EXPLANATORY MEMORANDUM

This Bill is promoted jointly by Westminster City Council and Transport for London. Westminster City Council promote the Bill at the request of the other 32 London borough councils and the Common Council of the City of London. The Bill provides the London Borough Councils and Transport for London with further miscellaneous powers in respect of their responsibilities as highway, traffic and street authorities.

PART 1

PRELIMINARY

Clause 1 of the Bill deals with citation, and Clause 2 with definitions of certain expressions used in the Bill.

Clause 3 provides for the provisions of Part 5 of the Bill to come into operation on a day or on days to be appointed by the council of the borough or by Transport for London, as the case may be.

PART 2

PARKING ETC.

Clause 4 makes provision about the recovery of release fees where an immobilisation device fixed by a parking attendant to a vehicle under the Road Traffic Act 1991 has been removed from the vehicle unlawfully. The removal of an immobilisation device is already a criminal offence, but the authority whose parking attendant attached the immobilisation device is unable to recover the release fee from the owner of the vehicle, which it would have been able to recover had it been released lawfully. This Clause will enable the authority to add the release fee to the penalty charge for the parking contravention when it serves a notice to owner on the owner of the vehicle, requiring the fee and the charge to be paid.

The parking provisions of the Road Traffic Act 1991 are prospectively repealed by the Traffic Management Act 2004, and Clause 5 enables the Secretary of State to make regulations under that Act to make similar provision about unpaid release fees as is made in Clause 4.

Clause 6 amends section 7 of the London Local Authorities Act 2000. That section introduced, in respect of parking contraventions, a limitation on the period by which a parking authority could serve a notice to owner under Schedule 6 to the Road Traffic Act 1991. The period is six months from the date on which the original penalty charge relating to the contravention was issued. The limitation period is already subject to extensions in cases where the Council has requested information about the ownership of the vehicle from DVLA, and incorrect information has been forthcoming, no information has been forthcoming at all, or the information has not been forthcoming timeously.

Clause 6 introduces a further extension in cases where payment of a penalty charge has been made, or has been purported to have been made (for example by cheque or debit card) and then after the limitation period has expired, the payment has been cancelled. In such circumstances the parking authority would be able to serve a fresh notice to owner, despite the limitation period having expired.

Clause 7 has the same effect as Clause 6, but in relation to decriminalised moving traffic offences under the London Local Authorities and Transport for London Act 2003.

Clause 8 amends section 15 of the Greater London Council (General Powers) Act 1974, which makes provision about parking on footways and verges in Greater London. Section 15 has the effect of prohibiting parking on footways and verges which form part of an urban road, unless there is specific provision made by resolution of the Highway Authority which says that parking is allowed.

The first amendment in Clause 8 alters the requirement in section 15 that for it to be enforceable at least one wheel has to be on the footway or verge. Instead, the requirement will be that the wheel must be on or over it. The second amendment is to extend the scope of section 15 so that it includes footpaths, as well as footways. As mentioned above, the section only applies to footways which form part of an urban road, and not to other public footpaths. The third amendment is to apply the provisions of section 15 to all roads, not just urban roads.

Clause 9 provides a power for parking attendants and other authorised officers to remove anything which obscures a registration mark when carrying out their functions. The clause also provides an indemnity for parking attendants, authorised officers and their employers against damage caused by any such removal.

PART 3

ROAD TRAFFIC AND HIGHWAYS

Clause 10 alters the application of section 154 of the Highway Act 1980 (which makes provision about the cutting or felling of vegetation that overhangs roads and footpaths) so that the purposes for which it can be used are extended to enable the Highway Authority to ensure that road traffic signs and traffic enforcement cameras are kept unobscured.

Section 154 contains provisions requiring the service of notices on the owner of the vegetation or the occupier of the land on which it is growing, in advance of any works being carried out, and also provides for appeals against notices.

Clause 11 enables the street authority to remove abandoned apparatus from streets. This clause would enable the street authority to remove apparatus which in their opinion is no longer used for the purposes of the undertaking for which it was provided (and there is no reasonable likelihood that it will be used) and if the apparatus is causing a nuisance or detrimental to the amenity of the area in which it is located.

The authority would have to serve a notice on the owner of the apparatus in advance of its removal or affix a notice to the apparatus if the owner was not known, and there would be a right of appeal against the notice because of the application of certain sections of the Public Health Act 1936 which are set in Schedule 1 to the Bill. Those provisions would also entitle the authority to reclaim its expenses incurred in removing the apparatus, if it is not removed by the owner.

PART 4

FILMING

Clause 12 would enable a traffic authority, by order or by notice, to prohibit or restrict traffic on roads for the purpose of enabling the making of a film to take place. It would also enable closures for the purpose of enabling members of the public to watch the making of a film or to reduce the disruption to traffic likely to be caused by the making of a film. The clause modifies section 16A of the Road Traffic Regulation Act 1984 which provides powers to traffic authorities to close roads for the purpose of special events, such as cycle races. Notices can be issued to enable the immediate prohibition or restriction of traffic if it appears to the traffic authority that the prohibition or restriction should be imposed without delay.

