Resolving parking disputes out of court

Ian G Anderson describes the role of the parking adjudicator in resolving disputes over penalty charge notices

Decriminalised parking came to Edinburgh in 1998.1 Glasgow followed in 19992 and other Scottish cities may soon join the club. Under the decriminalised regime, specified contraventions involving stationary vehicles  – formerly controlled by Police Traffic Wardens - cease to be criminal offences and are enforced by Parking Attendants employed by the local authority or its contractors. The Attendants issue Penalty Charge Notices rather than Fixed Penalty Notices. The local authority pays the costs of enforcement and keeps the fines.

A person wishing to challenge an old style Fixed Penalty Notice would not pay the penalty and, in due course, would be summoned for trial in the District Court. Anecdotal evidence suggests that the chances of avoiding a penalty may have been relatively good.3 Now, in Edinburgh and Glasgow Adjudicators appointed by the Traffic Commissioner for the Scottish Traffic Area deal with challenges to Penalty Charge Notices or to the removal of vehicles.4 By agreement with the Councils, the Traffic Commissioner also provides the Administration for the Adjudicators under the name of The Scottish Parking Appeals Service5.

The statutory framework is in the Road Traffic Act 19916  (“the1991 Act”) which originally gave London Authorities control over parking in parking places -“Permitted Parking.”7 The London Authorities could also apply for an Order transferring to them control over other parking offences such as parking on yellow lines -“Special Parking”.8  A Special Parking Order for London was duly made.

Since the provisions of the 1991 Act were specifically for London, they had to be modified for other areas. Authorities outside London were given the right to apply for Orders creating Special or Permitted Parking Areas, or both.9 Many local authorities throughout the UK have since been granted Orders - “SPA Orders”-, which in practice have covered both aspects of parking control. The SPA Orders make the appropriate modifications to the 1991 Act and also to certain provisions of the Road Traffic Regulation Act 198410 (“the 1984 Act”).

The Edinburgh and Glasgow SPA Orders are  mutatis mutandis  in the same terms. References to the 1991 Act will be to the Act as modified by the SPA Orders.

Press comment on decriminalised parking has been hostile but the Edinburgh Adjudicators in their first two annual reports recorded a generally favourable view of the approach of the council and its contractors.  

Experience in Edinburgh has shown that a small number of issues regularly come up for consideration. These are generally issues which would be treated in the same way under the traditional criminal regime and involve no speciality of decriminalisation.

The Traffic Orders

Parking penalties are mainly issued for breaches of Traffic Orders which Councils make under provisions in the 1984 Act.  In Edinburgh there is one main Order11 covering the city centre, with a number of other less detailed Orders for subsidiary locations. Traffic Orders in other cities will be broadly similar in their terms and exemptions but there is no standard drafting from one authority to another. Even the driver who knows his local regulations cannot be sure that they will be the same in the next town. This has been a problem in London where drivers are constantly crossing local authority boundaries.  Edinburgh drivers appealing against penalties incurred in Glasgow have complained of the peculiarities of the local rules, and no doubt the compliment will be returned.

Traffic Signs

Proper signage is an essential part of Parking Control. Official traffic signs come in two varieties: there are signs available for general use12, but councils can also obtain Central Government approval for special signs or schemes 13 such as in Glasgow’s Merchant City.

The photograph (top) shows a sign at the entrance to the Candleriggs in Glasgow. It contains a lot of information to be digested as the driver enters the street. The council has been permitted to use designer metal studs in place of yellow lines to mark loading bays. The restrictions in the loading bays apply on Sundays although parking in the parking places is unrestricted and free.

The basic rule in parking signage is that – subject to one major exception – parking restrictions must be signed by a combination of road markings and signs such as time plates indicating the restricted hours. An ordinary stretch of yellow lines must have a reasonable number of time plates.  Parking places need the appropriate white line markings and signs at the roadside.

The major exception is where a “zone” has been created.14 Signs at every entrance to the zone announce the times of the restrictions. Provided every street in the zone is marked with the appropriate markings for the restriction on the zone signs there is no need for accompanying time plates. This is an Edinburgh Central Zone sign:

The Edinburgh restrictions are marked with single yellow lines and signs are only required where the restrictions are different from those on the zone entry sign – eg where parking is prohibited at all times. This has the consequence that, once in the zone, there is nothing to tell the driver when the ordinary yellow line restrictions apply. In Edinburgh the hours are the same as the public/residents’ parking times which are signed and this is often assumed to be the case everywhere else - but not necessarily.15

Local authority signage obligations are set out in the Statutory Instruments governing the procedures for making permanent 16 or temporary17 Traffic Orders. Put broadly, the council must take reasonable steps to display traffic Signs to give the public adequate information about the effects of Traffic Orders.

