Leader of Stockton Council has dismissed parking issue claims by Yarm rival

First published in News The Northern Echo: Photograph of the Author by , Reporter (Stockton/Hartlepool)

A COUNCIL leader has hit back at the chairman of a parish council who deliberately landed himself with a parking fine to test the legality of parking in his home town.

Jason Hadlow, chairman of Yarm Town Council, parked without a disc in Yarm High Street in March and received a £60 fine.

As previously reported in The Northern Echo, Mr Hadlow was let off his fine after taking his case to a Traffic Penalty Tribunal.

However his victory was only based on the fact that markings in one particular bay were inadequate.

The chairman of the tribunal, Stephen Knapp, did not accept that the entire legal basis of parking in Yarm was legally flawed.

Mr Hadlow still argued that motorists were confused by parking arrangements already and the introduction of pay-and-display would make the situation worse.

However leader of Stockton Council, Bob Cook, dismissed that argument and stressed the Government’s Traffic Regulation Order for Yarm was lawful.

He said: “We can’t understand why Mr Hadlow is so pleased with his partial victory.

“The judgement concentrates on one individual parking bay but for us the main issue highlighted by this ruling is that despite numerous challenges, including two police investigations, at the High Court and the Traffic Penalty Tribunal the council has been fully exonerated.

“This ruling does not undermine but further supports the case for proposals to introduce pay and display in Yarm and we continue to believe that a pay and display system is more flexible and easier for people to understand and manage.

“Yet again it is our view that the Traffic Regulation Orders in Yarm are lawful, valid and appropriate. We feel the way in which Jason Hadlow has pursued his views on this issue has not been helpful.”

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6:23pm Fri 7 Dec 12

magpie7 says...

Perhaps Mr Cook should read the adjudicators report!

