I recently read that a number of motorists had received fixed penalty notices for using Brookeville Avenue and George Street in Hipperholme which are designated access only. To implement restrictions such as this, local authorities must make a traffic regulation order (TRO). For the restriction to be enforceable there must be both a valid TRO and the signs/markings which are required by legislation.
Being aware that it isn’t unknown for local authorities to make mistakes in TROs, I made a request to Calderdale Borough Council for a copy of the relevant order to enable me to exam whether it appears valid. Errors in the TRO could in some cases make the restriction unenforceable.
They’ve now provided me with The Borough Council of Calderdale (Traffic Regulation) (No.5) Order 2007. Part Two of the order deals with the prohibition of vehicles except for access. Article 3 of the order is:
I would highlight the start of that sentence; “Save as provided in Article 3”. The important thing to note here is that this is Article 3. It could perhaps be argued therefore that no vehicles may use the road unless directed or authorised by a police officer or traffic warden, despite the Article 4 providing various further exemptions. However, Article 4 does start “Nothing in Article 3 of this Order shall prohibit” and so it could also be said that this cancels out the problem of Article 3 referring to itself.
This same issue is present in Part One which relates to the one-way restriction.
The Examiner story (29 November) mentions that three drivers had received Fixed Penalty Notices but as the story refers to both the access only routes of Brookeville Avenue/George Street and the nearby Barfield Road, it isn’t clear how this is broken down. The Hipperholme Neighbourhood Policing Team website has details of another operation in the area which suggests six FPNs were issued for contravening the access only restriction in place on Brookeville Avenue/George Street. If the access-only restrictions weren’t enforceable then this gives some idea of the number of people who may have been recently incorrectly issued with FPNs.
I would doubt however that these mistakes would make the one-way and access only restrictions unenforceable but this does illustrate my point about local authorities often making mistakes with TROs.
It would be helpful if councils would publish their TROs online but this might not be so straightforward. As a example of some of the potential problems, Kirklees say they have more than 3,700 TROs in force. There is also probably little incentive for them to do so either since increased scrutiny could lead to some restrictions being found to be unenforceable.