Monday 17th December 2018,
North Yorks Enquirer

SBC PARKING: Portfolio Holder ‘Dissembles’ In Council

SBC PARKING: Portfolio Holder ‘Dissembles’ In Council

  • an “In My View” article by NIGEL WARD, commenting on the prevailing corporate chaos over unenforceable parking regulations at Scarborough Borough Council and throughout the County of North Yorkshire.

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BACKGROUND

Readers far and wide have been following the work of NYE investigative journalist Tim THORNE and parking-campaigner Andy STRANGEWAY over recent weeks, exposing the utter incompetence of Council legal departments in overseeing the creation and implementation of parking regulations.

The Enquirer coverage can be found here.

Andy STRANGEWAY’s campaign is detailed here.

Cutting through the myriad complexities of the regulations and the convoluted process that led to their implementation, the bottom line is that the Controlled Parking Zone (CPZ) regulations in general, having been challenged by Tim THORNE and have been proved flawed to the degree that they are not enforceable because of inappropriate or inadequate signage.

The Adjudicator’s decision can be found here.

Similarly, the prohibition of overnight parking of motorhomes has also been implemented in a manner so slipshod as to invite challenge on a range of grounds.

Frustrated by SBC/NYCC’s refusal to engage in a productive dialogue, Andy STRANGEWAY has now three times held overnight meetings of the ASOP lobby-group (Andy Strangeway Overnight Parking) at so-called prohibited times and locations, in an attempt to force the authorities to admit that their regulations are worthless.

ASOP_Banner_03

The most recent of these meetings (overnight, Saturday 9th to Sunday 10th January 2016) has aroused much concern at NYCC and SBC, and some mirth, because of the spotlight it shines on County & Borough Councillor Joe “Frank & Honest” PLANT, who was the prime-mover in forcing through the ‘No Overnight Parking’ ban, at the behest of a relatively small number of hoteliers and guesthouse owners along Whitby’s West Cliff, who claimed that motorhomes blocked their sea-views – during the hours of, erm, darkness.

DARK_SEA_VIEW

On the morning of Sunday 10th January 2016, Facebook and Google+ users in their thousands were amused by, and vocally supportive of, Andy STRANGEWAY’s novel approach.

Andy had emailed all SBC Councillors individually and even text-messaged Cllr Joe “Frank & Honest” PLANT personally to announce the ASOP presence, inviting the Council to serve Parking Charge Notices (PCNs) on the motorhomers – but no-one from SBC or NYCC had the decency (or the nerve) to show up.

ASOP_Night_&_Day

At Scarborough Town Hall on Monday 11th January 2016, in a Meeting of Full Council, Councillor Rob BARNETT [Lab.] (Streonshalh) and Councillor Norman MURPHY [Ukip] (Northstead) tried in vain to elicit a clear and transparent statement from Portfolio Holder for Leisure, Tourism & Culture Councillor Andy BACKHOUSE [Con.] (Lindhead) on the ‘No Motorhomes’ ban and on the on-street parking prohibitons more generally (CPZs).

The nearest they came to success was the following less-than-lucid comment from Councillor BACKHOUSE:

  • “There is, as I am sure you are aware, things in train at the moment. There is legal due process taking place and that is within both County and Borough legal departments.”

Setting aside any grammatical and syntactical discomfort, in plain and truthful language what Councillor BACKHOUSE really means is that both Councils’ legal departments are in a flap. “Things in train” can only mean that necessary revisions of some sort are in progress. So they do know that they have screwed up but, as ever, refuse to admit it.

However, Councillor BACKHOUSE’s statement is somewhat at odds with the statement issued by NYCC to some media outlets (but not the Enquirer – though I did specifically request a comment from NYCC Head of Legal Barry KHAN, and I am disappointed that he has let me down) back on 18th December 2015 – which implies that no change is necessary:

  • “Having reviewed the adjudicator’s decision the County Council remains of the view that the signing complies with the Traffic Signs Regulations and General Directions. Importantly there is no binding system of precedent relating to the decision of an adjudicator.  Individual decisions remain at the discretion of the adjudicator dealing with a particular appeal on the facts relevant to the matter before them at that time. For this reason the County Council will not be offering any refunds and has instructed Scarborough Borough Council to continue to enforce the restrictions on our behalf.”

What this statement really means is that NYCC believes the Adjudicator’s Decision may (just conceivably) be open to challenge in Court, but since such a very small proportion of motorists will bother to take their appeals all the way to the Tribunal, the Council can blithely go ahead issuing unenforceable PCNs because, even if the odd one or two motorists’ progress their appeals all the way to the Tribunal and their appeals are upheld by the Adjudicator (as they must be), there is nevertheless a lot of easy money to be made from the huge majority of motorists who will not diligently pursue appeals and simply fork out their hard-earned cash.