Adjudicator’s Decision
Simply Dutch Ltd
and
Stockton-On-Tees Borough Council
Penalty Charge Notice SQ22012799
Appeal allowed on the ground that the alleged contravention did not occur.
I direct the Council to cancel the Penalty Charge Notice and Notice to Owner.
Reasons
The PCN was issued on 16 March 2012 at 11:12 to vehicle S4HOV in High Street for being parked in a disc parking place without clearly displaying a valid disc.
Mr Hadlow, who is the Appellant’s Managing Director and the Mayor of Yarm Town Council, has attended a personal hearing of the appeal in Leeds and then a site visit. He has been represented by Mr Johnson. On both occasions the Council’s representatives were Mr Nertney and Mr Truick.
I apologise to both parties for the delay in the issue of this decision.
Background
Stockton Council has made a Traffic Order which imposes a limited waiting restriction on parking bays in Yarm High Street. Parking is free but subject to the requirement to display a parking disc/clock showing the time of arrival and the maximum permitted period is two hours with no return within one hour. The parking discs are available from local shops and public buildings.
A dispute has arisen between the Town Council and the Borough Council concerning the administration of these parking bays which has, I am aware, led to the involvement of the local Member of Parliament and the police.
I have previously been involved in appeal SQ05120F when I refused an application by the Appellant for a review of the decision to dismiss an appeal which related to these parking bays. The original decision and my decision on review generated considerable controversy but neither party has objected to my involvement in this appeal.
Page 1 of 12
Case Number
SQ 05135C
I have now had the advantage of hearing helpful submissions from both parties and there has been a site visit. Indeed I am grateful to all in this appeal for the constructive approach taken in presenting the arguments.
In order to bring the issues to the attention of the Tribunal Mr Hadlow parked his vehicle in one of the bays without displaying a valid disc in the expectation that a PCN would be issued. Therefore on the particular facts of this case he was well aware of the extent and intended terms of the restriction.
The challenge to the PCN is based on three primary issues. The first is that the relevant Traffic Orders, The Borough of Stockton on Tees, Yarm High Street, Yarm, Stockton on Tees (Traffic Regulation) Order 1998 and the Amendment (No.1) Order 2000 are “unlawful”. It is however in my view difficult for Mr Hadlow to argue that the Orders have not been properly passed in Council and there has been no challenge in the Courts to the validity of either Order. Therefore it is not appropriate for the Tribunal to consider the appeal in those terms but what Mr Hadlow really means is that the Orders do not properly impose the disc parking restriction on the bays in the High Street and in particular on the bay in which his vehicle was parked.
The basis of the argument is that the Orders do not refer to the dimensions of the permitted parking areas generally or the bays because the plans which have been attached to both Orders are not to scale so that the extent of the restriction cannot be accurately determined.
The second submission is that the form in which the bays have been set out, on either side of the High Street is not substantially complaint with the requirements of diagrams 1032 or 1033 in Schedule 6 of the Traffic Signs Regulations and General Directions 2002. The bays are largely set out in blocks of six or eight running parallel to the carriageway of the High Street so that they are not either individual longitudinal parking spaces in accordance with diagram 1032 or echelon spaces in the form of diagram 1033.
The final submission is that the terms of the restriction are not adequately signed in accordance with the requirements of Regulation 18 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 which requires that:
“(1) where an order relating to any road has been made the order making authority shall take such steps as are necessary to secure:
Before the order comes into force the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road.
The maintenance of such signs for so long as the order remains in force, and
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Case Number SQ 05135C
...”.
Mr Hadlow’s argument is that the position of the “Zone” signs does not adequately alert drivers approaching from either end of the High Street. The roadside plates which are positioned at intervals within the parking areas and which are in the general form of diagram 662 in Schedule 2 of the 2002 Regulations are said to be ambiguous.
My role in this appeal is to decide whether Mr Hadlow is liable to pay the penalty charge of £50. However it is clear that both parties are really seeking a determination, as far as I am able to make one, as to whether the Traffic Orders do impose the restriction on those parts of the High Street where the individual bays are marked. Both parties clearly consider this issue to be central to the dispute which has arisen between the Town and Borough Councils and I anticipate that whatever my decision the disappointed party will make further challenge by way of Judicial Review.
I will therefore deal with all three issues but I will begin with the question of the clarity of signing because following the site visit this would seem to be the most obvious ground of challenge.
The Signing
The position of the relevant signing is best illustrated in the plan on a page which is numbered “46” in my bundle of documents. The intention is clearly to establish a “Disc Parking Zone” and at either end of the High Street there are four signs, one on each side of the carriageway which are a permitted variant of diagram
663 in Schedule 2 of the Regulations. The signs include the blue and red roundel which is generally used to denote a parking restriction and state “Disc Zone Mon- Sat 8am-6pm”.
Underneath the signs on the Northern approach there is an additional plate giving the information “discs available from library”.
The concept of the establishment of a Parking Zone is that if each entry point is signed on either side of the carriageway with the approved form of signing there is then no requirement for any further roadside plates to be used within the Zone, the idea being to reduce the need for street furniture. It is however the case that notwithstanding the intention to create the Zone there are a number of individual roadside plates, in the form of diagram 662 in the Regulations next to some of the blocks of parking bays. These signs are headed “Disc Zone” and include the times when the restriction is in force. The signs have been placed next to most but not all of the blocks of bays as illustrated on the plan.
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Case Number SQ 05135C
It became apparent during the site visit that the Zone entry signs although placed on either side of the carriageway are set well back on the other side of the parking areas so that they are not in my opinion easily seen by drivers approaching the start of the restriction. Drivers approaching from the Northern end of the High Street pass a sign on the nearside which is positioned on the other side of the parking bays and one on the offside which is rather closer to the carriageway. These signs are offset so that the Disc Zone appears to start at a different point depending on which sign is relied on. The nearside sign is situated about in line with the northern wall of the Sainsburys Supermarket whereas the offside sign is further down the road after the pedestrian crossing.
In my judgment it is likely that a driver would find the nearside sign difficult to see and so may conclude that the Zone restriction begins at the point of the sign on the offside pavement which appears to exclude those bays outside the supermarket or at least those which are before the pedestrian crossing. That is particularly relevant in this case because Mr Hadlow had parked in one of the bays outside the supermarket.
