Summary of the Adjudication of Mrs.GillianEkins in the matter of Fr.Frank Daly v. Leicestershire Council given on November 29 2012 after the Independent Tribunal held at the Holiday Inn, Leicester on October 24 2012
Appeal allowed on the ground that there was procedural impropriety on the part of the Council. I direct the Council to cancel the Penalty Charge Notice and Notice to Owner
Page 6There was no recognition (by the Council) that this was a very important occasion held on Good Friday for worshippers who supported the procession and attended the “Churches Together” service. Neither was it recognised that Fr.Daly, the parish priest, had himself taken the time on such a significant day in the church calendar to park the vehicle in advance of the service, such was the importance he placed upon ensuring the vehicle was parked in the Market Place prior to the service.
Page 8 The only reference to Fr.Daly’s detailed and clear explanation of events was that the vehicle had been parked to “provide support to others”. Just the brevity of this comment in itself provides evidence that the Council have failed to demonstrate that they identified and properly considered the detailed circumstances set out in the informal representations. Instead of indicating the circumstances which had been considered, the letter demonstrated an inflexible position which appears to have been adopted because the Council had determined that a contravention had occurred. In my view, the Council’s letter demonstrates that the enforcement authority neither gave “careful consideration” to the detailed and clearly expressed representations, nor did they properly consider the “individual circumstances” as their duty required. Furthermore, had the enforcement authority considered the representations and properly acknowledged the issues raised, then it is quite possible that the matter might have been resolved at that stage.
Page 10However once again (in a reply of April 25 2012) the Council failed to set out the extenuating factors it had discounted in reaching its decision not to exercise its discretion….There is certainly no evidence of the decision making process which took place and on what basis the Council considered that it was being fair and acting without discrimination in rejecting these representations.
Page 12In terms of the compelling reasons which Fr.Daly had raised, the Council simply stated that they had “considered the mitigation you have raised in your correspondence and find no grounds to cancel the Penalty Charge Notice”. However, once again the Council did not set out any of the facts which they had considered and their reasons for subsequently disregarding them…instead the Council concentrated on their reasons for enforcement of the loading restriction, together with the fact that there was no loading / unloading taking place. This is despite the fact that it has always been admitted that there was no loading / unloading.
Page 13Throughout this case, Fr.Daly has strived to persuade the Council to consider the exceptional circumstances in which the vehicle was parked. Even in their Case Summary, I find that the Council has not established that they have fully considered all the circumstances. (The Council) confirmed that they do not have a written policy on the exercise of their discretion. It was accepted that a written policy would be best practice and provide a starting point for consideration of the Council’s discretion….When asked if the Council had carried out a general review of parking enforcement under the Equality Act 2010, it was not clear that a written risk assessment had been undertaken…The Council did not have a written policy which took into account the requirements of the 2010 Act, and the need to demonstrate the impact of the Council’s decisions on the protected characteristics covered by the Equality Duty, notably in this instance, disability, age and also religion, given that the vehicle was parked in connection with a religious service.
Page 15The Council do not have a written policy on the exercise of discretion, despite that being the DfT guidance since 2008…The Council has expressed the need to be consistent in its enforcement policy throughout Leicestershire. However, in striving to be “consistent”, it seems to me that the Council are actually fettering their discretion by not fully considering the individual facts….In adopting this approach, the Council have failed to identify and analyse the exceptional circumstances which Fr.Daly clearly explained from the outset, namely that this was an ambulance operated by a charity parked on Good Friday, correctly displaying a Blue Badge, time clock and clear notice which had been parked by the priest in connection with an extremely important religious commemoration and service held in the town centre.Fr.Daly believed that the Blue Badge provided an exemption, not least because the vehicle had been parked in the same loading bay for this special occasion in the preceding four years to provide a first aid station and subsequently transport for disabled and elderly worshippers back to St.Peter’s Church.
Page 16The Council had contended that they fully considered the representations at both the informal and formal representations stage. However, my findings are that there is no evidence that representations were considered in detail at either stage. Even if that had been done, there is certainly no indication of the circumstances considered and a proper explanation for refusing to exercise their discretion. Therefore, I conclude that the Council have not expressly considered the points highlighted by Fr.Daly in accordance with their statutory duty.
Page 17I have no hesitation in finding that the Council failed to consider the formal representations made under Regulation 4 (2)(b)(ii) (of the Appeals Regulations). This followed and aggravated the Council’s failure to consider the informal representations in accordance with Regulation 3(2)(b)(i).Those failure constitute two incidences of procedural impropriety in accordance with Regulation 4(5) and on that ground, I am allowing Hinckley Sunshine Club’s appeal.
Finally, I trust that before next year’s “Churches Together” Good Friday service, the parties will liaise regarding a suitable arrangement for parking this vehicle. I allow this appeal and direct the Council to cancel the Penalty Charge Notice and Notice to Owner. I confirm there is no penalty to pay.