Will failure of Appeal against WCC bike parking tax lead UK Councils to treat motorbikes more like cars than bicycles?
Posted: 13th April 2011 | 2 Comments »Post-ruling update: 27.04.11
Bad and potentially good news…
Regrettably, my concerns over weaknesses in the way the case was put against the use of Traffic Act powers to develop a pay-by-phone bike parking tax scheme were well founded.
The Appeal Court decided that the earlier High Court ruling should stand and that WCC had used Traffic Act powers ‘legitimately’, and therefore, any other UK Council can now use those powers and this business blueprint of a scheme to do the same in their part of the country. However, although I still believe that the original ruling was wrong, its being upheld was not a failing of the Appeal Court – and for reasons I suggested in my previous post.
Whatever. Most critically, this judgement effectively says that for now at least, all UK local transport authorities can use Traffic Act powers to impose new charges for on-street bike parking in order to ‘terminate’ distinctions between cars and motorbikes or scooters.
And although it is far less significant, it is also unfortunate that the decision I took to report my views on all this as in the blog below, without mentioning the NTBPT Campaign group or it’s Chairman Warren Djanogly, who brought the case to court, it has been misconstrued in some quarters as an indication that I undervalue the extraordinary work and efforts made by all concerned with what has been an exceptional single issue campaign.
As a matter of fact, my decision was based purely on a desire to publish a report that could be read by as wide a group of people as possible with the lowest prospect of being dismissed as biased in favour of the NTBPT. And, for the record, whilst I have disagreed with some of the protest tactics and saddened by some of the things said in the course of the campaign, I continue to have great admiration for the courage and tenacity of Chairman Warren – and the extraordinary range of supporters he has inspired to engage in legitimate protest against what I still see as an abuse of powers that are granted to improve conditions for all road users.
The potential good news is that the true legitimacy of the use of such powers may be subject to further examination and with greater focus on the real core issues of principle than they have so far. The latest news from the NTBPT is that a new QC has offered to take the case on to Europe.
Previous post:
A crucial change in the way motorbikes and scooters are seen and may be treated by local authorities in the UK is imminent…
It will be triggered by three Appeal Court judges who will decide whether to overturn a High Court ruling that Westminster City Council used Traffic Act powers lawfully – to impose a new tax for on-street parking of solo motorbikes in bays that were already established for that purpose. That ruling was in my view deeply flawed, as I have said before, but I regret to say now that flaws in the way the appeal case was put, seem likely to allow the Appeal Court Judges to let the previous ruling stand.
My account of proceedings is offered later, but first I think it useful to explain the context and why this issue is far more significant for the future of powered two wheelers (PTW) use in the UK than it may appear on the surface.
The key issue at stake is whether UK councils can or should treat demand for parking these congestion busting machines in similar ways to other single-track vehicles like bicycles, or like motorised twin-track vehicles including cars, vans and trucks.
The issue was brought to a head by a controversial ‘permanent’ pay-by-phone bike parking scheme pioneered by Westminster City Council (WCC) that came into force in January 2010, which imposes new fees or triggers for PCN fines for on-street solo motorcycle parking in bays that were already there and paid for.
But opponents claim, quite rightly in my view, that WCC have used Traffic Management Act powers to introduce a revenue generating scheme that has no real traffic management benefit, and is therefore not a legitimate use of such powers – and is just a means to extract a new ‘motoring tax’ from the thousands of scooter and motorbike riders who need to park in central London.
Pros and Cons
In simple terms, some people think that because PTWs have a motor, they should pay to park as car drivers do. Some influential members of the motorcycling lobby broadly agreed with that view when this scheme was first proposed back in 2008, and thought that as it was ‘only a quid or so’, it wasn’t worth fighting over. Others on the UK biking scene were quite drawn by councilor’s promises that the revenues raised would be used to improve amenities for all PTW riders – and to significantly improve on-street bike parking in the centre of town…
Anyway, more importantly now, at least one of the three judges seemed to believe that riders should pay just as car drivers do, and that belief seemed to me to be firmly held from start to finish of the proceedings.
Conversely, others, including me, think that because PTWs are single track vehicles like bicycles, and both modes help users to alleviate congestion problems, but use of all twin tracked vehicles make jams worse, so PTW riders should not pay extra new fees to use tiny allocations of on-street parking bays – on top of road tax and fuel duty that cyclists do not pay – and especially as the solo M/C bays in question here were already established for that purpose.
But the biggest problem arising from plans to treat PTWs more like cars than bicycles as far as parking charge schemes are concerned is far worse than the prospect of an additional cost to park a motorbike or scooter. The pay-by-phone scheme in this case is designed for use by any UK council that might be interested in a new source of cash from riders. But, and this is a crucial but.
In order for local authorities to ‘justify’ the imposition of extra fees and fines for bike parking, they must increase the extent to which they stress negative views of scooters and motorbikes and/or demonise PTW use in the same way they do with cars, vans and trucks.