Drivers approaching along the High Street from the South would pass a Zone entry sign on the offside which is set close to the carriageway but the equivalent sign on the nearside is again set well back behind the parking bays. At the time of my visit the nearside sign was not correctly positioned and was facing rather away from the carriageway so making it even more difficult to see. I conclude that any driver approaching from this direction would have great difficulty in either seeing the sign on the nearside or reading the information on it from a moving vehicle.
My first finding is therefore that the Zone entry signs are not well placed and do not adequately give drivers the information that they are entering a Disc Zone.
Although there are further roadside plates within the area of the Zone which are generally fixed to a pole at the end of each block of marked bays some bays are not in fact clearly referable to one of the roadside signs. It is very much a question of fact in each case, depending upon where the vehicle is parked whether the driver’s attention would reasonably be drawn to the restriction.
The ambiguity of the signing is compounded by the fact that there are a number of bays which are outside the Zone and where parking is free from restriction. At both the North and the South end of the High Street on the approach to the beginning of the Zone there are free bays on either side of the carriageway. Because no restriction applies there is no signing and as all the bays along the length of the High Street have a uniform appearance it would not necessarily be easy for a driver to distinguish what is an unrestricted bay, where there is no roadside plate and a bay which is subject to the restriction.
Page 4 of 12
Case Number SQ 05135C
Overall I consider the signing to be unsatisfactory mainly because of the poor positioning of the Zone entry signs and the fact that not all blocks of bays within the Zone are obviously referable to a roadside plate.
In those bays next to which there is a visible plate I can see the argument that the restriction is reasonably signed and so any decision on an appeal relating to the quality of the signing would depend on where the vehicle was parked.
On the facts of Mr Hadlow’s case his car was parked in a bay which is at the end of a line of four immediately outside the supermarket. This section of bays is separated from the blocks on either side and the position of the roadside plates in my view highlights the problem I have identified with the signing. There is a plate fixed to a post at the end of the blocks on either side but not at the end of the block where Mr Hadlow parked. Certainly the roadside plates on either side are clearly visible from the bay he used and of course Mr Hadlow knew what the restriction was intended to be. However I am less certain that anyone visiting the town or unfamiliar with the scheme would necessarily recognise that particular bay, or indeed the other three in the block, would be subject to the limited waiting restriction.
Therefore on the facts of this case my judgment would be that the bay in which Mr Hadlow parked was not clearly signed as being subject to the disc restriction.
Were it not for the fact that Mr Hadlow well knew about the intended restriction, although he may not have believed it applied, I would readily consider that the inadequacy of the signing was a reason for his appeal to be allowed.
I have considered carefully whether his particular knowledge is sufficient to negate the problems with the signing but I conclude, because of the terms of Regulation 18 that I should decide the appeal on the basis of an objective assessment of the signing for this particular bay.
Therefore because I am not satisfied that the signing would adequately convey the terms of the restriction to a driver parking in the bay I find that the contravention did not occur and I would allow the appeal for this reason.
My view is that each case must be decided on its own facts and the outcome of the appeal, at least on the point about the signing, will depend on where the vehicle is parked. Whilst it is not my place to make recommendations about the signing one obvious step to improve it would be to ensure that the Zone entry signs are placed next to the carriageway where they are more visible and in line with each other so it is reasonably obvious where the Zone begins.
During the course of the site visit it has been pointed out to me that there are variations between the positions of the bays as they are marked on the roadside
Page 5 of 12
Case Number SQ 05135C
and as they appear on the plan attached to the Traffic Order. There are a number of examples of this and it is of course the Traffic Order, together with the plan, which potentially defines the extent of a restriction. The bay markings must reflect the terms of the Traffic Order so that if a vehicle is parked in a marked bay which is not shown on the plan or which has an alternate restriction there is certainly an argument that a contravention would not occur. Similarly if a vehicle is parked outside one of the bay markings on the road but in a position where the plan suggests that parking is permitted the terms of the Order must take precedence.
Having decided that because of the ambiguity of the signing a penalty charge is not payable it is not strictly necessary for me to go on to decide the other issues raised by Mr Hadlow. However I do recognise the importance to both parties of at least a preliminary decision on the remaining issues.
The Bay Markings.
All the bay markings in the parking areas are clear and it seems to me that any driver would be properly informed about the extent and position of each parking bay. Most of the bays are painted, on a cobbled surface although in some cases the painted lines have been replaced, with the approval of the Town Council, by white bricks which are illustrated in the photographs included in the bundle. The Borough Council has obtained the specific permission of the Department for Transport to replace the painted lines, which would be the signing required by the 2002 Regulations with the more environmentally satisfactory alternative and it is pointed out to me that when giving the authorisation the DfT do not raise any issue on the plan provided to them as to the general appearance and location of the bays. Indeed it is argued that in respect of those bays where permission for the particular road markings has been obtained I should find that at least implied permission was given for the layout of them.
However in my view the DfT was only required to give authorisation for the use of the carriageway markings which were not prescribed in the 2002 Regulations. The authorisation was not intended to express a view either about the clarity of the signing or the compliance of the bay markings with diagrams 1032 or 1033.
The point argued by Mr Hadlow is that to comply with the diagrams the bays must either run parallel to the carriageway or should be positioned at an angle between the carriageway and the kerb in the echelon style. Given the particular layout of the carriageway of the High Street and the areas on either side strict compliance with the diagrams would inevitably mean a substantial reduction in the number of available parking spaces. It is, I anticipate, for this reason that the bays have to a large extent been laid out in blocks although there are a large number of bays, particularly at the North end of the High Street, which are at right angles to the carriageway. Mr Hadlow does not make a point about these
Page 6 of 12
Case Number SQ 05135C
bays but rather challenges the propriety of the bays which have been marked in blocks.
The Council points out the need to maximise parking space and this is a clear benefit of the layout. Further it is argued that in fact all the bays are substantially complaint with the 2002 Regulations because in between each set of blocks there is a short section of road, which is part of the highway, giving access to the parking spaces. Therefore each set of three or four bays in the block is at right angles to the “carriageway” of the short length of access road.
This argument, in my view, has some force because whilst there is a single and definable carriageway along the High Street the access points to the bays are nonetheless part of that carriageway although running at right angles from it.
In my judgment the form and position of the marked bays is substantially compliant with the 2002 Regulations. Any driver is clearly informed about the extent of each bay and that it is intended as a parking place.
I am reinforced in that view by the terms of the judgment of the Court of Appeal in the case of Herron and Parking Appeals Limited v. The Parking Adjudicator, Sunderland City Council and the Secretary of State for Transport EWCA Civ. 905.
In that case the Court was asked to consider alleged defects in the markings of on street parking places within a Controlled Parking Zone. The Judgment endorsed at least within the context of the facts of that case the principle that signing of a parking restriction is to be regarded as substantially compliant with the Regulations if it reasonably informs the driver of the terms and extent of it.
The Judgment includes the following:
“The question for the Adjudicator was whether the local authority had taken steps to secure that adequate information was conveyed to the Appellant as to the parking restriction that had been infringed. ... The test for invalidity is not ‘are the regularities trivial?’ but whether there is substantial compliance with the statutory definition. ...
If the situation viewed as a whole is that the motorist is adequately informed of the parking restriction there is in my judgment no good reason to render the restriction ineffective. ...
Indeed it is difficult to see what test should be applied in order to decide whether an irregularity is trivial other than could it have misled a road user as to the significance of a road sign? ...
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Case Number SQ 05135C
If by properly signed (the Adjudicator) meant that the sign had to be in substantial compliance with the statutory specification and not such as to mislead or fail to inform the motorist I would agree with this statement. If he meant that absolute and strict compliance with the specification of the sign was essential even if the motorist is adequately informed of the restriction in question he was wrong”.
In my judgment the bay markings and their position do adequately inform the driver as to the extent of the parking places and I find that they are in fact substantially compliant with the 2002 Regulations. I would not therefore have allowed the appeal on this ground.
The Traffic Orders
This is the most contentious and in my view the most difficult point to determine.
As I have already stated Mr Hadlow’s submission is that the Traffic Order is illegal but in my view the question for me is whether it in fact imposes, with sufficient certainty, the restriction on those parking bays which are included on the plan referred to.
Article 5 of the 1998 Order states: “Authorisation and use of parking places.
Each of the parts of the road specified in column of the schedule 1 to this Order is authorised to be used, subject to the following provisions of this Order as a parking place during the prescribed hours for such classes of vehicles as are specified in column 3 of schedule 1 and in such classes of vehicles as are specified in column 3 of the said schedule and in such positions as are specified in column 2 of the said schedule”.
Article 7(1) states:
“The driver of a vehicle shall on arrival of a vehicle at a parking place during the prescribed hours exhibit on the vehicle a parking disc in accordance with the following provisions of this article ...”
The Article then goes on to describe how the disc is to be displayed and subsequent Articles impose the time limit on parking together with other restrictions on how a car is to be parked within the bay.
Schedule 1 to the Order has four columns only one of which “Location of Parking Place” is relevant to my decision.
Page 8 of 12
Case Number SQ 05135C
Column 1 states:
“The parking areas on the east and west side of the High Street, Yarm
shown stippled on the plan”.
When I considered the review application in the earlier appeal the argument was that the plan attached to the order was, because of its size and the fact that it was not to scale, no more than a “sketch” which could not properly define the areas to which Articles 5 and 7 of the Order applied.
However during the course of the hearings in Mr Hadlow’s appeal the Council has provided the original and much larger version of the plan attached to the Order. The notes on the plan state “project Yarm High Street content parking arrangement” and it is dated “March 98”.
It is agreed that the plan is not to scale but the Council argues that the position of each parking bay along both sides of the High Street can clearly be determined by reference to the adjacent buildings which are all numbered and those bays to which the restriction applies have been in filled with black dots which is properly described in the 1998 Order as “stippling”.
The production of this plan is in my view important. Its dimensions make it much easier to determine the position of the bays to which the restriction applies because it shows each individual building along the length of the High Street, the position of the frontages and the postal addresses.
By way of example the bay in which Mr Hadlow parked is clearly shown as being outside the supermarket, number 88 High Street, and in my judgment, having visited the area, the marking on the ground substantially reflects the position of the bay on the plan.
It is not unusual for modern Traffic Orders to impose restrictions by reference to a plan which is usually drawn to scale in order to avoid the extensive recital of the dimensions of each parking place and it seems to me there is nothing wrong with that in principle. Those drafting the 1998 Order doubtless considered that because of the number of parking bays and the locations of the blocks it would have been wasteful in terms of time and cost to set out in feet and inches as it would then have been the dimensions of each bay and block.
In my judgment it is very unlikely indeed that the bay markings on the carriageway do not reflect with sufficient accuracy the position of the bays, relative to the individual buildings on the plan. Whilst I can see that the small copy of the plan originally relied on by the Council in the earlier appeal is unsatisfactory the larger plan shows the extent to which attention has been paid to the detail of the position of the restricted bays.
Page 9 of 12
Case Number SQ 05135C
The 1998 Order was amended by the Borough of Stockton-on-Tees (Yarm High Street, Yarm, Stockton-on-Tees) (Traffic Regulation) Order 1998 (Amendment) (No.1) Order 2000.
Article 2 of this Order states:
“Save as hereby modified the borough of Stockton-on-Tees (Yarm High Street, Yarm, Stockton-on-Tees) (Traffic Regulation) Order 1998 (hereinafter called the 1998 Order) shall in all other respects remain in force and effect.
3. Plan 11/H35/228 to the 1998 Order is hereby revoked and replaced by the amended plan 11/H35/228A”.
That is the number which appears on the bottom right hand corner of the plan produced to me.
Stockton Borough Council clearly had the delegated authority to pass the relevant Traffic Order. It seems to me the only reason that it could have ever been considered void would be if the terms were unreasonable in the sense that Parliament had never intended to give authority for that type of order or perhaps more relevant on the facts of this case if there was sufficient uncertainty as to its meaning.
However in the case of Percy v. Hall 4 All E.R. 523 the Court of Appeal approved the principle that:
“A byelaw will be held void for uncertainty if it can be given no meaning or sensible or ascertainable meaning. But if the uncertainty stems only from the fact that the words of the byelaw are ambiguous it is well settled that it must if possible be given such meaning as to make it reasonable and valid rather than unreasonable and invalid ....”.
The Judgement goes on to give the example:
“A planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning and not merely because it is ambiguous or leads to absurd results. It is the daily task of the Courts to resolve ambiguities of language and to choose between them and to construe words so as to avoid absurdities or put up with them ...”
Whilst of course the facts of Mr Hadlow’s case are different it seems to me that I should apply a similar principle when looking at the plan in order to decide whether any uncertainty caused by the fact that it is not to scale necessarily
Page 10 of 12
Case Number SQ 05135C
requires a finding that it does not give effect to the parking restriction which was clearly intended.
In my judgment it is perfectly possible to resolve any ambiguity that may have been caused by the absence of a scale because it is reasonable to determine the extent of the intended restriction by reference to the position of the buildings fronting the High Street.
Although I recognise that there was no specific reference in the terms of the 1998 Order identifying the attached plan the situation is clearly remedied by the 2000 Order and I am satisfied that Stockton Council has been able to demonstrate that the plan now produced to me was an integral part of both Orders.
The issue of the drafting of a byelaw by reference to a plan was discussed in the case of Anderson v. Alnwick District Council 3 All ER 613. The facts of that case were not comparable to this appeal but the Judgment did appear to give approval to the use of a plan as part of a byelaw in the following terms:
“Of course if the map did form part of the byelaw or if perhaps more accurately the byelaw has to be interpreted by reference to the map then these criticisms (about the confusion created by the production of the map as attached to the byelaw to anyone minded to enquire) are unfounded and fall away. In that event the Council acted properly in publishing the map so as to enable all interested parties of the public to know what the geographical scope of the byelaw was”.
Therefore in answer to the question of whether the relevant Traffic Orders define with sufficient certainty the areas to which the intended disc parking restriction applied I am satisfied that they do. It is reasonably possible to interpret the plan as identifying the individual parking bays to which the restriction applied and I am satisfied that the markings on the carriageway substantially reflect the terms of the Traffic Order by reference to the plan. I am satisfied that any variation is likely to be minimal and of no practical effect.
It follows that I would not allow the appeal on the basis that the Traffic Order was void for uncertainty or that it did not properly impose the restriction on the relevant bays.
My concern as I have expressed at the outset of this decision is that the on street signing for the particular bay in which Mr Hadlow parked was ambiguous and whilst each case will need to be considered on its own facts, depending on which bay the vehicle was parked there is potential for challenge to the issue of a PCN on the basis of the ambiguity. I would also consider that any driver who was unfamiliar with restriction and did not have parking disc would need sufficient time to make enquiries as to how to get one. It is unreasonable to demand that a
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Case Number SQ 05135C
disc is displayed as soon as the vehicle arrives and that is not in my view what the TRO requires. Again it would be a question of fact in each case whether the vehicle had been left for a reasonable time whilst the driver was obtaining the disc.
I appreciate that Mr Hadlow and Yarm Town Council will be dissatisfied with my findings about the Traffic Orders and may well attempt to make further challenge by way of Judicial Review. If in fact my decision cannot be the basis of continuing dialogue between the Town and Borough Councils that would be an appropriate step because it seems to me that much time and considerable resources are being expended on this dispute when the parties have to at some stage reach the position where they are both prepared to accept an authoritative judgment.
However my decision in this case is that the Appellant is not liable to pay the penalty charge.
Stephen Knapp
Adjudicator 2 December 2012
Page 12 of 12
Case Number SQ 05135C
Perhaps Mr Cook should read the adjudicators report! Adjudicator’s Decision Simply Dutch Ltd and Stockton-On-Tees Borough Council Penalty Charge Notice SQ22012799 Appeal allowed on the ground that the alleged contravention did not occur. I direct the Council to cancel the Penalty Charge Notice and Notice to Owner. Reasons The PCN was issued on 16 March 2012 at 11:12 to vehicle S4HOV in High Street for being parked in a disc parking place without clearly displaying a valid disc. Mr Hadlow, who is the Appellant’s Managing Director and the Mayor of Yarm Town Council, has attended a personal hearing of the appeal in Leeds and then a site visit. He has been represented by Mr Johnson. On both occasions the Council’s representatives were Mr Nertney and Mr Truick. I apologise to both parties for the delay in the issue of this decision. Background Stockton Council has made a Traffic Order which imposes a limited waiting restriction on parking bays in Yarm High Street. Parking is free but subject to the requirement to display a parking disc/clock showing the time of arrival and the maximum permitted period is two hours with no return within one hour. The parking discs are available from local shops and public buildings. A dispute has arisen between the Town Council and the Borough Council concerning the administration of these parking bays which has, I am aware, led to the involvement of the local Member of Parliament and the police. I have previously been involved in appeal SQ05120F when I refused an application by the Appellant for a review of the decision to dismiss an appeal which related to these parking bays. The original decision and my decision on review generated considerable controversy but neither party has objected to my involvement in this appeal. Page 1 of 12 Case Number SQ 05135C I have now had the advantage of hearing helpful submissions from both parties and there has been a site visit. Indeed I am grateful to all in this appeal for the constructive approach taken in presenting the arguments. In order to bring the issues to the attention of the Tribunal Mr Hadlow parked his vehicle in one of the bays without displaying a valid disc in the expectation that a PCN would be issued. Therefore on the particular facts of this case he was well aware of the extent and intended terms of the restriction. The challenge to the PCN is based on three primary issues. The first is that the relevant Traffic Orders, The Borough of Stockton on Tees, Yarm High Street, Yarm, Stockton on Tees (Traffic Regulation) Order 1998 and the Amendment (No.1) Order 2000 are “unlawful”. It is however in my view difficult for Mr Hadlow to argue that the Orders have not been properly passed in Council and there has been no challenge in the Courts to the validity of either Order. Therefore it is not appropriate for the Tribunal to consider the appeal in those terms but what Mr Hadlow really means is that the Orders do not properly impose the disc parking restriction on the bays in the High Street and in particular on the bay in which his vehicle was parked. The basis of the argument is that the Orders do not refer to the dimensions of the permitted parking areas generally or the bays because the plans which have been attached to both Orders are not to scale so that the extent of the restriction cannot be accurately determined. The second submission is that the form in which the bays have been set out, on either side of the High Street is not substantially complaint with the requirements of diagrams 1032 or 1033 in Schedule 6 of the Traffic Signs Regulations and General Directions 2002. The bays are largely set out in blocks of six or eight running parallel to the carriageway of the High Street so that they are not either individual longitudinal parking spaces in accordance with diagram 1032 or echelon spaces in the form of diagram 1033. The final submission is that the terms of the restriction are not adequately signed in accordance with the requirements of Regulation 18 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 which requires that: “(1) where an order relating to any road has been made the order making authority shall take such steps as are necessary to secure: Before the order comes into force the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road. The maintenance of such signs for so long as the order remains in force, and Page 2 of 12 Case Number SQ 05135C ...”