Please ask for John Lawson Our Ref: JL/GL

Direct line (01983) 823203 Your Ref:

10 December 2005

Dear Councillor Price

ISLAND RESIDENTS’ PERMITS FOR CAR PARKS

I understand that the Select Committee resolved that :

“An investigation be undertaken with the Portfolio Holder for Transport, Head of Engineering Services and the local Members for Wootton, Carisbrooke and Seaview on the decision-making process with regard to the issue of residents’ permits at these car parks, a solution to the misunderstandings relating to the validity of the newly-issued permits and the effect on other permit-holders.”

Although the action was ascribed to me as Head of Legal and Democratic Services, I understood the reported resolution to be rather wider than the questions I was asked to pursue by the Committee when I was present at the meeting.

Accordingly, having consulted with yourself and Alistair Drain, I confined myself to the following four questions. Inevitably other issues arise but these seem to me to be more appropriate to further enquiry by the Select Committee, and the staff available to it, rather than something that needs my input from a legal or corporate governance perspective.

Question 1 – What decisions have been taken in relation to the Parking Order since the June Executive and by whom?

No decisions have been taken by the Portfolio Holder, although he has sought to be closely involved with subsequent decision-making and to be publicly associated with the development of the Resident’s Permit in order that he can be held accountable both for that issue and more general parking policy.

Derek Rowell took three decisions on 29 September:

(a) Two of those decisions related to enforcement at Carisbrooke Car Park and do not, therefore, fall within the terms of reference set for me which refer explicitly to a Resident’s Permit.

(b) The third decision was that “residents will be able to purchase a £50 Island Resident Permit, which is being piloted for all of the car parks where charges were introduced in the recent Order and will include use of Leisure Centre car parks”.

Councillor Fox was not present at the meeting on 29 September attended by Derek Rowell, Steve Matthews, Councillor Foster and four local residents. It is clear to me that the intention behind that decision was to reflect representations that had been made by several concerned individuals (including local Members) about the introduction of charges and the extent to which the pilot Leisure Permit (referred to in the Parking Order) and the limited Resident’s Permit scheme (referred to in the 30 June Executive decision record) should be developed to reflect those concerned. The unique circumstances of Carisbrooke are the lack of alternative parking options.

The wording of the Parking Order and of the 30 June Executive decision both require further decisions to be taken at an operational level to finalise what was to be included in what was referred to, firstly, as a pilot leisure permit and, latterly, as an Island Resident Permit, these could be taken, under the constitution, by a report taken publicly to the Portfolio Holder, or under officer delegations. It is the latter route which was followed here.

There have been two occasions since 29 September when it may appear that further decisions have been taken. Firstly, on or around 22 October, for reasons set out below, clarification was necessary about what the 29 September decision meant in practice. Those involved in taking that decision had a different understanding of the decision to those who were implementing the decision on the ground. I am sure that no further decision was taken on this date (although those receiving correspondence about it may have understandably perceived that to have been the case). The transaction was actually a clarification of the earlier decision.

Finally, it may have appeared to one individual, who received a letter from the Portfolio Holder on 7 November, that a decision had been taken in relation to enforcement policy in relation to Brannon Way car park in Wootton Bridge. Having read the text of the relevant letter, I can understand why that would be the case. There is, however, no recorded decision. Formalising that enforcement issue is one of the steps which I have advised need to be taken.

Question 2 – What errors (if any) have been made in the issuing of permits?

For a period from the beginning of October until 22 October 54 permits, at a price of £50, were sold to applicants under the misapprehension that the intention of the decision taken on 29 September was to create a new permit entitling the holder to park without regard to short stay time limits set out in the Parking Order.

In the light of the wording of paragraph 3 of the Parking Order, and the Schedule to that Order (which taken together refer to a non exhaustive list of residents permits entitling the holder to park without restriction on length of stay) the interpretation placed on the decision was a perfectly natural reading of the words used, although not the meaning intended. It is clear that the intention on 29 September was to create, in accordance with the decision of the Executive, an Island Residents Permit in addition to the non exhaustive list of permits set out in the Parking Order.

Since 22 October 41 further permits have been sold, so far as I can ascertain, on the basis of a correct understanding of the entitlement.

I understand that there is some suggestion that individual applicants were given different information about the lifespan of the permit. If there is a demonstrable case that individuals were told the permit they were purchasing had a lifespan beyond that which does apply then my view is that this too should be honoured.

