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50JL Jnc of Frankham Street and Griffin Street, Deptford
Tony Prince
post Thu, 9 Aug 2018 - 17:30
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Hi, received this PCN in the post today for an alleged offence. No left turn from Frankham St, into Griffin St.Deptford.





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post Thu, 9 Aug 2018 - 17:30
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cp8759
post Thu, 9 Aug 2018 - 18:09
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Google Street View appears to be out of date: https://www.google.co.uk/maps/@51.4774973,-...33;8i6656?hl=en

Can you get some updated photos of the signage?


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Tony Prince
post Thu, 9 Aug 2018 - 20:22
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QUOTE (cp8759 @ Thu, 9 Aug 2018 - 19:09) *
Google Street View appears to be out of date: https://www.google.co.uk/maps/@51.4774973,-...33;8i6656?hl=en

Can you get some updated photos of the signage?


Yes will do, and report back.
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stamfordman
post Thu, 9 Aug 2018 - 20:44
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Reinstate dates on PCN.

It's a fairly recent one. See this thread:

http://forums.pepipoo.com/index.php?showtopic=117694

and this one issued late? http://forums.pepipoo.com/index.php?showtopic=119455
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Tony Prince
post Wed, 15 Aug 2018 - 23:22
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The pcn is dated 29/07/18. I Managed to take some pictures of the junction today.







This post has been edited by Tony Prince: Wed, 15 Aug 2018 - 23:25
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Tony Prince
post Thu, 16 Aug 2018 - 09:06
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QUOTE (stamfordman @ Thu, 9 Aug 2018 - 21:44) *
Reinstate dates on PCN.

It's a fairly recent one. See this thread:

http://forums.pepipoo.com/index.php?showtopic=117694

and this one issued late? http://forums.pepipoo.com/index.php?showtopic=119455


I don’t how much success Colin in the first link had. Are there grounds for an appeal?
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stamfordman
post Thu, 16 Aug 2018 - 09:30
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If you want to contact people try a PM - that sends them an email.

There is a clear no left sign.
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cp8759
post Thu, 16 Aug 2018 - 20:57
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The sign seems pretty clear.


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Tony Prince
post Sun, 9 Dec 2018 - 21:52
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From what seems to be based solely on a technicality, I received this in the post a few days ago.

As always I appreciate all the advice.

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Mad Mick V
post Sun, 6 Jan 2019 - 15:46
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Another interesting case for this junction:-

2180445409

This is an appeal against a penalty charge notice (PCN) issued in respect of an alleged failure to comply with a ‘no entry’ sign. The ‘no entry’ sign in question gives effect to Article 4 of the Lewisham (Prescribed Routes) (No.2) Traffic Order 2017. Article 4 reads as follows:

“No entry

4. No person causing a vehicle to proceed in Giffin Street, shall upon reaching its junction with Frankham Street, cause that vehicle to enter Frankham Street.”

The evidence said to support the allegation made by the enforcement authority (EA) in this case is the CCTV footage showing Mr. Williams’ vehicle at the relevant location. The footage commences with the vehicle in Frankham Street, facing the junction with Giffin Street. The front wheels of the vehicle are over the ‘give way’ markings and that part of the vehicle in front of the front wheels protrudes by a matter of inches over the ‘give way’ markings. The foremost part of the vehicle does not appear to protrude, at any time, beyond the extended nearside kerbline of Giffin Street. The vehicle is then shown to reverse back within Frankham Street. At no time is the vehicle shown in Giffin Street.

Mr. Williams queried the PCN on the basis that the still images showed him exiting Frankham Street, rather than entering it. This was treated as a representation and the EA responded as follows:

“We sent you a Penalty Charge Notice because our camera evidence shows your vehicle disobeying a 'no entry' sign. The sign is round, red, and has a horizontal white line across it.

If you are approaching Frankham Street from Giffin Street, you will encounter the signs at the entrance of the above location prohibit vehicles from entering.

The content of your representation has been considered. I can conclude that the PCN was correctly issued and cannot be withdrawn. You are not permitted to reverse or drive into Frankham Street from Giffin Street for any reason”.

The notice of rejection therefore contains the following express or implied assertions of fact:

1. The vehicle disobeyed a ‘no entry’ sign;

2. The vehicle approached Frankham Street from Giffin Street; and

3. The vehicle reversed or drove into Frankham Street from Giffin Street.

The EA’s case summary for this appeal also repeats the above and makes the further assertion of fact that the CCTV shows the appellant’s vehicle reversing into Frankham Street from Giffin Street.

The above assertions of fact, which are necessary to prove a contravention of Article 4 and/or a failure to comply with the ‘no entry’ sign, are simply not supported by the CCTV evidence that has been provided to this tribunal. If there is a longer piece of footage that shows the vehicle in Giffin Street prior to the manoeuvre that is shown on the CCTV footage provided to this tribunal then it should, obviously, have been provided. In the absence of such footage the assertions of fact referred to above have no basis in evidence.