The question for the driver is what happens if the signage is defective or does not convey information properly.

The leading case of McLeod v Hamilton 18 involved an attempt by Edinburgh Council to sign a Traffic Order in the Tollcross area using unauthorised traffic signs. The case is quoted as authority for the proposition that if the signage is unauthorised or defective, the council cannot recover a penalty, apparently regardless of the driver’s state of knowledge. In the author’s view that goes too far. The author would suggest that the correct interpretation is that there must be a connection between the council’s failure and the contravention. A person who knows that parking is prohibited cannot complain that the signage is defective.19 Parking signs are not the same as mandatory signs, where an offence is committed by failing to obey a specified sign.20

Even where authorised signs are used, the council may fail to give adequate information and may be unable to recover a penalty. The way the signs are displayed may lead to confusion. This is an arrangement of signs which has led to a number of Appeals. At first sight the arrows seem to indicate that the public parking and residents parking are in the same place. In fact, the top arrow is indicating where residents should park. The bottom arrow is pointing to the parking meter21. Appeals have been unsuccessful because the road markings were considered to give enough information to resolve any confusion.

Many appellants complain that zone signs themselves do not convey adequate information. That argument was given short shrift in Kierman v Howard22 and the Edinburgh Adjudicators have followed that case.

Mews parking in Edinburgh has caused problems. Some mews are reserved for residents but they are difficult to mark with the usual white road markings. The council has had permission to dispense with road markings and rely on a few signs which are easily overlooked. Drivers regularly park in these mews areas thinking that the absence of the road markings means that there are no restrictions.

Excess Time penalties
At an early stage the Edinburgh Adjudicators had to consider the basis on which penalties could be issued for parking in excess of the time paid for. This was purely an issue of decriminalisation. A Penalty Charge Notice can only be issued for a contravention which would have been a criminal offence before decriminalisation. Under the criminal regime, the 1984 Act23 provides that after the initial time paid for at a meter has expired a Traffic Warden can issue an excess charge notice which allows the car to remain for a further period. It is an offence to fail to pay the excess charge or to leave the car parked beyond the additional time allowed, but it is not an offence simply to overrun the original time paid for. It is also an offence under section 47 of the 1984 Act to breach a Traffic Order but the Edinburgh Traffic Orders contain no injunction against excess time parking.

The 1991 Act as it applies to London includes s.66(2)(a)(ii) which allows a Penalty Charge Notice to be issued where a vehicle has been left  beyond the time paid for. For reasons which are not clear, the whole of S.66(2) was omitted from the Act as applied to Edinburgh and Glasgow by the SPA Orders. The section seems to have been omitted from all outside London SPA Orders.

The surprising conclusion was reached that Edinburgh Council had no power to issue Penalty Charge Notices for excess time parking and appeals involving penalties issued on these grounds were allowed.

The position has been changed from 17 May 2002 by an amendment to the SPA Orders which applies S.66 (2)(a)(ii) of the 1991 Act to Edinburgh and Glasgow.24

Fluttering Penalties
A Penalty Charge Notice must be fixed on a vehicle by the Parking Attendant or handed to the driver. If that does not happen no penalty can be recovered.  This should not be an area open to much doubt. However in Edinburgh, as elsewhere, very many appeals have involved the allegation that no Penalty Charge Notice had been issued.

In some cases there was direct evidence from the driver and possibly passengers that the driver had driven away before the Penalty Charge Notice was issued. There might also be evidence from the records which indicated that normal procedures had not been completed.  If the evidence showed that the Penalty Charge Notice had not been properly issued an appeal would succeed.

In other cases the Appellant would only say that no Penalty Charge Notice had been found on the car. If a Penalty Charge Notice was not found, the first intimation would be the Notice to Owner demanding payment. The period allowed for payment at the discounted rate of 50% would have passed and the appellant would be aggrieved. In these cases, the Adjudicators have generally taken the view that if the evidence indicated that the Penalty Charge Notice had been properly issued initially, the penalty was payable. It was not the council’s responsibility what might happen to the Penalty Charge Notice after the Parking Attendant had completed his procedures.

No doubt there are Penalty Charge Notices which flutter away or are removed by malicious passers-by or are never issued by Parking Attendants but the number of appeals was a concern to the Adjudicators. The council has changed its procedures. The Attendants are equipped with digital cameras to record the issue of the Penalty Charge Notices and these Appeals should decrease in Edinburgh.