By altering the application of section 16B of the 1984 Act, Clause 13 sets out restrictions which would apply to orders made and notices given for film making purposes. An order under Clause 12 may not remain in force for longer that 7 days whilst a notice under that clause may not continue in force for a period of more than 24 hours. The 1984 Act applies so as to enable the Secretary of State to direct that orders may continue in force for longer than 3 days. Section 16B is also altered so as to prevent any more than 6 orders being made in one calendar year as regards any stretch of road.

PART 5

NON-PAYMENT OF PENALTY CHARGES

Part 5 enables borough councils and Transport for London to take additional enforcement action in cases where three or more penalty charges remain unpaid in respect of a particular vehicle. The Councils and Transport for London would ultimately be able to authorise persons to remove the vehicle to custody and dispose of it. The powers could be used whether or not the vehicle was parked lawfully.

Clause 14 provides for interpretation of Part 5. A definition is given to an "outstanding" penalty charge, including a penalty charge payable to the relevant authority in respect of the use of the vehicle in question and which has not been paid and is not subject to an outstanding appeal.

Clause 15 and Clause 16 set out preliminary procedures which must be followed by the London Authorities when they wish to take action under Part 5. Clause 15 deals with cases where London authorities were unable to serve penalty charge notices or notices to owner on the owner of the vehicle when the penalty charge was incurred, the reason being that they did not have, or were unable to obtain, the correct ownership details. In such cases, Clause 15 allows an authorised person to fix an immobilisation device to the vehicle.

Clause 15 also makes detailed provision about the procedure to be followed on immobilisation. The authorised officer who fixes the immobilisation device to the vehicle must fix a notice on the vehicle saying that no attempt should be made to drive it, that it may only be released from the device by or under the direction of an authorised person, that the notice must not be removed or interfered with except on the authority of an authorised person and the notice must specify the steps to be taken to secure the release of the vehicle.

Those steps include, in all cases, the provision of the name and address of the claimant and then a choice from two options. First, the claimant can secure release by providing satisfactory and verifiable proof of his name and address and the name and address of the owner of the vehicle (if it is not him). Secondly, the claimant can pay a bond to the authorised person or to a London authority. The bond would be in a sum to be fixed by the London authorities jointly. If the option of paying a bond is taken, then the authorised person will issue the claimant with a certificate which can be displayed in the vehicle. The effect of the certificate would be that for a period of 21 days, no further action can be taken under Clause 15 or Clause 17 (Removal of vehicles). It would be an offence to remove or attempt to remove a device or an immobilisation notice, to obstruct a person exercising any powers under the section, or to give false information and to display a false certificate.

Clause 16 deals with cases where there are three outstanding penalty charges or more and the London authority in question was, in respect of those charges, able to serve penalty charge notices or notices to owner on the owner of the vehicle in question, but despite that, the penalty charges remain unpaid. The preliminary procedure set out in this clause ensures that the London authority must serve a notice on the registered keeper of the vehicle requiring that the outstanding penalty charges be paid to them within 7 days of the notice. Again, there is an option giving the recipient of the notice an opportunity to pay a bond, and the effect of doing so is similar to the effect of paying a bond under Clause 15. In this case, however, the certificate would not expire until after the end of the period beyond which the recipient of the notice can make representations under Schedule 2. There are similar provisions relating to offences as are contained in Clause 15.

Clause 17 enables authorised persons to remove vehicles and deliver them to the London authority or to a person authorised by the authority for them to keep. Such persons are refer to as a "custodian". A vehicle may only be removed under this clause if the authorised person has reason to believe that the procedures under Clause 15 or Clause 16 have been followed and, in each case, certain conditions apply. In the case of a vehicle to which an immobilisation device has been fitted under Clause 15 the condition is that the vehicle has not been released under Clause 15. The condition in relation to vehicles in respect of which a notice has been served under Clause 16 are that the seven day notice period has expired, the outstanding penalty charges have not been paid and a bond has not been paid under Clause 15.

The authority or the custodian may recover from the person who is the owner of the vehicle when it was removed all penalty charges outstanding in relation to the vehicle, together with a charge for its removal and a further penalty charge for each complete day or part of a day on which it has been held by the authority or the custodian. A further charge may be recovered for the disposal of the vehicle if it is disposed of.

Clause 18 makes provision about the disposal of vehicles removed under Clause 17. The custodian may dispose of the vehicle by selling it or dealing with it as scrap, so long as he has complied with the other provisions of the clause. If the owner disclaimed all rights of ownership of the vehicle or its contents, they may be disposed of at any time.

Otherwise, the custodian must take certain steps before disposing of the vehicle. First he must ascertain the name and address of the person by whom the vehicle is kept, and if no such registration mark is carried on the vehicle, he must make such enquiries as appear to him to be practicable to ascertain the identity of the owner of the vehicle.