. Mr Hadlow’s argument is that the position of the “Zone” signs does not adequately alert drivers approaching from either end of the High Street. The roadside plates which are positioned at intervals within the parking areas and which are in the general form of diagram 662 in Schedule 2 of the 2002 Regulations are said to be ambiguous. My role in this appeal is to decide whether Mr Hadlow is liable to pay the penalty charge of £50. However it is clear that both parties are really seeking a determination, as far as I am able to make one, as to whether the Traffic Orders do impose the restriction on those parts of the High Street where the individual bays are marked. Both parties clearly consider this issue to be central to the dispute which has arisen between the Town and Borough Councils and I anticipate that whatever my decision the disappointed party will make further challenge by way of Judicial Review. I will therefore deal with all three issues but I will begin with the question of the clarity of signing because following the site visit this would seem to be the most obvious ground of challenge. The Signing The position of the relevant signing is best illustrated in the plan on a page which is numbered “46” in my bundle of documents. The intention is clearly to establish a “Disc Parking Zone” and at either end of the High Street there are four signs, one on each side of the carriageway which are a permitted variant of diagram 663 in Schedule 2 of the Regulations. The signs include the blue and red roundel which is generally used to denote a parking restriction and state “Disc Zone Mon- Sat 8am-6pm”. Underneath the signs on the Northern approach there is an additional plate giving the information “discs available from library”. The concept of the establishment of a Parking Zone is that if each entry point is signed on either side of the carriageway with the approved form of signing there is then no requirement for any further roadside plates to be used within the Zone, the idea being to reduce the need for street furniture. It is however the case that notwithstanding the intention to create the Zone there are a number of individual roadside plates, in the form of diagram 662 in the Regulations next to some of the blocks of parking bays. These signs are headed “Disc Zone” and include the times when the restriction is in force. The signs have been placed next to most but not all of the blocks of bays as illustrated on the plan. Page 3 of 12 Case Number SQ 05135C It became apparent during the site visit that the Zone entry signs although placed on either side of the carriageway are set well back on the other side of the parking areas so that they are not in my opinion easily seen by drivers approaching the start of the restriction. Drivers approaching from the Northern end of the High Street pass a sign on the nearside which is positioned on the other side of the parking bays and one on the offside which is rather closer to the carriageway. These signs are offset so that the Disc Zone appears to start at a different point depending on which sign is relied on. The nearside sign is situated about in line with the northern wall of the Sainsburys Supermarket whereas the offside sign is further down the road after the pedestrian crossing. In my judgment it is likely that a driver would find the nearside sign difficult to see and so may conclude that the Zone restriction begins at the point of the sign on the offside pavement which appears to exclude those bays outside the supermarket or at least those which are before the pedestrian crossing. That is particularly relevant in this case because Mr Hadlow had parked in one of the bays outside the supermarket. Drivers approaching along the High Street from the South would pass a Zone entry sign on the offside which is set close to the carriageway but the equivalent sign on the nearside is again set well back behind the parking bays. At the time of my visit the nearside sign was not correctly positioned and was facing rather away from the carriageway so making it even more difficult to see. I conclude that any driver approaching from this direction would have great difficulty in either seeing the sign on the nearside or reading the information on it from a moving vehicle. My first finding is therefore that the Zone entry signs are not well placed and do not adequately give drivers the information that they are entering a Disc Zone. Although there are further roadside plates within the area of the Zone which are generally fixed to a pole at the end of each block of marked bays some bays are not in fact clearly referable to one of the roadside signs. It is very much a question of fact in each case, depending upon where the vehicle is parked whether the driver’s attention would reasonably be drawn to the restriction. The ambiguity of the signing is compounded by the fact that there are a number of bays which are outside the Zone and where parking is free from restriction. At both the North and the South end of the High Street on the approach to the beginning of the Zone there are free bays on either side of the carriageway. Because no restriction applies there is no signing and as all the bays along the length of the High Street have a uniform appearance it would not necessarily be easy for a driver to distinguish what is an unrestricted bay, where there is no roadside plate and a bay which is subject to the restriction. Page 4 of 12 Case Number SQ 05135C Overall I consider the signing to be unsatisfactory mainly because of the poor positioning of the Zone entry signs and the fact that not all blocks of bays within the Zone are obviously referable to a roadside plate. In those bays next to which there is a visible plate I can see the argument that the restriction is reasonably signed and so any decision on an appeal relating to the quality of the signing would depend on where the vehicle was parked. On the facts of Mr Hadlow’s case his car was parked in a bay which is at the end of a line of four immediately outside the supermarket. This section of bays is separated from the blocks on either side and the position of the roadside plates in my view highlights the problem I have identified with the signing. There is a plate fixed to a post at the end of the blocks on either side but not at the end of the block where Mr Hadlow parked. Certainly the roadside plates on either side are clearly visible from the bay he used and of course Mr Hadlow knew what the restriction was intended to be. However I am less certain that anyone visiting the town or unfamiliar with the scheme would necessarily recognise that particular bay, or indeed the other three in the block, would be subject to the limited waiting restriction. Therefore on the facts of this case my judgment would be that the bay in which Mr Hadlow parked was not clearly signed as being subject to the disc restriction. Were it not for the fact that Mr Hadlow well knew about the intended restriction, although he may not have believed it applied, I would readily consider that the inadequacy of the signing was a reason for his appeal to be allowed. I have considered carefully whether his particular knowledge is sufficient to negate the problems with the signing but I conclude, because of the terms of Regulation 18 that I should decide the appeal on the basis of an objective assessment of the signing for this particular bay. Therefore because I am not satisfied that the signing would adequately convey the terms of the restriction to a driver parking in the bay I find that the contravention did not occur and I would allow the appeal for this reason. My view is that each case must be decided on its own facts and the outcome of the appeal, at least on the point about the signing, will depend on where the vehicle is parked. Whilst it is not my place to make recommendations about the signing one obvious step to improve it would be to ensure that