UPDATED FEBRUARY 2014
This section reports a number of enforcement authorities which have properly made refunds to motorists of parking and traffic penalties that had been taken in situations where the issuing of penalty charge notices and speeding fines had not been on a lawful basis.
In some of these cases the authority behaved impeccably from the outset by being up-front about their error and agreeing the necessity for refunding of all penalty payers but in other cases either the admission of enforcement error or the intention to make refunds to all who were entitled to them was not initially forthcoming.
Hertfordshire County Council – Hemel Hempstead bus lane fiasco
A salutary situation at Hemel Hempstead demonstrates the worst and the best of local authority conduct in the enforcement of parking/traffic restrictions.
In June 2012 Hertfordshire County Council commenced the process of of all possible penalty charge payments unlawfully taken in relation to a link-road ‘bus gate’ at Moor End Road in Hemel Hempstead BBC press report. The issuing of Penalty Charge Notices had commenced in early August 2011 at this location where the traffic order was defective and incorrect signage was installed that was not lawfully enforceable and not able to be readily seen by drivers.
The restriction was intended to prohibit traffic in both directions at all times except for buses and taxis but enforcement was grotesquely ineffective and senselessly punitive as was obvious in the first weeks of operation in August 2011 during which PCNs were issued to the value of £16,000 per day. Per day!
NMAG questions why such self-evident council ineptitude was permitted to continue when it was clear to the world their abysmal failure to achieve any resemblance of compliance with the restriction. That Council members should have permitted such ineffectual enforcement to persist is lamentable and demands investigation of who was responsible for this misuse of local authority powers by permitting it to continue.
The involvement of the No To Mob in this fiasco deserves much credit. By lawful means only, and at substantial expense to their motorcyclist members, this group strives to combat misuse of parking and traffic enforcement, especially by means of CCTV observation as at Hemel Hempstead.
By their repeated visits to the site No To Mob riders warned some 10,000 drivers who were inadvertently approaching the penalty trap to look at the warning signs which, for obvious reasons, they had failed to see. This prevented unintended contraventions and undeserved penalties.
The Council continued their futile enforcement for over six months during which time they refused to discuss the situation with the No To Mob and wrongly refuted their correct criticisms of the incorrect and ineffective signage.
Enforcement ceased following a 30th March 2012 appeal decision of the TPT Chief Adjudicator in which she found that the restriction was unenforceable for the inadequacy of the signage and also for the traffic order being defective.
NMAG cannot understand how the incorrect unlawful warning signage which was extensively criticised from the outset came to be installed in the first place. It is shocking that the Council member with primary responsibility intransigently insisted that their warning signage was compliant with the 2002 statutory signage Regulations when ten minutes of reading the Regulations and Directions shows it to have been nothing of the kind. The total non-compliance of the signs rendered them not to constitute lawful traffic signs and therefore to have been prohibited by the Road Traffic Regulation Act 1984 from placement on the highway.
The signs wrongly comprised an upper prohibitory symbol (Regulations sign diagram 619) and a wrongly-worded lower text sign stating the exceptions (intended to be a sign to Regulations diagram 618.1). Because the upper symbol cannot indicate any exceptions, the lower sign was worded contrary to the clear specification of sign 618.1, and a correctly-worded sign 618.1 must not in any case be used in conjunction with the 619 sign the combination was unlawful in its entirety as was readily knowable to the Council which devised it.
Also, because lawful traffic signs were never installed, whatever validity there might have been in the traffic order it could never have come into force to enable lawful issuing of penalty charges. There were therefore not actually any restrictions in force at this ‘bus gate’ capable of being contravened by any driver since the unlawful and badly-installed signs were put in place in August 2011.
Like the No To Mob, NMAG thinks that the motoring public have been irresponsibly harassed by the inadequacy of those of the Council who were responsible for this fiasco and should be held to account.
By contrast, however NMAG applauds the honesty and exemplary behaviour of those wiser heads in this Council who were responsible for ensuring that all possible refunds would be made to those who had paid penalty charges. Enforcement rating: 0% – refunding rating: 100%.
The Council had correctly realised that none of the unlawfully-taken penalty charge monies had come into its lawful ownership and had therefore to be disposed of in its entirety. Whatever monies could not be refunded to the payers would have to be donated to charity and not remain to the credit of the Council's accounts.
The Council then wrote an apology to every penalty charge payer inviting them to claim the refund to which they were entitled (by completing a response slip). The option was given for the recipient to authorise his/her refund to be paid instead to a Berkhamsted Hospice.
