COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, DIVISIONAL COURT
(Pitchford LJ and Maddison J)
Ref No: CO27752010)
 EWHC 1825 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE MOORE-BICK
|- and -
|WESTMINSTER CITY COUNCIL
Ms Nathalie Lieven QC and Ms Jacqueline Lean (instructed by Head of Council Legal Services) for the Respondent
Hearing dates : 14 and 15 March 2011
Crown Copyright ©
Lord Justice Maurice Kay :
The statutory framework
"(1) A local authority may by order designate parking places on highways … in their area for vehicles or vehicles of any class specified in the order; and the local authority may make charges (of such amount as may be prescribed under section 46 below) for vehicles left in a parking place so designated."
Section 46(1A) provides that charges must be prescribed by the designation order or by a separate order.
"(1) It shall be the duty of every local authority upon whom functions are conferred, by or under, this Act, so to exercise the functions … as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway …
(2) The matters referred to in subsection (1) above as being specified in this subsection are –
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected … ;
(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the local authority to be relevant."
The aims referred to in section 122(1) are generally known as "traffic management benefits".
"35. If any person desires to question the validity of, or any provision contained in, an order … on the grounds –
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order, he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court …
36 (1) On any application … the court –
(a) [interim orders], and
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order."
The 2010 Order
The decision of the Divisional Court
"44. It seems to me almost self-evident that there will be a need to designate spaces for on-street parking in a London borough with a profile such as Westminster's. The evidence is overwhelming that on-street parking in Westminster requires rationalisation … The underlying policy justification for introducing a charge to motorcycle users for the improved provision of on-street parking, namely that there was a need to strike an equitable balance between vehicle users, seems to me to be utterly unexceptional. There was a finite capacity for kerb-side parking. Motorcyclists needed more space. That space would be provided partly by re-assigning bays formerly used by motor cars and partly by extending them. While there were traffic management and environmental arguments for and against treating motorcyclists as a special case it does not seem to me reasonably arguable that the Authority acted outside its statutory powers by resolving that all road users should pay their fair share for on-street provision of spaces.
45. … In my view, the evidence demonstrates two clear objectives the Authority sought to achieve by the introduction of the parking orders. The first was to improve on-street parking availability for motorcyclists in order to meet actual increased demand and anticipated increased demand. The existence of that need cannot, in my view, be seriously challenged. The evidence was overwhelming …
46. The second objective … was the termination of discriminatory treatment between motorcycles and cars. Pressure on kerb-side space was created both by motorcycles and cars. The Authority considered it right to balance the interests of both by introducing charges for motorcycles while, at the same time, providing free off-street parking on its secure parking sites …
47. … I accept both the existence of increased demand and the need to level the playing field between motorcyclists and other vehicular traffic."
The grounds of appeal
Grounds 1 – 4: objectives and benefits
"The current approach to charging for motorcycle parking reflects the demands made on Westminster's infrastructure by the increasing numbers of people using motorcycles and scooters. It was not an explicit aim of the pilot to address environmental or congestion related concerns … Rather, the approach attempted to fairly balance the finite amount of kerbside provision between all the different motorist types and uses. Moreover, it is also the case that as the volume of motorcycle traffic grows the wider issues of environmental and congestion will increasingly come to the fore. The City Council's policy on motorcycle parking reflects their use of these limited resources and their increasing demand for them: overall we believe the policy is fair, reasonable and informed."
"… the ever-increasing demand from motorcyclists for kerbside space remains and coupled with environmental issues, the fundamental recommendation upon balance is that the scheme be made permanent but with modifications."
"The purpose of the experimental scheme was to attempt to balance the ever-increasing demand for Westminster's kerbside space between all road users … The City Council's policy on motorcycle parking therefore reflects motorcyclists' use of these limited resources and their increasing demand for them."
"The primary purpose of the Scheme was to regulate and balance the demand for on-street parking facilities in Westminster between all road users … The need to provide additional parking facilities for motorcycles, regulate the use of new and existing facilities, and balance demand for such facilities against the demands of other road users in organising … finite kerbside resources is a clear theme running through [the Council's] consideration of the Scheme … The various reports also identify further justifications … [including] … the use of charging to help fund the costs of providing and enforcing the additional parking facilities, and of funding trials of devices designed to improve those facilities, but also of making parking policy fair throughout the City, regardless of vehicle type."
The skeleton argument on behalf of the Council in the Administrative Court expressly disavowed environmental justification.
(1) Increasing demand
"The uptake currently does not justify commissioning on-street studies to identify any potential new on-street space."
As against this, the Council point to Mr Djanogly's first witness statement:
"The impact of the [Experimental] Scheme on motorbike users has been considerable. A large number of parking spaces have been taken away, as now motorbikes are only allowed to park on-street in designated bays. This has meant that motorbike users often have a wasted journey as they cannot find somewhere to park, or have to park a considerable distance away which is inconvenient and time-consuming. Even if you buy a permit before you leave the house … you are not guaranteed a parking space. Often motorbike users waste money by buying a permit before they have left the house and then find that there are no spaces to park in …" (My emphasis).
"Occupancy levels City-wide since the Scheme was introduced have been in excess of 90%."
(3) Is it permissible to consider the 2010 Order in the context of the previous history?
Grounds 5 – 6: income and expenditure
The renewed application for permission: consultation
"It is conceded on behalf of the claimant that the Authority provided him and those whom he represents with proper opportunities to make representations to them. The complaint is that they failed to deal adequately with the objections advanced. In practice, Mr Coppel submitted, the City Council failed to have regard to the fact that the overwhelming response to consultation was objection by the motorcycle lobby. Secondly, the City Council failed to identify any substantial grounds upon which the objections raised could be rejected."
"Far from ignoring the responses received, appropriate concessions have been made and the scheme amended. The arguments for and against the scheme were painstakingly analysed. It was ultimately for the Cabinet Member to make a judgment on the competing arguments … That the objections have not in the end prevailed does not … demonstrate a failure of the consultation process."
Lady Justice Smith:
Lord Justice Moore-Bick: