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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 05/09/2006
DECRIMINALISED (CIVIL) PARKING ENFORCEMENT



Summary & Purpose
The purpose of this report is to update the Executive on the progress of the introduction of Decriminalised (Civil) Parking Enforcement into the Borough and to seek authority for a number of procedural actions required in connection therewith.

APPENDIX F
Waverley Borough Council

EXECUTIVE - 5TH SEPTEMBER 2006
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Title:
DECRIMINALISED (CIVIL) PARKING ENFORCEMENT
[Wards Affected: All]
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Summary and purpose:

The purpose of this report is to update the Executive on the progress of the introduction of Decriminalised (Civil) Parking Enforcement into the Borough and to seek authority for a number of procedural actions required in connection therewith.
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Environmental, Social and Community implications:

Effective parking management reduces traffic congestion and the associated vehicle exhaust emissions, enhances road safety and the environment and contributes to the social and retail vitality of our towns and villages.

E-Government implications:

Robust and extensive IT systems with electronic data links to the Parking Services Contractor, DVLA, National Parking Adjudication Service and Traffic Enforcement Centre, will be fundamental to an effective and efficient enforcement operation.

Resource and legal implications:

There are resource implications both in preparing for, and introducing, decriminalised parking enforcement in respect of both on-street and off-street parking. The adoption of the Road Traffic Act 1991, both on-street and off-street, will require an expansion of notice processing staff, management and IT facilities. Additional support will be required from Finance, Legal, Audit and Complaints Handling staff.

Financial Implications:

There are financial implications referred to in the report.
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Introduction:

1. The implications of the introduction of Decriminalised Parking Enforcement (DPE) into the Borough and of Waverley’s management of the enforcement of the on-street parking regulations, as agent of the Traffic Authority, Surrey County Council (SCC), were set out in a series of reports to the Executive, Environment and Leisure Overview and Scrutiny Committee and Council during 2005.

2. At its meeting of the 12th July 2005, the Executive resolved that:-

(i) Surrey County Council be advised that Waverley Borough Council is prepared to manage the enforcement of decriminalised on-street parking enforcement in the Borough of Waverley on condition that Surrey County Council funds the provision of four full-time equivalent Parking Attendants and the appropriate level of supporting management, administrative and Notice-processing staff and associated overheads; and

(ii) The Director of Environment and Leisure, Director of Finance and Head of Legal Services be authorised to agree the detailed terms and conditions of an Agency Agreement for the management by Waverley Borough Council of Decriminalised Parking Enforcement in the Borough of Waverley.

Surrey County Council was accordingly advised of the Executive’s resolutions.

3. Having considered a further report on the matter, together with the observations of the Environment and Leisure Overview and Scrutiny Committee, the Executive, at its meeting of 11th October 2005, resolved that:-

“The negotiations with Surrey County Council on its request for Waverley to manage on-street decriminalised parking enforcement in the Borough should be continued and that further representations should be made at both officer and Member level to secure a minimum of four on-street Parking Attendants for the Borough”.

These recommendations were adopted by the Council on 25th October 2005 and were acted upon by officers and Members immediately thereafter when the proposals on the resourcing of Waverley’s DPE operation were re-submitted to SCC.

4. Earlier this year SCC agreed to the funding of a resource model that satisfied that resolution. Detailed negotiations on the Agency Agreement were resumed by officers, in accordance with the Council’s resolution, and preparations for the requisite application to the Secretary of State for Transport (SoS), for the powers of civil parking enforcement to be granted to Waverley and Surrey, have been in progress since that time. A number of actions/resolutions by the Council are now required for that purpose.

Special Parking Area (SPA)

5. SCC and its agent WBC will not have the legal authority to undertake civil parking enforcement until the SoS has approved the enforcement arrangements and has made an Order under the Road Traffic Act 1991 (RTA 91), that designates the geographical area to which these arrangements will apply (ie the Borough of Waverley) a Special Parking Area (SPA). Each Order must be laid before and approved by Parliament.

6. One of the purposes of DPE is to have one system of parking control and enforcement that is common to both on-street and off-street (car parks) parking places, for the convenience and ease of understanding for the driver. It enables Parking Attendants to issue common Penalty Charge Notices and Notice-processing staff to operate one system of processing. The SPA will therefore encapsulate the whole Borough including the Council's off-street car parks.

The Waverley Borough Council (Off-Street Parking Places) Order

7. Authority to impose regulations on the use of its off-street car parks and to impose penalties for their misuse (eg not purchasing a parking ticket) is currently provided in the Waverley Borough Council (Off-Street Parking Places) Order which is made in exercise of the Council’s powers under the Road Traffic Regulation Act 1984 (RTRA 84). Under this legislation the Council is empowered to issue Excess Charge Notices (fines) for breach of the Regulations and also determine any appeal against their issue i.e. the Council is effectively “judge and jury” on the matter.


Operating Car Parks under the Road Traffic Act 1991

8. When the Borough of Waverley is declared a Special Parking Area under the provisions of the RTA 91 for the purposes of civil enforcement of the on-street parking regulations, the Council will be obliged to also operate its car parks under that Act rather than under the present RTRA 84. The implications of this are:

(i) the Parking Attendants (PA’s) will issue Penalty Charge Notices (PCN’s), in common with the on-street parking enforcement officers, instead of issuing Excess Charge Notices (ECN’s);

(ii) the Council’s Notice-issuing and processing hardware, software, car park signing, public information and enforcement procedures will need to be adapted to the provisions of this Act;

(iii) the offending motorists will have the right of appeal, against PCN’s issued to them, to an independent tribunal, the National Parking Adjudication Service (NPAS);

(iv) the Penalty Charge levels off-street must be co-ordinated with the on-street penalties; and

(v) the Council must make a Consolidation Order consolidating the provisions of the Waverley Borough Council (Off-Street Parking Places) Order under the RTA 1991.

Revised Parking Order

9. The existing Off-Street Parking Places Order was last revised in 1997. Tariff changes are authorised by simple Amendment Orders that only require publication of prior notice in car parks and the local press. More substantive changes (eg inclusion of new car parks or changes in conditions of use) must be authorised by the making of a new Order which requires consultation and a period for receipt of objections and their consideration. The existing Order requires modification to make it “fit for purpose” in the following areas:

(i) changes to the wording are required to emphasise that the Excess Charges (fines) are penalties, not an additional parking charge. This is to ensure that the Council does not need to account for VAT payments on Excess Charge Notice income (currently 250,000 per annum) following a ruling by the VAT Tribunal that, provided it is made clear that the charge is a penalty (in the Order, on the ECN and on the tariff boards), VAT is not payable;

(ii) the Burys Office car park and the Flambard Way staff car park need adding to the Schedule in the Order, in the Monday to Friday period, so that enforcement action can be taken against use of reserved spaces by those not entitled to do so; and

(iii) clarification of various conditions of use is required to prevent misuse of the car parks and to overcome challenges to enforcement action in some areas.

10. The Consultant preparing the SPA Application on behalf of SCC and advising both Councils on the process, has advised that changes to the Off-Street Parking Places Order are best introduced under a new Order made under the RTRA 1984, which will simplify and expedite its consolidation under the 1991 Act. It is therefore proposed to make a new Order accordingly.

Resolutions Required by Waverley for the Special Parking Area Application to the Secretary of State for Transport

11. SCC is anxious to make its SPA Application to the SoS in respect of DPE in Waverley. It has made the requisite resolutions for that process on a County-wide basis. Those resolutions also need to be made by Waverley as agent of SCC for the enforcement function. They are:

(i) a resolution confirming that Waverley will undertake the enforcement of decriminalised parking in the Borough as agent of SCC. The Council at its meeting of 25th October 2005 approved the Executive’s resolution to that effect, but that was made conditional upon agreement with SCC of the resourcing of the Patrol Attendant function. That resolution must now be made unconditional;

(ii) the level of penalty charges to be levied for parking violations, both on-street and off-street;

(a) the Executive, at its meeting of 4th October 2004, resolved that penalties for parking violations in off-street car parks should remain at 60 except for “displaying an expired ticket” which should remain at 40. It was argued that those who had demonstrated their intention to pay for the parking but were delayed in their return to their vehicle should be treated less harshly than those who had set out to avoid payment from the beginning. It was resolved that all penalties should be discounted by 50% for payment within 14 days;

(b) Waverley proposed that these differential penalties should remain in the DPE regime in off-street car parks. This policy is supported in the DfT’s Draft Consultation on the Traffic Management Act 2004 (published this month) which sets out a policy framework for Civil Parking Enforcement (which the DfT recommends should be used in place of the term Decriminalised Parking Enforcement). However, Surrey has resolved and given notice that, in consultation with the SoS, in accordance with its powers under the RTA 1991, it has set the following charges County-wide in relation to the designated parking areas, which includes off-street car parks;

(i) a penalty charge for all offences of 60 on the issue of a Penalty Charge Notice (PCN) but discounted to 30 if payment is received within 14 days of the issue of the PCN; and

(ii) on the issue of a “Charge Certificate” (for non-payment of the PCN) in accordance with the provisions of the 1991 Act, the penalty charge shall be increased to 90.

(c) SCC has advised Waverley that, if it wishes to propose differential penalties, SCC would need to seek an amended resolution from its partnership committee, would need to publish an amended Notice and renegotiate the issue with the SoS. The result would be a delay in the submission and processing of the SPA application and in the date of implementation of DPE in Waverley. However, it is expected that when the DfT’s Draft Guidance on differential penalties is adopted in accordance with the provisions of the Traffic Management Act 2004, it will be possible to retain differential penalties in the car parks under DPE. In the meantime it is proposed to recommend the adoption of those penalties published by SCC in the Council’s off-street car parks.

(iii) Authority to enter into a National Parking Adjudication Service (NPAS) Joint Committee Agreement;

The National Joint Committee comprises all Local Authorities outside of London which have, or are about to, introduce DPE. The Committee is responsible for appointing, employing and overseeing the Parking Adjudicators to promote consistent adjudication across the Country. The Solicitor to the Council should be granted delegated authority to enter into a NPAS Section 101 Joint Committee. This is a requirement of the legislation for Joint Committees. Meetings are held twice yearly.

Policy on Dispensations, Waivers and Suspensions

12. The SoS recommends that Councils have policies in place in respect of suspensions, dispensations and waivers which are exemptions to the parking regulations granted to certain parties under given terms and conditions. Those policies are expected to be submitted in support of the SPA application. SCC has no County-wide policy on these matters and expects each District to determine its own policies. Definitions of the exemptions and recommended policies relating thereto are appended at Annexe 1 to this report.

13. Under the Scheme of Delegation to Officers, the Director of Environment and Leisure has delegated authority to approve requests for concessionary parking in the Council’s off-street car parks. It is proposed that the delegation be extended to determining requests for dispensations, suspensions and waivers in respect of on-street parking and any administrative charges relating thereto.

Financial Implications

14. All costs associated with the on-street enforcement role are recoverable from SCC through the on-street parking account. However, the management of the off-street car parks under the RTA 91, which is a requirement of DPE, may result in some loss of penalty charge income. The more punitive charge for the “Expired Ticket” may lead to more appeals on that offence and guidelines issued in respect of the NPAS suggest that some appeals currently rejected by Waverley might succeed on appeal to NPAS.

15. However, an effective on-street enforcement regime is expected to displace cars from on-street to off-street car parks resulting in additional Pay-and-Display (P and D) revenue income. The level of additional off-street income generated in those Districts where DPE has recently been introduced has been recorded in the range of 6% to 8%. Mindful that some of Waverley’s parking stock is operating close to its maximum capacity, particularly in Godalming, Waverley has cautiously allowed for an increase in P and D income resulting from effective on-street enforcement, of 3%. P and D income for 2006/07 is projected at 2,485,000. The estimated additional income of 75,000 is calculated to more than compensate for any losses in Penalty Charge income.