Loading
The Edinburgh Adjudicators have heard many appeals involving loading and delivering. Traffic Orders must make provision for drivers to load/unload or collect /deliver.25 Loading and unloading should involve heavy or bulky goods but there is no requirement that the operation has to be commercial.26 Collection or delivery may involve small, light items - e.g. flowers, milk - and here a commercial type purpose would be expected.27

The precise terms may vary from Order to Order but they tend to be similar in effect. In Edinburgh the rule is that provided there are no loading restrictions in operation vehicles can park on yellow lines to load etc for 30 minutes. Special permission can be sought for waiting beyond that period.

The question of what activity the loading exception covers has come before the courts on both sides of the border. Councils have long proceeded on the basis that if nothing is happening at the vehicle the exception does not apply. The council in Edinburgh instructs its Attendants to wait five minutes before issuing a Penalty Charge Notice to a vehicle on a yellow line if there is no sign of loading – this is a concession to the motorist which is widely abused.

Once again the leading case is from Edinburgh. McLeod v Wojkowska28 concerned the length of time a vehicle could wait unattended and still have the benefit of the exception (the driver was delayed in a George Street  shop while a parcel was made up). The Lord Justice Clerk in McLeod made it clear that the exception covered not only taking goods in and out of the vehicle at the pavement, but also taking them from the vehicle into the appropriate part of the premises and vice versa. Paperwork and other delays connected with the operation have to be taken into account within reason.  This may mean that a driver will be covered even if away from the vehicle for up to 30 minutes provided that in a broad sense a loading or delivery etc. operation is going on. Once the driver is sidetracked the loading exception should not apply. The onus is on the driver to establish the right to the benefit of the exception.

Passengers boarding and alighting
Traffic Orders must also make it possible for passengers to get in and out of vehicles with their luggage. In Edinburgh two minutes are allowed in main roads and as long as necessary elsewhere. However, whereas judicial opinion has interpreted the loading exception fairly generously, a narrow view has been taken of the exception for boarding and alighting. In Clifford-Turner v Waterman30 a similar “as long as necessary” exception was held to cover only the immediate actions of getting the passenger and [presumably] the luggage from the car to the pavement and vice versa.  No additional time is allowed under an Order in these terms to get vulnerable passengers (unlike perishable goods) to a safe place.

Meters and tickets
Appeals about meters and tickets have mainly involved three issues.

The Edinburgh Order provides that money must be put in the meter “on leaving the vehicle”. Similar wording was considered in Strong v Dawtry30 and the court held the effect of the words was that no time was allowed for going to find change. The driver has only as much time as is required to put the money in the meter and return to the vehicle.

Broken meters provoke many appeals. If the absence of a ticket or a meter showing Penalty is because the meter for the parking place is not working any appeal should succeed.

Where meters issue tickets the meter and the ticket in Edinburgh instruct the driver to display the ticket on the windscreen. That is a requirement of the Traffic Order although to date it has not been enforced31.  Many drivers prefer to leave the ticket on the dashboard. If the ticket is dislodged and the Parking Attendant cannot read it a Penalty Charge Notice will be correctly issued.

Civil or Criminal
It may seem strange to have to ask whether decriminalised parking enforcement is civil or criminal but the question is relevant for the Human Rights Act.32 There are aspects of the process which many appellants consider a breach of their rights. For example, the vehicle owner (who may know nothing about the contravention) is liable, not the driver; in some cases the penalties appear to double before there is a chance to pay; vehicles are removed without warning and will only be released on payment. The ECHR applies its own tests of whether proceedings are civil or criminal and will not be bound by labels applied by signatories. If parking penalties were criminal the full Article 6 and 7 rights (presumption of innocence, criminal standard of proof, compulsion of witnesses, legal aid etc.) would apply. The view has been taken in England that this is a civil process especially since there is no possibility of imprisonment or any punishment beyond the penalty. The matter has not had to be considered in Edinburgh but there is a Judicial Review of a Glasgow decision pending which touches on some of these matters.

The Future
The introduction of Adjudication throughout the UK has been generally welcomed. In England the extensive use of IT has impressed reforming judges. The use of decriminalised enforcement may be extended to other areas currently controlled by the police and innovations such as congestion charging and road tolls will require an appeal system. Adjudication looks to have a future.

The Author is a Partner in Burness Solicitors in Edinburgh and was a Parking Adjudicator from October 1998 to May 2002