England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		11 January 1995

MR JUSTICE McCULLOUGH:

INTRODUCTION

1. Whether or not the parking of cars in Primrose Hill is such that a Controlled. Parking Zone ('CPZ') should be introduced by the council of the London Borough of Camden ('LBC') is a matter on which differing opinions have been strongly held since at least 1991. The council, and many of those who live in Primrose Hill, takes the view that one is required; to this end the council made the necessary designation order under the Road Traffic Regulation Act 19 84 on 14/7/93. Many others, and possibly the majority, take the opposite view.
2. Amongst the latter are the members of an association called the Primrose Hill Action Group ('PHAG'), ten of whom have appeared in person to ask the court to quash the council's order. Nine reside within the area affected; the tenth lives outside but carries on business within it.
3. Their complaints about the way the council has considered the question, and in particular about the way their views have been treated by the council and its officials, are so numerous that it has required more than 30 pages of their Notice of Motion to set them out.
4. They assert that the council was so determined to introduce a CPZ, in accordance with its policy of progressively introducing them throughout the borough, that it failed to consider whether the policy ought nevertheless to be modified for Primrose Hill, failed to carry out the necessary research to see if this was so, failed to consult residents and businesses about whether or not Primrose Hill needed a CPZ, failed to give the applicants a fair chance to present their own ideas for dealing with such parking problems as exist and to discuss those ideas with a view, if necessary, to their modification, and, in so far as it did consult, misled potential objectors by overstating the justification for introducing a CPZ and by making misrepresentations of fact to this effect.
5. Instead, they say, councillors and officials misrepresented what PHAG had proposed, and belittled the very considerable backing they had secured from others. They say that the council failed to give proper reasons for rejecting their own proposals and their objections to the council's proposals. They allege that, once the council had decided to introduce a CPZ, it failed to consult residents and businesses about the level of charges for permits for residents and businesses and failed to consult businesses about the criteria which should govern the issue of permits for businesses.
6. The applicants say that this behaviour was motivated by knowledge of the profit that would accrue to the council from the introduction of the scheme, and in particular from what they regard as the exorbitant price that the council proposes to charge residents and businesses for permits to park. They say that the council embarked on what was in reality a revenue raising exercise, and that this is something the 1984 Act does not permit. They say that the proposed charges will result in a surplus which the council proposes to use in a way not permitted by the 1984 Act. Further, they say that there are so many places where it will no longer be lawful for them to park that the council has broken its statutory duty to provide them with adequate parking facilities. They make other complaints, but these, perhaps, are the principal ones.
7. Their allegations are supported by no less than 17 affidavits which with their exhibits run to 665 pages. The council, which disputes every one of these allegations, has filed 6 affidavits and 3 affirmations, which with their exhibits run to 1,185 pages. There is a degree of duplication in the exhibits; nevertheless the volume of material is considerable.
8. As is well known, the jurisdiction of this court is limited. It is not for the court to say whether or not there ought to be a CPZ in Primrose Hill, let alone what its provisions should be: what lengths of kerbside should and should not be included, how many bays there should be where residents may park, how many for the exclusive use of those with tickets paid for and displayed, whether parking should be allowed on each side, or only on one side, of certain roads, whether vehicles should be allowed to park partly on the footway and so on.
9. The court is here to decide whether the order creating the CPZ was or was not lawfully made. For this purpose the court needs to know the facts which bear on the decisionmaking process. In most applications for judicial review - to which this application is akin - these facts are not in dispute. Unfortunately that is not the position here. The affidavits and affirmations make clear that there are numerous issues of fact between the two sides. Many go to the merits of the scheme, with which the court is not concerned, but many others need to be resolved before the course of the decisionmaking process can be ascertained.
10. The resolution of these disputes has been made no easier by the fact that over the years during which the parties have been in contention a degree of personal animosity has arisen between some of those most closely involved and by the regrettable fact that, for good reason or none, mutual respect, and indeed trust, have been eroded. Yet, as is almost the invariable practice in applications of this kind, I have heard no witnesses; there has been no application to cross-examine any deponent. I accept the applicants' point that it would, in any event, have been difficult for someone acting in person to cross-examine a witness about a matter on which the contrary evidence was provided by the cross-examiner himself. Nevertheless, and unsatisfactory though it is for the court as well as the parties, the court must, in the circumstances, fall back on the principle that where a relevant dispute cannot be resolved on the written material alone the facts must be assumed to be those which favour the respondent.
11. More than once during the hearing I have reflected, and indeed remarked, that - questions of pure law apart, by which I mean those that do not depend on any disputed issue of fact - an application to this court in circumstances such as these is hardly likely to lead to a decision which will satisfy the applicants. If the application fails and the order stands the applicants will feel that they lost because the limitations on the powers of the court prevented disputes of fact from being decided, as they should have been, in their favour. And, in any event, the merits of their belief that the parking situation in Primrose Hill does not warrant the introduction of a CPZ will not even have been examined, let alone decided in their favour. If the applicants succeed and the order is quashed the council will, no doubt, remain of the view that the parking situation in Primrose Hill requires the introduction of a CPZ and will, therefore, propose it again, and the applicants will again put forward their objections and counter-proposals and ask that they be discussed and fairly considered. This prompts the court to wonder: with what objectivity will the applicants think the council is doing so?
12. There is a further, and even less satisfactory, feature about applications to the court which arise from decisions taken by local authorities whose motives are suspected by some of those who reside in its area. It stems from the difficulty of discovering what influenced the majority of the members of the decision-making body to vote as they did. The parties can and do place before the court the minutes of the relevant meetings and the reports which were considered prior to the votes in question. These may be supplemented by first hand accounts of what was said at the meetings. But, even then, important parts of the' story may be missing. Members may already have met in political groupings or in twos and threes; the person in the chair may have had a word with individual members beforehand about the importance of reaching a particular decision. Little, if any, of this may become known to the applicants, and the chances of it becoming part of the evidence before the court is minimal.
13. I cannot help thinking that where trust breaks down in a situation such as this there is much to be said for a reconsideration by an independent entity of the merits of each side's contentions. Such a procedure is provided for in paragraphs 7, 8 and 9 of Schedule 9 to the Road Traffic Regulation Act 19 84. These paragraphs enable the Secretary of State to intervene when he is satisfied either that 'the duty under [the relevant section of the Act] is not being satisfactorily discharged by the authority' or in 'special circumstances'.
14. I understand that an approach was made to the Secretary of State on behalf of the applicants with these provisions in mind, and that he decided that it would be better if they proceeded by applying to this court, as they have. No doubt what prompted the decision, was the knowledge that prominent amongst the questions raised by the applicants is the extent to which the authority may lawfully aim to make a profit from the introduction of a CPZ, and this pre-eminently is a matter for the court.

THE ORDERS MADE BY LBC

15. The designation order made on 14/7/93 was The Camden (Parking Places) (CA-J.) Traffic Order 1993. It designated places on highways where vehicles might be parked. On the same date a second order was also made. This imposed parking and loading restrictions on sections of road not designated by the first order. It was The Camden (Waiting and Loading Restriction) (Amendment No. 124) Traffic Order 1993. I need not refer to it again as it was repealed on 24/11/93, and the question of whether or not its effect should be made the subject of a further order is not to be reconsidered until the outcome of the present proceedings is known.
16. The designation order itself was to have come into force on 6/9/94, but, after this application was made, LBC agreed to stay its effect until these proceedings have been determined.

THE LEGISLATION

17. The applications are made under Part VI of Schedule 9 to the Road Traffic Regulation Act 1984. On such an application the court may quash an order or any provision of it if it is satisfied that it, or any provision of it, is not within the relevant powers, or that the interests of the applicants have been substantially prejudiced by failure to comply with any of the relevant requirements. By "the relevant powers" is meant the powers conferred by sections 45, 46, 49 and 53 of the Act. By "the relevant requirements" is meant the requirements of the same sections or of Parts I to III of Schedule 9 or of any regulation made under Part III. Section 49 is not material in this case. Section 53 has no application in Greater London. Section 45(1) (2) and (3) (as amended by the Local Government Act 1985 section 8(1) and Schedule 5 paragraph 4, the Road Traffic Regulation (Parking) Act 1986 section 1, and the New Roads and Street Works Act 1991 section 168(1) and Schedule 8 paragraph 44) read:

(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 authority may make charges (of such amount as may be prescribed under section 46 ...) for vehicles left in a parking place so designated.

(2) An order under this section may designate a parking place for use (either at all times or at times specified in the order) only by such persons or vehicles, or such persons or vehicles of a class specified in the order, as may be authorised for the purpose by a permit from the authority operating the parking place or both by such persons or vehicles or classes of persons or vehicles and also, with or without charge and subject to such conditions as to duration of parking or times at which parking is authorised, by such other persons or vehicles, or persons or vehicles of such other class, as may be specified; and

(a) in the case of any particular parking place and any particular vehicle, or any vehicle of a particular class, the authority operating the parking place may issue a permit for that vehicle to be left in the parking place while the permit remains in force, either at all times or at such times as may be specified in the permit, and

(b) . . ., may make such charge in connection with the issue or use of the permit, of such amount and payable in such manner, as the authority by whom the designation order was made by order prescribe.

(3) In determining what parking places are to be designated under this section the authority concerned shall consider both the interests of traffic and those of the owners and occupiers of adjoining property, and in particular the matters to which that authority shall have regard include -

(a) the need for maintaining the free movement of traffic;

(b) the need for maintaining reasonable access to premises; and

(c) the extent to which off-street parking accommodation, whether in the open or under cover, is available in the neighbourhood or the provision of such parking accommodation is likely to be encouraged there by the designation of parking places under this section.

18. Section 46(1A) (as amended by the Road Traffic Act 1991 section 64(2)) and (2) read:

(1A) Subject to parts I to III of Schedule 9 to this Act, where the authority by whom a designation order is made with respect to any parking place in Greater London imposes charges to be paid for vehicles left in a parking place designated by the order, those charges shall be prescribed by the designation order or by a separate order made by the authority.

(2) The authority by whom a designation order is made may, subject to Parts I to III of Schedule 9 to this Act, by order make such provision as may appear to that authority to be necessary or expedient for regulating or restricting the use of any parking place designated by the order, or otherwise for or in connection with the operation of such a parking place, and in particular (but without prejudice to the generality of the foregoing words) provision -

(i) for regulating the grant ... of any permit such as is mentioned in section 45(2)(a) of this Act ... or the payment of any charge in connection with the issue or use of the permit;

19. Section 122 is also material.
20. As amended by the Local Government Act 1985 sections 8(1) and 102(2) and paragraph 4(34) of Schedule 5 and Schedule 17, the Road Traffic Act 1991 section 81 and paragraph 1 of Schedule 7, and the New Roads and Street Works Act 1991 section 168(1) and paragraph 71 of Schedule 8, they read:

(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 conferred on them by this Act as (so far as practicable having regard to the matters specified in sub-section (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 sub-section (1) above as being specified in this section are -

(a) the desirability of securing and maintaining reasonable access to premises;

(b) the effect on the amenities of any locality affected ... ;

(c) the importance of facilitating the passage of public services vehicles and 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.

(3) The duty imposed by sub-section (1) above is subject to the provisions of Part II of the Road Traffic Act 1991.'

21. Part II of the Road Traffic Act 1991 deals with traffic in London. This includes sections 63 to 76 which are concerned with parking in London. Of these sections 63 and 74 are material.
22. Section 63(1) empowers the Secretary of State to issue guidance to the London authorities with a view to those authorities co-ordinating their action with reference to parking in London.
23. Section 63(5) says that this guidance:

may in particular include provision with respect to appropriate levels for -

(a) parking charges;

(b) penalty charges;

(c) charges made ... for the removal, storage and disposal of vehicles; and

(d) charges in respect of the release of vehicles from immobilisation devices fixed under section 69 of this Act.

24. Section 74 makes it the duty of the London authorities to set the levels of charges of the kind referred to in paragraphs (b), (c) and (d) and in doing so obliges them to have regard to the Secretary of State's parking guidance. No equivalent obligation is imposed in relation to the setting of parking charges. Nor is any imposed in relation to the exercise of their power to make charges for permits.
25. The only provisions in Parts I to III of Schedule 9 which are relevant for present purposes are paragraphs 20 and 23.
26. Paragraph 2 0 obliges the local authority to consult with the chief officer of police before making a designation order under sections 45 or 46.
27. Paragraph 23 empowers the Secretary of State to make such regulations for providing the procedure to be followed in connection with the making of such orders as he considers appropriate with reference to -

(a) the publication of any proposal for the making of such an order;

(b) the making and consideration of objections to any such proposal; and

(c) the publication of notice of the making of the order and of its effect.

28. The procedure for making orders is contained in the Local Authorities Traffic Orders (Procedure)(England and Wales) Regulations 1989 (SI 1989 No. 1120). These were made inter alia under the power conferred by paragraph 13 of Schedule 9 to the 1984 Act.
29. Regulation 3 says that the Regulations apply to orders made under sections 45 and 46 of the 19 84 Act.
30. Regulation 5(1) reads:

Before making an order an order making authority shall -

. . . .

(d) in all cases, consult with organisations representing persons who use any road to which the order relates or are likely to be otherwise affected by any provisions of the order, unless it appears to the order making authority that there is no such organisation which can appropriately be consulted.

31. Regulation 6 deals with publication of proposals. It requires the authority inter alia to comply with the relevant requirements of Schedule 3 as to the availability of documents for inspection.
32. Regulation 7 provides for the making of objections. These and the grounds for them must be in writing and they must be sent within a time which may be as short as 21 days after the publication of the notice of proposal.
33. Regulation 8(1) reads:

Before making an order the order making authority may hold a public inquiry in. connection with that order.

34. Regulation 12 reads:

Before making an order the order making authority shall consider all objections duly made in accordance with regulation 7 ... and not withdrawn and also the report and recommendations (if any) of the person holding any public inquiry in connection with the order.

35. Regulation 16 reads:

(1) When an order has been made, the order making authority shall -

. . .

(c) except in the case specified in paragraph (2) notify in writing each person who has duly objected to the order in accordance with regulation 7 ... and has not withdrawn his objection, of the order making authority's decision in relation to the objection and, where the objection has not been, or not wholly been, acceded to, of the authority's reasons for their decision;

(2) The case referred to in paragraph (1)(c) above is the case where the order making authority have, before making the order, notified in writing the person in question of -

(a) their decision in relation to his objection, and

(b) where the objection has not been, or not wholly been, acceded to, of the reasons for their decision.

36. Schedule 3 to the Regulations sets out the requirements as to the availability of documents for inspection.
37. Amongst the obligations it casts on the order making authority is one to make available throughout the whole period during which objections may be made a statement setting out its reasons for proposing to make the order.
38. Once made a designation order may be varied or revoked. See paragraph 27 of Schedule 9. This involves a further exercise of the powers under sections 45 and 46 and, with two exceptions (which are principally concerned with varying charges), is subject to the same procedure as that applicable when a designation order is first made. See section 46A of the Act, which was inserted by section 42 of the Road Traffic Act 1991 and regulations 20 and 29A of the 1989 Regulations.
39. A local authority may, after having regard to objections duly made in respect of proposals for a designation order, make an interim order and postpone for further consideration the making of a further order. See section 45(6) of the 1984 Act.
40. Section 55(1) of the 1984 Act obliges the authority to keep an account of their income and expenditure in respect of parking places designated by their designation orders.
41. The account will not include income and expenditure in respect of off-street parking places, because these are designated not by designation orders but by regulations: see section 43 (1).
42. Section 55(2), (3) and (4) (as amended by the Local Government Finance Act 1988 section 137 and Schedule 12 paragraph 42, and the New Roads and Street Works Act 1991 section 168(1) and Schedule 8 paragraph 46) are material. Ignoring further amendments made by the Road Traffic Act 1991 section 81 and Schedule 7 paragraph 5, which became effective after the material date, these read:

(2) At the end of each financial year any deficit in the account shall be made good out of the general rate fund, and (subject to section (3) below) any surplus shall be applied for all or any of the purposes specified in section (4) below and, in so far as it is not so applied, shall be appropriated to the carrying out of some specific project falling within those purposes and carried forward until applied to carrying it out.

(3) If the local authority so determine, any amount not applied in any financial year, instead of being or remaining so appropriated, may be carried forward in the account kept under section (1) above to the next financial year.

(4) The purposes referred to in section (2) above are the following, that is to say -

(a) the making good to the general rate fund of any amount charged to that fund under section (2) above in the 4 years immediately preceding the financial year in question;'

(b) meeting all or any part of the cost of the provision and maintenance by the local authority of off-street parking accommodation, whether in the open or under cover.

(d) if it appears to the local authority that the provision in their area of off-street parking accommodation is unnecessary or undesirable, the following purposes-

(i) meeting costs incurred, whether by the local authority or by some other person, in the provision or operation of, or facilities for, public passenger transport services, and

(ii) the purposes of a highway or road improvement project in the local authority's area.

43. Section 55 has particular materiality to the applicants' contention that the council, in making the designation order and in determining the charges for permits for residents and businesses, were in reality engaged in a revenue raising exercise which is not permitted by the Act.
44. I consider this aspect of the case first.

FINANCIAL MATTERS

What can lawfully be taken into account in considering whether to introduce a CPZ and, if one is to be introduced, in considering what should charges should be imposed? Did LBC act unlawfully in these respects?

THE FACTUAL BACKGROUND

45. Since at least 1991-92, which is the earliest year for which figures are before the court, LBC has made a substantial surplus from its CPZs. Most of this has been spent on items described as Concessionary Fares, Taxicard and Plusbus. This expenditure was on account of LBC's liability to reimburse London Regional Transport ('LRT" ) the cost incurred by permitting reduced fares to be paid by the holders of travel concession permits issued by the council to elderly or handicapped persons resident in its area, and from a liability which resulted from a similar arrangement between the council and taxicab proprietors and, in relation to Plusbus, from an arrangement whereunder LBC paid a private operator for running a service to take to hospital people who were unable to use public transport or taxis.
46. Out of a surplus of £4.3m in the on-street parking account in 1991-92 more than £3m was spent on concessionary fares, more than £0.5m on Taxicard and more than £75,000 on Plusbus. [E2/363] In 1992-93 the corresponding figures were: surplus £5.2m, concessionary fares and Taxicard together £3.8m, nothing on Plusbus. [E2/700] The 1993-94 budget contemplated that a large part of the anticipated on street parking surplus of more than £7m [Cl/395] would be spent in the same way. To this the anticipated surplus from the introduction of the CPZ in Primrose Hill would have contributed.
47. It had been expected that it would cost £124,360 to set up the CPZ in Primrose Hill and that it would thereafter produce a surplus of £207,196 per annum. [Cl/87-88] One sees this in an appendix to a report from the Director of the council's Environment Department dated 18/8/92 which was placed before the council's Planning Transport and Employment ('PTE') Committee on 25/8/92. This stated that the anticipated annual expenditure in relation to the proposed Primrose Hill CPZ was £136,350 and the anticipated annual income £343,546. [Cl/87-88] The report stated that this income would come from three sources:

•    pay and display charges: £52,650,

•    enforcement charges: £147,513,

•    and income from permits issued to residents and their visitors and to businesses and their visitors: £143,383.