Resource Implications

16. The Parking Office will need to be re-structured with enhanced management and additional Notice-processing staff to manage the parking enforcement both on-street and off-street, under the new civil enforcement procedures. Additional support will be needed from finance, audit, legal and the Managing Director’s team. Separate on-street and off-street parking accounts will need to be maintained, managed and audited. Considerable public contact can be expected at all levels, including Members, on a multitude of contentious on-street parking issues. The patrolling and ticket-issuing service will be provided through a co-ordinated (on and off-street) parking services contract which is in the process of procurement. An agreed level of resourcing has been built into a cost model constructed by SCC. The re-structure of the Parking Office will be proposed in a future report to the Executive.

Risk Implications

17. The financial risk is largely carried by SCC because if the cost of the on-street enforcement operation exceeds the income from the Penalty Charges, SCC is required, under the Agreement, to reimburse any shortfall on the On-Street Parking Account.

18. Waverley will need to address any risks associated with termination of the Agreement either within the initial 5-year term or upon its expiry. The Agreement can be terminated by either party giving 12 months notice. In particular, Waverley must ensure that the terms of the Agreement protect it from any employment or redundancy liabilities under the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations, should the function cease to be undertaken by Waverley and its Contractor.

19. Once the car parks are included in the Special Parking Area, SCC effectively becomes responsible for the enforcement both on-street and off-street. Waverley will need to ensure that the Agreement allows it to take back that responsibility in the event of the expiry or termination of the Agency Agreement otherwise absence of enforcement effort by SCC could endanger the Council’s off-street Penalty Charges income in the future. That risk can be mitigated by an appropriate clause in the Agreement.

Conclusion

20. It is concluded that:

1. Effective parking enforcement in the Borough can best be ensured by Waverley’s management of the on-street function under a civil parking enforcement regime, without which, obstruction and careless and thoughtless parking practices will continue to increase congestion and compromise pedestrian safety and convenience. Use of the Council’s off-street pay-and-display car parks will decline as lack of on-street enforcement makes free street parking an increasingly attractive option. Conversely, effective on-street enforcement will increase the use of, and income from, the off-street car parks as cars are displaced from the streets.

Recommendations

It is recommended that:

1. the Director of Environment and Leisure, in consultation with the Solicitor to the Council, be authorised to make a revised Waverley Borough Council (Off-Street Parking Places) Order under the provisions of the Road Traffic Regulation Act 1984 incorporating the changes identified in this report;

2. the Director of Environment and Leisure, Director of Finance and Solicitor to the Council be authorised to agree the detailed terms and conditions of, and enter into, an Agency Agreement with Surrey County Council for the management by Waverley of decriminalised parking enforcement in the Borough;

3. the following penalty charges for contravention of the parking regulations, both on-street and off-street, shall apply following introduction of decriminalised parking enforcement into the Borough:

(i) The penalty charge on the issue of a Penalty Charge Notice (PCN) in accordance with Section 66 of the Road Traffic Act 1991 shall be 60 but discounted to 30 if payment is received within 14 days of the issue of the PCN;

(ii) On the issue of a “Charge Certificate” in accordance with the provisions of Paragraph 6 of Schedule 6 to the RTA 1991 the penalty charge shall be increased to 90;

4. the Council be recommended that delegated authority be granted to the Solicitor to the Council to enter into a National Parking Adjudication Service Section 101 Joint Committee Agreement (Local Government Act 1972);

5. the Executive requests the Council to nominate a representative and substitute representative (who must be elected Members of the Council) to serve on the National Parking Adjudication Services Joint Committee; and

6. the Council gives approval to the Director of Environment and Leisure’s delegated authority to approve requests for concessionary parking in off-street car parks being extended to the granting of requests for dispensations, suspensions and waivers in respect of on-street parking places, and the scheme of delegation be amended accordingly.
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Background Papers (DoE&L)

There are no background papers (as defined by Section 100D(5) of the Local Government Act 1972) relating to this report.
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CONTACT OFFICERS:

Name: Robin Ellks Telephone: 01483 523411

E-mail: rellks@waverley.gov.uk

Name: Peter Maudsley Telephone: 01483 523398

E-mail: pmaudsley@waverley.gov.uk




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