The death of parking enforcement in Devon? Is it time ...

How much more evidence is needed?

Perhaps the Court Case at Exeter Crown Court next Thursday will be the 'tipping point.'

As many council Parking Managers read this blog it is perhaps time that you reflected on your own indifference and intransigence if you too have been guilty of enforcing restrictions that you knew were unlawful. The mantra often chanted by the 'industry of 'it's only a parking ticket' will perhaps, in light of the MP's expenses scandal, be viewed in a different fashion. 'It was 'only a packet of biscuits' or 'only a few mortgage payments' for a mortgage that had been paid off didn't wash and those guilty of defrauding the public purse are now spending time at Her Majesty's Pleasure.

Now let's look at a Parking Manager who KNEW that there were no lawful parking restrictions, who KNEW that the Traffic Order was invalid AND YET STILL ALLOWED MOTORISTS TO BE DEPRIVED OF THEIR CASH TO ENHANCE THE COUNCIL'S COFFERS AND THE PARKING MANAGER'S STATUS.

Where is the difference. The public is entitled to expect honesty and integrity from those paid from the public purse.

There is a great deal of evidence in many council areas going back many years. There are many motorists and businesses who have suffered greatly. I doubt that many will have sympathy for any crocodile tears shed by those currently looking over their shoulder.

The press are looking for the new 'abuse of public trust' scandal. Perchance it might be greedy councils and their officers who thought that the motorist was easy prey.

Well done to those brave enough to stand up to be counted. Well done to those council officers who were not prepared to be tarred with the same brush as those with their arrogant contempt for the law.

Meanwhile, more news from the pointy bit at the other end of England!

This is Exeter
Wednesday, February 16, 2011,
Signs removed in parking dispute

SIGNS which warned of parking restrictions in Crediton's Market Square have been removed following claims that fines were collected illegally.

Campaigners claim Devon County Council did not have proper authorisation from central Government to enforce parking. County councillor Percy Prowse thinks fines of nearly £6,000 have been paid by motorists who parked in the restricted bays and did not buy a ticket.

The county council said at the beginning of this month it was not currently enforcing parking in the restricted bays, and last Monday some signs were removed.

Council admits to unjust enrichment ...

... but thinks that it can get away with asking the motorist to provide evidence that they paid a ticket.

Let us hope that the councillors now start to take a closer look at exactly what has gone on over the past two years and initiate an investigation of their own.

The council officers are fully aware that they had no legal authority to issue tickets and as such the council has no right to keep the money.

A little reminder here for the councillors and here with

regard to their own personal liability should they fail to act.

And remember, THE COUNCIL has all the details of the persons who have paid and THE COUNCIL is required to keep those details.

There is a great deal more to be revealed in relation to parking matters in the South West and it is about to get very serious indeed.

More flaws in St. Alban's Traffic Orders ... who checked?

In applying to the Department for Transport fro Decriminalised Parking Enforcement powers a local authority is required to give assurances to the DfT that all lines, signs and Traffic Orders have been checked and made compliant ready for DPE.

The fundamental difference between DPE and the previous criminalised regime is that there is a shift from driver to keeper liability. The St. Alban's TRO retained the driver liability ... a fundamental flaw in a legal document which allowed the council to be unjustly enriched.

Any claims that 'anyone who paid accepted liability' doesn't and shouldn't wash with any investigation as it is a fundamental requirement that the council acts lawfully!

In advance of a formal complaint to the Police or court action from one of the victims, especially one who has suffered at the hands of bailiffs, it may be wise for the council to seek proper legal advice.

St Albans District Council under fire again for parking blunder
1:43pm Thursday 10th December 2009
By Manisha Mistry »

A REVIEW into the district council's parking enforcement which came under fire in October after a shocking blunder was revealed has discovered more flaws in the system.
The car parking working party, which met last night, discussed a report undertaken by the chief finance officer.

In October the Review revealed how the council's Traffic Regulation Order (TRO) was deemed invalid by an adjudicator at a Traffic Penalty Tribunal forcing more than £24,000 worth of unpaid fines to be waived.