At March 2013 the refunding process was completed. Over £800,000 has been repaid to the penalty charge payers and a remainder of £136.000 has been paid to the Hospice of St Francis.
Sunderland City Council – penalty refunds August 2006 and later
This enforcement authority discovered on completion of a city-wide audit of traffic orders and signs and lines on the street many errors and non-compliances in both. It had become clear that all of the conditions necessary to enable commencement of lawful civil parking enforcement had not been met by the Council when it began enforcement operations.
Refunding of those affected was later put into effect. At August 2006 the Council was making all practical efforts to trace every affected penalty payer and had then refunded over £57,000 with more than another £6,000 of due refunds in progress. As is recently the case with Hertfordshire County Council, they declared in their press release that un-refundable monies (which did not belong to the Council) would be donated to a road safety charity.
The penalising of disabled-badge drivers who had parked in Sunderland taxi ranks and in loading bays was also challenged. On taking legal advice the Council accepted that their penalty charges should not have been imposed and set about making all relevant refunds by writing to each of the penalty payers, this causing nearly £32,000 to be repaid.
It is regrettable that it took two years for the Council to agree the reimbursement of some of these penalty charges after having ceased enforcement. However, in the event it appears that the manner of these refundings to correct the Council’s erroneous enforcement was exemplary.
South Tyneside Council – expired traffic order
This enforcement authority discovered by chance in February 2010 that a temporary traffic order relating to an off-street car park had expired at the end of April 2009. Accordingly there had been no power after expiry to issue penalty charge notices for non-existent contraventions.
Enforcement immediately ceased and, to the Council’s credit, of their own volition they promptly contacted all of the payers of the penalties taken in this period and set about paying the necessary refunds.
Only 207 penalties were refundable to a modest value of nearly £6,000 but the performance of this authority on discovery of their oversight was correct and exemplary.
Arun District Council – traffic order error
This enforcement authority discovered and reported in November 2010 their inadvertent failure to have completed a traffic order relating to an off-street car parking at Shoreham. This should have been done in October 2008 so the subsequent two years of enforcement at this car park had had no lawful basis.
In the same exemplary manner as South Tyneside Council this authority set about promptly contacting all of the penalty payers to enable their refunds to be made.
London Borough of Camden – bus lane error
In another combination of bad and good enforcement conduct Camden Council has refunded penalty payments consequent on PCNs issued to drivers using a bus lane in Bloomsbury Street
A temporary traffic order which had been in place from January to June 2009 suspended the bus lane restriction because of road works but enforcement wrongly continued during this period. During this period an Oxford delivery driver who had been wrongly penalised discovered the facts of the situation. The onus was immediately on the Council to recognise their error and refund all of the penalties paid where the alleged contraventions had not actually occurred.
After two years of deplorable resistance to this driver’s efforts the Council relented and agreed to his penalty being refunded together with all of the other unlawfully-demanded penalties that had been paid.
This unnecessary resistance to correcting their mistakes which is typical of too many enforcement authorities was finally ended when, to the credit of this Council, it set about ensuring that all of the £50,000 taken in wrongful penalties was refunded to those who had paid them.
News story from the Camden New Journal
London Borough of Southwark – road marking error
A member of the No To Mob discovered that a length of road in Southwark was wrongly kerb-marked with yellow no-loading kerb stripes for some distance beyond the limit of the restriction authorised by the traffic order. After informing the Council of this error the incorrect road markings were removed in November 2010.
It later transpired that, in the period January to November 2010 over 550 penalty charge notices had mistakenly been issued at this location where, as the Council acknowledged, these assumed contraventions had not actually occurred.
To the credit of the Council, upon becoming aware of the wrongfully-issued PCNs the Council proactively refunded all of the penalty money to those who had paid them.
Cherwell District Council – unreasonable conduct
As a result of five complaints about the Council being made to the Local Government Ombudsman concerning inadequacy in providing information about newly-introduced parking charges in this Oxfordshire district, the Ombudsman in February 2012 found maladministration for the Council’s failure to have acted fairly and reasonably in the matter.
A Council spokesman said that the Council did not agree with this finding (they would say that, wouldn’t they?) but, as a result of this finding the Council is refunding the penalty payments. Commendably the Council has correctly written to all of those who had paid parking penalties in the relevant period 4th to 13th April 2011 to enable their penalties to be refunded.
The Council believes it had met all necessary requirements to announce their changes but was oblivious to the obvious rapid increase in PCNs issued after the start date when charges were first introduced. The penalties being refunded amount to £11,600.
