High Court Ruling on Bike Parking Tax is deeply flawed – but it paves the way for a successful Appeal…

Posted: 26th July 2010 | 5 Comments »

Some riders have been dismayed by a High Court Judgement against a claim lodged by NTBPT Chairman Warren Djanogly – that Westminster City Council used Traffic Act powers unlawfully, and to cover the creation of a new tax on motorcycle parking in on-street bays that had already been established and paid for. But I am not.

The first ruling in the courts was always going to find in favour of the council in my view as there is far too much at stake for the first judges on the case to cut to the chase and effectively acknowledge a truth that is incredibly inconvenient for our ‘Traffic Management’ policy shapers and shippers.

As most riders can see as plain as day, Westminster’s scheme had nothing to do with Traffic Management, it’s all about something completely different. IT’S JUST ABOUT THE MONEY HONEY!

But the problem they and we have is that UK law does not allow them to say that a key reason for making a new set of Traffic Management Act Orders, is to develop a new and extra source of revenue. Amongst other things there is also a major snag in the Local Government Act, 2000, (3.2) It expressly forbids any local authority from introducing a scheme run by private contractors that creates a revenue stream. But that all came too late to protect drivers from an extensive range motoring taxes because those evolved over decades, alongside a smart range of bureaucratic washing machines which the money goes into and comes out clean. Unfortunately for Westminster, the laundry service failed to work when they decided to try and tax riders in exactly the same way as drivers. It is clear for all to see – and even WCC admit it – that within a few months of starting their ‘experimental’ version of the motorcycle parking tax scheme, they made a cool ‘surplus revenue’ aka profit, of half a million quid by the time they were legally entitled to make it permanent. Currently of course they claim to be making a loss, but if they can get away with keeping this tax they sure as hell won’t make a loss for ever...

Anyway, the reason I’m not dismayed about the ruling is that it has done even more than I’d hoped or expected. In order to find in favour of the council, the ruling would have to include fundamental flaws because nobody in their right mind could possibly believe that the Traffic Orders in question could do anything other than create a new revenue stream – and those flaws are now out there and open to successful attack and review. Better still – if there is any justice to be had – that will lead to the ruling being overturned.

Now, here is my take on where we are and what’s next, including a recap of the basics for anyone who is new to this saga. And I realise that what follows is a bit of a whopper of a read so I won’t be offended by the odd bit of nodding off, snoring or legging it up the pub – or gong for a ride instead. You can also take your time reading anyway as it will be the last thing I post for a bit as I am off at the end of the week to recharge the batteries for a couple of weeks, on a small island in the sun and warmer rain than we have here in Blighty.

And so, it came to pass…

The High Court ruling, of 16th July 2010, on a hugely significant claim that Westminster Council had used Traffic Act powers unlawfully, is fundamentally flawed in my humble but expert opinion by failures to grasp key facts and see black holes in the defence case. The claim was made on behalf of the NTBPT and all objectors to this regressive tax, of whom I am proud to be one, and it asserted that the council had effectively used Traffic Management Act legislation to cover the creation of a new tax on motorcycle parking in on-street bays that had already been established and paid for.

But the ruling is demonstrably wrong as far as I and a number of other observers are concerned, as it fails to address three fundamental flaws in Westminster’s defence of making the Traffic Orders in January 2010, that were made to convert an ‘experimental’ version of pay-by-phone charges for parking in on-street bays to a ‘permanent’ scheme.

The judgement identifies “two clear objectives the Authority sought to achieve the introduction of the parking orders”. And it says that these two objectives are legitimate goals for the Authority to try to achieve by using Traffic management Orders, to introduce new charges for on-street parking of motorcycles in bays that were already designated and paid for to accommodate use for that purpose.

The first legitimating ‘objective’ is, “to improve on-street parking availability for motor-cyclists” but this is demonstrably totally wrong, as it is not an objective that is identified at all in the official ‘reasons’ for a permanent version of the charging scheme. The second objective according to the judges was, “the termination of discriminatory treatment between motorcycles and cars.” But again, one of the big problems with that is that it was never identified by Westminster as such. Here, under ‘publications’ is where Westminster hid their reasons for the permanent scheme on their website – and they can be found in the Statement of Reasons document in PDF form. But see if you can spot either of the reasons that the judges say Westminster gave for the new charges, and that the judges said made the council’s use of Traffic Management Act powers to create a new tax lawful…

So, fundamental flaw No. 1. The judges have ruled that Westminster’s use of Traffic Orders to create a new revenue stream – and force riders to pay a new tax to park in bays that were already paid for – is ‘lawful’ because the ‘objectives’ for the new charges was to do two things that the council has never claimed as reasons for the new scheme… Er, how does that make sense in or out of a court of law?

