Author Topic: Unlawful parking operations undertaken by a large number of LGA member councils  (Read 2136 times)

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Offline Web Admin

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Here is an open letter sent to the LGA today

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from:   The NoToMob Team <seen@notomob.co.uk>

to:   cllr.david.sparks@dudleymbc.org.uk

cc:   cllr.j.mcmahon@oldham.gov.uk, steve.bullock@lewisham.gov.uk, sharon.taylor@stevenage.gov.uk, keith.wakefield@leeds.gov.uk, proe@westminster.gov.uk, gporter@sholland.gov.uk, mike.jones@cheshirewestandchester.gov.uk, david.hodge@surreycc.gov.uk, cllr.NClarke@rushcliffe.gov.uk,
geraldvj@gmail.com, themayor@watford.gov.uk, cllrm.overton@lincolnshire.gov.uk, r.leese@manchester.gov.uk, claire.kober@haringey.gov.uk, ann.lucas@coventry.gov.uk, pbox@wakefield.gov.uk, DSimmonds@hillingdon.gov.uk, cllrmrsseccombe@warwickshire.gov.uk, cllr.fleming@sevenoaks.gov.uk, chriswhite@cix.co.uk, jeremy.hilton@gloucestershire.gov.uk, ian.stephens@iow.gov.uk, reeve@ukip.org, bob.dutton@wrexham.gov.uk, john.hart@devon.gov.uk, anthony.jackson@eastherts.gov.uk, Cllr.gordon.keymer@tandridgedc.gov.uk, mayor@hackney.gov.uk, cllrm.hill@lincolnshire.gov.uk, labourleadersoffice@wolverhampton.gov.uk, councillor.parnaby@eastriding.gov.uk, cllr.paul.watson@sunderland.gov.uk, CllrBGrunewald-eader@sthelens.gov.uk, brandon.lewis@communities.gsi.gov.uk, eric.pickles@communities.gsi.gov.uk, patrick.mcloughlin@dft.gsi.gov.uk, robert.goodwill@dft.gsi.gov.uk, deniz.huseyin@landor.co.uk, mark.moran@landor.co.uk, Ed Davey <Ed.Davey@bbc.co.uk>, mark.blunden@standard.co.uk, neil@parkingappeals.co.uk, davidjrwilliams@gmail.com

Dear Councillor Sparks

Please find attached our letter and attachments which detail the unlawful activities that a large number of LGA council members are currently undertaking. Our list is not definitive and we fully expect evidence of more councils' unlawful practices to emerge through our continuing investigations.

We invite the LGA, in its advisory capacity, to contact all LGA members to inform them of the issues raised in our letter, in the sincere hope that any council (traffic authority) that is anticipating undertaking such unlawful activities will be warned off, and any council already undertaking said unlawfulness will change its policy in accordance with the recommendations in our letter.

Kindly acknowledge safe receipt of this communication.

Yours faithfully

The NoToMob
www.notomob.co.uk


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To whom it may concern                           16 December 2014

It has come to our attention that a number of councils (traffic authorities) are operating their off street parking enforcement by means of a tort contract, i.e. the authority, via its agents, issue private parking tickets (parking charge notices) on publicly owned land, as opposed to the statutory notices it issues on-street (penalty charge notices).

In order to do this, councils cite the provisions of the Protection of Freedoms Act 2012 (PoFA) to allow its agents to access the DVLA database for keeper details. However, Schedule 4, part 3(1)(b) of PoFA states:

3(1) “In this Schedule “relevant land” means any land (including land above or below ground level) other than – (b) a parking place which is provided or controlled by a traffic authority;

Any attempt by a traffic authority to declare the land “unregulated” by either removing existing Traffic Regulation Orders (TROs), or by attempting to hand over its regulation of the land to its agents must be regarded as unlawful, because even if the authority gives licence to its agents to provide enforcement on its off street parking places, the authority is still the provider of the parking place by virtue of the fact it owns the land.

Consequently, any traffic authority that provides a parking space, whether paid for or unpaid, whether on street or off street, is debarred from relying on PoFA.

The law governing parking places on land controlled by a traffic authority

The Road Traffic Regulation Act 1984 (RTRA) at Part IV Parking Places – Provision of Off Street Parking, and Parking on Roads Without Payment – Section 32(1)(a) states:

32 Power of local authorities to provide parking places.

(1) Where for the purpose of relieving or preventing congestion of traffic it appears to a local authority to be necessary to provide within their area suitable parking places for vehicles, the local authority, subject to Parts I to III of Schedule 9 to this Act—

(a)may provide off-street parking places (whether above or below ground and whether or not consisting of or including buildings) together with means of entrance to and egress from them,


This establishes the right of a traffic authority to declare any part of the land it regulates off street (including multi storey car parks) as a parking place.

