The reasons why civil enforcement has been and continues to be unlawful are numerous, too many instances being due to slovenly inattention to the well-established Statutory Regulations that govern all aspects of enforcement, most of which are very clear to understand without difficulty.
A traffic authority must first create the required parking and traffic restrictions and authorise them in their bye-laws (‘Traffic Management Orders’ within London and ‘Traffic Regulation Orders’ outside London) ensuring that all restrictions and other content of their Orders are rational and not in themselves unlawful.
The traffic orders must not be out of date and they must correctly revoke prior orders. Authorities must ensure that they don’t invent their own unenforceable meanings of important things which have statutory meanings and must ensure that their traffic orders and restrictions don’t contain obsolete terminology that has been superseded by current legislation. Authorities sometimes forget that their traffic orders mean exactly what they state and not what they intended to state.
Otherwise-satisfactory temporary traffic orders have been found to have been unlawfully enforced after their expiry date and others have been fatally defective in part for conflicts with prior orders not correctly revoked.
Further to all of that some areas of the highway have been unlawfully signed with restrictions that are not even included in the relevant traffic order.
Signing the restrictions
Having created a valid traffic order, signs must be erected and maintained so as to give road users ‘adequate information’ of the restrictions. The only signs (including road markings) permitted by the Road Traffic Regulation Act 1984 being ‘traffic signs’ which are those prescribed by the Traffic Signs Regulations and General Directions 2002 (TSRGD) - unless they have been specially authorised differently by the Secretary of State for Transport. Some courts and tribunals have found that signs must comply precisely with statute, others that ‘substantial compliance’ is sufficient providing that ‘adequate information’ is given.
NMAG believes that this confusion in law should be resolved by Parliament and that allowing local authorities to dabble with detailed and carefully constructed laws on this issue can only lead to confusion amongst motorists and road safety issues.
The condition of road markings in many areas is in an appalling state of repair and many road markings, including newly-made markings, very obviously do not comply with the clear and simple specifications of the Regulations which are understandable to an intelligent schoolchild. The level of incompetence and indifference on the part of some authorities is appalling and inexcusable. If the authorities concerned cannot or do not trouble themselves to sign their restrictions properly they should not presume themselves entitled to penalise drivers for contraventions.
Similarly, in the case of speed limits including temporary speed limits that may be in effect for a long period of time in connection with major road works, the signing must be in compliance with statutory requirements and the restriction accurately described in the relevant traffic order.
Invalid enforcement documentation
Since 31st March 2008 local authority parking enforcement must be operated in accordance with the Traffic Management Act 2004 and the associated Regulations of 2007. Penalty charge notices and related enforcement documents state this at the beginning.
Parking enforcement under the 2004 Act requires that an enforcement authority’s PCNs and other documents themselves must comply with the Regulations which some do not in one or more respects. Enforcement documents must all be issued in accordance with prescribed time scales and certainly not prematurely.
There have been and remain too many instances of these penal documents which do not comply with the requirements prescribed by these 2007 Regulations which are very clearly written and easy to understand.
Unlawful issuing of penalty charge notices
Where parking enforcement is operated by means of CCTV observation the CCTV equipment must conform to prescribed standards and have been officially certified as an Approved Device for enforcement purposes.
An enforcement authority must be able to produce an approved device certificate in relation to each different set of CCTV equipment they operate for civil parking enforcement purposes failing which there enforcement operations are unlawful.
Regulation 6 of the 2007 General Regulations prohibits the issue of any CCTV-originated PCN if the CCTV equipment is not certified as an approved device. Many thousands of such PCNs have been wrongly issued with no lawful basis and hundreds more have been cancelled at parking appeals where the CCTV equipment involved was shown to be not compliant with regulatory requirements.
Excuses and Refunding
Compliance by enforcement authorities with all of the statutory requirements imposed on them is not difficult. The regulatory requirements are clearly written and easy to understand. Failure to comply with many of these requirements renders enforcement operations to have no lawful basis.
The extensive failure of many authorities to comply with these requirements to the present day has been and remains scandalous with no acceptable excuse. Failures of compliance are due either to indifference to necessary procedure or incompetence, this being on the part of officers employed to know and do their jobs properly. NMAG expects them to do their jobs properly before demanding penalty payments from motorists.
Many authorities do manage to conduct their enforcement in compliance with all of these essential requirements so there is no reason why the others cannot do the same. When fatal errors on the part of an enforcement authority are discovered it behoves them to cease erroneous enforcement forthwith, put matters right, and set about ensuring all those who have been wrongly penalised are enabled to have refunded their penalty charges or fines which should not have been imposed in the first place.
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