But there is more that is wrong with this ruling. Fundamental flaw No. 2. The key question to be considered and ruled on in this case has been completely missed and left out of the judgement.

The critical question is not whether WCC could lawfully use Traffic Act legislation to introduce a new charge for motorcycle parking on public highways. The question to be ruled on is this: Can WCC lawfully use Traffic Act legislation to increase the powers it already had to manage demand for kerbside space – but without making a case that it’s existing powers had failed to manage such demand – AND in a way that would be rectified by the introduction of a new category of charges and trigger for penalty fines aimed at riders of scooters or motorbikes? And let’s get things clear here, as I explained to the judges in a section of my witness statement, WCC had all the powers it needed to control motorcycle parking and ‘manage demand for kerbside space’ by all motorised modes. There is not one inch of public highway controlled by Westminster where they have any demonstrable need to increase their power to decide who can park what, where and for how long – with or without out paying a fee or incurring a fine.

The last main flaw in the judgement of the case certainly has a critical impact on the rights and wrongs of the ruling for riders. But in my view it has an even greater impact on establishing the extent to which ‘consultation’ procedures about local authority use of Traffic Management powers can be skewed – in order to use them to do nothing more than create new revenue streams.

Throughout the entire consultation process on the ‘experimental’ version of the scheme, and once a decision had been taken in principle to make it permanent, consultees were consistently told that the main reasons for the new charges for on-street parking in designated bays was to fund further improvements to motorcycle parking amenities. But fortunately for all concerned now, I and other sceptics became increasingly bothered about the likelihood that Westminster were pushing the idea of funding further improvements as the ‘main reason’ for new bike parking charges, not because it was, but because it would limit the amount of opposition from key stakeholder consultees. So, in an attempt to push the council to reveal more about the main reasons they would give to ‘justify’ a decision to convert the experimental scheme into a permanent measure, I arranged and attended a meeting between Danny Chalkley who was Westminster’s Cllr in charge of the scheme at the time and Craig Carey-Clinch as the Motor Cycle Industry Association (MCIA) representative. In that meeting, dear old Danny smiled reassuringly and steadfastly denied that the main official reason for the charges was ‘demand management’ – and he repeatedly gave Craig and thereby the MCIA firm verbal assurances that the real reason for introducing new bike parking charges was to fund loads more improvements to on-street motorcycle parking. With my encouragement some weeks later, Craig invited Danny to confirm his assurances about the main reason in writing, but as I expected, that written confirmation never came.  But never mind all that well spun flannel flopping around in that meeting, as a matter of hard fact, Westminster made a fundamental change in the thrust of the official main reasons for the new charges. And, unfortunately for Westminster, I reported all that in the witness statement that the judges were obliged to read and consider. And the fact that the court’s first ruling seems to neatly avoid any consideration of those events doesn’t mean they can be ignored in a second round.

Anyway, a key fact of the case and in my view the lawfulness of Westminster’s use of Traffic Management Act powers to create a tax, is this: The first ‘main reason’ one was of course encouragingly positive for those who accepted it at face value, namely to improve the accommodation of rider’s needs to park – but the second one was extremely negative, namely to ‘restrain’ demand for bike on-street parking as the primary reason and to deter people from choosing to use a motorcycle at all in Westminster for unspecified ‘environmental’ and ‘safety reasons.

But the most critical thing about this change that the judges ignored in their ruling was the timing of when that change was actually officially confirmed. The first time anybody concerned could know what the main reasons for the permanent version of the scheme really were, was when the Traffic Orders were published on January 22nd, 2010, just three days before the permanent version of the scheme came into force on January the 25th! Sounds a bit smelly? Not quite the way that truly legitimate consultation procedures are run? You bet.

To put it mildly, this neat trick had a crucial skewing impact on the reliability and validity of the consultation processes that has not been addressed at all in the ruling. To put it bluntly it was hugely misleading for all consultees at best, and at worst a key element in a very long con.

So, what’s next? Well, as far as I can see, so long as the NTBPT Barrister makes these flaws clear to the courts, the only way that justice can be done and seen to be done is for an appeal to be heard and a fresh ruling made. I’ve spent some of today making a few suggestions for the Barrister to consider as part of his request for an appeal and sent them off. So, all I can say for now is fingers crossed then…

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