THE SUBMISSIONS OF LAW

48. Mr Mark Cran QC, the first applicant, who has in effect argued the case for all 10 of the applicants, submits that it was not lawful to make any charge to residents and businesses for their permits or for those for their visitors because the anticipated expenditure of £136,350 was more than covered by the anticipated income of £147,513 from enforcement and the £52,650 expected from the pay and display machines. The difference of more than £200,000 provided a more than adequate surplus. Nothing more, he says, could lawfully be raised by way of charges from permits.
49. He bases this first on a more fundamental submission to the effect that, although section 55 of the 1984 Act contemplates the making of a surplus from designated parking places (i.e. from on-street parking), and must therefore fairly to be taken to contemplate budgeting for such a surplus, it is unlawful for a council to budget for a surplus greater than that for which it would be reasonable to budget, looking at on-street parking in isolation. This, he submits, follows from a consideration of the policy and objects of the 1984 Act. All that section 55(4) does, he submits, is to tell a local authority how it may spend such a surplus if it turns out that it has made one and does not determine to carry it forward to the next financial year in accordance with section 55(3). Thus, he goes on, it is unlawful to set charges for on-street parking with a view to making a surplus to spend on the matters referred to in section 55(4), viz off-street parking and, if the provision of off-street parking is considered either unnecessary or undesirable (which is the position in LBC), highway or road improvement projects in the council's area and public passenger transport services. To allow these objects to have a material influence on the decision when fixing charges for permits is, he submits, to take into account an irrelevant consideration and justifies the quashing of the CPZ on conventional Wednesbury grounds as explained, e.g., by Megaw J in Hanks v Minister of Housing and Local Government [1963] l QB 999 at p 1020, and by Glidewell J in R v Inner London Education Authority ex p Westminster City Council [1986] 1 WLR 28 at 47-50.
50. Mr Cran makes an alternative argument, on which, initially at least, he laid greater stress. He draws a distinction between the function of a council in setting its charges for pay and display and for enforcement on the one hand and in setting its charges for permits on the other. He says that, unlike those who provide income of the first two kinds and whose activities such charges are intended to influence, residential permit holders and those who require vehicles to park outside or near their premises for the proper functioning of their businesses are captive: they have no option but to ask for permits and to pay whatever the council demands.
51. In theory residents have the options of selling their cars (or not buying them in the first place) or, if they happen to have houses both in Primrose Hill and out of London, of not bringing their cars to London, but, Mr Cran says, and in this he is plainly right, it is not the policy of LBC to discourage residents from owning cars, even if they cannot park them on their own premises. Nor, he adds, is it the policy of the Act.
52. Thus, he submits, that, whatever may be the lawfulness of budgeting to make, from the charges for pay and display and enforcement, a surplus greater than would be required from on-street car parking alone, it is not lawful for a council to budget to make such greater surplus from permits issued to those who reside or carry on business in its area.
53. I accept that there is a distinction between the exercise of setting charges to be made for the use of pay and display bays and charges for enforcement on the one hand and the exercise of setting charges for residents on the other hand. Enforcement charges will not achieve their purpose unless they are high enough to deter, and this factor may of itself lead to the on-street parking account having a surplus greater than that which would be required if the aim was merely to cover expenditure on on-street parking and budget for a prudent margin of excess.
54. A somewhat similar consideration applies to pay and display charges which may properly reflect a policy of encouraging the owners of private cars to use other means of transport, so long as this is balanced against the interests of those who have no real alternative but to use pay and display bays. Clearly pay and display charges should take into account pay and display charges in neighbouring localities; otherwise undue numbers of motorists may want to visit the cheaper locality. So, for this reason too, a council may inevitably find that it is budgeting for a more substantial surplus than it would need if it had to think of nothing but covering its expenditure for on-street parking and providing for a prudent margin of excess. These considerations reflect the policy and objects of the Act. They do not apply to residents or businesses within the area.
55. Whether or not Mr Cran is right in saying that it is not the policy of the Act to discourage those living in, e.g., inner London from owning cars or bringing them into London, is of no consequence in the present context, because, whatever the Act may have entitled LBC to do to this end, the LBC has not adopted any such policy of discouragement.
56. The considerations which a local authority should, and those which it should not, take into account when setting its charges for on-street parking permits must, as both sides agree, depend on the policy and objects of the 1984 Act. What then are the policy and objects of the Road Traffic Regulation Act 1984? As none of the amendments made to it over the years have changed its policy and objects, it is enough to read the Act in its present form.
57. Doing this makes clear that the 1984 Act is not a fiscal measure- It contains no provision which suggests that Parliament intended to authorise a council to raise income by using its powers to designate parking places on the highway and to charge for their use. To adapt words used by Nolan LJ in R v Manchester City Council ex p King (1991) 89 LGR 696 at 712, had this been the intention of Parliament the extent of the fund-raising powers conferred on the council would be enormous, since they have a monopoly over the granting of permits for on-street parking within their area and would have golden opportunities to augment their revenue.
58. The Act makes provision for crossings, playgrounds, parking places both off and on the street, traffic signs, speed limits, bollards and other obstructions. All its provisions, leaving aside section 55(4) for the moment, are concerned in one way or another with the expeditious, convenient and safe movement of traffic and the provision of suitable and adequate parking facilities on and off the highway. This is reflected in the wording of section 122(1). There is its policy; there are its objects.
59. Now section 55(4). To what extent do the matters to which it refers go beyond the aims of 'the expeditious, convenient and safe movement of traffic and the provision of suitable and adequate parking facilities on and off the highway'?
60. Clearly (b) and (c), off street parking, fall within them.
61. So does (d) (ii) ; improvements to highways assist the expeditious, convenient and safe movement of traffic.
62. That leaves (d)(i): 'meeting costs incurred, whether by the local authority or by some other person, in the provision or operation of, or facilities for, public passenger transport services'.
63. For LBC, Mr Stephen Hockman QC submits that anything which improves public passenger transport services assists the expeditious, convenient and safe movement of traffic: the better the public passenger transport services the more the public will use them, rather than private transport, and the more expeditious, convenient and safe will be the movement of traffic. Thus, he submits, the whole of section 55(4), like the rest of the Act, is directed to the purposes referred to in section 122(1), and this makes it lawful for a local authority, when fixing its on street parking charges, to take into account such needs as there might be to expend money on any of the matters listed in section 55(4), which, he says, includes concessionary fares and the Taxicard and Plusbus schemes.
64. Mr Cran submits that none of this expenditure is within section 55(4)(d)(i). He says first that, since the surplus is derived from sums paid by the motoring public, the 'public passenger transport services' to which the section refers must be services which could be used by the motoring public as an alternative to using their own vehicles.
65. The expression 'public passenger transport services' is not defined in the Act. Section 55(4) of the 1984 Act re-enacted without significant difference section 44(3}(d) of the Road Traffic Regulation Act 1967, which had been inserted by section 127 of the Transport Act 1968. Thus it would appear that 'public passenger transport services' in the 1984 Act should be taken to bear the same meaning as Parliament intended that expression to bear when it passed the 1968 Act. The 1968 Act, however, contained no definition of the phrase.
66. There is a definition in the Transport Act 1978. This preceded the 1984 Act and, although the 1978 Act was concerned also with transport other than road transport, it may assist the interpretation of section 55(4) of the 1984 Act, even though section 55(4) merely re-enacted a provision passed before 1978.
67. Section 1(2) of the 1978 Act says that:

In this section and sections 2 and 4 below, 'public passenger transport services' means all those services (whether publicly or privately operated) on which members of the public rely for getting from place to place, when not relying on private facilities of their own, including school transport but not ...

and then follow 2 exceptions - one concerned with

the carriage of passengers by bodies concerned with education, social welfare etc,

the other being

excursions or tours within the meaning of the 1968 Act.

68. Sections 1, 2 and 4 of the 1978 Act were concerned with the obligation of non-metropolitan county councils to develop public passenger transport policies and to prepare public passenger transport plans for the following 5 years; these were to include references to travel concession schemes.
69. There is a definition of 'public passenger transport services' in the Transport Act 1985. This cannot influence the meaning of the 1984 Act, but it is, at least interesting to see what it said. Section 63(10) of the 1985 Act defines the phrase as:

All those services on which members of the public rely for getting from place to place, when not relying on private facilities of their own, including school transport but not ...

Two exceptions follow.

The first is:

services provided under permits under section 19 of this Act, other than services provided wholly or mainly to meet the needs of members of the public who are elderly or disabled

and the second

excursions or tours.

70. I find no assistance from the exceptions in either definition, but the body of the two definitions at least provides a starting point: all those services on which members of the public rely for getting from place to place, when not relying on private facilities of their own.
71. In the present context this may, however, be too wide. There is some force in Mr Cran's submission that 'public passenger transport services' should be more narrowly regarded in the 1984 Act, because, section 54(4) (d) (i) apart, the 1984 Act is concerned only with the movement of road traffic and the parking of vehicles. He would confine 'public passenger transport services' to services which the motorist may use to get from place to place as an alternative to using his own car.
72. The point of his submission is, of course, to enable him to make the further submission that concessionary fares do not benefit the motoring public; they are a social service.
73. A social service they may be, but I do not accept that they do not benefit the motoring public. Many men over 65 and women over 60 (who thus qualify for concessionary fares) own cars. An improved service of buses or trains may encourage them, as much as anyone else, to leave their cars at home. So I do not think it is necessary to reach a conclusion about his submission that public passenger transport services in the 1984 Act mean only those public passenger transport services which provide the motorist with an alternative to using his own car.
74. Mr Cran advances a second submission in relation to the concessionary tares. The arrangements between LBC and LRT for travel concessions are made under section 50 of the London Regional Transport Act 1984.
75. This provides:

... any local authority .... may enter into arrangements with London Regional Transport under which

(a) London Regional Transport grant ... travel concessions •••; and

(b) ... that local authority ... reimburse the cost incurred in getting those concessions.

76. Mr Cran submits that 'public passenger transport services' are buses and trains: they are what take people from place to place. When a passenger pays a bus fare he is not meeting the cost of 'providing' or 'operating' the bus; LRT does that. He is simply paying the contractual sum demanded for being taken from A to B. Under the arrangements in question LBC does no more than reimburse LRT for the fares LRT would otherwise have collected from the concessionaire. Therefore, says Mr Cran, LBC, like the passenger in whose shoes it stands, is not paying LRT for 'providing' or for 'operating' the buses and trains. Nor is LRT providing the concessionaire with a service; it is conferring a benefit on him, but the fact that he benefits does not make what is done a service.
77. I do not accept Mr Cran's submission. I find his distinction between conferring a benefit and providing a service artificial. The concessionary fare arrangements are a service to the public - the car owning public included; the fact that only sections of the public (those over particular ages) can use them is immaterial. They are a service on which members of the public rely in getting from place to place; in other words a public passenger transport service. This is no less true on account of the fact that the concessionaires would not get from place to place unless the train or bus was running. The sums paid by LBC to LRT both meet LBC's own costs and meet LRT's costs in providing the service available to that section of the public.
78. If, however, this conclusion is wrong, the lawfulness of the expenditure is shown in another way. In providing trains and buses for public use LRT provide the public with a service - a public passenger transport service. The concessionary fare arrangements facilitate the use of that service by the public: the arrangements are facilities for a public passenger transport service. The payments which LBC makes to LRT 'meet costs incurred in the provision of facilities for a public passenger transport service'.
79. The payments to the taxicab proprietors under the Taxicard scheme can be seen in the same way. The taxis, though privately operated, are available for public use. The Plusbus service is privately operated, but it too is a public service. LBC meets the costs of its operation. What LBC pays to the operators clearly falls within section 55(4} (d) (i).
80. I can now return to Mr Hockman's submission that, since the whole of section 55(4), like the rest of the Act, is directed to the purposes referred to in section 122 (1), it is lawful for a local authority, when fixing its on-street parking changes, to take into account such needs as there might be to expend money on any of the matters listed in section 55(4) .
81. The submission has a number of attractions. First, it would not be unreasonable to infer that Parliament intended to empower an authority to impose charges, not only to keep in credit an account that had in previous recent years produced a deficit which had had to be made good from the general rate fund, but also to enable that deficit to be repaid. Secondly, section 122(1) expressly states that it is the duty of the local authority so to exercise its functions under the Act as to secure, inter alia, the provision of suitable and adequate off-street parking. One way this could be achieved would be by raising money from on-street parking with the intention of spending it on off-street parking facilities. Thirdly, highway improvements have a direct effect on the expeditious, convenient and safe movement of traffic and can readily be seen as falling within the purpose of section 122(1). Fourthly, it must be true, as Mr Hockman submits, that anything which causes more people to use buses and trains, rather than private transport, assists, to a greater or lesser extent, the expeditious, convenient and safe movement of traffic. Fifthly, if it is lawful for a local authority, when setting its on-street parking charges, to take into account the matters referred to in section 55(4)(a) and (b) and (d)(ii), it would be somewhat surprising if the same was not true of those mentioned in section 55(4) (d) (i) .
82. If, however, Mr Hockman's submission were right and any of the matters referred to in section 55(4) could lawfully be taken into account when a local authority is exercising its power to set on-street parking charges, the discretion of the local authority in doing so would have to be severely circumscribed. It would not, e.g., be a reasonable exercise of the power to set charges if a local authority, which wanted to embark on a project of highway improvement or to provide off-street parking accommodation costing £45m, set the charge for the 50,000 residents' permits likely to be needed in its area at, say, £1,000 per annum (as against, say, £50 per annum or less), in order to finance the project; this would in reality be to use the power to raise additional revenue, and the decision would be quashed. Mr Hockman submits that such an excess would be prevented by the universal principle that any exercise by a local authority of a statutory power must be reasonable, and the example given would clearly be outside what any authority could reasonably decide.
83. Following his line of argument to its conclusion one would then be able to formulate the duty of the local authority in the following way.

1. Local authorities must not use their powers under section 45 with the aim of raising additional revenue, let alone as a means of local taxation.

2 Their charges should be set at levels which are designed to secure the traffic and parking objectives of the Act.

3. To this end a variety of factors will have to be taken into account and balanced; these may properly include the purposes for which a surplus may be used.

4. Factors more directly affecting the objects of the Act will count for more than those of less direct effect.

5. Greater weight should be given to the interests of those more directly affected by the order than to the interests of those more remotely affected.

6. It is all a matter of striking a fair and reasonable balance.

7. No hard and fast rule can be drawn to distinguish between a balance which is fair and reasonable and what is in reality revenue raising and therefore unlawful.

84. Mr Hockman's interpretation accords better than does Mr Cran's alternative submission with paragraph 11.6 of Traffic Management and Parking Guidance for London published by the Secretary of State in 8/92 under section 63 of the Road Traffic Act 1991. I say so because of its inclusion of the word 'primarily'.

Local Authorities should not seek to use [parking] charges primarily as a means of raising additional revenue or as a means of local taxation. They should, instead, see the charges primarily as a means of securing the traffic and parking objectives discussed in this guidance.

85. It is perhaps worth noting that, so far as has been drawn to my attention, concessionary fares and schemes such as Taxicard and Plusbus and the like are not mentioned in the 100 or so pages of the Guidance.
86. Mr Cran's submission is much simpler: it is that in setting charges the on-street parking account must be looked at on its own; section 55(4) only comes into play if there happens to be a surplus at the end of the year.
87. This too has its attractions, not just of simplicity, and I am persuaded that it is right. Mr Hockman's submission leads inevitably to a balancing exercise that leaves undesirable scope for argument. Further, it does not follow that, because section 122(1) refers to the exercise of the 'functions conferred' on local authorities by the Act, every such function must be exercised with reference to every factor which might, however indirectly, secure the expeditious, convenient and safe movement of traffic. One sees that the encouragement of the provision of off-street parking facilities (by which must be meant privately financed facilities) is one of the matters to which section 45(3) requires the local authority to have regard. Section 45(3} is not directed to the determination of charges, only to the determination of what parking places are to be designated. It may perhaps also be said that Mr Cran's interpretation pays more attention to the word 'surplus', which implies an excess and tends to suggest an excess over that which is required. If Mr Hockman were right in the far-reaching effect which his submission gives to section 122(1), it would logically follow that a local authority could take into account the matters referred to in section 55(4) not only when setting its charges but also when deciding whether or not to make a designation order. Yet, looking at the Act as a whole, it is difficult to believe that Parliament intended, for example, that the desirability of funding concessionary fares for the elderly and disabled, or the desirability of building an underpass, should be taken into account in deciding whether or not to designate parking places, and Mr Hockman has not gone so far as to suggest that this conclusion would be wrong. On his interpretation of the provisions, one would have to say that concessionary fares could lawfully be taken into account but reasonableness required that the weight to be given to them should be nil. By contrast Mr Cran's submission gives full recognition to the fact that the 1984 Act is not a revenue raising Act. Where there is ambiguity the citizen is not to be taxed unless the language of the legislation clearly imposes the obligation. By analogy, if not indeed direct application, I conclude that the difficulties of interpretation presented by these provisions must be resolved by adopting the narrower construction for which Mr Cran contends: it was the intention of Parliament that local authorities, in determining charges to be made in pursuance of the designation of parking places, should not have regard to the manner in which section 55(4) would permit any resulting surplus to be spent. And manifestly the same would apply to the decision whether or not to make a designation order.

THE COURT'S APPROACH TO MATTERS OF DETAIL

88. On the financial aspect of the case, as on others, both sides have relied on a considerable volume of material to support rival assertions to the effect that particular matters germane to the fixing of the charges for permits were, or were not, properly put by the officers to those members of the council who took the decisions and whether or not these matters were or were not taken into account by them.
89. It is not the function of this court to evaluate such matters in detail. Many of the statements made by the council's officers which have been questioned in these proceedings are expressions of professional judgment which the court is not equipped to evaluate. Even in relation to what one might call bare statements of fact in a report, what can at first appear to the layman to be unwarranted may, on enquiry and after reference to a number of other documents, be shown to be tenable, or even demonstrably sound. To spend half an hour looking at two paragraphs in a report which the committee members to whom it was addressed probably considered in a minute risks turning an application to quash a decision on the ground that it was taken unlawfully into a retrial of its merits.
90. The court must approach these questions broadly, bearing in mind the well known observations of Lord Brightman in R v Hillingdon London Borough Council ex p Puhlhofer [1986] 1 AC 484 at 518, albeit in the context of a different subject matter, and those of Griffiths LJ in R v Chief Registrar of Friendly Societies ex p New Cross Building Society [1984] 1 QB 227 at 260 about the importance of the court not becoming bogged down in minutiae or led into the error of taking over the role of a fact finding tribunal.
91. In virtually every administrative decision of any complexity it will be possible to point to some factors which arguably were wrongly taken into account or left out of account, but it does not necessarily follow that the court should conclude that the decision was not lawfully taken, let alone that relief should be granted.
92. An example of a case where the court found that the decision making body had made errors of fact, so that it was possible to say that immaterial matters were wrongly taken into account and material matters wrongly not so taken, and yet relief was not granted is R v Warwickshire County Council ex p Boyden (1991) 156 JPR 1. In that decision Otton J considered whether the errors were of such magnitude or materiality as to invalidate the decision (pp 23 and 24). I respectfully believe this to have been in accordance with authority. Even if unlawfulness be established the ultimate question is one of the exercise of the court's discretion, and in this connection the court should always be mindful of the remarks of Sir John Donaldson MR in R v Monopolies and Mergers Commission ex p Argyll Group PLC [1986] 1 WLR 703 at 774C about the needs of public administration.

DID LBC ACT UNLAWFULLY IN RELATION TO THE FINAL CONSIDERATIONS?