Further to the details discovered at the time the fresh investigation has revealed the incorrect terminology in the TRO had been there since 2005 – longer than the council originally thought.
The officer comments: “The current problems have cost the council money and been damaging to its reputation.
“From the review it is clear that the problem of terminology in the TRO has been wrong since 2005 – when the new regime for off street parking was introduced."

Another damning finding highlights the lack of efficiency because there were no check lists and procedures which prevented this problem, or its reoccurrence.
A review of the workload was suggested and the creation of some clear check-lists.
At the time the technical error was discovered the chief executive at the council Daniel Goodwin apologised to residents.

Commenting on the results of the review, Councillor Julian Daly said: “This looks like something that did not need to happen.”
He mentioned a meeting of the council's scrutiny committee in 2007 which warned cabinet members to address the heavy workload of the council's engineering team which is responsible for the TRO.
Councillor Daly added: “Clearly this warning was ignored. The council is now paying the price both financially and in terms of its reputation for being accident prone.”

Councils cannot keep unlawfully derived parking ticket income

In the article below the council deftly avoids the issue of refunds.
The Traffic Order is the legal document which allows the council to levy the charges. Quite obviously, because of the suspension and the need to create the new order and the offer of refunds, the original order was not valid ... therefore no financial liability can arise. Should the council not volunteer to refund monies then an objection to the council's accounts can be made.

However, it appears as though the council is set to do the decent thing for which they should be praised. This is precisely what happened in Sheffield.

If they decide not to then it is likely that legal action will follow.


‘Unjustly enriched council cannot keep parking fees’
By Colin Parker
Get Surrey
3/10/2008

PARKING authorities in Guildford may not be allowed to keep the £2.8m they have received in on-street parking fees since 2004, according to an appeals expert.

Neil Herron, who runs the website www.parkingappeals.co.uk , said that under auditing laws local authorities were not allowed to keep money gained illegally.

He added it was not enough for councils to offer refunds only if evidence was produced, rather they should contact anyone who has paid money to offer them their cash back.

Last month, Surrey County Council (SCC) discovered a legal blunder in its on-street parking order that meant fees had been invalid since 2004.

Mr Herron said he has been contacted through his website by Guildford motorists seeking information on the town’s parking mishap.
“If they are taking this money then they have been unjustly enriched and so they cannot keep that money,” he claimed.
“They should speak to anyone who has paid and offer to give them back the money voluntarily.”

Guildford Borough Council said a total of 24,000 on-street parking fines related to pay and display had been illegally handed out to motorists in Guildford since 2004.
As of last Monday, the borough had received a total of 47 letters concerning penalty charge notices and 16 on pay and display ticket refunds.
Some letters stated multiple claims.

The authority is working on refunds with the county council, who will consider the claims.
It is estimated the local authorities are losing about £2,200 for every day free parking has been in operation.

SCC, which has accepted full responsibility for the mishap, has now changed the faulty paperwork that led to the free parking in the town.

It has confirmed motorists can go about paying for parking in the same way as before, and added there will be no increase in charges and residents’ parking will remain unaffected.

David Munro, the executive member for transport, said: “We can assure everyone we are now committed to getting things back to normal so motorists, residents and others have a parking system that meets all their needs.”

The authority must now advertise the changes for three weeks, until October 24, after which SCC’s Executive will rubber-stamp the new order at the beginning of November.

A spokesman for SCC said: “We took careful legal advice before making the decision to suspend charging and we continue to follow this advice."

District Auditors asked to investigate councils ...

... is that the Grim Reaper knocking at Parking Services' door?

As the Civil Parking Enforcement meltdown continues across the country with more and more councils being caught out using illegal signs and lines and non-compliant paperwork many angry motorists are looking to expose their councils unlawful activity.

But there is no Government Watchdog.

There is no Parking Ombudsman.

The Department for Transport is toothless and fiddling while Rome burns, and in a state of turmoil ... do they support the councils and burn TSRGD or do they stand by the law and tell councils they have broken it?

Councils are desperate to have their illegal signs 'authorised' but at what cost? The admission that most of the parking bays are illegal and therefore unenforceable ... and more objections and more legal action?

The Minister however, thinks that everything is Rosie ... but why should she try and solve a mess of nightmare proportions when the Government is ready to call in the priest for the Last Rites?

So what can you, the aggrieved motorist and council tax payer do to expose the illegal activity of your council?

