(First version 16 11 2005)

1. The legal basis of controlled parking zones and parking enforcement is the Road Traffic Regulation Act 1984. Section 122 subsection (1) as amended sets out the purposes of the powers provided in the Act:-

“It shall be the duty of every local authority upon whose functions are conferred by or under this Act so to exercise the functions conferred on them by this Act (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…”.

Under this Act, while local councils were responsible for most traffic signs, traffic regulation and control of parking, the police were responsible for appointing traffic wardens who enforced parking offences through the criminal court system. The Act (unfortunately) allows the enforcement authority to immobilize (i.e.) clamp, and tow vehicles. The Act (section 55) limits the purposes to which a local authority could spend any surplus resulting from income from parking spaces; the first defines what you can do; the second defines what you cannot do and lists all the restrictions in a road or area, and is the document on which the council bases its right to enforce the restrictions – The Traffic Management Act 2004 relaxed the ring fence for councils that do not require further off-street parking stating (section 95(2)(d) “In the case of such local authorities as may be prescribed, [an authority can use the surplus] any other purposes for which the authority may lawfully incur expenditure”.

2. The Road Traffic Act 1991 transferred responsibility for parking enforcement to councils, “decriminalized” parking “offences” and brought them within the civil enforcement system. Also a number of additional enforcement responsibilities, such as restricted (yellow line) parking, were transferred from the police to councils. Before any council can take up decriminalised enforcement powers it must first prepare a detailed proposal which is submitted to the Secretary of State for Transport. Only once this has been approved and the council’s scheme is deemed to be viable, will permission be given to prepare for and introduce a decriminalised parking enforcement regime. Subsequently a council has to prepare a Traffic Management Order and a Traffic Regulation Order for each controlled parking zone.

3. Part III of the Road Traffic Act 1991 deals with traffic in London. Section 73 Road Traffic Act 1991 created Parking And Traffic Appeals Service under the jurisdiction of a joint committee of the London authorities, previously the Parking Committee For London which has become the Association of London Government - Transport and Environment Committee. Section 74 Road Traffic Act 1991 makes it the duty of the London authorities to set the levels for of charges for penalties, removal and clamping having regard to the Secretary of State’s parking guidance. No equivalent obligation is imposed in relation to the setting of parking charges to making charges for permits. Section 51 Road Traffic Act 1991 and Section 63 Road Traffic Act 1991 empower the Secretary of State to issue guidance to London authorities with respect to the management of traffic in London and with respect to parking.

4. Regrettably the Act allows for clamping whenever a penalty charge can be made, a provision which was clarified in the Traffic Management Act 2004 where section 79(1)(a) states “The appropriate national authority may make provision by regulations for or in connection with: (a) the fixing of an immobilisation device to a stationary vehicle found in any place where there is reason to believe the vehicle has been permitted to remain at rest there in circumstances in which a penalty charge has become payable”.

5. "Traffic Management and Parking Guidance for London" published by the Secretary of State in February 1998 explains the purposes of parking controls and enforcement (paras 2.4 and 2.5):- “Managing stationary vehicles is just as important as managing moving vehicles. Illegal and inconsiderate parking obstructs traffic and pedestrians, can be a major obstacle to better conditions for all road users and can cause congestion which in turn can exacerbate pollution. Parking restrictions assist the safe and free flow of traffic and are particularly helpful in ensuring efficient bus operations…Since 1991 the use of on- and off-street parking controls has developed as an essential traffic restraint tool, especially for journeys to central London…”

Para 2.7 states:-

“The Secretary of State therefore expects that local authorities should assess parking provision and develop a parking strategy which includes statements of parking and enforcement priorities and quantifiable standards of performance, that these strategies should be published and that the objectives for local parking controls should include (inter alia):-

· Introducing, strengthening or extending Controlled Parking Zones (CPZs) in areas of parking congestion and which are important local destinations…”

Regarding the revenue to be raised from parking charges, the Guidance states (para 2.23) that:-

“The level of parking charges must be set for traffic management reasons, such as to ration available space and ensure that there is a rapid turnover of parking places, rather than to maximise revenue. This is because section 122 of the Road Traffic Regulation Act 1984 does not include the maximisation of revenue from parking charges as one of the relevant considerations to be taken into account in securing safe, expeditious and convenient movement of traffic”.

6. Mr. Justice McCullough in his judgement Regina v Camden Borough Council ex parte Mark Dyson, Gordon Cram and Others[2] examines the policy and objects of the 1984 Act. He observes (at p23) “Doing this [viz looking at the objectives of the 1984 Act] 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 to 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…(at p24). 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”. McCullough observes (at p34) that “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”.

7. There is, however, an interesting issue as to whether issuing penalties without going through a court process is legal. The English Bill Of Rights 1689 (which is titled “An Act declaring the rights and liberties of the subject and settling the succession of the crown”) states “That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void”. Some motorists (British Weights And Measures - Bill of Rights Parking Ticket Campaign) have been objecting to PCNs citing the Bill of Rights. If it were upheld then it would have wider implications than parking enforcement, and would for example prohibit the administrative fines levied by Customs & Excise and the Inland Revenue for VAT and tax returns. The arguments are set out on the website of Neil Herron, who is a former market trader and is associated with the “metric martyrs”. (1. 2. 3. 4.).

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