93. I appreciate the reasons for the suspicions which the applicants have harboured about the factors which influenced LBC to introduce a CPZ in Primrose Hill. Despite these suspicions, and although there are affidavits from only three of the twenty or so councillors who took the various decisions up to and including 17/11/92, the evidence before the court does not justify the conclusion that the prospect of the creation of an even larger surplus on the council's on-street parking account once a CPZ was introduced in Primrose Hill influenced the decision to introduce one. The conclusion must be that, although the prospect of this enhanced surplus must have been gratifying, the CPZ was both recommended and decided upon because it was believed that it was required on traffic grounds.
94. To what extent, if any, the prospect of the enhanced surplus may have influenced the later decisions to confirm the original decision I will consider in due course.
95. Two further questions relative to finance can conveniently be considered now. They were both given prominence in Mr Cran's reply. Neither point was made directly in the Notice of Motion, but no objection was taken on this account by Mr Hockman. Both were covered in general terms by the assertion that £82 p.a. greatly exceeded what was needed to defray the expenses of the scheme and that to impose such a charge was unlawful. [A4]
96. These are that the PTE Committee took into account two immaterial considerations: (i) the view that a resident's permit has a value and was therefore something for which a charge should be imposed, and (ii) that the charge for such permits should be the same as that imposed in the borough's other CPZs.
97. As to the first point Mr Cran says that, compared with the present position in which a resident can park in any free space at the kerbside, his position under a CPZ is, not more, but less valuable.
98. That is a matter of opinion. The opposite view, which is taken by LBC, is in my view reasonable. The right to occupy a vacant space in a residents' parking place has a value in the sense that those without permits may not lawfully park there, and to discourage them from doing so and to penalise those who do requires the expenditure of money, as does the maintenance of the necessary lines and notices. I see nothing unreasonable, let alone unlawful, in a local authority taking this into account. To what extent the setting of the charge for permits should also take into account the income derived from enforcement in the permit holders' bays, and perhaps also the income from pay and display and from enforcement in those bays, must be for consideration by the decision-making body, remembering always that the 1984 Act is not to be used to raise revenue.
99. As to his second point Mr Cran says that a borough wide consideration of income and expenditure can never be appropriate because the income required to be raised from the different categories of road user will differ between CPZs. Primrose Hill's CPZ should have been considered on its own. Had this been done it would immediately have become clear that, once suitable charges had been set for pay and display and for enforcement, more than enough income would be produced to cover all the expenditure and provide for an appropriate surplus. Even if, contrary to his earlier submission (which I have rejected), the court should hold that it was nonetheless reasonable to decide that some charge should be made for residents' permits, it does not follow, says Mr Cran, that it was material to fix it at the level imposed elsewhere in the borough. He does not, in any event, concede that the charge made in other CPZs in. the borough has been lawfully determined.
100. In answer to Mr Cran's second submission LBC say that the 'established practice' of the LBC is to charge the same for permits throughout the borough 'in the interests of equity and simplicity' [D 33] and that the 1992-93 charge of £79 p.a. was increased 'in line with inflation' to £82 p,a. for 1993-94. [D 33] None of the LBC's affidavits deals with the taking of these decisions; LBC has not placed before the court any relevant minutes or reports. This effectively inhibits the court from knowing what was, and what was not, taken into account when they were reached. The applicants have put in what appears to be part of a report from the Head of the PTE Service to both the PTE Committee for its consideration on 5/11/91 and for the consideration of the Policy & Resources Committee at an unstated date (which may indicate that the committees were to meet jointly). [Cl/395 F-G] But its appendix (which set out proposed increases in charges) is missing and it does not help much. All that appears in evidence from LBC is the statement in #3.1 A of a report dated 22/6/93 from the Director, Environment Department to the PTE Executive Sub-Committee. [Cl/189] This reads:

The charge made for a residents' parking permit is determined each year by PTE & P&R Committees in considering the annual Fees and Charges Report. The charge is the same in all CPZs in the borough and increased in April 1993 from £79 in line with inflation. Since this charge is not unique to the Primrose Hill CPZ in Camden, this is not considered a valid reason against the introduction of the scheme.

101. The P&R Committee must be the Policy and Resources Committee. It is clear that both in this report and in the earlier report to the PTE Committee for its meeting of 25/8/92, in which the details of the proposed CPZ, including the proposed charges, were first set out [Cl/85], officers simply adopted the then current figure of £79 p.a. for residents' permits and that the PTE Committee in due course simply followed this recommendation without considering whether the general practice should be modified in Primrose Hill. The business permit charge of £300 p.a., which was fixed later, would appear to have been set in much the same way. [D 38-9] In consequence the PTE Committee paid no attention to the extent to which the figures for permit income as compared with total income and expenditure in Primrose Hill differed from those in the borough's existing CPZs.
102. In 1992-93 in the LBC's CPZs as a whole, permits were to produce £801,000, which represents approximately 30% of the total expenditure. [C1/385D] In Primrose Hill the permit income of £143,383 (roughly £125,000 of which was to come from residents [D 194,248-9]) would represent 105% of the total expenditure. This very marked difference from the average might be thought to have prompted consideration of whether it was right to charge as much as the standard figure in Primrose Hill.
103. Even so, I cannot, on the material before the court, conclude that the view that a standard charge should be imposed throughout the borough was one that could not reasonably be taken. Different parts of almost any local authority's area will have different mixes of residential and business occupancy; there will be differing levels of car ownership, differing proportions of residents' bays and of bays for pay and display and so on. In such respects Hampstead may, e.g., differ from Camden Town. Primrose Hill may be more predominantly residential and its density of car ownership may be higher than anywhere else in Camden, in which case one would expect the income from residents' permits to produce a higher proportion of the total income and thus bear a higher ratio to the total expenses. For all the court knows, the PTE and P&R Committees may have considered matters of this kind and may nevertheless have thought it right to impose a standard charge. Parity may reasonably have been regarded as simpler and as fair, if not more fair. It is unsatisfactory to have to make assumptions, but I have no alternative.
104. In seeking to persuade me not to reach these conclusions Mr Cran relied on the decision in R v Manchester City Council ex p King (1991) 89 LGR 696, where it was held that the charges to be made for street trading licenses in Manchester as a whole could not lawfully exceed the council's costs of operating street trading in the city. What the council had done in that case was to set the licence fees by reference to what they thought the market would bear.
105. What is lawful to take into account in administering a given statutory scheme will depend on the policy and objects of the relevant statute. Statutory powers are granted in widely differing fields. In the Manchester case the situation was not complicated by the features found in the legislation applicable to CPZs or by the practicalities of operating an effective CPZ: the competing interests of those wanting to park and those wanting the free movement of traffic, the need to set pay and display charges and enforcement charges at effective levels whatever the surplus, and the possible perception of unfairness if residents in one part of a borough are paying more than residents in another part of it for the same benefits and service.
106. It is convenient next to turn to the quite separate question of whether a charge so high as £82 p.a. is beyond the bounds of reasonableness. The applicants say that in relation to Primrose Hill it is: this is implicit in their allegation that LBC is using the 1984 Act to raise revenue. The difficulty about making this assertion is that, once one concludes, as I have, that the decision to impose a standard charge across the borough cannot, on the material before the court, be declared unreasonable, one has to look, not at the figures for Primrose Hill, but at the figures for the borough as a whole. This has not been done either in the applicants' affidavits or in the respondents'. The applicants' omission is hardly surprising since no relevant document was in their possession until either just before or just after this hearing began. Until then the applicants knew no more of the position borough wide than that LBC had, in recent years at least, been making £ millions from, its CPZs and spending most of it on concessionary fares. In relation to the point that £82 p.a. might be too high as a figure for the borough as a whole the best they could do from the documents was to show that, as permits cost £69 p.a. in 1990-91, the increase to £79 p.a. (14% in 2 years) was greater than the rate of inflation. At about the time the hearing began the applicants were provided from an unofficial and unspecified source with copies of a number of documents of which they had previously been unaware.
107. [They appear in the bundles with suffix letters.] One of these [C1/380D] showed for the year 1992-93 a breakdown of the budgeted borough wide figures for the on-street parking account. This showed the totals of expenditure and of income from permits and from meters and from enforcement. But, even now, there is nothing to show what the PTE and P&R Committees took into account when setting the charges for residents' permits.
108. It may be that a case could be made for saying that a borough wide charge of £82 p.a. was so high as to be beyond the bounds of reasonableness - particularly when one sees the extent of the profit that LBC has been making and that it is spent on projects that can have no more than a marginal influence on the 'expeditious, safe and convenient movement of traffic'. It may be that the PTE and P&R Committees did unlawfully take into account the manner in which section 55(4) allows any resulting surplus to be spent. It may be that, in one or more years, they decided how much surplus they wanted to spend on concessionary fares, etc and then decided what charges were required to produce it. The court simply does not have the material to say what was and what was not taken into account. Thus the evidence does not warrant making any of these findings. Add this to the need to assume that the decision to impose a borough wide charge was lawfully reached and the court is effectively precluded from considering further whether £82 p.a. in Primrose Hill is beyond the bounds of reasonableness.
109. The business charge of £300 p.a. was set by the PTE Committee on 17/11/92. Until then there had been no provision for business permits anywhere north of Euston Road. On that date strict criteria were adopted for the issue of such permits throughout that area and a price was set, in part at least, with the intention of affecting demand. [E2/372-9; D 38-9; Cl/192] The Guidance issued by the Minister says that charges should be set at levels which help to control demand: #5.15 [El/214]; #11.3 [El/243]. Clearly this applies to charges for pay and display. It may be - it is a matter that I do not have to decide - that it may also lawfully be applied to business permits without falling foul of the principle on which the Manchester case was decided.
110. I ought perhaps, before leaving financial matters, to mention two specific arguments of Mr Hockman's. The first is that £82 p.a. can be justified by comparison with charges made in some other London boroughs and in some provincial cities. The London charges quoted in evidence vary between £50 and £85 p.a. and the provincial ones between £24 and £175 p.a. It is said that Camden's £82 p.a. is 'pitched within the general range'. [D 34] So it is; and so it would have been had it been fixed at, say, £53 p.a. I cannot see that this is a material consideration. Although the point is made in these proceedings, there is no evidence that it was considered by the decision makers.
111. It is interesting to see that in Cambridge, Canterbury and Edinburgh there are ranges of charges, which may show that these authorities, when setting charges, look at the income and expenditure for each CPZ separately- If so, it may not follow that those which look at the matter borough wide are acting unlawfully.
112. A not dissimilar attempt to justify the annual permit charge was made in a letter from Cclr Woodward, chairman of the PTE Committee, which was published in the local press on 30/10/92. [Cl/120] He said:

Regarding cost ... an annual parking permit costs £79 a year, which at just over 30p a day for a five-day scheme is less than the cost of many daily newspapers.

113. That, with respect, is beside the point.
114. Mr Hockman's other point derives from the fact that the council's officers have said that some costs were not included in Appendix 10 [D 194, 247]. The opinion has been expressed that had they been included 'the cost of enforcement in Primrose Hill would [have exceeded] the income from enforcement' [D 247] and 'the costs of enforcement in relation to residents' bays' would 'be of a similar order' to the £125,000 that it was expected residents' permits would yield. [D 249] But that is to rationalise after the event -something of no use in judicial review except in relation to the court's discretion. The assertion that there were additional costs over and above those set out in Appendix 10 was not before the committee.
115. Having given the material in the affidavits, the affirmations and the documents before the court the best consideration I can, I am not persuaded that - in relation to any of the matters with which I have so far dealt - it would be right to conclude that, either in deciding to introduce a CPZ in Primrose Hill or in setting the charges it set under the scheme, the council took into account any factor which it ought not, or that it failed to take into account any factor that it should, or that it misunderstood or misapplied the law or reached a conclusion which no local authority could properly have reached.

IS LBC IN BREACH OF THE DUTY IMPOSED BY section 122(1) OF THE 1984 ACT?

116. Mr Cran submits that, as a matter of fact, the CPZ fails to provide adequate parking facilities for residents and businesses- He reasons as follows. There are no off-street car parks in Primrose Hill. Overnight counts have led both sides to believe that about 1,650 residents' vehicles are parked on the street. An unknown number of these are not there during the working day when the restrictions of the CPZ would be in operation. The only figures from which an estimate of the number remaining could be made appeared in the 601 responses to a questionnaire distributed by the council in mid 1992. Of the 523 who answered the question about whether their cars were there by day or night, 95% said they were there at night and 88% said they were there during the day. 88% of 95% is 93%. 93% of 1,650 is 1,535. The CPZ will only have 1,436 bays in which residents may park by day, and of these all have to be shared with residents' visitors, 1,282 have to be shared additionally with businesses and visitors to businesses and 45 have to be shared with residents' visitors and those who pay and display. In this way Mr Cran asserts that there must be a significant deficit in the spaces needed by residents during the day. Thus, he submits, the council are in breach of section 122(1) of the 1984 Act which, says Mr Cran, obliges the council to 'secure ... the provision of suitable and adequate parking facilities on or off the highway'.
117. I do not accept Mr Cran's interpretation of the duty imposed by section 122(1). The duty is not, as his argument implies, absolute. First, it is qualified by the words 'so far as practicable'. Secondly, it is but one of twin duties; the other is to 'secure ... the expeditious, convenient and safe movement of vehicles and other traffic (including pedestrians)'. These considerations may tend in different directions: the expeditious, convenient and safe movement of traffic may best be achieved by banning parking on the street altogether. What a council must do is to take both considerations into account and balance them. See R v Secretary of State for Transport ex p Greater London Council CA (unreported) 29/10/85 per Neill LJ t/s p 22.
118. I accept as a matter of arithmetic that, if the figures referred to above provide a proper means to estimate the number of residents' vehicles in Primrose Hill during the working day, the number will exceed the number of places in which they may park. But it does not follow that LBC is in breach of section 122(1).
119. On behalf of LBC it is said that cars are now parked in a number of places where it is not safe for them to be or where their presence inhibits the expeditious, convenient and safe movement of traffic, and these have not been included in the designated places.
120. Mr Cran disputes this. In particular he points to lengths of Primrose Hill Road and of Regent's Park Road where he says no good reason has been shown for their exclusion from the schedules of designated parking places. The same point is made about other streets. The court has been referred to a substantial body of evidence which, it is said, demonstrates that the council had no good reason for deciding to allow parking on only one side of Chalcot Crescent and on only one side of Chamberlain Street and for not allowing, by way of exemption, parking on the footways in these streets.
121. Mr Cran may or may not be right, but the court does not have the means to resolve differences of view of this kind; nor is its function. These are essentially matters for the judgment of the local authority and in particular of its professional officers, on whom the decision makers on the relevant committee may reasonably rely on points of such particularity.
122. Mr Cran argues that the court can nevertheless interfere where it is apparent that the officers, and through them the decision-makers, have taken into account some plainly immaterial fact or omitted to take account of some plainly material fact. In this connection I have been invited to say, e.g., that what caused the exclusion of the lengths of Primrose Hill Road and Regent's Park Road was the erroneous consideration that there were no houses there, because Mr Williams, who is employed in the council's Traffic Management Division, said so to Mr Birkett, the third applicant, in 6/92. As against this, however, Mr Williams, while accepting that he may have used these words, makes clear that in his professional opinion, there was good reason to exclude these lengths.
123. Much time has been spent looking at evidence about Chalcot Crescent and Chamberlain Street. It is said that the council, while properly considering whether vehicles parked on the footway might damage cellars beneath the footway, failed to take into account the fact that cars had been parking on the footway for some 30 years without known damage to a single cellar. It is said that, when the council sought the view of the fire brigade about bilateral parking in these two streets, it presented the brigade with figures for the remaining widths of carriageway which assumed that vehicles would park with only one pair of wheels on the footways, despite the fact that they had been parking further on to the pavement for 3 0 years; accordingly the brigade's preference for unilateral parking, of which the committee was informed, was based on a misapprehension. It is also said that the council, while properly considering the adequacy of the remaining width of footway, if footway parking were to be allowed to continue, failed to take account of the fact that the lampposts in Chalcot Crescent were so close to the walls and railings of the houses that wheelchairs and double buggies would not get a free run down the footway, parked cars or not.
124. This may well be correct; indeed it is not contradicted in evidence from the council. So too the absence of damage to cellars and the greater overlap of parked cars and the footway. But it would be disproportionate to quash the designation order as a whole on account of omissions such as these, and to order the removal of Chalcot Crescent and Chamberlain Street from the designation order would merely increase the excess of demand for parking space over supply in those streets.
125. It is in relation to matters of this kind that the remarks of Griffiths LJ to which I have referred are particularly apposite. The court cannot hold that LBC broke the duty cast upon it by section 122(1}, nor can it say that there is any Wednesbury basis on which the designation order should be held unlawful, let alone quashed, on account of the conclusions to which the officers came, and which the committee accepted, about which lengths of kerbside should be excluded from the CPZ.

RESEARCH

126. A related submission made by Mr Cran is that LBC failed to carry out the necessary research to enable it to make a reasonable determination about the number of bays required and, in particular, about the relative proportions which should be allocated to pay and display and to residents and their visitors. In particular, he says that the council had no figures on which they could properly assess the numbers of vehicles likely to want to use pay and display bays, nor had they any figures of the number of residents' vehicles which, though present by night, were away from Primrose Hill during the working day.
127. In this connection much attention was paid to a report which was placed before the PTE Committee at its meeting of 25/8/92 [Cl/55-89] and in particular criticism was directed to two pages of summaries of surveys, which were annexed to the report as Appendix 7 and 8 [Cl/83,84] and the conclusions which the report suggested could be drawn from them, in particular at #2.6 of the report. [Cl/57]
128. I accept Mr Cran's point that the paragraph shows that assumptions were made in the interpretation of the figures for vehicles staying 1-2 hours, 2-6 hours, 6-9 hours and for more than 9 hours. #2.6 says so. But I do not accept that it would have been unreasonable for professional officers in the council's Transport Management Division to make these assumptions (qualified as the assumptions were) for the purpose of estimating the number of pay and display bays likely to be needed to accommodate short term visitors to Primrose Hill.
129. Mr Cran is also right in saying that the council had not carried out any survey designed to show how many residents' vehicles were absent from Primrose Hill during the day -other, that is, than by the questions they asked in a consultation document circulated in mid 1992, the answers to which suggested that by day the number was only some 7% lower than by night. Mr Cran is also right in saying that the council had no figures of the number of commuters' vehicles parked in Primrose Hill by day. And he is right in saying that to add together the figures in a column in Appendix 8 headed 'maximum in street at any one time' (a figure derived from observations over different days) would be likely to overstate the total number of vehicles in all those streets at any one time, though whether this would be by a great margin in an area which, by common, if not universal, consent is heavily parked by day I doubt.
130. Mr Hockman added these figures together during argument to support his contention that the material before the committee showed that the number of vehicles present by day roughly equated with the number present by night, from which he suggested it followed that the number of incoming commuters roughly matched the number of residents who commuted out of Primrose Hill. This is a conclusion reached by Mr Hockman; in Appendix 8 itself the figures were not totalled, nor was this conclusion drawn in the report.
131. Clearly the council could have conducted more surveys than it did; but it is must be a matter for the discretion of the local authority to. decide whether or not it has acquired sufficient material to enable it to formulate a designation order. Resources are not unlimited; nor is time. And professional officers have experience on which they can properly draw.
132. While the court could, no doubt, interfere in a case where a local authority had made a designation order on the basis of data which was manifestly grossly insufficient, that has not been shown to be so here. In any event, it should be remembered that the council decided that the operation of the Primrose Hill CPZ should be reviewed after 6 months. Clearly this was with a view to proposing a further order making such amendments to the scheme as by then appeared desirable.
133. I reject the submission that the research here was so deficient that the court could properly hold that the council acted unlawfully in deciding to act upon it and in this way acted without the relevant powers.

SAFETY

134. Mr Cran submits that, contrary to their claims, LBC did not have any reason of safety for believing that a CPZ should be introduced in Primrose Hill. I say only that I am quite unable to accept this.

CONSULTATION, ETC

135. The remaining submissions relate largely, though not only, to the process of consultation.

Consultation: General

136. It is convenient first to consider what is required when a local authority is under a duty to consult before reaching a decision.
137. The duty to consult may be imposed by statute or may arise because the parties to be consulted have a legitimate expectation of consultation which results either from a promise or from an established practice of consultation. What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can, however, be stated.
138. The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider the responses with a receptive mind and in a conscientious manner when reaching its decision.
139. These principles emerge from the cases of Rollo and anor v Minister of Town and Country Planning [1948] 1 All ER 13, CA; R v Secretary of State for Social Services ex p Association of Metropolitan Authorities [1986] 1 WLR 1, Webster J; R v Gwent County Council and Secretary of State for Wales ex p Bryant [1988] COD 19, Hodgson J; R v Governors of Haberdashers' Askes Hatcham Schools ex p Inner London Education Authority [1989] COD 435.
140. On the need for the consulting party to have a receptive mind I would cite a passage from the judgment of Bucknill LJ in Rollo. It appears at p 17F:

I would like to read a few lines at the end of the judgment of Morris J, which appear to me to sum the whole thing up so well. He says this ... :

'The holding of consultation with such local authorities as appear to the Minister to be concerned is, in my judgment, an important statutory obligation. The Minister, with a receptive mind, must by such consultation seek and welcome the aid and advice which those with local knowledge may be in a position to proffer in regard to a plan which the Minister has tentatively evolved.'