The answer is simple ... you can object to the accounts and object to any unlawfully derived or 'ultra-vires' income contained in those accounts, whether it be from illegal restrictions or non-compliant paperwork or from a failure to follow contractual obligations.

You can Click here to access a guide and an objection letter.

Councils are supposed to exercise due diligence when carrying out parking enforcement, especially with regard to their cancellation policies, and the collection and enforcement of PCNs. More evidence is coming in to us of councils who are cancelling tickets when non-compliance is pointed out by an appellant, but continuing to collect from those unaware of the law. Our recent case against a Lancashire Council was 'no contested' after our skeleton argument revealed unlawful documentation ... but the council has not volunteered refunds to those motorists who have been misled by unlawful paperwork.

Councils do not need reminding that restrictions and paperwork MUST comply with the law ... whether it be the Traffic Signs Regulations and General Directions 2002 or the 1991 Road Traffic Act or the new Traffic Management Act 2004.
There is no excuse for them getting it wrong ... especially with teams of highly paid officers and highways engineers.

Don't forget that when they applied to the Department for Transport for Decriminalised or Civil Enforcement powers they had to conduct a review of their Traffic Orders and associated signs and lines in order to ensure compliance. This is where they knew that the DfT had no power to check ... and so many councils misled the DfT in their applications. It would have cost too much to correct everything and the DfT wouldn't check ... so who would find out?

Well guys ... the game is up and the deceit is being uncovered and the chickens are coming home to roost. Motorists who have been fleeced by councils' illegal activity will be rather angry indeed that they have been deceived, especially the ones who have had the bailiffs come to visit and cars and goods taken.

Chanting the mantra that there is an appeals process is not good enough ... because that only works if the council has obeyed the law. If the signs or paperwork are illegal there can be no contravention. If the council KNEW (and there is a vicarious liability for the Chief Executive for the actions of his officers) then it becomes a lot more serious indeed ... and that is why the whistleblowers are whistling. They do not want to be the scapegoats for those higher up the ladder.

If any council officer knowingly misrepresents the situation then it becomes a very serious matter indeed ... hence a number of individuals across the country preparing cases for the Police and their own civil actions against individual council officers who, it appears, may not be protected by any council insurance policy. Perhaps Parking Services Managers should be hastily bringing their misdemeanours to the attention of their Chief Executives and elected Members and confessing their sins ... because the consequences of not doing so could be very grave indeed.

The public has had enough of being fleeced for the most minor of contraventions ... and because they have been treated with arrogant contempt for many years by councils and their officers who have seen them as an easy stealth tax victim there are many who will shed no tears when the dismissals for misconduct and legal action begins.

The long memories of disabled badge holders being ticketed for having a clock upside down, the motorists with a £100 penalty for being 2 minutes late, the car clamped and towed for parking a couple of inches over a yellow line will not care a jot for the crocodile tears of the Draconian parking enforcement apologists.

Let's hope the cry of mea culpa comes before the courts begin to be filled rather than after.

Bays in Fleet Hampshire are ruled unenforceable

Another victory, this time for Parking Appeals member Peter Ashford's campaign. However, the council states that it has no intention of refunding the money.

Unfortunately, they cannot legally keep the money which has been 'unlawfully derived.'

Check out the restitution section on the ParkingAppeals.co.uk site and see how you can begin claiming a refund.

Council finally changes illegal parking bays
By Joanna Till
18/ 6/2008

Hampshire County Council is set to re-mark Fleet Road’s parking bays after a national adjudicator ruled they were unenforceable.

Hart District Council stopped enforcing the parking regulations after the National Parking Adjudication Service (NPAS) ruled in March that the bays were not lawful and should not be adhered to.

The county council will now send contractors in the next few weeks to burn off the existing lines and paint new ones.

Fleet town centre manager Paul Doughty hopes the dis-trict council will then allow a small grace period for drivers to readjust to the enforcement of the regulations before it starts issuing penalty charge notices (PCNs) again.

“There won’t be a massive difference in the size of the bays, but once they are re-marked they will be enforceable,” said Mr Doughty.
“To be honest, I’m not sure most people will notice the difference.”