the Zone entry signs are placed next to the carriageway where they are more visible and in line with each other so it is reasonably obvious where the Zone begins. During the course of the site visit it has been pointed out to me that there are variations between the positions of the bays as they are marked on the roadside Page 5 of 12 Case Number SQ 05135C and as they appear on the plan attached to the Traffic Order. There are a number of examples of this and it is of course the Traffic Order, together with the plan, which potentially defines the extent of a restriction. The bay markings must reflect the terms of the Traffic Order so that if a vehicle is parked in a marked bay which is not shown on the plan or which has an alternate restriction there is certainly an argument that a contravention would not occur. Similarly if a vehicle is parked outside one of the bay markings on the road but in a position where the plan suggests that parking is permitted the terms of the Order must take precedence. Having decided that because of the ambiguity of the signing a penalty charge is not payable it is not strictly necessary for me to go on to decide the other issues raised by Mr Hadlow. However I do recognise the importance to both parties of at least a preliminary decision on the remaining issues. The Bay Markings. All the bay markings in the parking areas are clear and it seems to me that any driver would be properly informed about the extent and position of each parking bay. Most of the bays are painted, on a cobbled surface although in some cases the painted lines have been replaced, with the approval of the Town Council, by white bricks which are illustrated in the photographs included in the bundle. The Borough Council has obtained the specific permission of the Department for Transport to replace the painted lines, which would be the signing required by the 2002 Regulations with the more environmentally satisfactory alternative and it is pointed out to me that when giving the authorisation the DfT do not raise any issue on the plan provided to them as to the general appearance and location of the bays. Indeed it is argued that in respect of those bays where permission for the particular road markings has been obtained I should find that at least implied permission was given for the layout of them. However in my view the DfT was only required to give authorisation for the use of the carriageway markings which were not prescribed in the 2002 Regulations. The authorisation was not intended to express a view either about the clarity of the signing or the compliance of the bay markings with diagrams 1032 or 1033. The point argued by Mr Hadlow is that to comply with the diagrams the bays must either run parallel to the carriageway or should be positioned at an angle between the carriageway and the kerb in the echelon style. Given the particular layout of the carriageway of the High Street and the areas on either side strict compliance with the diagrams would inevitably mean a substantial reduction in the number of available parking spaces. It is, I anticipate, for this reason that the bays have to a large extent been laid out in blocks although there are a large number of bays, particularly at the North end of the High Street, which are at right angles to the carriageway. Mr Hadlow does not make a point about these Page 6 of 12 Case Number SQ 05135C bays but rather challenges the propriety of the bays which have been marked in blocks. The Council points out the need to maximise parking space and this is a clear benefit of the layout. Further it is argued that in fact all the bays are substantially complaint with the 2002 Regulations because in between each set of blocks there is a short section of road, which is part of the highway, giving access to the parking spaces. Therefore each set of three or four bays in the block is at right angles to the “carriageway” of the short length of access road. This argument, in my view, has some force because whilst there is a single and definable carriageway along the High Street the access points to the bays are nonetheless part of that carriageway although running at right angles from it. In my judgment the form and position of the marked bays is substantially compliant with the 2002 Regulations. Any driver is clearly informed about the extent of each bay and that it is intended as a parking place. I am reinforced in that view by the terms of the judgment of the Court of Appeal in the case of Herron and Parking Appeals Limited v. The Parking Adjudicator, Sunderland City Council and the Secretary of State for Transport [2011] EWCA Civ. 905. In that case the Court was asked to consider alleged defects in the markings of on street parking places within a Controlled Parking Zone. The Judgment endorsed at least within the context of the facts of that case the principle that signing of a parking restriction is to be regarded as substantially compliant with the Regulations if it reasonably informs the driver of the terms and extent of it. The Judgment includes the following: “The question for the Adjudicator was whether the local authority had taken steps to secure that adequate information was conveyed to the Appellant as to the parking restriction that had been infringed. ... The test for invalidity is not ‘are the regularities trivial?’ but whether there is substantial compliance with the statutory definition. ... If the situation viewed as a whole is that the motorist is adequately informed of the parking restriction there is in my judgment no good reason to render the restriction ineffective. ... Indeed it is difficult to see what test should be applied in order to decide whether an irregularity is trivial other than could it have misled a road user as to the significance of a road sign? ... Page 7 of 12 Case Number SQ 05135C If by properly signed (the Adjudicator) meant that the sign had to be in substantial compliance with the statutory specification and not such as to mislead or fail to inform the motorist I would agree with this statement. If he meant that absolute and strict compliance with the specification of the sign was essential even if the motorist is adequately informed of the restriction in question he was wrong”. In my judgment the bay markings and their position do adequately inform the driver as to the extent of the parking places and I find that they are in fact substantially compliant with the 2002 Regulations. I would not therefore have allowed the appeal on this ground. The Traffic Orders This is the most contentious and in my view the most difficult point to determine. As I have already stated Mr Hadlow’s submission is that the Traffic Order is illegal but in my view the question for me is whether it in fact imposes, with sufficient certainty, the restriction on those parking bays which are included on the plan referred to. Article 5 of the 1998 Order states: “Authorisation and use of parking places. Each of the parts of the road specified in column of the schedule 1 to this Order is authorised to be used, subject to the following provisions of this Order as a parking place during the prescribed hours for such classes of vehicles as are specified in column 3 of schedule 1 and in such classes of vehicles as are specified in column 3 of the said schedule and in such positions as are specified in column 2 of the said schedule”. Article 7(1) states: “The driver of a vehicle shall on arrival of a vehicle at a parking place during the prescribed hours exhibit on the vehicle a parking disc in accordance with the following provisions of this article ...” The Article then goes on to describe how the disc is to be displayed and subsequent Articles impose the time limit on parking together with other restrictions on how a car is to be parked within the bay. Schedule 1 to the Order has four columns only one of which “Location of Parking Place” is relevant to my decision. Page 8 of 12 Case Number SQ 05135C Column 1 states: “The parking areas on the east and west side of the High Street, Yarm shown stippled on the plan”. When I considered the review application in the earlier appeal the argument was that the plan attached to the order was, because of its size and the fact that it