Djanogly v Westminster City Council

A local authority may charge for designated parking places where charging rationally contributes to the statutory duty to secure suitable and adequate parking and traffic management. Increased or anticipated demand need not be proved by scientific statistics; rational evidence, including occupancy levels and objections, may justify charging as a demand suppressant. Under the Road Traffic Regulation Act 1984, fairness in spreading ongoing maintenance and enforcement costs between vehicle users is also potentially relevant. A later order must be justified when made, but experience of an earlier experimental scheme may inform that assessment. Revenue neutrality is not required, and forecasting errors do not invalidate an order absent material misleading of the decision-maker or a legally relevant mistake of fact.

The appellant, a motorcyclist and chairman of a campaign group, challenged the charging provisions of the City of Westminster (Motorcycle Parking Places) (No.1) Order 2010 under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984. The Divisional Court rejected the challenge in [2010] EWHC 1825 (Admin).

On appeal, the appellant argued that charging did not produce a traffic-management benefit, that fairness was not a lawful objective, that the Council had relied on defective financial forecasts, and that consultation was inadequate. The central issues were whether the charging provisions were intra vires and whether the consultation challenge had any real prospect of success.

1. Disposition. Maurice Kay LJ, with Smith and Moore-Bick LJJ agreeing, dismissed the permitted appeal and refused permission to appeal on the proposed consultation ground.
2. The power under section 45(1) of the Road Traffic Regulation Act 1984 had to be exercised consistently with the duty in section 122(1). Charging was lawful if it secured either the expeditious, convenient and safe movement of traffic or the provision of suitable and adequate parking facilities.
3. There was a rational evidential basis for treating actual and anticipated increased demand as a justification for charging as a demand suppressant. Statistical material did not need to be scientific. Occupancy exceeding the Council’s 85 per cent target, together with evidence of unsuccessful searches for spaces and consultation objections, supported the conclusion.
4. Even without the increased-demand justification, fairness between motorcyclists and car drivers was a rationally relevant consideration under section 122(2)(d). The provision was not otherwise restricted. The Council could take account of the fair allocation of continuing maintenance and enforcement costs between user groups.
5. The Council had to establish vires when the 2010 Order was made. The earlier experimental scheme could not automatically justify the later order, although experience and information from it could properly inform the later decision.
6. There was no statutory requirement of revenue neutrality. Surpluses were regulated by section 55. The financial figures were forecasts, not established facts, so the mistake-of-fact argument, considered along the lines of E v Secretary of State for the Home Department [2004] QB 1044, failed. Errors had been corrected or were immaterial, and the decision-maker had not been materially misled.
7. The consultation challenge had no real prospect of success. The consultees had proper opportunities to make representations, the objections were analysed, and amendments had been made. The fact that the objections did not prevail did not establish a defective consultation.

1. Court of Appeal (Civil Division). In [2011] EWCA Civ 432, the court dismissed the permitted appeal and refused permission on the proposed consultation ground.
2. Queen’s Bench Division, Divisional Court. The court rejected the challenge to the charging provisions of the 2010 Order in [2010] EWHC 1825 (Admin).