The March ruling came after former Hook resident Stephen Robson was issued a PCN in Fleet Road, even though the district council allegedly already knew the bays were illegally marked and not enforceable.
Mr Robson parked outside the Captured Moment shop in January last year, unaware parking was restricted because there were no signs and no yellow lines.
Mr Robson complained to the council, which said only goods vehicles were allowed to use the bays, and only at certain times of the day.
He appealed to the NPAS in October, when the adjudicator held that although Mr Robson’s arguments were correct the PCN should be upheld.

The NPAS accepted that Mr Robson’s case merited a review, which was heard in Winchester on March 6.

The adjudicator said: “I further conclude that the difference between what is required and what has actually been painted on the carriageway is so great that the bays in Fleet Road cannot be enforced.”

Cllr Stephen Parker, portfolio holder for the environment, said: “When the judgement came through we accepted it straight away and stopped fining people parked there.”

Campaigner Peter Ashford said he told the district council the restrictions were unlawful soon after they were introduced.
The district council informed the county council, which checked the bays, said there were no problems and insisted the restrictions should be enforced.

Cllr Parker said: “Until you have a judgment on these things they are only allegations.
“We cannot stop enforcing every time there is an allegation made, particularly when you have already been told by the county council that the bays are lawful.”

Mr Doughty said several challenges had been made since the restrictions were brought in, and it was possible there would be more once the bays were re-marked.

Restrictions concerning the bays marked for disabled people have not been enforced since the adjudicator’s decision.

Mr Doughty said: “I’ve had a lot of angry phonecalls over the past month or so from people who are entitled to park in those bays and who have not been able to do so because an able-bodied person is there instead.
“They’ve had to park a lot further away which has been very difficult for them.”

A series of BBC reports claimed councils including Hart had raised thousands of pounds from unlawful fines.

The Department for Transport told the BBC it expected the councils involved to “seriously consider” paying back the fines.Hart raised an estimated £400,000 by issuing the unlawful charges.

Cllr Parker said: “We have no plans to pay back the fines.”

The Tory-dominated district council decided on June 5 to reinstate free parking in Fleet town centre.
Exact details have not yet been decided, but early plans cite the possibility of 24 free bays in the Victoria Road, Church Road and Gurkha Square car parks.
Cllr Parker said: “Plans will be finalised soon but we’re quite certainly not looking to hang about.”
Parking in the bays would be restricted to 30 minutes, with no return within an hour, which Mr Doughty said would allow shoppers to go into Fleet to buy smaller items without paying for a full hour in the car parks.

“There’s a lot of people who want to just nip in quickly to buy a loaf of bread or something,” he said.
“They’re not even going to spend £1 in the shop they’re going to, yet they have to pay about the same again to park their car.
“It’s having such a negative effect on the town centre. All it does is drive people away from the centre and towards huge supermarkets with free parking.
“It’s bad news for town centre retailers.
“Parking in general has become really very expensive, especially with the rising costs of fuel and duty charges.
“This will encourage people back to the centre, and it will certainly have a very positive effect.”

Refunds to come in Sheffield? Just you wait ... watch this space

SHEFFIELD TRAM GATE RESTITUTION CASE

PARKINGAPPEALS.CO.UK LEAD THE WAY FOR £350,000 CASH WINDFALL FOR MOTORISTS…

BUT WILL THE REFUNDS BE FROM PENDING LEGAL ACTION OR COUNCIL COMMON SENSE?

After the 2008 local council election victory in Sheffield, with the Lib Dems taking control from Labour, party leader Nick Clegg stated:
“ The Lib Dems would run Sheffield in a more open and honest way.”
(Sheffield Star 3rd May 2008)

The timing of Alan Bangert’s Tram Gate Penalty Charge Notice (PCN) victory (Bangert, Marcelli and others v Sheffield City Council before NPAS) could not have been better placed for the Lib Dems to set an example nationally by refunding motorists who have been fined unlawfully.

Local man Alan Bangert successfully challenged his own Hillsborough Tram Gate CCTV PCNs when a National Parking Adjudication Service (NPAS) adjudicator ruled that the restriction was unlawfully signed. A request of a review of that decision (consolidated with others) by Sheffield City Council was rejected by the Chief Adjudicator who agreed with the previous decision and ruled against the council.