was not to scale, no more than a “sketch” which could not properly define the areas to which Articles 5 and 7 of the Order applied. However during the course of the hearings in Mr Hadlow’s appeal the Council has provided the original and much larger version of the plan attached to the Order. The notes on the plan state “project Yarm High Street content parking arrangement” and it is dated “March 98”. It is agreed that the plan is not to scale but the Council argues that the position of each parking bay along both sides of the High Street can clearly be determined by reference to the adjacent buildings which are all numbered and those bays to which the restriction applies have been in filled with black dots which is properly described in the 1998 Order as “stippling”. The production of this plan is in my view important. Its dimensions make it much easier to determine the position of the bays to which the restriction applies because it shows each individual building along the length of the High Street, the position of the frontages and the postal addresses. By way of example the bay in which Mr Hadlow parked is clearly shown as being outside the supermarket, number 88 High Street, and in my judgment, having visited the area, the marking on the ground substantially reflects the position of the bay on the plan. It is not unusual for modern Traffic Orders to impose restrictions by reference to a plan which is usually drawn to scale in order to avoid the extensive recital of the dimensions of each parking place and it seems to me there is nothing wrong with that in principle. Those drafting the 1998 Order doubtless considered that because of the number of parking bays and the locations of the blocks it would have been wasteful in terms of time and cost to set out in feet and inches as it would then have been the dimensions of each bay and block. In my judgment it is very unlikely indeed that the bay markings on the carriageway do not reflect with sufficient accuracy the position of the bays, relative to the individual buildings on the plan. Whilst I can see that the small copy of the plan originally relied on by the Council in the earlier appeal is unsatisfactory the larger plan shows the extent to which attention has been paid to the detail of the position of the restricted bays. Page 9 of 12 Case Number SQ 05135C The 1998 Order was amended by the Borough of Stockton-on-Tees (Yarm High Street, Yarm, Stockton-on-Tees) (Traffic Regulation) Order 1998 (Amendment) (No.1) Order 2000. Article 2 of this Order states: “Save as hereby modified the borough of Stockton-on-Tees (Yarm High Street, Yarm, Stockton-on-Tees) (Traffic Regulation) Order 1998 (hereinafter called the 1998 Order) shall in all other respects remain in force and effect. 3. Plan 11/H35/228 to the 1998 Order is hereby revoked and replaced by the amended plan 11/H35/228A”. That is the number which appears on the bottom right hand corner of the plan produced to me. Stockton Borough Council clearly had the delegated authority to pass the relevant Traffic Order. It seems to me the only reason that it could have ever been considered void would be if the terms were unreasonable in the sense that Parliament had never intended to give authority for that type of order or perhaps more relevant on the facts of this case if there was sufficient uncertainty as to its meaning. However in the case of Percy v. Hall [1996] 4 All E.R. 523 the Court of Appeal approved the principle that: “A byelaw will be held void for uncertainty if it can be given no meaning or sensible or ascertainable meaning. But if the uncertainty stems only from the fact that the words of the byelaw are ambiguous it is well settled that it must if possible be given such meaning as to make it reasonable and valid rather than unreasonable and invalid ....”. The Judgement goes on to give the example: “A planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning and not merely because it is ambiguous or leads to absurd results. It is the daily task of the Courts to resolve ambiguities of language and to choose between them and to construe words so as to avoid absurdities or put up with them ...” Whilst of course the facts of Mr Hadlow’s case are different it seems to me that I should apply a similar principle when looking at the plan in order to decide whether any uncertainty caused by the fact that it is not to scale necessarily Page 10 of 12 Case Number SQ 05135C requires a finding that it does not give effect to the parking restriction which was clearly intended. In my judgment it is perfectly possible to resolve any ambiguity that may have been caused by the absence of a scale because it is reasonable to determine the extent of the intended restriction by reference to the position of the buildings fronting the High Street. Although I recognise that there was no specific reference in the terms of the 1998 Order identifying the attached plan the situation is clearly remedied by the 2000 Order and I am satisfied that Stockton Council has been able to demonstrate that the plan now produced to me was an integral part of both Orders. The issue of the drafting of a byelaw by reference to a plan was discussed in the case of Anderson v. Alnwick District Council [1993] 3 All ER 613. The facts of that case were not comparable to this appeal but the Judgment did appear to give approval to the use of a plan as part of a byelaw in the following terms: “Of course if the map did form part of the byelaw or if perhaps more accurately the byelaw has to be interpreted by reference to the map then these criticisms (about the confusion created by the production of the map as attached to the byelaw to anyone minded to enquire) are unfounded and fall away. In that event the Council acted properly in publishing the map so as to enable all interested parties of the public to know what the geographical scope of the byelaw was”. Therefore in answer to the question of whether the relevant Traffic Orders define with sufficient certainty the areas to which the intended disc parking restriction applied I am satisfied that they do. It is reasonably possible to interpret the plan as identifying the individual parking bays to which the restriction applied and I am satisfied that the markings on the carriageway substantially reflect the terms of the Traffic Order by reference to the plan. I am satisfied that any variation is likely to be minimal and of no practical effect. It follows that I would not allow the appeal on the basis that the Traffic Order was void for uncertainty or that it did not properly impose the restriction on the relevant bays. My concern as I have expressed at the outset of this decision is that the on street signing for the particular bay in which Mr Hadlow parked was ambiguous and whilst each case will need to be considered on its own facts, depending on which bay the vehicle was parked there is potential for challenge to the issue of a PCN on the basis of the ambiguity. I would also consider that any driver who was unfamiliar with restriction and did not have parking disc would need sufficient time to make enquiries as to how to get one. It is unreasonable to demand that a Page 11 of 12 Case Number SQ 05135C disc is displayed as soon as the vehicle arrives and that is not in my view what the TRO requires. Again it would be a question of fact in each case whether the vehicle had been left for a reasonable time whilst the driver was obtaining the disc. I appreciate that Mr Hadlow and Yarm Town Council will be dissatisfied with my findings about the Traffic Orders and may well attempt to make further challenge by way of Judicial Review. If in fact my decision cannot be the basis of continuing dialogue between the Town and Borough Councils that would be an appropriate step because it seems to me that much time and considerable resources are being expended on this dispute when the parties have to at some stage reach the position where they are both prepared to accept an authoritative judgment. However my decision in this case is that the Appellant is not liable to pay the penalty charge. Stephen Knapp Adjudicator 2 December 2012 Page 12 of 12 Case Number SQ 05135C magpie7
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