring road.


• A type of 30mph speed sign that was supposed to be decommissioned in 1972.


• Signs telling drivers they can travel at 60mph in a 30mph zone.


• A sign telling cyclists to break the law by riding up a one-way street.

A High Court appeal has been lodged that could see thousands of people overturning convictions for breaking a 30mph limit on the A610.

Mr Bentley said: "By not having the right signs people are losing their jobs, their homes and their marriages, when an Act of Parliament prohibits them from having a conviction if the signing is wrong."

The city highways authority and police say any signs which are proven illegal will be changed, but will continue to enforce them until then

Check out Richard Bentley's Site here