141. The subject matter in that case differed from the present. The consulting party, the Minister, was in London; the plan concerned Crawley in Sussex; the consultees, the local authorities, operated in Sussex, knew about Sussex and had professional expertise on which Parliament expected the Minister to draw. Here LBC was not remote; Primrose Hill was in its own area; its officers knew Primrose Hill, though they would be unlikely to know its individual streets as well as those who lived there and they would not have parked their cars there as often as the residents; the residents, though having more knowledge of conditions at the kerb side, lacked expertise; the officers were professionals. But the point about the need to seek and welcome what the consultees might have to say is of general application, and so is the point that this is to be done when the plan is tentative.
142. I do not accept Mr Cran's submission that consultation, by definition, requires dialogue, in the sense of face to face discussion rather than a mere exchange of written material. Except in so far as the method of consultation is prescribed by statute or has been made the subject of legitimate expectation, this must be a matter for the judgment of the person on whom the duty to consult is cast. Clearly much will depend on the subject matter and the degrees of knowledge and expertise which the parties possess, as well as the practicality of holding a dialogue. That said, consultation is a two way process. Regulation 5(1)(d) obliges local authorities to 'consult with' organisations. The obligation is greater than one to receive and consider representations.
143. Regulation 5(1)(d) imposed on LBC a duty to consult with organisations representing users of the roads concerned and other persons likely to be affected by the proposed designation order. No duty to consult anyone else was prescribed. This did not preclude the council from consulting more widely if it wanted to do so, as was the case. Having so decided, that wider consultation had also to be fair and effective; to inform consultees that they are being, or will be, consulted must give rise to the legitimate expectation that the consultation will be fair and effective.

THE HISTORY OF WHAT PASSED BETWEEN LBC AND OTHERS IN RELATION TO PRIMROSE HILL'S CPZ

144. With these introductory remarks I turn to the history. Such comments as I make while doing so are made after considering the whole of the material before the court. Inevitably, I am afraid, this part of the judgment will be even longer than that dealing with the financial questions.
145. [At various places I have included references to pages in the papers before the court. These were originally included for my own use when drafting this judgment; I have left them in in case they may be of use to others. It should not be assumed that they are the only references I have taken into account. The same is true of the references in the earlier part of the judgment.]
146. As will be seen when the documents are examined, by 4/92 LBC saw the process of introducing controlled parking to an area in two clear stages: (1) deciding when to introduce controlled parking in a particular area, and (2) settling the layout, hours of operation and charges. Thereafter a detailed scheme would be resolved upon and notice of the proposal to make it would be published. Not even at the first stage did it allow for the possibility that it might be inappropriate to control parking in a particular area; the policy decision to control parking throughout the borough had already been taken. In 4/92 the committee responsible for deciding such matters, the PTE Committee, decided that there would be no consultation at stage (1), only at stage (2), but even then not on the level of charges. In 10/90, however, this clearcut division was not made.
147. The first reference to the introduction of parking controls in Primrose Hill appears in a report presented to the PTE (North-east Area) Sub-Committee at its meeting on 4/10/90. [Cl/l-3] The subject matter of this report was the possible extension of the existing CPZ north of Euston Road. Certain work relevant to its extension into Chalk Farm had already been done. The report recommended (#1) agreement in principle to the extension of the CPZ and that further work be undertaken to develop the detail of such an extension, in consultation with local residents and traders, first into Chalk Farm and then into Primrose Hill. One paragraph of the report (#7.1) put the recommendation in slightly different words: 'It is proposed that following the extension proposed in this report that the CPZ be further extended into the Primrose Hill area, subject to consultation and Members approval.' The sub-committee approved the recommendations. [E3/779]
148. This was followed by an informal consultation letter which was distributed in Primrose Hill in 12/90. [Cl/4-5] Attached to it were 19 questions with answers provided by the council. [Cl/6-8] Some were directed to stage (1); others to stage (2).
149. A plan on the first page showed that what the council then had in mind was the extension of the existing CPZ into Primrose Hill, rather than a new CPZ for Primrose Hill alone. Thus in Answer 6 recipients were told that, if the extensions to Chalk Farm/Kentish Town and Primrose Hill were approved, a permit would allow parking in the existing sub-zone North of Euston Road and in those additional areas. The letter stated that the council was 'considering' such an extension and before proceeding further sought views on: the need for a CPZ in the area, the hours/days that it should operate, the amount/mix of the CPZ and other alternative measures felt to be needed for the locality. Replies were to reach the council by 15/1/91. The letter concluded:

The next stage of the consultation exercise (should this initial phase prove favourable to the extension of the CPZ) will be a public exhibition of the detailed proposals, as part of the FORMAL STATUTORY CONSULTATION, early in 1991.

The same theme was apparent in Answer 16:

Subject to a positive response on the principle and on the results of further consultation on the detail of the scheme, we would envisage an implementation date of Autumn 1991.

150. These statements, read alone, would have led recipients to believe that the scheme would not go ahead if the responses to the letter did not favour it. Answer 19, however, was contradictory. This said:

If consultations reveal a majority of residents against [a CPZ in Primrose Hill], this fact will be included in the Report to the North-East Area Planning Sub-Committee who have the responsibility for making the final decision.

In other words the majority opinion might, after all, not prevail.

151. The letter stated that the currently operating CPZ operated from 0830 to 1830 Mondays to Fridays, but that there was no legal reason why a CPZ should not operate at whatever times were felt to be appropriate.
152. The applicants say that some of the information given in the letter and in the answers was inaccurate. I shall refer only to Mr Cran's more' substantial points.
153. The letter said:

A recent parking survey (May 1990) clearly showed that ....

and then followed four paragraphs about demand for parking space being greater than current availability, outsiders regularly using a significant amount of it, competition amongst local businesses for space and illegal, dangerous and obstructive parking. Answers 7 and 18 referred to 'surveys'. In fact the only survey took place on 7/6/90, but this minor error is of no consequence. The applicants' complaint is that the survey justified none of the four statements. Strictly speaking the applicants are right, as is apparent from the summary of the survey figures before the court [E2/629-630], but I am satisfied that Mr Constantinides, the official in the Transport Management Division who wrote the letter, believed, and had reason to believe, that all four statements, looked at in isolation, were true. The applicants say that this misled them into thinking that the four statements were backed by findings from a survey. I appreciate the point, but, having read PHAG's response to the letter and bearing their later representations in mind, I do not accept that any substantial prejudice resulted.

154. They also say that the answer to Question 10 was misleading:

Q: What will Camden do with the revenue from parking meters/pay and display and residents Parking Permits.

A: Local Authorities are obliged by law to use the revenue from Controlled Parking Schemes in one of three ways. Firstly to fund the physical measures associated with the scheme, i.e. signs, road markings etc. Secondly, monies may be used to fund enforcement. Without such enforcement the scheme will be of little value. In Camden enforcement is carried out by the Borough's own Parking Control officers. Thirdly, if funds remain, these may be used for other traffic and transport initiatives.

155. The applicants say that this answer, though true as far as it went, was designed to conceal the fact that the council knew that substantial funds would remain and that most of them would be spent on the council's scheme for concessionary fares for the elderly and disabled. The court has no information about the extent of the profit made from such CPZs as existed in 12/90, but there is no reason to think that the position differed materially from that in the financial year 1991-92 when the profit was £4.3m, of which more than £3m went to fund concessionary fares, or that the council anticipated that the proposed extension into Primrose Hill would be less profitable. I think there is force in the applicants' submission. But the point was not clearly made in the Notice of Motion [A17] or in the affidavits in support [B74], which may explain why it has not been answered in the respondents' evidence, and in proceedings which must be decided on affidavit evidence, I hesitate to go so far as to conclude that the allegation is right.
156. Whatever the motive, the effect of the answer was to weaken for over 18 months the strength of the accusation that LBC wanted to introduce controlled parking in Primrose Hill for the benefits it would bring to the council's financial position - an accusation that the council must have realised would be strongly made once the size of the anticipated surplus and its intended use became common knowledge.
157. In this connection one notes that almost a year later, on 5/11/91, the Head of PTE recorded that legal advice was being sought to clarify the scope of the activities on which the on-street parking surplus could be used. [C1/395 F-G]
158. By 25/8/92 PHAG had found out that a substantial surplus was expected from the Primrose Hill CPZ, since this was stated in the report dated 18/8/92 [Cl/55-89; B94] of which PHAG obtained a copy. And at the same meeting PHAG heard read out a memorandum from the Director of Finance to the Director of Corporate Services dated 21/7/92 [Cl/379-380; B94] which said it was proposed to spend £3.8m out of an anticipated surplus of £4.3 m in the year 1991-92 on concessionary fares, Taxicard and Plusbus.
159. PHAG, which had by the end of 1990 been formed or reformed to represent residents and traders in Primrose Hill on the question of parking controls, responded to the consultation letter of 12/90 by letter dated 9/1/91. [Cl/10-11] This opposed the imposition of a CPZ in the standard form, stated that PHAG had not yet had time to formulate an alternative way to deal with the problem created by the 'through commuters', but said that the most popular idea so far was to prevent anyone but residents and traders and their visitors from parking in Primrose Hill between 8.0 and 10.0 am. In various parts of the letter PHAG said they wanted to discuss a possible alternative along these lines with the council. This was a clear request for consultation about stage (1). The letter stated that PHAG were asking residents and traders to sign a copy of the letter if they agreed in principle with their initial proposals and desire for consultation. In due course some 260 signed copies were handed to the council. [B 75]
160. PHAG's letter was not even acknowledged [B 76] - despite the statement at the foot of the council's letter of 12/90: 'Please note that we are unable to reply to letters sent to us as part of this consultation exercise, AN ACKNOWLEDGEMENT ONLY WILL BE SENT'. [Cl/5] On 14/2/91 PHAG sent the council a second letter to the same general effect. Again no reply was received. [B 76] A telephone call made on behalf of PHAG in about 3/91, asking one of the council's officers for a response, likewise produced nothing. [B76,133]
161. Meanwhile the Chalcot Crescent and Rothwell Street Residents' Association ('CCRSRA') had written to the council on 15/1/91 in terms not dissimilar; they too asked for an opportunity to discuss stage (1). [Cl/14] This received only formal acknowledgement. [B115]
162. The next event, so far as those opposed to the scheme were concerned, was that the council called a public meeting in Primrose Hill School on 15/4/91. PHAG wrote to those known to support its view and many attended. On the platform were the two councillors elected for the ward which includes Primrose Hill, Cclr Fitzgerald, who was in the chair, and Cclr Garland, together with two officers in the Traffic Management Division, Mr Constantinides and Mr Butcher. About 300 others attended. [B 80,116,132]
163. The objective of 'the meeting was to persuade those present of the benefits of a CPZ. [D140] In this the council failed; from the outset the predominant mood was of hostility to the scheme. [D139] When a vote was called for Cclr Fitzgerald resisted it. She said words to the effect that it would be meaningless and undemocratic. [B 77,132,136; D140] When she was in the end persuaded to allow one it was overwhelmingly against the council's scheme. [B 77,132; D 290] It was estimated that at least 95% of those present were against. [B 77,132,137]
164. There are affidavits from seven of those present. In her affidavit Cclr Fitzgerald [D259-260] says this:

When the request for a vote came from the floor ... I said I was not happy as this could only be representative of those attending the meeting and not of the wider interests of those within the Ward. I was also aware of the general atmosphere of the meeting and I also knew that further consultation, which would be sent to individuals and would enable thoughtful and private views to come forward, was arranged for the near future.

165. Of course the vote would only represent the views of those voting; that is true of every vote. Her affidavit also states [D 259] :

It was of course also an objective to judge local feeling and to get the views of the meeting.

166. That objective would have been assisted by taking a vote; yet Cclr Fitzgerald did not want a vote. She must have known that a vote would be overwhelmingly against the council's scheme.
167. I conclude that her resistance to a vote indicated that she was already committed to the introduction of controlled parking in Primrose Hill. The fact that she was also the Leader of the Council points to the further conclusion that she regarded the prospect of a vote against controlled parking as something the council would not want.
168. At the end of the meeting those on the platform said that LBC would be consulting more fully. [B78,81j Despite this no fuller consultation followed for more than a year. Indeed, no step appears to have been taken until 3/92.
169. Between 3/92 and 6/92 LBC carried out day time counts of vehicles in streets in Primrose Hill on various dates.
170. At about the time these counts began a report was prepared by the Head of the PTE Service.[Cl/19-25]
171. This was originally to have been considered at a meeting of the PTE Committee on 17/3/92, but was in the event presented at its meeting on 15/4/92. The contact officer's name appearing at its end was Alison Broom, she was the Manager of the Traffic Management Division. The report sought the committee's approval for the order of priority for the introduction of new areas of controlled parking and a consultation framework. It recommended:

That the Committee:-

(i) notes the transport policy background and justification for. the introduction and extension of parking controls

(ii) notes the programme of parking work already under way in the PTE Service and re-affirms the priorities being followed

(iii) agrees the priorities for the introduction of further areas of parking control as set out in paragraph 3.8

(iv) agrees the consultation framework set out in paragraph 4.1

(v) requests officers to report back in June on progress on each of the parking schemes and for Belsize Park as the next area for the introduction of controlled parking.

172. The report stated (##1.2, 1.3) that it was the council's policy and intention to introduce parking controls throughout the borough. [Cl/20] This had been set out in the Borough Plan and the Environmental Code. No possibility of any exception was acknowledged. #3.3 was to the same effect: the service intended to carry out night time surveys of residential parking demand 'to support [Unitary Development Plan] policies', i.e. policies to extend controlled parking; no acknowledgement here that such surveys might indicate that there was no need for parking control in any particular area. #3.4 [Cl/22] recommended that 'following Primrose Hill, Belsize Park be progressed as the next priority.' #3.8 listed 10 further parts of the borough in a suggested order of priority. A plan attached to the report [Cl/25] shows that by the time it was written the intention to include Primrose Hill in an extension of an existing CPZ had been replaced by an intention to put Primrose Hill into a small CPZ on its own.
173. Section 4, headed 'Consultation' [Cl/23-24], was remarkable. #4.1 read:

The Council has received criticism concerning the consultation carried out with respect to both the Hampstead CPZ and the extension both of the area and hours of control in Camden Town/Castlehaven. It is considered that two specific actions would assist in overcoming the perception of unfair practice by the Council.

(i) an overt statement that the extension of controlled parking is based on sound transport planning justification and that consequently the subject of consultation exercises is confined to the system of control and local details related to scheme design (layout, hours of operation etc) and not the principle of whether or not controls should be introduced and the fact that charges are made for permits

(ii) ...

174. In other words the public were not, as a matter of principle, to be consulted about stage (1), nor even about the level of charges at stage (2). A more rigid adherence to policy, regardless of the merits of individual circumstances, than this report it would be hard to find. Consultation had, of course, taken place in Primrose Hill in 12/90 and some of this had been directed to stage (1), but the report did not say with what reaction; it mentioned neither PHAG nor CCRSRA, let alone their opposition to the principle of a CPZ in Primrose Hill, their alternative ideas and their repeated requests for discussion with officers, the 260 signed copies and the expressed wishes of those who had been at the meeting in the school. The report merely stated in #3.2 that the committee had 'already required officers to begin work with a view to introducing parking controls in Primrose Hill' and that 'initial consultation [had] been undertaken and surveys of both parking activity and local characteristics affecting design [had] begun'. [Cl/21] For this members were referred to a 'report elsewhere on the agenda'. It may well be that it had originally been intended to place what became Appendix II [Cl/40-41] to the report from the Head of PTE to the PTE Committee on 16/6/92 before the meeting on 17/3/92 (later 15/4/92) [Cl/32-41], but in the event no such report was put to the committee on 15/4/92. Stage (2) was already under way.
175. The minutes [E3/783-4, item 10] show that the meeting resolved (i) that the report's recommendations were approved and (ii) ... that a full review of all CPZ schemes be undertaken after the introduction of the Primrose Hill and Belsize schemes.
176. Despite what had been said in the consultation documents of 12/90, the decision to introduce a CPZ in Primrose Hill was taken without the results of that consultation being placed before the committee. Accepting that those documents were to a degree ambiguous as to the importance to be attached to the public response, the statements then made told the public, at the lowest, that, if a majority were against, the fact would be included in a report to the body which would make the final decision- [Cl/8] Even if one leaves out of account the 260 copies of the PHAG letter, of the 468 out of 499 individuals who wrote directly to the council and who had expressed views in response to the council's request the majority (237 as against 231) were against. Yet, contrary to what the public had been told, the fact was not drawn to the attention of the committee when it decided that a CPZ would be introduced in Primrose Hill. The fact that these figures were put before the committee at a later meeting on 16/6/92, which the respondents rely upon in evidence, is beside the point.
177. Mr Hockman submits that on 15/4/92 the committee did no more than make a provisional decision that a CPZ should be introduced in Primrose Hill. I do not agree, and what happened thereafter confirms the conclusion.
178. Before recounting what happened next it is necessary to comment on the committee's adoption of the recommendation in #4.l(i) about the limits of consultation. This was contrary to what was required by Regulation 5(1)(d) - interpreted as it must be in accordance with the principles to which I have already referred - to which the report had made no reference.
179. Further, the committee's decisions of 15/4/92 show that, like the report on which their decisions were based, all that mattered was that it was the council's policy to introduce controlled parking throughout the borough. This was treated as axiomatic; only the order of priority remained for decision. This was unlawful. Policy must not be followed slavishly; each case must be considered on its own merits. This is so elementary that no citation of authority is required.
180. In accordance with the principle enunciated in #4.1(i) of the report, a second consultation document was prepared and distributed in about 5/92. [Cl/26-31] It and the questionnaire attached to it made clear that the council had already decided that parking in Primrose Hill was to be controlled. None of the 12 questions acknowledged any alternative.
181. Nowhere was attention drawn to the fact that, contrary to what had been said in 12/90, the intention was now to put Primrose Hill in a small CPZ of its own. As to this Mr Hockman could only say that it is something that would have been apparent from seeing the continuous line round Primrose Hill on the map on the last page of the letter. [Cl/29] This is not good enough; changes of intention between one consultation document and the next should be drawn clearly to the attention of those who are told they are being consulted. In the context of the whole this, however, is a minor criticism.
182. The document did not say that, contrary to what the public had been told in 12/90, its response to that earlier consultation had not even been drawn to the attention of the committee before it decided that parking in Primrose Hill was to be controlled. The consultation document summarised the initial proposal PHAG had made in its letter of 9/1/91, without referring to PHAG and without referring to the fact that the proposal was tentative or the volume of support for it which had been expressed, and went on to tell the reader why, in the council's view, such a scheme would be unsatisfactory, giving reasons which the council had never given PHAG the opportunity to consider or answer and upon which consultees were not asked to express their own opinion. Views were only sought about stage (2), but not about the levels of charges.
183. Between 8 and 12/6/92 the council held exhibitions. Detailed plans for the CPZ in Primrose Hill were shown. Controls were envisaged as being in operation from 8.30 a.m. to 6.30 p.m. Representations on detail were welcomed from those who attended; more fundamental objections were not. [B 82,138] Mr Williams of the Traffic Management Division, says [D 149] that he discussed issues of principle with Mr Birkett. It is difficult to see why he should have done so; so far as LBC were concerned the principle had been decided.
184. A report from the Director of Finance to the PTE Committee for its meeting of 16/6/92 [Cl/42-461 and an undated report from the Head of the PTE Service to the same meeting [Cl/32-41] show that, at some earlier and to the court unknown date, an anticipated profit of £125,000 from a CPZ in Primrose Hill in 1992-93 had been written into the budget for that -the current - year. The Director of Finance's report [Cl/43] would suggest that this had been done by 10/3/92. There is no evidence as to how this figure had been estimated, but it is only reasonable to suppose that it would have assumed that charges for permits in Primrose Hill would be as in the existing CPZs.
185. All this - the consultation document of 5/92, the exhibitions of 8-12/6/92 and the writing in of this £125,000 -provides further evidence that, contrary to Mr Hockman's submission, a firm decision had been taken before 16/6/92 to introduce a CPZ in Primrose Hill. Stage (2) being still in progress, no detailed proposal in the terms required for a designation order could be made, but stage (1) was, by 15/4/92 at the latest, decided upon: there were going to be parking controls in Primrose Hill. Further, it is clear that by 'parking controls' both officers and committee envisaged the sort of parking controls that applied in its other CPZs, viz day-long controls. I say so because by 15/4/92 the possibility of introducing controls for significantly shorter hours had not even been mentioned in a report to the committee, let alone mentioned as it later was in the second consultation document, only to be dismissed as unsatisfactory. This much had been decided without members having been informed of the expressed views of PHAG and CCRSRA, two of the organisations which represented those who would be affected and which there was a statutory duty to consult.
186. It is true that Regulation 5(1) of the 1989 Regulations only casts on a local authority a duty to consult with representative organisations before it makes an order - and the making of the order lay 15 months into the future, but consultation, to be fair and effective, must take place when proposals are still at a formative stage. The formative stage, both in relation to whether parking would be controlled and whether those controls would be day-long (subject, of course, to a decision about precise hours) was completed without any input from PHAG or CCRSRA; they had expressed their tentative views, but nobody had thought fit to draw them to the attention of the decision-making committee.
187. I will come presently to the question of the extent to which the fundamental decisions (of whether Primrose Hill needed a CPZ at all and, if so, whether controls should be day-long or for only a few hours) were reconsidered - or more accurately considered for the first time, rather than being taken for granted - and the extent to which the views of these two organisations had by then been considered with a receptive mind and in a conscientious manner.
188. On 16/3/92 and again on 23/3/92 Mrs Broom met two of PHAG's representatives: Mr Birkett, the third applicant, and Ms Pattie Coldwell. On the first occasion they met at the council's offices; on the second they walked round some of the streets of Primrose Hill. Mrs Broom says that she contacted Mr Birkett and arranged the first of these meetings and that during them they discussed the two hour scheme and that she 'sought to explain why we considered' it would not solve the commuter problem. [D 20,85,92,175-6]. Mr Birkett, on the other hand, says that PHAG asked Mrs Broom for a meeting, that they were not given the opportunity of discussing their own scheme and that Mrs Broom did not explain the council's objections to PHAG's scheme; on the contrary she said she was just an officer and it was her job to carry out the functions given her by the committee. At all times she spoke as if there was no doubt that the CPZ would be introduced. [B78-9] This is confirmed by Ms Coldwell. [B132]
189. What the explanation is for this difference of recollection I do not know. What is clear is that these meetings must have taken place within a short time of the preparation of the report which named Mrs Broom as Contact Officer and in which it had been recommended that there should be no consultation on the principle of whether or not controls should be introduced- [Cl/19-25] Mr Birkett and Ms Caldwell's memories of the meetings of 16/3 and 23/3/92 fit better with this than Mrs Broom's. I therefore think it right to conclude that, although Mrs Broom may briefly have said why the council rejected the idea of 2 hour controls, there was no useful dialogue about PHAG's proposal, let alone any discussion about how it might be adapted in a way which would meet the car parking problems of Primrose Hill but yet not involve the introduction of day-long controls. Further, although this is less important, had Mrs Broom taken the initiative to meet PHAG, I would have expected her to have done the same with CCRSRA, but there is no suggestion that she did. I accept that she arranged to meet PHAG [D85,176]; it takes two to arrange a meeting. But I conclude that it was PHAG who took the initiative by asking for one. It is also to be noted that no mention of the meetings with PHAG's representatives on 16 and 23/3/92 appeared in the report which the committee considered on 15/4/92 in relation to Primrose Hill despite Mrs Broom having told Mr Birkett and Ms Coldwell that she intended to report their objections to the committee. [B78]
190. Next comes the report prepared for the meeting of the PTE Committee on 16/6/92 entitled 'CPZs (Primrose Hill and North of Euston Road) Progress Report. [Cl/32-41] In relation to Primrose Hill it recommended that the committee:

(i) ...

(ii) notes the feedback from public consultation carried out in 1990/91 relating to the introduction of parking controls in Primrose Hill and the action currently being taken on Stage 2 of the consultation on the more detailed proposals, and

(iii) requires officers to report to the next committee meeting on the financial appraisal of detailed proposals for Primrose Hill.

191. The next meeting was to have been on 21/9/92. These recommendations were approved. [E3/794] Both the fact that they were made and the fact that they were approved provide further evidence that the decision to introduce a CPZ with day-long controls in Primrose Hill had already been taken.
192. During argument much attention was paid to section 3 of this document concerning the proposals for the Primrose Hill CPZ. In section 3 the report differentiated between the 499 individual letters sent directly to the council in response to its inquiry of 12/90 and the 260 identical responses which reached the council through PHAG. The effect of each group was summarised in a separate paragraph (##3.3 and 3.4). [Cl/34] The 499 were also broken down on a street by street basis in Appendix 1 [Cl/37-38], but there was no equivalent analysis of the addresses of the 260. The meeting at the school was mentioned but not the clearly expressed views of those who had attended.
193. Mr Cran submits that the reader would have been misled by this format into thinking that public opinion was roughly evenly divided between those who supported and those who opposed the council's scheme (231 for and 237 against), whereas, if the 260 letters were added - as he says they should, the figures would have read 231 for and 497 against.
194. I can see that a superficial reading could give a misleading impression, but a careful reading would not, and, despite the numbers of reports that were generally before the committee at its meetings (22 on that occasion), it would not be right to conclude that members did not realise that the full numbers of those opposing would be 237 plus 260.
195. #3.5 of the report stated that the introduction of controlled parking in Primrose Hill had a firm justification in planning terms and members were reminded that at their meeting in April they had approved a report re-affirming the principle of introducing parking controls throughout the borough. Similar paragraphs reminding the committee that this was the council's policy and that it was soundly based appear - significantly, in my view - in every report before the court from the Traffic Management Division relating to Primrose Hill.
196. #3.6 of the report to the meeting of 16/6/92 stated that PHAG had put forward proposals which were not considered practical or workable for the reasons set out in Appendix II. [Cl/40-41] The appendix accurately summarised what PHAG had suggested in its letter of 9/1/91 - 2 hour controls to deter 'through commuters' rather than a CPZ in the standard form and then explained why, in the writer's view, these were unsatisfactory.
197. Mr Cran is critical of this. Nowhere was any mention made of the fact that PHAG's proposals had only been put forward tentatively or of their various requests to meet the council and discuss them. Instead they were treated as fixed and then criticised on grounds that PHAG had been given no opportunity to meet.
198. The objections of CCRSRA, who it will be remembered had also asked for a meeting with the council, were not mentioned in the report.
199. These are more substantial criticisms since PHAG and CCRSRA were two of the representative organisations with whom the council were under a statutory duty to consult before they made any designation order relating to Primrose Hill.
200. #3.8 stated:

It is intended that further dialogue should take place with 'umbrella' organisations such as P.H.A.G. and [Primrose Hill Conservation Area Advisory Committee] concerning the overall aspects of the scheme, and local groups/street associations etc. should be contacted concerning detailed layout.

• • •

201. Mr Cran takes two points: there had been no 'dialogue concerning the overall aspects of the scheme'; nor did any such 'dialogue' with PHAG take place between then and the next meeting on 25/8/92 when it was intended to make the final decision. [Cl/51, B87] The nearest the council ever got to a dialogue with PHAG was on 23/10/92 - to which date I will come. In relation to CCRSRA one meeting was held on 20/7/92. [B117]
202. This is perhaps the moment to refer to the passages in Mrs Broom's affirmations which convey the impression, directly or indirectly, that officers had a number of discussions with PHAG about their proposals. See: 'I sought to explain what the Council saw ... and why we considered ...' [D 20]; '... have been consistently discussed with PHAG ...' [D 87]; '... there were further discussions ...' [D 89]; 'In my experience the PHAG representatives would not listen to our analysis of their proposals.' [D 174]; '... I explained on this occasion as on others...' [D 176]; 'As I explained to Mr Birkett at our meetings ...' [D 178]; '... on every occasion that officers met PHAG representatives . . . ' . [D 207] Other than when she and PHAG met on 16/3/92 and 23/3/92 (and I have expressed my conclusions about what happened on those dates) the only date she gives for a meeting is 23/10/92, to which I will presently come, and the only other I can trace is when Mr Cran and others met Mr Chamberlain on the occasion of the delivery of the Statement of Objection and Grounds of Objection on 3/6/93.
203. It is noteworthy too that in passage after passage where Mrs Broom refers to what was said between her and PHAG she speaks of officers making their views known to PHAG, rather than of PHAG having a chance to develop theirs: 'The reasons why limited controls were not appropriate and would be ineffective ... have constantly been discussed ...' [D 87]'... PHAG ... would not listen to our analysis ...' [D 174]; '... I explained ..." [D 176; 'We explained ... we pointed out ... I explained' [D 178] ; ' . . . officers ... sought to explain ... ' [D 207]; 'I am surprised that [PHAG] did not appreciate that officers were not empowered to consider any changes to the principle ...'. [D 195] This is not the language of consultation. Mr Birkett says that he never managed to get the officers to engage in any constructive discussion, and bearing in mind that the officers treated Primrose Hill's need for their kind of CPZ as concluded by policy, never told the committee that PHAG's proposals were tentative or that they had repeatedly asked for constructive discussion and never mentioned any discussions with PHAG in their reports, I conclude that he is right. There were occasions when he met councillors and tried, with or without success, to engage them in discussion on the principle of the LBC's scheme, e.g. when he visited Cclr Garland at home in a professional capacity on 11/8/92 [E3/770; D 307], when he attended one of Cclr Fitzgerald's 'surgeries' on 6/11/92 and when he and others met Cclrs Woodrow and Garland on 9/11/92. But it was the officers who formulated the proposals, and PHAG and CCRSRA were entitled to a fair hearing from them; they were the means by which the views of the representative organisations would be made known to the decision-makers.
204. A report from the Director of Finance to the PTE Committee [Cl/42-46] and the report from the Head of the PTE Service [Cl/32-41], which were before the meeting of 16/6/92, both state that it appeared that the anticipated surplus of £125,000 from the Primrose Hill CPZ would not be achieved in the financial year 1992-93. The former - a very gloomy report on the financial outlook, which mentioned the Director of Finance's concern that there would be overspend on staff salaries and said that he had instructed that there was to be no more external recruitment of staff except in income earning posts such as parking control officers [Cl/44] - described the £125,000 as a 'saving' [Cl/43]; the other [Cl/36] said that to the extent that this 'target net income' was not met it would be necessary to identify reductions in expenditure or increases in income elsewhere in the Department's budget. The report recommended that the committee note the difficulties and ask the Director of Finance to identify further ways to balance the budget. These recommendations were adopted [E3/792].
205. From this date on, if not earlier, members cannot but have appreciated the budgetary significance of the Primrose Hill CPZ.
206. Having obtained a copy of the report in advance of the meeting of 16/6/92, PHAG had protested to the council's officials about the way the 260 letters had been treated. They were told that the 260 were merely duplications of the letters received individually. [B 86] This prompted two members of PHAG to see if this was so. The exercise was carried out in late June or July 1992. [B 57; D160] An official in the Traffic Management Department, Mr Constantinides, was present and was told of the result, which was that there were 40 duplications. [B 57] A second official, Mr Williams, was there for part of the time. [D160]
207. On 20/7/92 one of the council's officials, Mr Williams, met representatives of CCRSRA who, inter alia, expressed opposition to the whole concept of the CPZ, but the decision to introduce one had by then been taken. The majority of the discussion was about the detail of the council's scheme. [D169]
208. Until 8/92 PHAG had been led to believe that the Primrose Hill CPZ would not be discussed again by the PTE Committee until its meeting on 21/9/92 [B89], but on 11/8/92 PHAG received a letter from the council informing them that the proposed parking controls for Primrose Hill would be considered at a special meeting of the committee on 25/8/92 -14 days later - and that PHAG could then present a deputation. [Cl/49; B89]
209. PHAG wrote back at once [Cl/50-51] expressing dismay, saying that 19 members of its committee of 25 would then be away and asking for the matter to go back to 21/9. [B90] PHAG added that about 1,000 people had by then signed letters opposing the CPZ and supporting PHAG, that there was a lot of misunderstanding about PHAG's scheme, that PHAG were then in consultation with another London Borough where their proposed scheme was in operation and working effectively and that PHAG had hoped to gather information about it and put it to the committee. The letter also pointed out that the further consultation promised on 16/6/92 had not happened. No response was received. PHAG had to telephone on 18/8/92 to find out that their request for an adjournment had been refused. [B 90] PHAG were then told that a special meeting had been arranged for 25/8/92 because there was too much business for 21/9/92 and it was thought more appropriate to bring the matter forward rather than to postpone it.
210. The applicants assert that the council's motive in doing this was to disconcert its opponents during the height of the holiday season and to prevent PHAG from completing their own consultation exercise. [A24; B90] This the council deny. It is but another of the many differences the court cannot resolve and must assume in LBC's favour.
211. For the meeting of 25/8/92 a report was prepared by the Environment Department. [Cl/55-63], to which were attached 10 appendices. [Cl/65-89] It was available both to PHAG and CCRSRA before the meeting. It summarised the second stage of the consultation and made recommendations for the operational detail of a CPZ and complementary traffic control measures.
212. Recommendation (i) was to note the feedback; recommendation (ii) was to approve the introduction of a CPZ in Primrose Hill on the basis of the provisions described in section 3 and Appendix 9; recommendation (iv) was to agree that the scheme should become operational at the earliest opportunity; recommendation (v) was that a report updating progress should be received at the November meeting. [Cl/55]
213. #2.2 stated that 600 letters and questionnaires distributed in 5/92 had been returned, 45 suggestions had been identified and 26 adjustments made in response to them. These matters were particularised in appendices. [Cl/65-70] Responses had also been received from four local groups. [Cl/56 #2.3] These did not include either PHAG or CCRSRA. These four responses were summarised in appendices. [Cl/71-82]
214. The committee were reminded in #1.1 of the 'policy context' for the introduction of controlled parking, and in #2.4 that the consultation had been undertaken 'on the basis of the Council's declared commitment to the principle of introducing controlled parking¹ and added that nevertheless 22% of responses had expressed opposition to the principle and 10% had favoured significantly more limited controls. [Cl/57]
215. Appendix 1 [Cl/65] listed the questions and answers asked in 5/92, but, as Mr Cran says, the way the answers to Question 6 were summarised was misleading. It implied that respondents had been asked which of a number of specified answers they agreed with and that 22% had agreed with 'No controls'. That was not the case. The question was simply 'If so [i.e. if you think controls should operate at times different from Mondays to Fridays from 8.30 a.m. to 6.30 p.m.], what in your opinion should the times be? (please state your reasons)' [Cl/30] The 22% had written in words to the effect that they wanted no controls.
216. In the same paragraph the committee was reminded that this is what PHAG had raised, and the report before the June meeting, in which officers set out what they said PHAG had advanced and why, in the view of the officers, their proposal was not acceptable, was circulated again. [Cl/57] No mention was made of the numbers of people who had expressed support for PHAG's views, let alone of the fact that a check had shown that of the 260 letters treated separately in the report to the previous meeting only 40 had been signed by those who also replied directly to the council. It was left to PHAG themselves to say this in a letter to committee members dated 18/8/92. [Cl/52-54]
217. I have already commented about the survey information in Appendices 7 and 8 and the conclusions drawn from them in ##2.5 and 2.6 and about what was said in #3.4 in relation to footway parking in Chalcot Crescent and Chamberlain Street, and need not refer to these matters again.
218. In section 3 and Appendix 9 [Cl/85] details of the proposed CPZ, with recommended hours of operation (now modified to 9.30 am to 6.30 pm) and tariffs for pay and display and residents' and visitors' permits, were set out; the tariff for business permits was left to be determined. Sections 4 and 5 [Cl/60-62] and Appendix 10 [C 1/87-89] set out the financial implications of starting the scheme on 1/1/93 and alternatively on 1/7/93.
219. On 18/8/92, in advance of the meeting, PHAG wrote to each councillor, reiterating their preference for more limited controls, saying that they now had about 1,000 signatures from supporters and complaining about lack of consultation. [Cl/52-54] The letter asserted that a two hour anti-commuter scheme was working around Clapham Junction in Wandsworth.
220. On 24/8/92 CCRSRA sent a letter to each member of the PTE Committee [Cl/93-98] This expressed opposition to the scheme and complained of 'numerous irregularities and improprieties' in Camden's actions; these were particularised in an appendix; many of the complaints were about the absence of consultation on the question of principle.
221. Whether or not Cclr Woodrow [D337], the Chairman of the committee, told Mr Starr [B 117], the chairman of CCRSRA, at about this time that their protests were a waste of time and that the council would implement controlled parking in Primrose Hill is one of the many matters in dispute that must be assumed in the respondents' favour.
222. King Henry's Road' Neighbourhood Association (KHRNA) also submitted written representations in advance of the meeting of 25/8/92 [Cl/78-80]; these also opposed the introduction of a CPZ; to the letter was attached an analysis of responses from 61 people. One representative body, Regent's Park Road Residents Association (RPRRA), submitted material in favour of the CPZ. [Cl/91-2]
223. At the meeting on 25/8/92 deputations from 6 representative organisations were allowed to speak for some 5 minutes each. [D181] A letter from a seventh [Cl/102] was put in. The 6 who spoke included both PHAG, for whom Ms Coldwell spoke, and CCRSRA. PHAG had obtained a copy of the report on 19/8/92. [B 90] Together with its appendices it covered 35 pages [Cl/55-89] and PHAG, not unnaturally, found that there was far more in it than they could reasonably answer in 5 minutes [B90], even if some degree of latitude was allowed. To suggest, as one officer has in evidence [D 181], that this gave 'full opportunity for exposition' is not, in my view, realistic. Ms Coldwell distributed to each member of the committee a copy of what she said [Cl/103-105]: the 9 hour 5 day week CPZ was taking a sledgehammer to crack a nut; a 2 hour restriction each day would rid Primrose Hill of the commuters. CCRSRA expressed opposition to the principle of the scheme. KHRNA's statement complained, inter alia, about the extent and manner of the consultation. [Cl/99-101] As Mr Cran says, it is most unlikely that they would have written as they did had LBC ever met them.
224. As to what was said during the meeting itself, in particular by various members of the committee, there are disputes in the affidavits which this court cannot resolve. The worth of the number of supporters claimed by PHAG was discussed. To say the least, doubts were expressed. At one point Mrs Broom told the committee that in assembling its figures PHAG were doubling up on each household; this was not correct. [B 94]
225. In the event the committee resolved to 'approve the introduction of a CPZ in Primrose Hill and instruct officers to report to the November meeting of the committee with alternative proposals to address members' concerns'. This was not in accordance with recommendation (ii); thus approval to a CPZ as particularised in the report was not given. Nor was approval given to recommendation (iv): that the scheme become operational at the earliest opportunity. But recommendation (iii), to approve the introduction of complementary traffic measures was approved.
226. Mr Hockman submits that these decisions evidence a consideration or reconsideration of the question of principle. Mr Cran says not.
227. There is nothing to suggest that the committee was prepared to countenance the possibility that Primrose Hill might not need a CPZ. Two matters only were left for later decision: (i) whether the CPZ should be in operation during the hours proposed in the report or during much shorter hours and (ii) whether it should apply to the whole of the area proposed or whether some streets in the north-west part of the area should be excluded.
228. The first of these two questions embraced all that PHAG then sought. I say so because, although the majority of their supporters had expressed opposition to a CPZ, PHAG's proposed two hour restrictions would have necessitated a CPZ, albeit one very different from the one the council had in mind. When Mr Cran was asked during argument what kind of scheme PHAG said would deter through-commuters and yet not involve having a CPZ, he could only suggest a disc scheme. But by 8/92 PHAG had not proposed a disc scheme. Their letter of 18/8/92 had set out the principles of their two hour scheme; these included the purchase of permits by residents and visitors. [Cl/53-54] No provision has been drawn to my attention which would make it lawful for a local authority to charge for parking permits other than by means of a designation order, i.e. by creating a CPZ.
229. Mr Hockman says that, if, which LBC do not accept, LBC failed in their duty to consult PHAG and CCRSRA about what happened up to and including the meeting of 16/6/92, that cannot be said of the decisions taken on 25/8/92. By then the committee would have seen or heard: PHAG's original views summarised in section 3 of the report to the committee on 16/6/92 [Cl/34-35] and Appendix II to that report [Cl/40-41], PHAG's letter of 18/8/92 [Cl/52-54], CCRSRA's letter of 24/8/92 [Cl/93-98], PHAG's oral presentation on 25/8/92 with a written copy of it [Cl/103-5] and CCRSRA's oral presentation on 25/8/92.
230. I will return to my assessment of this submission in due course. For the moment I observe that there can be no doubt that by 25/8/92 both PHAG and CCRSRA had managed, albeit of their own motion rather than by invitation, to let the committee know that they took the view that two hour controls would be enough and, as the committee's decision to adjourn the question of hours to November shows, these views were taken into account: but for them the CPZ proposed in the report would have been adopted.
231. The applicants assert, and clearly believe, that the adjournment was merely a contrivance to give the appearance that the committee had an open mind - the intention being to go to Wandsworth and find reasons why that scheme would not be of use in Primrose Hill. LBC dispute this.
232. On 21/9/92 the PTE Committee considered a further report from the Director of Finance (on this occasion jointly with the Director of the Environment Department) [Cl/380 A-F] which dealt with the need for savings and said that, with limited and strict exceptions,' a total freeze on expenditure was to be introduced.
233. On 20/10/92 3 members of the committee (Cclrs Fitzgerald, Braun and Schopflin) and 3 officers (of whom Mrs Broom was one) went to Wandsworth to look at and talk with the Wandsworth council about its one hour scheme. Cclr Fitzgerald and Mrs Broom (and, it is to be presumed, the other officers) thought the Wandsworth scheme unsuited to Primrose Hill. There is no affidavit from Cclr Braun or Cclr Schopflin, but there was a comment in the press [C2/488] about Cclr Braun's reaction and she wrote a letter which was published in the local press on 13/11/92. [C2/491] A letter from Cclr Schopflin was also published. [Cl/120] Both would appear to have thought well of the Wandsworth scheme, but whether they thought it suitable for Primrose Hill does not appear. Both were impressed by the evident degree of co-operation between council and local residents - the implication being that this had not been achieved in Primrose Hill. The officers' views were recorded in a report prepared on 5/11/92 for the committee's meeting on 17/11/92. [Cl/128-150]
234. On 23/10/92 two of the council's officers (Mrs Broom and Mr Williams) met three representatives of PHAG (Mr Birkett, Ms Caldwell and Mrs Miller}. The material before the court makes clear that Wandsworth's scheme was discussed and that the council officials explained to PHAG why, in their view, it could not usefully be introduced in Primrose Hill. One such objection, but not the only one, was that £10 per permit would not be enough to cover the costs of the scheme, to which PHAG said that, in that event, they would pay what was needed to make it economical. [B95,133] This suggestion found no place in the report prepared for the meeting of 17/11/92. Mr Hockman suggests that this would have been because PHAG did not lay sufficient stress on it for it to have impinged on the officers. I think the more likely explanation is that the officers treated it as unimportant because in their view traffic considerations made the Wandsworth scheme unsuitable for Primrose Hill, whatever the cost of permits.
235. On 30/10/92 Cclr Woodrow, the chairman of the PTE Committee, wrote to the press a letter critical of PHAG in terms which indicated, it is said by Mr Birkett [B9S], and in my view said with some justification, that, despite the fact that the final decision had been postponed from 25/8/92 to 17/11/92, his mind at least was already made up. [Cl/120]
236. A similar impression was conveyed even more strongly by Cclr Fitzgerald, the Leader of the Council and a member of the PTE Committee, in a letter she wrote to PHAG on 4/11/92. [Cl/121-2; B 96] She wrote:

The principle of introducing controlled parking across the Borough has now been established by the Council and clearly it would not be to the advantage of residents in Primrose Hill to be an exception to this. The Council considers that parking controls are necessary because of worries for the safety of the public from dangerous parking.

Recommendations for the introduction of a CPZ in the area were drawn up and agreed following a consultation programme carried out between May and June this year. This followed a preliminary consultation exercise in late 1990/early 1991.

Letters and questionnaires were distributed to over 3,000 households in May. We received responses from over 600 residents. A considerable number of additional suggestions were made on the questionnaire and by people attending the exhibitions in June. We have also received comments and suggestions from a number of local groups. 22% of the responses expressed opposition to the principle of the scheme and 10% favoured more limited controls. Officers are currently looking at all additional suggestions which have been made.

The result of all this will be discussed at the planning Committee meeting in November which will look at the proposed scheme in detail.

Thank you for your comments which have been noted.

237. The report which is most relevant for present purposes amongst the 21 reports before the committee on 17/11/92 was dated 5/11/92. With its appendices it ran to 23 pages. [Cl/128-150]
238. Its recommendations were that the committee:

(1) Note the policy background for the introduction of parking controls in the borough;

(2) Note the particular circumstances in Primrose Hill;

(3) Consider the 3 options set out in section 6;

[These were (a) to do nothing; (b) limited controls on permitted parking to 1-2 hours; (3) Operate controls throughout the working day.]

(4) Agree to the implementation of Option (c) to cover the area [originally proposed with minor modifications];

(5) (a) Agree to further consultation on [detailed layout] up to the end of 2/93 and delegate decision making [about them] to the sub-committee;

(b) Agree to implement controls on an experimental basis including comprehensive review following 12 months operation.

239. #1.2 reminded the committee that at its meeting in 8/92 it had re-iterated its commitment to the principle of introducing parking controls. Section 2 again reminded members of the policy on which this commitment was based. As in previous reports, no possibility that it might not be appropriate to apply the policy in some areas was acknowledged.
240. #2.2 stated, inter alia, that on-street controls and charging for parking space were important means of managing demand for and access to kerb side space. This was, in fact, inaccurate in relation to charges for permits for residents.
241. Section 4 dealt with consultation. It referred again to the consultation exercise of the summer of 1992, noting in #4.1 that 52% of those who responded to it thought that the hours by then proposed (9.30 a.m. to 5.30 p.m. - which represented a further reduction to 8 hours) were about right. Members were not reminded that only 601 out of some 3,000 had responded. [Cl/131] PHAG and those who agreed with them were referred to in separate paragraphs. [##4.1-4.5][Cl/132] In these PHAG's views were first summarised. [#4.l] The next paragraph [#4.2] read:

PHAG has been vigorous in distributing material and canvassing views. They are keen to emphasise that a large and growing number of people are totally opposed to the council's proposals (around 1200 at the time officers last met their representatives in late October).

242. This was followed by 2 paragraphs about which there has been a good deal of argument [##4.3 and 4.4] Mr Cran says that they were misleading and unfairly disparaged the level of support PHAG had received. Mr Hockman argues that they were fair comment. I shall' say only that, in the main, I agree with Mr Cran.
243. Section 5 dealt with the question of whether streets to the north west should be excluded and recommended that they should not. #5.3 referred to an appendix consisting of a table that PHAG had never seen and which contained what PHAG regarded as partly incomprehensible and partly contentious information about the density of parking in different streets. [Cl/149; B 101]]
244. Section 6 considered the three options: (a) Do nothing; (b) 1-2 hour controls; (c) controls throughout the working day.
245. Mr Cran says that (a) had never been proposed by PHAG. I regard this as a quibble. In the middle of 1992 PHAG had begun to circulate a document called 'We Can Say No' to every household and business in Primrose Hill. [Cl/232] This invited recipients to mark one of three boxes at the foot of the letter. The third of these (which was the one most respondents supported) had been 'No restrictions at all but improvement of the parking layout'.
246. Under (to) the report made 9 comments, 7 of which were objections. Mr Cran asserts that a number of these were contentious. May be, but they were the views of the council's officers and, with two exceptions, no objection to them can reasonably be taken. The exceptions are the fifth and sixth, which were that a 1-2 hour scheme would not cover the costs of the scheme. The point was repeated and amplified in ##7.2 and 7.4. This ignored PHAG's statement on 23/10/92 that, although they had proposed a fee of £10, they would be willing to pay whatever was necessary to cover the costs.
247. Under (c) were 5 comments, all in favour of the council's scheme.
248. The report concluded in #8.4 by recommending option (c). [Cl/138]
249. On 6/11/92 Mr Birkett attended a 'surgery' held by the two local councillors, Cclrs Fitzgerald and Garland. Mr Birkett says that the councillors insisted that their scheme had to go through for traffic reasons. [B 96] Cclr Fitzgerald says she told them she was prepared to recommend leaving two roads in the north west out of the scheme, but PHAG would not accept that this was enough. [D 262]
250. On 9/11/92 three representatives from PHAG went to see Cclrs Woodrow and Garland; PHAG told them that 1,400 households had by then signed against the council's scheme. They found the meeting similarly unproductive. [B96]
251. On 10/11/92 PHAG sent to each councillor a letter [Cl/125] drawing attention to the numbers of those who agreed with it.
252. On 12/11/92 there appeared in the Camden New Journal an account of a conversation between one of its reporters and Cclr Woodrow. [Cl/1273 This attributed to him the remark:

If you go around collecting signatures in a pub people sign for all sorts of reasons, to get the petitioner off their backs perhaps. Our own postal survey was much more detailed.

253. Referring to this in his affidavit [D 339] Cclr Woodrow does not assert that he was misreported. He says, in effect, that he was intending to make the point that it would be reasonable to treat with some reserve the results of a test of public opinion carried out by those who were on any view heavily committed to one side of the argument. Be that as it may, the language was unfortunate if it was intended, as it must have been, to refer to the volume of opposition to the council's scheme which was claimed by PHAG. And, PHAG might reasonably ask, were not the Leader of the Council, the Chairman of the PTE Committee and the officers in the Traffic Management Division, if not the council itself, by then also 'heavily committed to one side of the argument'?
254. I make these comments, as I did those about his letter of 20/10/92 and Cclr Fitzgerald's of 4/11/92 and about the meetings PHAG had with Cclrs Woodrow, Fitzgerald and Garland on 6 and 9/11/92, to show how much more difficult it is for anyone who has already reached a decision and acted on it to receive with an open mind representations supporting a different point of view which should have been invited and considered when the proposals were still at a formative stage.
255. On 12/11/92 (or perhaps on 9/11/92 PHAG) PHAG delivered 'We Can Say No' [Cl/232] to the council. This, like earlier documents emanating from PHAG, had advocated controls for a maximum of two hours a day. It had stated that the council's proposals were for controls for 10 hours a day, which was what the council had proposed at the time the document was printed, although, as the appendix to the report of 18/8/92 showed, the council had by that date decided that 9 hours would be long enough. [Cl/85] This is of no significance. The three options at the foot of 'We Can Say No' were: 'No Restrictions At All BUT Improvement Of The Parking Layout'; 'The Council's CPZ'; and 'A Maximum Two Hour Restriction'. The overwhelming majority had marked the third box.
256. With 'We Can Say No¹ PHAG delivered to the council 90 typed pages [Cl/233-322] in which were listed, street by street and in numerical order in each street, the names of more than 1,500 people who had signed the letter. Against each name so listed PHAG had indicated which of the 3 alternatives the signatory supported, and, where he or she had added comments, these were set out on the list. Names from more than 1,500 residential addresses were included; of these 12 supported the council's scheme, c 250 supported a maximum of 2 hours' restriction and the remainder wanted no controls. In addition there were over 100 names, from at least 36 different businesses addresses, who opposed the council's scheme. The fact that the letter of 10/11/92 had referred to 1,395 households, rather than about 1,500, is of no consequence.
257. The report of 5/11/92 could not, of course, anticipate that on 9/11/92 PHAG would submit to the council the lists of more than 1,500 names and addresses of those who had replied to 'We Can Say No'. But there is no assertion that any supplementary report was made to draw members' attention to this fact. Further, it seems clear that on 19/9/92 PHAG must have delivered an earlier version of these lists, since LBC have a note of the receipt on that date of 'copy of PHAG questionnaire form and responses' and a further note dated 26/9/92 to the effect that 12 of those respondents favoured the scheme, i.e. the council's scheme. [E2/645] Yet this found no mention in the report of 5/11/92.
258. On 15/11/92 PHAG sent a further letter to each member of the PTE Committee. [Cl/151-2] This again emphasised the level of opposition to the proposed CPZ. It answered the point made in the report that PHAG's proposals would be too costly by underlining that PHAG had said it would pay for the set up and running costs, by which was clearly meant pay a suitably increased fee for permits. And it made the suggestion that the south eastern part of Primrose Hill should alone be included in a CPZ.
259. On 17/11/92 (the date of the meeting) CCRSRA sent by fax a letter to each councillor. [Cl/153-4]. This was critical of the report of 5/11/92. One criticism was that it did not annex a copy of the CCRSRA letter and appendix of 24/8/92.
260. But members had, of course, received the letter direct from CCRSRA. Another was that there was no comment from the council's Legal Division about the association's complaints of irregularity. The allegation of inadequate consultation was repeated. The letter also made the point that the report did not refute the assertions that there was overwhelming public opposition to the council's scheme. The fact is, however, that, whatever the deficiencies of the report of 5/11/92, CCRSRA, by writing as it did, ensured that the committee was aware of its assertions.
261. At the meeting of the PTE Committee on 17/11/92 21 reports were considered. [E3/817-823] Primrose Hill's CPZ was item 15 on the agenda. Before reaching it the committee had considered two other reports from the Director of the Environment Department to which reference should be made. To the first, also dated 5/11/92 [E2/357-362], was attached an appendix [E2/363] which recorded that in 1991-92 the on-street parking account's surplus had been £4.3m of which £3.8m had been spent on concessionary fares, Taxicard and Plusbus. It was from the second, bearing the same date and to which I have already referred in the financial section of this judgment [E2/372-9], that the business permit charge of £300 was derived, section 6 of this report suggested criteria for the grant of business permits: all were directed to need.
262. Seven affidavits or affirmations refer to the meeting of 17/11/92. No deputations were permitted. PHAG's figures were not taken at face value; comment was made about the proportion of signatories whose names were on the electoral register. The accounts of what was said on this topic differ widely; this again is an area of dispute which this court cannot resolve. What is clear is that PHAG had no chance to rebut the points taken against them.
263. The committee resolved to implement its detailed scheme, adopting the recommendations in the report save that the proposed review was to be in 6 months, not 12 months, time. [E3/821]
264. Thereafter the council received further representations about layout and associated traffic calming measures. These resulted in 17 changes to the detail of the scheme. These matters were considered by the committee on 17/3/93. The question of footway parking in Chalcot Crescent and Chamberlain Street was again considered, and about this I need say no more than that it was resolved to end the practice.
265. At the meeting of. 17/3/93 the committee approved a Statement of Reason which had been proposed in the report. [Cl/164-5] The need for this was occasioned by paragraph 3 of Schedule 3 to the 1989 regulations. The statement merely said that the introduction of a CPZ in Primrose Hill was 'in line with the council's transport policies which seek to control a presently chaotic parking situation to the benefit of residents, business and the local environment¹ and 'On street parking controls are used to ...' and then followed 8 wholly general objectives.
266. Mr Cran criticises the statement's lack of particularity and says it did not explain why the council believed that these objectives could best be met in Primrose Hill by a CPZ. In my judgment these criticisms are sound: a statement of reasons should tell those potentially affected why the local authority is of the opinion that a CPZ is required in the relevant locality, so that the public may decide whether and, if so, in what terms to object. I do not, however, think that PHAG can have been substantially prejudiced by this; by then PHAG knew very well the reasons on which the council relied.
267. Mr Cran also asserts that the Statement of Reason was deficient in that it omitted what he contends was one of the council's principal reasons, if not indeed the principal reason, namely its desire to raise money which could be used for other purposes. LBC deny that this was one of its reasons.
268. Another criticism is that the statement did not explain how the council justified the proposed charges. LBC argue that this is not required by the Regulations, but have cited no authority in support of the submission. Looking at the matter de novo I disagree. The purpose of the requirement to make a statement of reasons is, as I have said, to enable those affected to decide whether and on what grounds to object. Such persons would regard the amounts of the proposed charges as an important part of the order and something of which they should be told. Had this been done, however, the council would have been unlikely to have said more than that the proposed charges for residents' permits applied throughout the borough and that the proposed charges for business permits applied north of Euston Road and the council regarded them as fair - which is what PHAG would have assumed the council would say without being told.
269. At the meeting of 17/3/93 and before the discussion of Primrose Hill's CPZ the committee considered a report from the Director of the Environment Department dated 9/3/93. [Cl/387-394] This set out the draft service plan for 1993-94. Attached to it was an appendix [Cl/395] which showed that of the 37 activities of the department only 11 resulted in a net inflow of funds and of these far and away the most profitable was on-street parking, which was expected to contribute £7m, but for which the net cost of the department's activities would have been not £l5m but £22m.
270. On 14/5/93 formal notice of the proposal to make the two orders was published. [Cl/179] Objections were to be made in writing within 21 days of publication. Within the 21 days PHAG had submitted its own Notice of Objection [Cl/207-9]. This was drafted by Mr Cran. [B 32-33] He also drafted a separate document headed Statement of Objection and Grounds of Objection which was signed by 385 people before its submission. [B 31-32, Cl/331-374] CCRSRA also put in a written statement of objection. [Cl/202-6]
271. Mr Cran complains that when his agent called at the council's offices on 25/5/93 (the llth of the 21 days) she was unable to obtain a copy of the Statement of Reason. [B 31,127-8] One was, however, available for inspection 2 days later. [B 32] He says that he and the signatories were nevertheless prejudiced by the delay as he had to draft these documents on 25-26/5/93 [B 31-33, 39] and did not then know what reasons he had to meet. I do not regard this as a point of any great moment: when he obtained the reasons he would have seen that he had been able to counter nearly all of them, and, although it would have been too late to alter the Statement of Objection and Grounds of Objection, since this was already going around for signature, he could have added to PHAG's own Objection had he thought it necessary. In any event, the Statement of Reason was in the same form as in the report to the meeting of 17/3/93 which had approved it, and of this report PHAG would have had a copy.
272. With one exception none of these objections raised any new point. The single, exception was that PHAG's Notice of Objection raised for the first time the possibility of solving the parking problems of Primrose Hill by means of what Mr Cran called a Free Disc Zone. [Cl/208] This, it was suggested, would apply between 9.30 a.m. and 6.30 p.m. on weekdays, would permit disc parking for 3 and a half hours at a time with freedom to return to the car and reset the disc. Incomers could obtain discs at no cost from local shops. Residents and businesses would not need discs; they would pay 'perhaps £30 p.a. for a permit which would be an alternative to a disc'. Strictly speaking a proposal for a disc scheme was not entirely new; it had been made in the most general terms by an individual resident in 12/90 and rejected, but there is no evidence that it was ever considered in committee.
273. On 3/6/93 Mr Cran, Miss Latimer, the seventh applicant, and 3 other members of PHAG delivered the Statement of Objection and Grounds of Objection to the Town Hall. They were received by Mr Chamberlain, who told them, wrongly in my view, that LBC were under no obligation to reconsider issues that had already been considered by the committee. He said that the officers would be looking to see if there was anything new in the objection so that it did not have to go back to the committee. [Cl/182-4] In due course on 25/6/93 Mr Chamberlain wrote to PHAG [Cl/428] to say that officers were of the opinion that no new information had been provided and that the decision would be taken by the PTE Executive Sub-Committee rather than the committee itself.
274. On 9/6/93 the PTE Committee considered an updated version of the service plan for 1993-94. [part is Cl/395 A-C] One of the 'key targets' was to achieve a net income from on-street parking of £6.25m.
275. On 18/6/93 there appeared in the local press a report [Cl/185] that LBC's Electoral Registration Officer had said that normally only 40% of the council's electoral registration forms were returned each year and that the council had offered to pay canvassers £400 for every 800 new names they found for the electoral roll. No affidavit refutes this. This was, of course, a statement about the borough as a whole and not about Primrose Hill, where the population may be more static and less casual about returning electoral registration forms.
276. On 22/6/93 a report was prepared for the PTE Executive Sub-Committee which it had been decided would meet on 30/6/93. [Cl/187-217] PHAG was given a mere 8 days notice of the date. [B 33, Cl/426]; until then PHAG had understood that the meeting would be on 27-28/7/93 or 22/9/93. [B33] The report recommended that the various objections be noted, that the decision to proceed with the CPZ be formally re-affirmed and that no public inquiry be held. The report summarised the various objections under headings (a) to (u) and then commented on them under corresponding paragraphs A to U. [Cl/189-192]
277. Mr Cran asserts that the summary (a) to (u) was incomplete, that even those objections that were summarised were not all answered, and that the some of the comments made were inaccurate or misleading. This, he submits, leads to the conclusion that Regulation 12 (which requires all objections to be considered) was not complied with.
278. Some of his points have substance.
279. First, there was the omission from the report of any reference to PHAG's proposal for a disc zone; indeed #8.1 stated, contrary to the fact, that no new reasons of objection had emerged. [Cl/194]
280. Second, the report did not mention the suggestion that three streets in the south eastern part of Primrose Hill might alone be included in a CPZ; this was not mentioned, let alone answered.
281. Third, while paragraph T referred to the 260 copies of PHAG's letter (of 1/91) and the fact that that letter did not reject the need for parking controls in principle, the report did not state that in 9/92 (by which time the council's proposals were more firm) PHAG had submitted lists of people from some 1,500 households the overwhelming majority of whom had said they were against any form of control.
282. Members were left to discover for themselves, by reading through the 21 pages of appendices to the report [Cl/197-217] that these points had been made by the objectors [Cl/207-213] and that they had not been mentioned, let alone met, in the report.
283. The omission from the report of any reference to the disc scheme cannot have led to any breach of regulation 12 because the sub-committee on 30/6/93 did discuss this proposal. Nor does it seem likely that either of the other matters to which I have referred led to such a breach, since I assume that Mr Cran, on behalf of PHAG, during his 5 minute address to the meeting, would have emphasised the volume of support expressed for PHAG and I would be surprised if he had not also referred to the possibility of introducing day long controls only in the south eastern part of Primrose Hill.
284. More significant, however, is the inadequacy of the answers to the objections summarised at (a) and (q). [Cl/189] These were:

(a) the cost of a resident's parking permit (£82 per annum) is excessive, since residents can park for nothing at present.