Section 35 of the RTRA states:

35 Provisions as to use of parking places provided under s. 32 or 33.

(1)As respects any parking place -

(a) provided by a local authority under section 32 of this Act, or

(b) provided under any letting or arrangements made by a local authority under section 33(4) of this Act,

the local authority, subject to Parts I to III of Schedule 9 to this Act, may by order make provision as to -

(i) the use of the parking place, and in particular the vehicles or class of vehicles which may be entitled to use it,

(ii) the conditions on which it may be used,

(iii) the charges to be paid in connection with its use (where it is an off-street one), and

(iv) the removal from it of a vehicle left there in contravention of the order and the safe custody of the vehicle


This is the legal vehicle by which any traffic authority can apply to the Secretary of State for a TRO in relation to the off street parking it regulates, in the same way as councils apply for TROs in relation to their on street parking.

Section 6 of the RTRA states:

6 Orders similar to traffic regulation orders.

(3) Any order under this section may be made so as to apply -

(a) to the whole area of a local authority, or to particular parts of that area, or to particular places or streets or parts of streets in that area;


This section of the Act allows for the provision of a TRO which would cover the entire area of any car park, housing estate, or any defined area of local authority land.

There are numerous other provisions contained within the RTRA that allow a traffic authority to apply for a TRO, the relevant provisions of which are regularly quoted in applications made for TROs in relation to on street parking.

Parliament's position

When putting the above, and other legal provisions in place, Parliament signalled its intent that traffic authorities must use the provisions of the RTRA to manage and enforce its off street parking. Similarly, in the PoFA legislation it specifically excluded traffic authorities from using the provisions of that Act to manage or enforce on any land regulated by a traffic authority.

On 16 September 2014, and as a consequence of various councils flouting of the law, Mr Robert Goodwill MP, Parliamentary Under Secretary of State for Transport, wrote to all parking managers in England with Civil Enforcement Powers in the following terms, setting out the Department for Transport's position (copy letter attached):

“I understand that some of you are intending to withdraw your off-street parking operations from the parking enforcement framework in the Traffic Management Act 2004 (TMA) so that enforcement is carried out through contractual terms and conditions as if the car parks are privately owned. It is also my understanding that a couple of you may already be operating your car parking operations through contract law - I would hope this is not the case.

Let me assert, that although you may think the land is "unregulated" by virtue of revoking the parking orders made under the Road Traffic Regulation Act 1984 (RTRA), I am of the view that the land remains regulated because under Section 32(1)(a) of the RTRA, a Council retains the status of a Local Authority providing off-street parking places.

Part 6 to the TMA was enacted in 2008 with the aim of improving local authority on-street and off-street parking enforcement arrangements by enabling local authorities to take effective enforcement action, but to protect the motorists when a mistake has been made by a local authority. Any intention to operate outside this statutory regime would clearly go against the will of Parliament, Government policy and the expectations of local electorates.

I should warn you that should you have any plans to submit an application to the DVLA for access to keeper data on the basis of recovering unpaid charges for enforcement through contract law, this will more than likely not be approved because the Council will not be operating as an enforcement authority under the TMA.

The Department made a conscious decision to exempt local authorities from the provisions in Schedule 4 to the Protection of Freedom Act 2012 which provides for an enforcement regime and appeals system for privately owned car parks. This clearly demonstrates the will of Government to separate local authority off-street parking enforcement arrangements from the parking operations on private land.

As you know, local authorities are expected to comply with the relevant legislation and guidance, and are accountable to their electorates. I would hope that you would reconsider any plans to enforce your off-streets outside the parking framework in the TMA.

Yours sincerely

Robert Goodwill”
[Emphasis added by the NoToMob]

The NoToMob's position

It has come to our attention that despite Mr Goodwill's warning, some councils insist on continuing to break the law and resist the stated will of Parliament, by continuing to issue private parking tickets in off street car parks and on housing estates. The NoToMob consider this behaviour reprehensible and have vowed to expose any such unlawful practices.

Local authorities that are endowed with statutory powers as traffic authorities must not abdicate their responsibilities as a traffic authority to the private parking industry. By doing so, traffic authorities have effectively sanctioned predatory ticketing practices being imposed by the private parking industry on publicly owned land and, as a result they are sanctioning the victimisation of those they are elected to serve.

We will continue with our investigations into councils that have adopted, or propose to adopt any of the unlawful activities referred to above, or indeed any unlawful activity, and we will not hesitate to provide Government with the details of any authority that is breaking the law and/or is seeking to resist the will of Parliament.

The NoToMob offer a simple solution to all traffic authorities. Immediately cease issuing parking charge notices on any and all of its off street parking facilities and undertake the exercise of putting TROs in place.

Yours faithfully

The NoToMob

www.notomob.co.uk



Offline Ewan Hoosami

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  • Veni, Vidi, $chunti. I came, I saw, I assisted.
WOW! I mean WOW!

That should put the cat amongst the pigeons eagle amongst the weasels.

 :aplude:
Appealing to the council is like playing chess with a pigeon. You might be a chess grand master but the pigeon will always knock all the pieces over, shit on the board and then strut around triumphantly.

 


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