In my view, as expressed in my articles about the unenforceable ‘tickets’ in West Yorkshire, both Councils risk committing fraud by false representation:

FRAUD_ACT_2006_s2

  • Scarborough Borough Council (SBC) is body corporate – a “person”. [2.(1)]
  • A Penalty Charge Notice (PCN) is a “representation” – a “representation as to fact or law”. [2.3]
  • An unenforceable PCN is “untrue or misleading”. [2.2(a)]
  • An unenforceable PCN is intended “to cause loss to another [a motorist] or expose another to a risk of loss”. [2.1(b)(ii)]
  • An unenforceable PCN is a “false representation” if the “person [SBC] making it knows that it is, or might be, untrue or misleading”. [2.2(b)]

But SBC rests secure in the knowledge that NYP will never prosecute.

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BACKHOUSE

In the following clip (downloaded from the SBC web-cast), we see Councillor Andy BACKHOUSE [Con.] assuring Full Council (and the wider world) that the Council’s regulations have always been upheld when put to the test.

Transcript:

  • “It is reasonable to issue a ‘ticket’. So I would say that our . . . our particular scheme is very reasonable. It has been challenged on many occasions by many a person. And it has been . . . er . . . found to . . . up, er . . . be upheld at every point.”

This is untrue.

In fact, it is flat-out ‘dissembling’ (see above). It may be true to say that the CPZ regulations have been “upheld at every point” in the past – UNTIL Tim THORNE’s detailed challenge.

It was not upheld on when challenged by Tim THORNE, as the Adjudicator’s Decision Notice makes plain. It was Tim’s appeal that was upheld, not the SBC regs, precisely because the CPZ signage was and is fatally flawed. And, obviously, SBC is aware of this.

Proof? In a letter to the Enquirer‘s Tim THORNE, the Adjudicator states:

Dear Mr Thorne

Tim Thorne v North Yorkshire County Council (with Scarborough)

Further to your email of 30 December, the Council has stated that they will not be applying for a

review of the Adjudicator’s decision in this case.

Yours sincerely

Elspeth Marshall

Appeals Coordinator

Equally obviously, the Adjudicator’s decision will be the same in respect of any other appeals that cite the same grounds as Tim THORNE’s appeal.

To be clear, SBC may conceivably continue to issue PCNs (‘tickets’) – and probably will – but any appeal on the grounds specified by Tim THORNE will always be upheld by the Adjudicator (who is not permitted to produce different decisions for identical circumstances) and SBC is fully aware – and has admitted as much to the Adjudicator – that it will be useless to appeal the Adjudicator’s Decision. QED.

And who wrote Councillor BACKHOUSE’s script?

Tim THORNE’s appeals strategy can be found here.

In my view, until the signage is suitably modified or replaced, or until the Traffic Regulation Orders have been corrected, the entire parking regulations (including those pertinent to motorhomers) are a shambolic mess and a monumental waste of the public purse. So perhaps in 2016-17 the Council may not make a huge (unlawful) PROFIT of £3.5 million from its parking management regime. And will we ever learn how much the process of correcting past cock-ups will cost? Will anyone be held accountable?

Why don’t they simply own up? Why don’t they just say, “We made a pig’s ear of it; we trusted our legal people – who we hired, at great expense – believing them to be sufficiently competent to produce legally valid Traffic Regulation Orders and signage – and the fact is thta they have let us down. Badly. Sorry!”

Yet in response to Councillor Rob BARNETT, the Portfolio Holder for Leisure, Tourism & Culture Councillor Andy BACKHOUSE [Con.] (Lindhead) could only prattle and ‘dissemble’ (see above) – with the sole caveat that it is just possible that he is simply too thick to understand the intricacies of the process. That I could believe.

So can we now expect an apology from Councillor Andy BACKHOUSE for his false statement in the Council Chamber?

I am told by Councillors that only around 60 people view the SBC Full Council web-casts. Most of those are Councillors who rush home to watch themselves ‘starring’ on the box. So the wider public, relying on the Scarborough News and the Whitby Gazette, has little chance to witness either the dishonesty or the puerile jibes about people having “strange ways” of pressing the public interest.

And if BACKHOUSE, BASTIMAN and FOX wish to engage in a ‘cheap jibes contest’ they may meet more than their match. All three have Achilles heels . . .


Pictured: Councillor Derek BASTIMAN’s all-weather 24/7 access Scarborough Harbour:

SCARBOROUGH_HARBOUR_247

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