Appeal Hearing
Basically, after spending two days at the Appeal Court watching the Judges and looking for clues about their reactions to the case before them, I suspect that they will not feel inclined to overrule the previous ruling. Obviously, I hope to be wrong about the outcome but there were, in my opinion, critical weaknesses in the way the case against the ruling was made by the QC acting for the appellant. And, despite my best efforts to persuade the QC to do so, two crucial points were just not made at all.
In essence, the appellant claimed there was no demonstrable traffic management benefit from introducing new fees to park bikes in on-street bays. Conversely, the council claimed there was an “ever increasing demand for motorcycle parking” and that “measures of restraint”, including new charges, could be justified to ‘manage’ that demand. The court then heard that the council had no evidence of ‘ever increasing demand’, and cabinet papers stated that demand for bike parking had not risen prior to the permanent scheme coming into force in January 2010, or since.
Traffic Management Acts require a ‘traffic management benefit’ in order to justify any new fee scheme, and tangible revenue raising through subcontracted services contravenes the Traffic Management and Local Government Acts. So, Traffic Act Orders cannot be lawfully used to impose what is effectively just a new tax. And, as a matter of fact, although it was not mentioned in court, this was especially critical in this case as Westminster council had already built up a ‘surplus’ of around half a million pounds from an experimental version of the scheme, prior to its’ decision to introduce a new ‘permanent’ bike parking fees scheme.
The argument on the first day led to a claim that the council couldn’t use Traffic Act powers lawfully to charge bikers to park in on-street bays. However, one of the judges did not find this argument “attractive”, and seemed to prefer a simpler view; if car drivers have to pay to park on public highways, motorcycle riders should too. This led her to voice an opinion that even though the council’s actions may not have been ‘entirely within the law’, they ‘ought to have the power to charge for on-street bike parking if they wanted to’. In turn, that led to a suggestion that the preceding High Court ruling may have been right as it said that Westminster were entitled to use Traffic Act Orders to “terminate discrimination between cars and motorcycles”.
On the second day, I suggested to the lawyers that the point should be made that comparing motorcycle parking with car parking should be balanced by a comparison with bicycle parking as well. Discrimination is applied to demands for bicycle parking in contrast to car parking, in that drivers pay and cyclists do not. Crucially, the High Court ruled that WCC were entitled to use Traffic Act powers to impose new fees to “terminate” discrimination between PTWs and Cars. But that ruling completely ignores a crucial reason to maintain such discrimination – namely that bicycles contribute less to congestion problems as they are single track vehicles, whereas cars vans and lorries are twin-tracked vehicles. As a matter of fact, PTWs are also single-track vehicles, so there are extremely good reasons to treat them differently to cars, and in similar ways to bicycles. Unfortunately, bicycles were never mentioned during the two days, so that point did not get any consideration.
Another key reason for the permanent scheme to be deemed unlawful was that the entire ‘consultation’ about it was skewed in a way that was made clear in the witness statement I had submitted in the original High Court hearing. Throughout all consultations, the council said that the main reason for a permanent new fees scheme was to pay for improvements to motorcycle parking in the borough. Equally importantly, they said that ‘demand management’ or ‘restraining’ motorcycle use was not a reason for a permanent version of the scheme – and the consultees they told this to included MAG, the BMF and a representative of the Motor Cycle Industry Association in a meeting that I arranged with the Cabinet member responsible at the time in June 2009, and this fact was also mentioned in the statement I submitted to the court.
Crucially, the High Court ruling in June 2010, said that the council had imposed the permanent fees scheme lawfully because the main reason for it was “to improve on-street parking availability for motorcyclists”. But, in fact, when the official ‘reasons’ for the new ‘permanent’ scheme were published, on Thursday 22nd January 2010, and came into force four days later on Monday 25th, there was no mention of any improvements. Instead, the only reason for “small” charges from then on was due to “ever increasing pressure on Westminster’s kerbside space” and “motorcyclists’ increasing use of and demand for these limited resources”.
Put simply, all consultees had been misled by being told the official reasons for the permanent scheme was to pay for improvements, when in the end, at the eleventh hour, it was confirmed in the Statement of Reasons for the new ‘permanent’ scheme that officially, the new fees were only for ‘demand management’.
However, and potentially critically for the outcome of the appeal, that point was not made to the court. Claims that the consultation was skewed were based on an argument that the council said the fees were to manage ever increasing demand for bike parking, but had no evidence to show that demand had increased.
Three Appeal Court judges are now considering the case against a permanent version of bike parking fees scheme that still looks more like a tax to many riders than a measure to manage traffic better.
However, and notwithstanding the strength of the full case against the legitimacy of using Traffic Act powers in the way that WCC did, given the way that case was put in the Court of Appeal, I have serious doubts about whether the High Court ruling will be overturned, and think on balance that it the Appeal will be dismissed. As you may imagine, in this case, I would be absolutely delighted to be wrong.
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