(b) the revenue generated greatly exceeds costs of implementation and administration.

The answers provided [Cl/190,192] were:

A The charge made for a resident's parking permit is determined each year by PTE & P&R Committees in considering annual Fees and Charges report. The charge is the same in all C.P.Zs in the borough and increased in April 1993 from £79 in line with the rate of inflation. Since this charge is not unique to the Primrose Hill C.P.Z. in Camden, this is not considered a valid reason against the introduction of the scheme.

Q ... Charges for residents cover the costs of maintenance and enforcement of those bays. The revenue generated from parking schemes can only be spent in ways specified by legislation.

285. To say that the same amount is charged elsewhere in the borough and that the increase from £79 p.a. to £82 p.a. was in line with inflation assumes, without providing any justification, that the £79 p.a. was a lawfully set borough wide charge. Taking the answers together, they stated that £79 p.a. covered, on a borough wide basis, the costs of maintenance and enforcement of residents' bays. Certainly, so far as Primrose Hill was concerned, the statement that charges for residents covered the costs of maintenance and enforcement of their bays was a less than adequate comment about the figures for income and expenditure which had been placed before the committee on 25/8/92 [Cl/88] and which were (with slight alteration) repeated in Appendix C to the report of 22/6/93 [C1/217], ignoring as it did (and as Paragraph Q as a whole did) the anticipated income of £147,513 (or £147,153) from enforcement, much of which would clearly come from those who had parked in residents' bays. The same comment must hold good for the borough as a whole: for 1992-93 the budgeted total costs were £2,692,000 and permits were expected to yield £801,000. [Cl/395 D] Mr Chamberlain, speaking of 1993-94, says that income from permits of c £800,000 should be compared with 'the full cost of enforcement and maintenance in relation to residents' bays [which are] anticipated to be about £l.lm'. [D 239] Let it be assumed that this would broadly be true of 1992-93 as well, but pay and display was to bring in £5,111,000 and, significantly, enforcement £2,566,000. [Cl/380 D] What paragraphs A and Q did not explain was why, in setting the charges for permits, LBC thought it right to ignore the income from enforcement and treat it as profit that could be spend as section 55(4) allows. As Mr Cran, not unfairly, says, 'When we accuse them of revenue raising they tell us that the surplus can only be spent in certain ways'. I should perhaps mention here a further assertion of Mr Chamberlain's, which is that, when certain costs not appearing in Appendix 10 to the report of 18/8/92 [Cl/88] are taken into account, 'the cost of enforcement in Primrose Hill would exceed the income from enforcement.' (£147,513). [D 247] I agree with Mr Cran, for reasons into which it not necessary to go, that this is an improbable conclusion, but more to the point is the observation that, even if this were right, it would, not explain why the permit charges in Primrose Hill should be set at a level which would yield a further £143,3 83.
286. In any event, this would be to look at Primrose Hill on its own; LBC's case is that Primrose Hill was to pay what was being paid in the borough as a whole. This is post-decision rationalisation.
287. Finally I would mention paragraph U. [Cl/192] This repeated the policy, which had been adopted on 15/4/92, that consultation on new and revised CPZs should be confined to design details and concluded that in adopting this principle it was not considered that the committee had acted improperly in the exercise of its powers. The answer, as a statement of belief, was no doubt true, but the belief was mistaken. In my judgment Regulation 5(1)(d) obliges local authorities to consult about the principle as well as the detail of a proposed CPZ. Members cannot but have been misled by paragraph U. One of the objectors' points was that LBC had been wrong not to consult them about the financial implications of the proposed CPZ: see objection (u). [Cl/190] LBC have never departed from the stance adopted in paragraph U and the objectors were never able to do more than make the very general assertions that the permit charges were, in their view, too high and that LBC was revenue raising. In my judgment LBC were also in error in this respect. The result was that, whatever the objectors said on this topic, the committee must have thought that the financial considerations were no concern of theirs. And the same will have been true of anything PHAG had to say on the question of principle. Substantial prejudice must have resulted.
288. Seven affidavits or affirmations deal with the course of the meeting of the sub-committee on 30/6/93. Only three of the four members of the sub-committee were present. Cclr Woodrow was in the chair. Cclr Fitzgerald, Leader of the Council and a member of the PTE Committee, was in attendance as ward councillor. Again there are differences about what was said, not least about what Cclr Woodrow said about the numbers of those who had signed that they agreed with PHAG. Once more it is necessary to say that these cannot be resolved and have to be taken as the respondents' evidence asserts. It is clear that Mr Chamberlain of the Traffic Management Division said that the purpose of the meeting was to accept that there were no new issues. [D 250] He says that by this he meant that in his view nothing had been raised which ought to deflect the council from continuing with its proposals. [D 250] Be that as it may, the significance of this remark was nullified by the fact that the new point, the proposal for a disc scheme, was discussed. Indeed Mr Cran referred to it in his address. After he, had sat down Mr Chamberlain told the committee that he was not aware of any such scheme in operation in the country. [D 250-1] Mr Cran attempted to interject to rebut this statement. [D 251] It may be that he was able to say enough for members to appreciate that he believed the contrary, but he had no opportunity to say that to his personal knowledge they were in operation in Ripon and Harrogate. Mr Chamberlain also told the meeting that he did not think that such a scheme would answer the problems of Primrose Hill and that, in any event, such a scheme would have to be approved by the Department of Transport, so that, even if approval were forthcoming, it would occasion undesirable delay; he expressed his view that it would be unreasonable for the committee to delay matters further in order to investigate the scheme. [D 251, 253] The minutes record [E3/837] that it was not thought likely that the proposal would be acceptable to the Department of Transport. This puts the matter more definitely than Mr Chamberlain states in his affidavit.
289. A more serious issue arises over the entry in the minutes to the effect that 'it was asked that there should be a further report on the general issue of such a scheme to Committee in due course'. [E3/837] Mr Chamberlain says the minute is accurate. [D 253] Mr Cran says not. [B 34-7, 150-1] Galling though it no doubt is for Mr Cran, I must proceed on the basis that the minute is accurate.
290. Accepting that the proposal for the disc scheme was effectively made for the first time in 6/93, Mr Hockman says that it was properly considered on 30/6/93 and that the decision to proceed with the CPZ without waiting for a detailed report about such a scheme was reasonable. I would have thought it likely that Mr Chamberlain's assertion that he was not aware of a disc scheme in operation must have influenced the sub-committee. Even so, I would not think it right to attribute the decision to go ahead there and then to this.
291. Mr Cran's criticism does not, however, end there; he says that PHAG were never provided, as Regulation 16 requires, with a statement in writing of the council's reasons for rejecting this proposal. I agree, but PHAG would have heard the reasons when attending the meeting of 30/6/93 and cannot, in my view, have been substantially prejudiced by not also having them in writing.
292. In relation to the other objections made by PHAG I accept Mr Hockman's submission that these had already been notified to PHAG in writing by their obtaining copies of the various reports and the minutes of the various meetings held before the order was made on 14/7/93. This met the requirements of Regulation 16(2). Even if this conclusion were wrong, the omission of the formality of written notification could not in the circumstances have seriously prejudiced PHAG. In relation to CCRSRA, however, the position is different. CCRSRA were not represented at the meeting of 30/6/93 and there is no evidence that they had acquired a copy of the report of 22/6/93. [Cl/187-217] KHRNA may well have been in the same position. It would appear, therefore, that in relation to CCRSRA, of which Mr Starr, the sixth applicant is a member, and perhaps also in relation to KHRNA, the obligation imposed by Regulation 16 was not fulfilled. But Mr Starr is also a member of PHAG and, in the circumstances, there is no evidence that any applicant was prejudiced by the omission.
293. A further matter discussed at the meeting of 30/6/93 was whether a public inquiry should be held. The report had recommended not, stating in #4.1 that public inquiries were extremely rare and that officers did not consider that the circumstances necessitated that one be held; further, the scheme was experimental and could, if necessary, be removed after a short time. [Cl/193] Mr Cran has attacked the decision not to hold one both as a decision no local authority could reasonably have reached and on the basis that their rarity was an immaterial factor and that various further matters which should have been taken into account were not: principally the size and vehemence of the opposition and the breakdown of trust between objectors and officers. I reject these submissions.
294. I should for completeness add that there is now a road, which I think must be in the Belsize CPZ, where controls are only in operation for one hour each weekday morning, but it has not been suggested that this had been introduced or was even in contemplation by 6/93. [D/96; I/A] At all times material to a consideration of this application LBC's CPZs involved all-day controls.
295. Before I turn to the evaluation of the principal submissions about consultation I must mention the criteria for the issue of permits for business parking. These were settled by the PTE Committee on 17/11/92. [E2/372-9, E3/820] Mr Cran asserts that PHAG, many of whose members were to the knowledge of LBC, business people, had never been consulted about them.
296. The 12/90 consultation document [Cl/4-8] spoke only of residents' permits. At that time there were no permits for business use as such anywhere north of Euston Road. Business permits were, however, the subject of questions in the consultation document of 5/92 [Cl/26-31] and Question 10 in particular was directed to the criteria. [Cl/31] No question was asked about price. As to whether this questionnaire was sent to businesses as well as households there is a conflict in the evidence, some of which must be second hand; [Cl/121; D 61,68,159] The questionnaire itself suggests that businesses were not consulted: Question I asked about the ownership and use of 'a car¹. [Cl/30] Mr Birkett's evidence is to the same effect. [B 80] Even so, as with the document of 12/90, the fact that a number of businesses did send responses shows that many businesses did come to know of the questionnaire. [J]
297. Independently of the proposed CPZ in Primrose Hill, LBC conducted a survey about the proposed issue of business permits north of Euston Road. The resolution was that this would be a 'household survey'. [E3/783] In consequence a letter dated 6/8/92 [C2/486-7], setting out the criteria LBC and the price then proposed, was sent out. No copy was, however, sent to Mr Birkett, who is an estate agent, nor to his immediate neighbours who are in business. [B 85] One did go to CCRSRA, all of whose members are residents, but not PHAG, whose members to the knowledge of LBC did include business people. PHAG would inevitably have seen copies of the questionnaire of 5/92 and would therefore have had a chance to make proposals, but it does appear that they did not have a chance to comment on the specific proposals in the letter of 6/8/92. Indeed when PHAG asked LBC on 23/10/92 what the council's proposals were about business permits no one appears to have responded by asking if PHAG had not received the letter of 6/8/92 setting them out.

EVALUATION OF THE PRINCIPAL SUBMISSIONS ABOUT CONSULTATION

298. In the light of this history Mr Hockman submits that, whatever criticisms may be made of the council's approach to consultation prior to 25/8/92 (and he accepts none), the court should hold that there was adequate consultation both with PHAG and with CCRSRA from that date onwards. In particular: the question of whether there should be a CPZ at all was (re)considered: see the 'Do Nothing' option; the question of whether controls should only be introduced for 1 or 2 hours, rather than throughout the working day, was (re)considered: see the adjournment of the question from 25/8/92 to 17/11/92 and the visit to Wandsworth between these meetings; both PHAG and CCRSRA were given the opportunity to make representations, orally and in writing, to the 8/92 meeting and in writing to the 11/92 meeting; they used these opportunities to the full.
299. Superficially this is an attractive submission. But I reject it. One must, as Mr Hockman said, have regard to the whole process of 'consultation'. The history of events between 10/90 and 5/93 shows the following.
300. From first to last the reports stress that LBC had already decided to introduce controlled parking throughout the borough and that this decision had a sound basis in policy.
301. Officers ensured that members had this well in mind at the meetings of 15/4/92, 16/6/92 and 25/8/92, when it was hoped that the final decision (subject to detail) would be taken. None of these reports told members that it was their duty in relation to each part of the borough to consider whether its individual characteristics were such that it was in the public interest that this policy should be modified or not applied at all. None of these reports admitted of any exception. The decisions taken on 25/8/92 showed, on their face at least, that the committee were then considering whether conditions in Primrose Hill called for some modification of the policy. The report for 17/11/92 had, therefore, to take this into account; nevertheless the opportunity was again taken to emphasise the principle and the policy behind it, and one sees the same in the reports for 17/3/93 and 30/6/93.
302. So wedded were officers to this principle that their report to the meeting of 15/4/92 proposed that there should be no consultation on the principle of whether or not controls should be introduced. It was not something the report asked members to consider; it was taken for granted that this was the position; the proposal was merely that there should be an 'overt statement' to this effect. The report did not draw attention to the obligation imposed by Regulation 5(1)(d), let alone the need to consult representative organisations when proposals were still at a formative stage. When, for the meeting of 30/G/93, the legal position was again referred to (because it had in general terms been challenged) the propriety of the decision of 15/4/92 was reasserted. That, as I have said, was an erroneous view of the requirements of Regulation 5(l)(d).
303. Thus, although on 17/11/92, when the final decision (subject to detail) was taken ('full CPZ', rather than 'do nothing' or one or two hour controls), the committee was aware of what PHAG and CCRSRA and the other representative organisations had to say, they had never been told that these were organisations which, in accordance with the council's statutory duty, the council should have consulted at the outset. The status of PHAG and CCRSRA as statutory consultees was never recognised; their views started and finished devalued.
304. Reading the papers as a whole, and making full allowance for the principle that disputed matters of fact must be resolved in favour of respondents unless documents enable the court to say otherwise, it is clear that from beginning to end the officers in the Traffic Management Division regarded the receipt of anything that PHAG or CCRSRA had to say in opposition to a full CPZ or by way of criticism of LBC's process of 'consultation' as tiresome; their views were never welcomed, let alone sought. There is no recognition that either organisation might have been able to help or advise. Letters were not acknowledged; requests for discussions were ignored; when officers and representatives of PHAG did meet, most, if not all, of the time was spent by officers telling PHAG what they thought, rather than listening to what PHAG had to say. There is no letter in the files in which LBC invites PHAG to express their views. There is one letter to CCRSRA inviting views about business permits; nothing else.
305. What PHAG (or those who agreed with it, e.g. at the school meeting) had to say was sometimes ignored and sometimes incompletely reported to the committee and always accompanied by assertions intended to lead the committee to reject as unsuitable what PHAG were reported to have suggested. By contrast the benefits that it was said would flow from a full CPZ were always emphasised. Nowhere was there recognition of the possibility, let alone the fact, that a number of the beneficial results of introducing full controls might be as well achieved by other means. One sees the same format in the consultation letter of 5/92, which potential respondents would read before answering the questions. Criticisms of what were in fact PHAG's proposals were made which PHAG had not had a chance to meet.
306. In the same way, assertions by PHAG about the numbers of people or households who shared their views were ignored or, when reported to the committee, were accompanied by positive statements or omissions calculated to undermine the reality of such support. The fact that there had been a public meeting in the school was reported but not the vote of those who attended. And so on. Some reservation about the reliance to be placed on signatures gathered by an interested party is not unreasonable, but the way PHAG's support was depreciated went significantly further than that.
307. Taken in isolation the reports to members appear to be balanced and objective, but the more familiar one becomes with the papers as a whole the more is this impression dispelled. Council members are busy; meetings are held in the evening and last, so far as the evidence goes, 2 or 3 hours. There are large agenda to get through. Reports are many (20 or more in most of the meetings with which this case is concerned), often accompanied by even longer appendices. Members rely on officers to produce fair, accurate and objective summaries. It is not sufficient to leave members to ferret out some point of significance or to discover some imbalance in the report from studying an appendix. One cannot expect perfection in the field of local government administration - or in any other - but affected citizens and representative organisations are entitled to expect objectivity in those whose duty it is to convey to decision-makers what they have suggested.
308. The way these reports were written and the lack of response from the officers explains why on a number of occasions both PHAG and CCRSRA found it necessary to bypass the officers and write directly to councillors. Having read all the material before the court (except File F to which no one referred and certain post decision material) I have not seen anything which leads me to think that PHAG or CCRSRA were led by people who were in the main being other than reasonable in the manner in which they advanced what they had to say: forceful yes, and increasingly frustrated, but unreasonable no. About the only realistic criticism that can be made of them is that PHAG put an advertisement in the local press in 10/92 which included a reference to the 'ugly and unpleasant administrators of the systems' (by which they clearly meant traffic wardens). As against this, there have been various instances where the contemporaneous material has supported what Mr Birkett has said in his very full affidavit about something controverted in the evidence from LBC. Naturally I cannot form a view about credibility in proceedings of this kind as is possible in a witness action, but the impression the material gives me as a whole supports the conclusion that the reason why PHAG and CCRSRA wrote directly to committee members was because their representations did not get the fair reception to which they were entitled from the officers. This criticism goes well beyond mere lack of courtesy, with which the court is not concerned.
309. When consultees have to resort to making representations directly to councillors what they have to say will inevitably carry less weight than if it had been invited and welcomed and considered at officer level and objectively presented in a report circulated to members in advance of the meeting, albeit concluding with an adverse recommendation. It is especially difficult for those whose views should have been, but were not, taken into account when proposals were at a formative stage, to try to change the mind of a body that has already reached and acted on a decision adverse to their point of view.
310. It is equally difficult for those who have taken that decision to accept that it, and the advice on which it was based, may have been wrong. See my comments about the letters written by Cclrs Woodward and Fitzgerald on 30/10/92 and 4/11/92. The opinion of Cclr Fitzgerald, as Leader of the Council and one of the ward members, must inevitably have counted for much. Her evident and very strong commitment to the introduction of parking control in Primrose Hill even as early as 4/91, before the representations of PHAG and CCRSRA had even been communicated to the decision-making committee, is another unfortunate feature of this history.
311. It is too simplistic to say that between 8/92 and 6/93 the defects in the consultation process were rectified by receiving what PHAG and CCRSRA wrote and permitting them a few minutes to address two meetings in an attempt to persuade their listeners that decisions earlier made on the advice of their officers should be reversed. Both organisations were entitled to expect much better treatment than they got. In particular they should have been consulted at the beginning, before minds were made up, and in the spirit to which Bucknill LJ referred in Rollo. My assessment is that they were not treated fairly; what they had to say was not considered with a receptive mind at officer level, and this can only have affected the approach of members. Even submissions which on examination are believed to be unsound are entitled to receptive consideration and objective reporting. In short, looking at events between 10/90 and 6/93 as a whole this was not fair and effective consultation.
312. On the question of whether charges should be made for permits and, if so, at what level, representations were never considered in committee. The charge in Primrose Hill was going to be what was charged elsewhere in the borough; neither officers nor committee countenanced the thought that views about this should be sought. Yet PHAG and CCRSRA, and indeed the other organisations such as the RPRRA and the KHRNA, represented people who would have to pay those charges. In so far as PHAG or CCRSRA were able to assert that, by proposing to make from the Primrose Hill CPZ (in part from its residents and businesses) a surplus or 'saving' or 'target net income' of the magnitude envisaged, so that it could be used in the manner that the profits from other CPZs had already been used, LBC might be acting unlawfully - albeit inadvertently, this was a subject that members had been led to believe was no concern of the objectors.
313. On the contrary, the financial dice were loaded against the objectors. Repeatedly from 16/6/92 on was it emphasised to members that the overall financial position was extremely difficult and the more profit that could be made from CPZs the better. I reject the argument that the adjournment of the decision from 18/8/92 to 17/11/92 necessarily shows that the committee were not motivated by financial considerations. Three months delay is one thing; getting the CPZ the officers proposed and the Leader of the Council, though absent on holiday, wanted was another. Having regard to the views of the Director of Finance, it would be surprising if financial considerations played no part in the way at least some of those present voted. Three of the members present on 17/11/92 have said in affidavit that they were not influenced by financial considerations. They have not been cross-examined and the court cannot go behind that. The nine others present have not spoken. Three members were present on 30/6/93 when the objections were dismissed; one has sworn an affidavit; two have not. The evidence may be short of what the court would need to hold that financial considerations were taken into account in the later decisions, but the fact remains that the allegations that PHAG and CCRSRA were making about the lawfulness of making so much profit from the borough's CPZs raised serious issues which were entitled to consideration, not necessarily by the PTE Committee (since they alone had not been responsible for the setting of the borough wide charge), but by the LBC. They never got it.
314. It may be that what PHAG and CCRSRA proposed and what so many households supported would not have been enough to solve Primrose Hill's undoubted parking problems. It may be that their assertions about the size of the proposed charge(s) were misguided. I am not in a position to say. It is not necessary that I should be satisfied that, had there been compliance with the requirements of the Act, the decision would have favoured the applicants. The extent of the need to control parking is not a matter the court can judge. If applicants in a case such as this had to demonstrate that the decision would have gone the other way relief would rarely, if ever, be granted. It is enough that there is a significant risk that it might. The conclusion I reach is that PHAG and CCRSRA, and therefore the applicants, were substantially prejudiced by the defects in the consultation process.
315. Should the court grant or withhold relief? LBC say that further delay will prejudice the interests of those who live and work in and who visit Primrose Hill. The applicants say that the unsatisfactory aspects of the parking situation have been exaggerated. Both views have considerable support. The council has resolved to review the situation after the order has been in operation for 6 months. The applicants say that the chance that it would thereafter be revoked or that the hours of operation would be reduced to one or two would effectively be nil. I think it would be wrong to withhold relief. The application succeeds and the designation order is quashed.
316. Not only do I believe that this is the right conclusion on the evidence, but, having reached it, I am glad to have done so. I do not remember any previous application for judicial review (or the like) which has come before me where so much that is relevant to the decision-making process has been the subject of such dispute between the parties. From the court's point of view it is far from satisfactory to have had to say, as I have again and again both during the hearing and in this judgment, that such and such a dispute cannot be resolved and that the facts must be assumed to be those that favour the respondent. There is a considerable amount that needs to be considered afresh both in relation to the need for a CPZ, and, if one is required, the hours of operation and the amounts to be charged for permits. Whatever the eventual outcome, the process of consultation must start again and the differing views and suggestions considered and evaluated in a spirit of respectful mutual co-operation. May I express the hope that this judgment will not be seen, for too long at least, as one producing winners and losers, but rather as something that provides a new beginning.