If having taken those steps, the custodian has failed to ascertain the name and address of the owner, or the owner has failed to comply with a notice served by the custodian addressed to the owner setting out specified information in relation to the outstanding penalty charges, the vehicle and the removal of the vehicle, then the vehicle can be disposed of.

Clause 19 contains provisions enabling a person to take possession of a vehicle which has been removed and delivered to a custodian. Before doing so, the claimant must satisfy one of three sets of conditions.

The first set of conditions apply where the preliminary procedure under Clause 15 has been gone through (namely where an immobilisation device has been fitted to the vehicle because the ownership details were not known). To secure release, the claimant must provide his name and address and satisfactory and verifiable proof of it, and he must provide the name and address of the owner of the vehicle (if it is not him) and he must also satisfy the custodian that he is either the owner of the vehicle or that he is authorised by the owner to take possession of the vehicle.

The second set of conditions also apply when the vehicle has been subject to the immobilisation procedure, but in this case instead of providing a name and address of the owner of the vehicle, the claimant can pay a bond, and once again if he does so a certificate must be issued providing immunity from further action the immobilisation provisions of Clause 15 or the removal provisions of Clause 16, while the certificate remains in force. The certificate remains in force until 21 days after it is issued, but the provisions of Schedule 2 enable the effect of the certificate to be extended for a longer period where representations or appeals are made.

The third set of conditions apply where the preliminary procedure under Clause 16 has been gone through (namely where the ownership details were known and a notice was served on the owner). In this case the vehicle can be removed from custody if the claimant satisfies the custodian that he is the owner of the vehicle, and that he is authorised by the owner to take possession of the vehicle and that all the outstanding penalty charges are paid, together with any charges in respect of the removal, storage or release from storage of the vehicle.

Once again, there are offences in relation to the provision of false information under Clause 21.

Clause 20 enables a claimant to pay a bond, if offered the opportunity to do so, to secure the release or removal of a vehicle which has been removed under Clause 17. The decision as to whether the opportunity to pay a bond should be offered is for the person authorised to remove the immobilisation device or the custodian and only arises if certain conditions are met. If a bond is paid then, once again, a certificate is issued which may be displayed in the vehicle. The certificate would say that the vehicle should not be immobilised or removed again under Part 5. It would expire after the period for making representations against the immobilisation or removal has expired. If such representations are made, Schedule 2 to the Bill provides that a further similar certificate must be issued.

Clause 21 makes provision for the claiming of vehicles from a custodian after a vehicle has been disposed of. It provides that the custodian must pay to the claimant, (if he is satisfied that the claimant was the owner of the vehicle at the time that it was disposed of), a sum equivalent to the proceeds of sale less the penalty charges and other charges which would have been payable had the vehicle been claimed before it was disposed of.

Clause 22 applies in three different cases. The first is where the vehicle has been released from an immobilisation device under Clause 15, the second is where a bond has been paid to the London authority under Clause 15 and satisfactory and verifiable proof of the name and address of the owner of the vehicle has been provided to the London authority, and the third is where a vehicle has been removed to a custodian, and then released under Clause 19. In all cases, the London authority in question will have been given the name and address of the owner of the vehicle. Where Clause 22 applies, the London authority may serve a penalty charge notice or notice to owner in respect of any outstanding penalty charges on the person whose name has been provided to them.

Clause 23 introduces Schedule 2 to the Bill which enables representations and appeals to be made in respect of the immobilisation or removal of vehicles under Part 5. It also ensures that notice is given of rights to make representations and rights to appeal to an adjudicator.

Clause 24 enables, by reference to sections 74 and 74A of the Road Traffic Act 1991 and regulations under section 88 of the Traffic Management Act 2004, the Councils and Transport for London to set the levels of penalty charges under Part 5.

Clause 25 provides that the London authorities must publish guidance about the exercise of their functions under Part 5 of the Act before the provisions can come into force, and they must have regard to the guidance in exercising those functions.

PART 6

MISCELLANEOUS

Clause 26 amends section 9 of the London Local Authorities and Transport for London Act 2003, which makes provision about fixed penalty notices for certain offences.

Section 9 currently provides that any person who is served with a fixed penalty notice in respect of a fixed penalty offence (as defined in the 2003 Act) may discharge his liability for the offence if he pays a fixed penalty within a period of 14 days. Clause 26 will extend that period to 28 days, and provide that the amount of the fixed penalty will be reduced by a specified proportion if payment is made within 14 days.

Clause 27 sets out a number of minor drafting amendments to the London Local Authorities and Transport for London Act 2003.

PART 7

SUPPLEMENTAL

Clause 28 makes provision for the liability of directors and other officers in certain circumstances where offences under the Bill have been committed by a body corporate.

EUROPEAN CONVENTION ON HUMAN RIGHTS

In the view of Westminster City Council and Transport for London the provisions of the London Local Authorities and Transport for London Bill are compatible with the Convention rights.