News story from the BBC
Westminster City Council – unlawful signage
In a case of fully-satisfactory enforcement behaviour which has followed reprehensible behaviour, and The Council’s protracted resistance to correcting it, Westminster Council eventually refunded all penalties paid as a result of motorists being misled by an unlawfully-installed traffic sign at Golden Square in Soho.
After decades of legitimate travelling ahead at a junction a sign was erected forcing drivers to turn left, this coinciding with mobile enforcement vehicles (spy cars) being assigned to observe the junction. These MEVs frequently operated in a covert manner hidden behind a parked vehicle from which they issued £120 penalty demands to motorists mostly unaware of wrongdoing.
On discovering this drivers’ honey trap motorcycle riders of the No To Mob intervened whenever they had the time by directing drivers’ attention at the junction towards the new sign and the spy car nearby waiting to penalise them. The great majority of many hundreds of drivers assisted in this way in the months before Christmas 2008 were grateful for being prevented from making a mistake they would have been unaware of to the massive profit of Westminster Council.
The reality is that the drivers were fully entitled to continue proceeding ahead in disregard of the new sign. When the No To Mob investigated the situation they discovered that no change had been made to the long-standing traffic order relating to that area so the signage change made by the Council had been made with no lawful authority. Every penalty charge notice issued had been unlawful for alleging a non-existent contravention.
The Council later admitted that 52 penalty charge notices had been cancelled upon their being immediately challenged, that alone demonstrating the dubious nature of their enforcement. They admitted that (unlawfully-demanded) penalties amounting to over £16,000 had been paid yet no action had been taken by the Council to refund the penalty payments to all of those who had been misled into paying them.
The Council admitted their enforcement error in a little-seen press briefing article, knowing that it could not possibly have been discovered by the majority of wrongly-penalised drivers from outside the area. The further inadequacy of that was that it merely referred to the opportunity to access a standard form on which representations could be made, this having no reference to the unlawful sign in question and the automatic refund that should have followed.
After further dogged persistence by the No To Mob the Council eventually relented and proactively wrote to all of the 226 remaining drivers who had not had their penalties refunded.
Credit is due to the Council for eventually ensuring that all of the unlawfully-taken penalties were refunded, but no credit is due for having resisted refunding until they were forced to do so.
News story from the London Evening Standard
Westminster City Council – misleading taxi bays
Westminster City Council installed dual-use taxi bays in three central London streets at the beginning of 2013. Typical of many unsatisfactory dual-use parking bays they were very confusing to many thousands of drivers who were confused by the misleading parking signs into parking during the evenings when the bays were intended for use only by taxis.
An unmissable parking sign showed that payment was required but only in the daytime hours and the road was marked as a normal parking bay. Not having any reason to look beyond that clear information drivers did not see that there was another sign far above that one which showed the bay to be for taxis in the evening.
The press reported in June the massive amount of penalty charge money taken by Westminster Council at these three bays which were so profitable they were known as ‘Superbays' – a licence to print money.
The Council insisted that the signage was perfectly clear even though the bays were not marked in yellow as is specified for a taxi bay. They refused to admit there was anything unsatisfactory but civil enforcement officers were regularly seen waiting in readiness for the endless supply of victim drivers who were misled into parking. As soon as the drivers departed penalty charge notices were issued.
After many months of persistent lobbying by NMAG's associate, London parking campaigner Paul Pearson, Westminster Council eventually changed the signs and agreed on 14 November 2013 to refund all of the paid penalty charges amounting to over a £1/4 million.
London Borough of Richmond on Thames – unlawful CCTV penalty charge notices
It is reported separately (CCTV and ANPR enforcement) how, by laxity on the part of one or more Council officers concerned, the CCTV equipment installed on two mobile enforcement vehicles in use prior to January 2011 had not been not certified as an Approved Device. Also, in respect of two new replacement MEVs introduced in January 2011, Approved Device certification had not even been applied for.
The 2007 General Regulations expressly prohibits the imposition of any parking penalty arising from CCTV observation unless the CCTV equipment has been certified as an Approved Device. Therefore, none of the PCNs issued in a two-year period from 31st March 2009 had been lawful demands causing just over £1M of penalty payments to the Council to have constituted unlawfully-derived income that did not belong to the Council.
The Council’s response to the situation was in turn commendable, very unsatisfactory, and finally exemplary.