POSTSCRIPT

317. After I had decided what the result of this case should be and at a late stage in the preparation of this judgment I found that one of the names in the typed list attached to 'We Can Say No' was that of a sister of one of my Godchildren. The discovery played no part either in my decision or my reasoning.

MR CRAN: My Lord, in the light of your Lordship's judgment (which we did receive yesterday and had a chance to read) I would ask your Lordship formally to quash the designation order, which is the only outstanding order that remains.

My Lord, secondly, may I thank your Lordship for the great care and consideration which is manifest in your Lordship's judgment. All the Applicants, and those in Primrose Hill whom they represent, are very grateful.

My Lord, thirdly, so far as costs are concerned, we do apply for costs, but only on the standard basis. We have given consideration to applying for costs on an indemnity basis, my Lord, but we have decided not to do so. May I briefly explain to your Lordship why we have decided not to do so? I make quite clear that in doing so I offer that spirit of co-operation which your Lordship has suggested at the end of your Lordship's judgment should be offered to Camden in the hope that we can go forward.

My Lord, the reasons why we might have applied for costs on an indemnity basis are to be found on pages 59 to 61 of your Lordship's judgment. In that judgment your Lordship has reached the following conclusions. I start on page 59 towards the bottom. Your Lordship found that:

".....it is clear that from beginning to end the officers in the Traffic Management Division regarded the receipt of anything that PHAG or CCRSRA had to say in opposition to a full CPZ or by way of criticism of LBC's process of 'consultation' as tiresome; their views were never welcomed, let alone sought. There is no recognition that either organisation may have been able to help or advise. Letters were not acknowledged; requests for discussions were ignored; when officers and representatives of PHAG did meet, most, if not all, of the time was spent by officers telling PHAG what they thought, rather than listening to what PHAG had to say. There is no letter in the files in which LBC invites PHAG to express their views."

A little later on your Lordship says on the same page:

"What PHAG had to say was sometimes ignored and sometimes incompletely reported to the committee and always accompanied by assertions intended to lead the committee to reject as unsuitable what PHAG were reported to have suggested."

Over the page a few lines down your Lordship says:

"Criticisms of what were in fact PHAG's proposals were made which PHAG had not had a chance to meet.

In the same way, assertions by PHAG about the numbers of people or households who shared their views were ignored or, when reported to the committee, were accompanied by positive statements or omissions calculated to undermine the reality of such report. The fact that there had been a public meeting in the school was reported but not..... Some reservation about the reliance to be placed on signatures gathered by an interested party is not unreasonable, but the way PHAG's support was depreciated went significantly further than that."

MR JUSTICE McCULLOUGH: Tell me why you are reading this?

MR CRAN: Simply to indicate, my Lord, the basis upon which we might have made an application for costs on an indemnity basis.

MR JUSTICE McCULLOUGH: Be that as it may, you are not making it. I know what is here.

MR CRAN: I am seeking to illustrate, my Lord, really for the benefit of Camden, the basis upon which we say that we might have made such an application.

MR JUSTICE McCULLOUGH: They know what is in the judgment, too.

MR CRAN: Then I will not continue with this exercise, my Lord.

May I say this. The conclusions which your Lordship has reached of the kind that I have read out are the kind of conclusions which ordinarily would justify a successful litigant in asking for costs, not just on the standard basis but on an indemnity basis. Of course it does not follow that the Court would grant it, but it would justify the Applicant in making such an application. That would be particularly so in this case, where as litigants in person we have had to give up very substantial amounts of time; in my own case eight working weeks and in those of Mr Birch and Mr Birkett a substantial number of weeks. But the rules permit only a very modest level of recovery for time lost for litigants in person. Your Lordship will be familiar with them.

MR JUSTICE McCULLOUGH: I am not actually terribly familiar with them.

MR CRAN: My Lord, in essence the position is this. Where a litigant in person can show that he has lost productive time, he is entitled to such costs as a solicitor but not counsel would have been entitled to, but reduced to two-thirds of the level of costs which a solicitor would be entitled to charge per hour. If he cannot show that he has lost productive time, then he is entitled to £8 per hour or £8.25 per hour. The effect is a very modest level of recovery for time lost for litigants in person.

My Lord, in the final paragraph of your Lordship's judgment (and perhaps I may read this because it is not of the kind that I was reading out before) your Lordship said this:

"There is a considerable amount that needs to be considered afresh both in relation to the need for a CPZ, and, if one is required, the hours of operation and the amounts to be charged for permits. Whatever the eventual outcome, the process of consultation must start again and the differing views and suggestions considered and evaluated in a spirit of respectful mutual co-operation. May I express the hope that this judgment will not be seen, for too long at least, as one producing winners and losers, but rather as something that provides a new beginning."

My Lord, we respectfully echo those sentiments. We do sincerely wish to co-operate with all those at Camden who are willing to approach this matter in the spirit which both the law requires and common fairness dictates. Although that spirit has been entirely absent hitherto, we are hopeful that it will now be found in many of those whose duty it will be to look at this matter completely afresh. With the intention of actively encouraging that spirit of respectful mutual co-operation to which your Lordship refers, we have determined to forego the opportunity which we might have had to recover a rather more substantial amount by way of costs. Accordingly, we do not apply for costs on an indemnity basis.

My Lord, I am grateful for the opportunity to make those remarks.

ME HOCKMAN: My Lord, I, too, would like to express my thanks to your Lordship for the very great care that your Lordship has obviously taken. I do sincerely appreciate that.

My Lord, I do oppose the application for costs which Mr Cran has made. I would begin by pointing out that it does not seem to me to be (certainly in the way that Mr Cran has sought to express it this morning) entirely in the spirit in which Mr Cran says he wishes to act, that spirit which your Lordship expresses in the final sentence of the judgment, that it is to be hoped that the judgment will not be seen for too long at least as one producing winners and losers.

My Lord, I would respectfully submit that when Mr Cran applies for the entirety of his costs, and when he says that this will mean recovering many weeks of solicitors' time, reduced only by a fraction of one-third, that that would not seem to be entirely in accordance with the spirit of those final sentences which your Lordship has expressed.

My Lord, there is, I would submit, a more substantial, as it were, legal reason why Mr Cran's application ought not to succeed. That is that in fact when one reads the whole judgment, your Lordship has clearly dealt with the various issues which arose in the case, and your Lordship has resolved (I hope I can fairly say) a number of those issues against the Applicants or in favour of the Council.

My Lord, may I attempt to invite your Lordship to look at it in two main ways, first of all doing it by way of main headings. There are perhaps three main headings in the case. I deal with them in order: (1) the question of the parking proposals themselves. My Lord, the Applicants here failed to establish that the Council's proposals for control of parking in themselves (that is to say the extent of the parking and the location of parking spaces) were unlawful. The issues of quantum and research and so forth, they did not succeed on those. Those issues did take quite a lot of time.

MR JUSTICE McCULLOUGH: They did not establish that there had been the breach of unqualified statutory duty for which Mr Cran was at one time contending, and they did not establish their research point, their safety point and their financial argument. In the end on the evidence those failed.

MR HOCKMAN: My Lord, the financial aspect would be my second.

MR JUSTICE McCULLOUGH: On the other hand, as to the law about finances, as to whether you could take into account how the money might be spent when you were deciding what level of charge to impose, I did decide that in the Applicants' favour.

MR HOCKMAN: My Lord, that point of law (an important but narrow point) your Lordship decided in their favour. On the other hand, and equally important in terms of practical effect, the somewhat wider point, namely the way in which the surplus can be applied, your Lordship decided in our favour.

MR JUSTICE McCULLOUGH: An awful lot I had to decide on the basis that this is an unresolvable dispute, and I do not have the material.

MR HOCKMAN: I accept that, my Lord, but I am entitled surely to say that on those varied issues, for one reason or another (sometimes because of a positive decision in our favour, sometimes because your Lordship took the view on the evidence that you were not satisfied) the matter was decided for us and not against us. I respectfully submit that two out of the three main headings (that is to say the substance of the proposals and - subject to one point of law which your Lordship has mentioned - the financial aspects) were decided in favour of the authority.

The third main heading, the consultation point, was decided against us.

My Lord, if one then looks at the notice of motion - - -- I do not know if your Lordship still has that?

MR JUSTICE McCULLOUGH: I have it, but it is not here at the moment. One cannot do it on the basis of how much paper is occupied there, because it is the costs of preparation, the costs of presentation, for which they ask. What took the time? Going through all the documents; we had to do that to solve the consultation point. We spent a certain amount of time on lampposts, if I may use that as a shorthand expression to deal with minor points which would really have been more appropriate to an appeal on fact.

MR HOCKMAN: My Lord, of course I accept that the chronology, the sequence of reports, was something that had to be gone through for the purposes of consultation. There was a great deal of additional material which was necessary for the purpose of dealing with the financial position, on which in the end, as I have already submitted, the Applicants did not succeed. They succeeded on one point of law in relation to that, but in the end that point did not.....

MR JUSTICE McCULLOUGH: If the rules of discovery had been different, they might have.

MR HOCKMAN: I remind your Lordship that I am not, of course, seeking costs against the Applicants in relation to those issues on which we succeeded, or in which they failed to succeed. I am merely saying that, in deciding whether to award them any costs at all or in deciding whether a proportion should be awarded, your Lordship should take into account, as I still very firmly submit, on two out of the three main headings they did not succeed.

My Lord, on the notice of motion - - -- I will not take it; your Lordship I am sure still has it well in mind. But it is quite interesting to observe (I am sure your Lordship remembers) that there were no less than 18 separate paragraphs. My Lord, I looked at it and came to the conclusion that, leaving aside paragraph 17 (which was the long paragraph setting out the chronology, which in a sense was factual material giving further particulars of the other legal averments), of the other paragraphs, the grounds upon which the Applicants have ultimately succeeded are really only one and a half I think is the way that I thought it would be right to express it.

Ground 11 is the consultation point, paragraph 11 of the notes of motion. That is the one on which they have succeeded. Paragraph 14 relates to consideration of objections. Your Lordship took the view that there was a point of substance in relation to the consideration of some of the objections, although that did, if I may say so, seem to be quite closely linked to the consultation point. But even if one accepts that paragraphs 11 and 14, underpinned by the factual material in 17, are ones on which the Applicants did succeed, the fact that they did not succeed on the other 15 or so paragraphs merely underlines the submission that this is not a case in which the Applicants ought to recover their costs, or certainly not a case in which the Applicants ought to recover the entirety of their costs.

I would urge your Lordship to say (remembering, again, the spirit of what your Lordship has expressed in his conclusions) either that there ought to be no order as to costs or that your Lordship should reflect the success that the Applicants achieved on the consultation point primarily by some proportion of the costs but nevertheless one which is in your Lordship's ultimate discretion a moderate and fair reflection of the realities of the case.

MR JUSTICE McCULLOUGH: Can I take into account the fact that you are in a very fortunate position in that any order for costs that is made against you, either for 100% or some lesser percentage, has the advantage for you that Mr Cran (and many others I suspect) gave their time freely, and so the total bill that you will have to pay in the end is much less than would have been the case if they had not given their time?

MR HOCKMAN: My Lord, I suspect that the proper answer to that question is no. That is not strictly something that your Lordship can take into account. But even if your Lordship were tempted to be influenced by that point (and I can see, if I may say so, why you might well be tempted to be influenced by it), I do urge your Lordship to recall that apparently we are to be faced by a claim for many, many weeks of solicitors' time. In other words, no doubt we shall be faced with a claim based upon some London solicitors' hourly rate, scaled down by 33% but then multiplied to allow for what Mr Cran has said is a very considerable expenditure of time, much if not all of which it would be said was productive time. Whilst there may well be argument about the detail, one does not doubt for one moment that there must obviously have been, on the part of one or more of the Applicants, some productive time spent. Again, it is a question of degree; to some extent but not perhaps really in the end to the extent that ought to influence you. Again, it is the submissions I am putting forward.

This is, in my respectful submission, a classic case in which the order for costs should reflect that there were a series of issues, on some of which - - --

MR JUSTICE McCULLOUGH: I have the point.

MR HOCKMAN: - - -- on some of which we have succeeded and others of which we have not. I, too, urge your Lordship to remember that which was said at the conclusion of the judgment. I am sorry that this present debate is rather setting things off on the wrong foot, but I did not start it.

MR JUSTICE McCULLOUGH: Mr Cran, on a certain number of issues - - -- I am not going to look at them page by page or add up issues; that is unrealistic. But on a certain number of issues I decided in their favour.

MR CRAN: My Lord, that is right.

MR JUSTICE McCULLOUGH: What I have more concern with is how much time I spent on different parts of the judgment.

MR CRAN: My Lord, that was the approach I was just about to adopt. Looking at your Lordship's judgment, after the introduction, from pages 4 - - --

MR JUSTICE McCULLOUGH: It is not so much how much is written; it is how much thinking was involved.

MR CRAN: Perhaps then I should not take that approach, my Lord. In my respectful submission there were only three issues in the case, and the notice of motion effectively boiled down to three issues: first of all, the treatment that Camden had given to us, upon which we have substantially won; secondly, whether or not it was lawful to have regard to revenue considerations or the considerations of section 55(4) of the Act in setting the amount that was charged for residence and business permits; and thirdly, whether the use to which Camden put the surplus that it makes on its parking account was or was not a lawful use.

My Lord, on the first issue we have won. On the second issue we have won the point of law. If one looks at page 19 of your Lordship's judgment, it is quite apparent that your Lordship accepted that there were grounds for supposing that there may have been the taking into account of factors that should not have been taken into account, but on the evidence your Lordship was not entitled to come to the conclusion that that was the case. In those circumstances, having won the point of law which was strenuously argued against us, in my respectful submission we have substantially won that issue.

The third issue, on whether or not the use which was made of the funds was lawful, we have lost, but not a great deal of time was taken up on that. Your Lordship had to know what was involved in Plusbus and Taxicard. Your Lordship had to look at the Transport Acts of 1978 and 1985. There was argument, but it was purely argument of law. There were no factual matters in dispute. I would not think that above five of the documents in bundle C1 went to that particular issue.

I would therefore respectfully suggest that this is one of those cases where the bulk of the issues which were before the Court have been won by us, and that on that basis costs should follow the event. It would have been necessary to look at nearly every one of the pieces of paper in bundle C1 and at the affidavit material in order to dispose of the issues upon which we have won. On that basis there is no ground for any discounting of costs. That is my submission.

JUDGMENT

MR JUSTICE McCULLOUGH: There is no order for costs which satisfies all of those affected by it. I must have regard (and I do) to the fact that there were in this case a number of distinct issues as well as a number of closely connected issues. Some were resolved in favour of one side; some were resolved in favour of the other side. It is of course commonplace in litigation that the party which in the end succeeds will have advanced a number of arguments which did not find favour with the Court as well as the arguments which did find favour and resulted in the eventual decision.

Despite the fact that that is common, there is a general rule that costs follow the event. It is not by any means an inflexible rule. The Court must in every case exercise its discretion and produce - I was going to say the order that strikes the Court as fair, but probably it is more accurate to say produce the order which strikes the Court as the least unfair order to make in the circumstances.

Rightly or wrongly, the conclusion to which I have come is that justice will be met if I make an order (in addition of course to the formal order that the designation order be quashed) that the Applicants be granted 75% of their costs, those to be paid by the Respondents.