The case went to the Court of Appeal in a hearing that lasted two days from 14-15th of March.
MAG’s Transport Policy Advisor, Dr Leon Mannings has been helping to develop the case against the scheme with a legal team that was led by Barrister Philip Coppel QC, with Junior Barrister, Heather Emmerson and Solicitor, Gurm Sanger. The lawyers were acting for Warren Djanogly who is chairman of the No To Bike Parking Tax (NTBPT) campaign, but he lodged the claim as an individual citizen.
The Appeal was heard in response to a High Court judgement in June, which stated that Westminster City Council had used Traffic Management Orders lawfully to impose new charges for use of solo motorcycle bays. But ‘leave to appeal’ against that ruling was granted on six grounds, with permission to raise a seventh during the Appeal Court Hearing.
In essence, the appellants claimed there was no demonstrable traffic management benefit from introducing new fees to park bikes in solo bays. Conversely, the council claimed there was an ‘ever increasing demand for motorcycle parking’ and that ‘measures of restraint’, including new charges, could be justified to ‘manage’ that demand. The court then heard that the council had no evidence of ‘ever increasing demand’, and cabinet papers stated that demand for bike parking had not risen prior to the permanent scheme coming into force in January 2010, or since.
Traffic Management Orders require a ‘traffic management benefit’ in order to justify any new fee scheme, and tangible revenue raising through subcontracted services contravenes the Traffic Management and Local Government Acts. So, Traffic Orders cannot be lawfully used to impose what is effectively just a new tax. And, as a matter of fact although it was not mentioned in court, this was especially critical in this case as Westminster council had already built up a ‘surplus’ of around half a million pounds from an experimental version of the scheme, prior to its’ decision to introduce a new ‘permanent’ bike parking fees scheme. The argument on the first day led to a claim that the council couldn’t use Traffic Act powers lawfully to charge riders to park in on-street bays.
However, one of the judges did not find this argument ‘attractive’, and seemed to prefer a simpler view; if car drivers have to pay to park on public highways, motorcycle riders should too. This led her to voice an opinion that even though the council’s actions may not have been entirely within the law, they ought to have the power to charge for on-street bike parking if they wish. In turn, that led to a suggestion that the preceding High Court ruling may have been right as it said that Westminster were entitled to use Traffic Orders to ‘terminate discrimination between cars and motorcycles’.
On the second day, Dr Leon suggested to the lawyers that the point could be made that comparing motorcycle parking with car parking should be balanced by a comparison with bicycle parking as well. Discrimination is applied to demands for bicycle parking in contrast to car parking, in that drivers pay and cyclists do not. A crucial reason to maintain such discrimination is that bicycles contribute less to congestion problems as they are single track vehicles, whereas cars vans and lorries are twin-tracked vehicles. But motorcycles are also single-track vehicles, so there is good reason to treat them differently to cars, and in similar ways to bicycles. Unfortunately, bicycles were never mentioned during the two days, so that point did not receive consideration.
Another key reason for the permanent scheme to be deemed unlawful was that the entire ‘consultation’ about it was skewed in a way that was made clear in the witness statement submitted by Dr Leon in the original High Court hearing. Throughout all consultations, the council said that the main reason for a permanent new fees scheme was to pay for improvements to motorcycle parking in the borough. Equally importantly, they said that ‘demand management’ or ‘restraining’ motorcycle use was not a reason for a permanent version of the scheme.
Crucially, the High Court ruling in June 2010, said that the council had imposed the permanent fees scheme lawfully because the main reason for it was ‘to improve on-street parking availability for motorcyclists’. But, in fact, when the official ‘reasons’ for the new ‘permanent’ scheme were published, on 22nd January 2010, coming into force four days later, there was no mention of any improvements. Instead, the only reason for “small” charges from then on was due to ‘ever increasing pressure on Westminster’s kerbside space’ and ‘motorcyclists’ increasing use of and demand for these limited resource’”. Put simply, all consultees had been misled by being told the official reasons for the permanent scheme was to pay for improvements, when in the end it turned out that officially they were only for ‘demand management’, without evidence to show that demand had increased.
Three Appeal Court judges are now considering the case against a permanent version of bike parking fees scheme that still looks more like a tax to us, than a measure to manage traffic better. Dr Leon expressed concerns having observed all the proceedings. “We can only hope that the case presented against this new tax for bikers has done enough to persuade the Appeal Court judges that they should overturn the High Court ruling, and to say now that Traffic Act powers were not used lawfully to introduce the scheme. But I am left with serious doubts, and just hope that they turn out to be unfounded.” A judgement from the Court of Appeal is perhaps due in around six weeks. We will publish news here as soon as we have it.