This leaves the new ruling group with an easily solved dilemma. The Hillsborough Tram Gate, at Middlewood Road and Langsett Road, was introduced by the previous administration and had been marked unlawfully (ie. it did not comply with the road signing law, the Traffic Signs Regulations and General Directions 2002).

As a result, and it is clear from the numbers involved that the restriction was inadequately and misleadingly signed, 13,353 motorists were fined in just under twelve months (July 07 – May 08) netting the council over £350,000 in unlawfully derived income. Because of the delay in serving the CCTV fines by post some received a warning notice at the same time as PCNs demanding £60 which the previous Labour administration refused to cancel, and some didn’t receive a warning. The reasons freely given for the inconsistency were that the operation was understaffed and notices couldn't be sent out to all transgressors.

The issue of councils using unlawful road markings and signs has been featured nationally in recent weeks with the Department for Transport stating that councils should ‘seriously consider refunding motorists fined unlawfully.’(BBC 29th May 2008)

So, what are the options for Sheffield’s new Lib Dem ruling group?

Neil Herron of ParkingAppeals.co.uk campaigns on behalf of motorists unlawfully fined and is leading Alan Bangert’s call for motorists to be refunded.

He states:
“ This really is an easily solved dilemma for the council. The simplest and cheapest option would be to apologise on behalf of the council and voluntarily refund everyone who have paid PCNs in the unlawfully signed restriction … without delay.

This would set an example nationally by ‘doing the decent thing’ and showing the way forward to the Labour and Conservative councils who have consistently used CCTV enforcement of bus lanes and parking to raise revenue rather than as effective traffic management.

Quite obviously if over 13,000 people were being fined at this location ( on average 84 a day) then there was something clearly wrong with signing and not driver behaviour.”

He went on:

"The other option would be to refuse to refund and attempt to retain the unlawfully derived income in the face of a potential high profile legal challenge in the form of a class action and a challenge to the council’s accounts causing a very uncomfortable investigation by the District Auditor who would have to confirm that the council has been ‘unjustly enriched’ by taking money off motorists to which it is not entitled.”

Alan Bangert, a married father of three, disabled after an accident in a steelworks seven years ago had appealed on a point of principle after getting three PCNs without warning. He had paid the first and then got two more and admitted that paying them would have been a struggle but it was the injustice that spurred him on. He now not only wants his £30 refunded he wants to lead the fight for justice for everyone.

He states:

"I hope that common sense prevails and the council reconsider their position and do the decent thing and show themselves to be better than the outgoing, uncaring, un-listening and arrogant Labour party. I am quite prepared to lead the fight to the High Court if necessary but I hope that the Liberal Democrats will set an example nationally by holding their hands up to this mistake made by the previous administration. It will go a long way and command a great deal of respect from the voters in Sheffield.”

ParkingAppeals.co.uk have leading barrister and motorist’s champion, Oliver Mishcon, lined up to handle any legal action, including a class action on behalf of the 13,000 fined motorists.

He said:
“ Councils are not allowed to keep the money derived from fining motorists unlawfully. They have benefited from what is called ‘unjust enrichment’ and as such they have a duty to actively seek out those fined and refund them.

This case is the tip of a massive iceberg which is likely to affect many councils nationally and we are looking forward to getting the matter before the courts where we are confident of a precedent setting victory for Britain’s motorists.”

However, it is hoped that legal action may not be necessary as it has been confirmed that the fine money has been set aside by the council in case it needs to be repaid in what is in effect confirmation of the position that voluntary restitution is hopefully a foregone conclusion.

In a further admission John Mothersole, the council’s interim Chief Executive revealed that “we are reluctantly going to change the signs to comply with the adjudicator’s review.”

The adjudicator’s view is that the restriction was not correctly marked in accordance with the Traffic Signs Regulations and General Directions 2002 and are therefore not lawful.

Have you been fined and want your money back?

Anyone who has paid a fine at the Hillsborough Tram Gate and would like more information simply e-mail enquiries@parkingappeals.co.uk and title the e-mail ‘Sheffield’ and include your name and address and ParkingAppeals.co.uk will ensure that justice is done on your behalf.


ENDS:

CONTACT:

Neil Herron
Director
Parking Appeals.co.uk
neil@parkingappeals.co.uk