Finally, although not an error in relation to the issuing of permits, it may be helpful to record that for a 7 day period, wrong information was displayed in Brannon Way Car Park in Wootton. The effect of the error was that a sign showing tariffs for long stay parking was on display. The error was corrected by the installation of permanent signs which correctly reflect the Parking Order.

Question 3 – What consequences arise for the purchasers of permits, if there have been errors?

The holders of the 54 permits issued prior to 22 October have, in my view, an entitlement to rely on the information given to them at the time they applied for them. The holders of those permits therefore find themselves in the fortunate position of having an entitlement to use the eight car parks subject to the recent introduction of charges without regard to the time limits imposed by the Parking Order.

Those who have purchased the permits subsequently, and any future applicants, will have an entitlement only to use the permit within its intended parameters.

In reaching this conclusion I am less persuaded by the argument that individuals have a contract in relation to their entitlement to park (parking entitlement being delivered by Order, rather than contract). The stronger argument is that the Council is bound to honour the arrangement those individuals believed that they were entering into, on pain of it being maladministration to seek to correct the mistake made in relation to the issuing of those permits. That entitlement will, of course, only remain for so long as the current permits remain in force. Future years will be regulated by a different Car Parking Order.

Question 4 – What other consequences arise for, say, other car park users and/or the Council?

I do not believe that the rights of individuals, other than those who hold permits, have been affected by the error discussed above. The entitlement to park is governed by the Parking Order, and permits sold under that Order. The fact that a relatively small number of permits were sold in error should not affect the rights of other road users in any way.

At the risk of going slightly beyond my brief, I would, like to take the opportunity to set out a small number of recommendations which may be of assistance to those operating the parking system, and to the Select Committee, in determining what steps, if any, to take next.

1. It is important that the 54 holders of permits sold on the basis of an error about the terms which applied to them are clearly informed of their right to park. I suggest that a letter is sent to each of those permit holders making very clear the extent of their entitlement, the fact that it is partly based on an error, and confirming the duration that their permit will remain valid.

2. It is important that those with the responsibility for enforcing parking restrictions in the car parks in question can easily identify those vehicles which are displaying of the 54 permits sold partially in error and which are identifying permits sold with the terms accurately applied. I suggest that replacement permits are issued to the holders of the original 54 permits which clearly indicate, by some visual means, that their entitlement to park is different to, and greater than, other permit holders.

3. The Parking Order refers to a Trial Island Residents Leisure Permit. The decision-making has now moved on to refer to a Resident Parking Permit. Other changes have been made to enforcement arrangements. Although there is some cost associated with advertising amendments to the Parking Order I believe it would be helpful to undertake this exercise not least as this would give an opportunity to clarify to interested parties exactly what the current parking restrictions and arrangements are and to draw a line under ongoing discussions or attempts to negotiate amendment to those arrangements, until the next planned annual review of the Parking Order.

An alternative would be to bring forward that review and undertake the annual exercise in making a Parking Order almost immediately.

4. There is a degree of ambiguity about current enforcement arrangements in relation to Carisbrooke and Wootton with some correspondence referring to instructions having been given by the portfolio holder. I believe these were caused by a desire on the part of the Portfolio Holder and Strategic Director to respond to representations from members of the public, and particularly a desire to do so quickly. There are, as yet, no auditable decisions which I have seen which set this enforcement policy. As parking enforcement fairly frequently ends in proceedings before the Court it is extremely important that those decisions are taken, and recorded, clearly and on the basis of advice having been taken.

5. No further amendments or variations should be agreed to the policy under an enforcement policy until the next.

Parking policy and enforcement issues are proving even more than usually controversial at the moment. I have been impressed during the conversations I had, with Members and Officers alike, of the commitment to developing and delivering policy which serves the needs of the Island. I could not have reached the position where I could advise the Select Committee so clearly and quickly if it were not for the willingness of all of those individuals to extend their enthusiasm and commitment into their contact with me, on behalf of the Select Committee. I am grateful for their assistance.

If I can help the Select Committee further in determining, and delivering, any future steps it wishes to take I will be more than happy to do so.

Yours sincerely

Head of Legal and Democratic Services

G P Price Esq CC

Chairman, Environment and Transport Select Committee

85 Quarry View

Camp Hill

NEWPORT

Isle of Wight PO30 5PJ