The Council had already declared itself to have changed to an enlightened attitude to parking enforcement in the shape of ‘humane parking enforcement’. Their policy then stood as intending to be efficient and effective by means of fair and reasonable enforcement as distinct from the punitive financially-driven behaviour of too many other councils.
In July 2011, on completion of its investigations and after taking advice of counsel, the Council commendably admitted its unfortunate errors, the consequential illegality of the penalty charge notices that had been issued to more than 20,000 drivers and declared its intention to refund the penalties that had been paid.
However, this supposed readiness to refund the penalty payments to all of the payers, every one of whom had equal entitlement to a return of their money, was viewed by the No To Mob and by the London Motorists Action Group (LMAG) as being wholly unconvincing. The Council was firmly resolved to make refunds by the futile method of advertising the opportunity of refunds by advertisement in the local press.
This was in the Council’s knowledge that only a small proportion of the penalty payers could ever get to see the press announcements and only a small proportion of those would even have details of the event going back over two years, then often not knowing whether their PCN had been issued legitimately by means of a fixed CCTV Camera or illegally by a MEV. The intention to advertise could only possibly result in an eventual un-refunded sum approaching £1M none of which belonged to the Council and could lawfully be retained.
The name and address of every penalty payer was already known to and catalogued by the Council as is always the case when CCTV enforcement is used.
The Council bizarrely argued that they could discover no lawful power to make any refunds, this being despite requiring no such power as many other authorities have recognised, and despite having no power to keep and use any of this money which did not belong to it.
The Council’s reported legal advice, as has been stated by other councils, was that they don’t “need” to refund the unlawfully taken penalty money (whatever that is supposed to mean) but, whatever value that might have, was irrelevant to their purported readiness to make refunds to all of the payers but intending to do so by knowingly ensuring that most payers could have no opportunity to obtain their refund.
LMAG was bewildered by this irrational stance and made known to the Council details of many other authorities (as reported here) which had pro-actively contacted all penalty payers to ensure the opportunity of all due refunds. LMAG was dismayed by the Council’s emphatic disregard of this proper conduct by others and reminded the Council that retention of any money they would fail to refund would be criminal conduct contrary to the Theft Act.
The Council persisted with its intention to advertise their wrongful penalties and invite motorist to “appeal against their PCNs under a Traffic Management Act-based appeal process”. LMAG made plain to the Council there was no such process possible under the Act with appeals being possible only against un-paid penalties as Regulations make fully clear. On being challenged to identify a provision in the Act that enabled their irrational notion of an “appeal process” the Council admitted being unable to do so.
The Council was later warned by LMAG that if they proceeded with their refunding advertisement intention which had no statutory basis and would also leave the Council open to prosecution, an objection to their un-refunded unlawful income would be made to the District Auditor to disallow it from the Council’s accounts. Soon afterwards the Council’s published intention to advertise was abandoned in favour of properly writing to all those entitled to refunds which they did.
To the credit of the Council, after abandoning their irrational and ineffectual advertisement intention, they put in process a fully satisfactory and lawful process of ensuring that all possible refunds would be made. It is unfortunate that it took determined efforts of the No To Mob and the London Motorists Action Group to achieve the eventual proper outcome which could have been implemented at the outset as many other authorities have done.
Essex County Council – inadequate misleading Colchester bus lane signage
By the end of 2013 there had been a massive number of PCNs issued for bus lane contraventions in two Colchester Streets amounting to about 30,000. It seems inexplicable that the excessive extent of such contraventions had not long before automatically alerted the authority that drivers were probably not to blame and that remedial action was required.
However, following repeated objections from penalised drivers that the warning signage was not fit for purpose together with petitions on the matter, the Council commendably recognised that enforcement should not have been in operation at these two places and set about correcting the warning signage to an adequate standard.
In exemplary conduct that should be adopted by every enforcement authority in such a situation it was announced on 8th January 2014 that all outstanding PCNs were being cancelled and that all paid penalty charges would be refunded, the total value being estimated at about £1M.
In contrast to the evasive misbehaviour of some other councils Essex County Council made it clear that no action need be taken by anyone who had already paid a penalty charge. The Council will be automatically and pro-actively making arrangements to ensure that all refunds would be made without a need for application from motorists. This was reported in the press following a press release by the County Council.
Instances of inadequate penalty refunding
All of these foregoing reports concern enforcement authorities which have correctly notified (as far as they were able) every payer of a parking or traffic penalty following discovery that their penalty charge notice or speeding ticket had not been lawfully issued.
NMAG will be reporting from time to time the behaviour of several enforcement authorities whose refunding performance has been unsatisfactory or non-existent.
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