On the basis of the CCTV footage, there is no evidence that the vehicle contravened the terms of Article 4 or that it failed to comply with the ‘no entry’ sign because:

1. There is no evidence it was proceeding in Giffin Street;

2. There is no evidence it reached the junction of Giffin Street with Frankham Street (as opposed to the other way round); and

3. There is no evidence that the vehicle entered Frankham Street from Giffin Street.

I have no hesitation in finding this contravention not proved. The PCN should never have been issued. The representation made by Mr. Williams should have prompted an appropriate person at the EA to review the CCTV footage with the terms of Article 4 in mind. At this stage I am minded to infer that this was not done. I am also troubled by the description in the case summary of what the CCTV footage shows. That description misrepresents what is shown in the CCTV footage.

Rather, what appears to have happened is that the particular manoeuvre executed by Mr. Williams triggered the electromagnetic (or similar) device that triggers the process of issuing the PCN. It would appear that the device can be activated at this location without a contravention occurring.

Mr. Williams travelled from South Croydon to attend this hearing. He incurred £20 in costs, comprising petrol and a train fare. The EA should show cause as to why it should not pay these costs in the circumstances I have described above, either on the basis that the disputed decision was wholly unreasonable (Regulation 12(1)(b) of the Road Traffic (Parking Adjudicators) (London) Regulations 1993) or that its conduct in resisting the appeal was wholly unreasonable (Reg. 12(1(a)). For the avoidance of doubt, I am minded to consider that resisting an appeal in circumstances in which the full CCTV relevant footage is not provided to the tribunal (if that was the case) is wholly unreasonable.

Costs Award


I shall not repeat my decision on the alleged contravention in this case. I trust it is suitably clear. In that decision I explained why, on the evidence that had been served on Mr. Williams and presented to this tribunal, it appeared that the penalty charge notice (PCN) should not have been issued, Mr. Williams’ representations should have been upheld and his appeal should not have been resisted. In adjourning the case so the enforcement authority (EA) could show cause why it should not pay the appellant’s costs I raised the possibility that there was more evidence, not served on Mr. Williams or presented to this tribunal, that supported the EA’s case. I had in mind additional CCTV evidence that might provide some evidential support for the allegations of fact made by the EA. No such evidence has subsequently been provided or even alluded to by the EA. I conclude, therefore, that there is not, and has never been, additional evidence to support the allegations of fact made by the EA in this case. I proceed on the basis that its decision to issue the PCN, to reject Mr. Williams’ representations and to resist his appeal was based on the evidence that was served on him and presented to this tribunal.

The costs sought are very modest – some £20 – but the quantum of costs sought is not relevant to whether I should make an order for costs at all. I may only make such an order if the relevant test is satisfied.

The Road Traffic (Parking Adjudicators) (London) Regulations 1993 (“the 1993 Regulations”) provide, at Regulation 12, as far as is relevant that:

“(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to paragraph (2) make such an order

(a) against a party … if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or

(b) against the local authority, where it considers that the disputed decision was wholly unreasonable.

(2) An order shall not be made under paragraph (1) against a party unless that party has been given an opportunity of making representations against the making of the order.”

It is clear that, unlike in criminal or civil proceedings where costs typically follow the event, an order for costs is not the norm in this tribunal and is only to be made exceptionally. Paragraph (2) has been satisfied because I gave the EA the opportunity to make representations against the making of an order for costs. The EA has taken up this opportunity and I reproduce its response:

“The Local Authority do not agree that we should award travel costs in this instance as the appellant had an option to choose a postal hearing to avoid travel costs.

The Local Authority believe that the PCN was correctly issued as the vehicle failed to comply with a no entry restriction at Giffin Street junction of Frankham Street. As the 'No Entry' signs are in Giffin Street, if a vehicle fails to comply with them, a contravention would still occur, notwithstanding the vehicle going through the give-way lines or not.”

I turn then to consider whether paragraph (1) is satisfied.

The first argument made by the EA is that Mr. Williams should not be able to recover his costs because he could have avoided incurring them in the first place by requesting a postal decision rather than a hearing. As can be seen, there is nothing in Regulation 12 to suggest that this is a relevant consideration in a decision on costs. In any event, I shall deal with the argument on its merits. If the EA’s argument is correct it would, of course, be a complete answer to any application for costs by a party who attends a hearing; the respondent could simply argue that it was the applicant’s decision to incur costs by requesting a hearing. If the argument is correct it would effectively remove the tribunal’s power to award costs in favour of any party attending a hearing. The EA’s argument is not, however, correct. The 1993 Regulations, and in particular Regulation 7, provide both parties with a right to have the appeal decided at a hearing. It is not an absolute right, because the matter can be decided on the papers if both parties consent or fail to appear, but it is a right nonetheless. The rules of natural justice also provide that an appellant should be entitled to a reasonably opportunity to give evidence and present his or her case orally before any adverse finding of fact is made and/or any decision is taken that imposes on him or her an enforceable financial obligation. Mr. Williams, like any appellant, should not be – and is not - prevented from recovering the costs and expenses properly incurred in attending a hearing simply because he could have waived his right to such a hearing and consented to a postal decision. This is an argument that should not have been made.

It appears from the second part of the EA’s representations on costs that the author of them has read my decision on the facts, at least up to the third paragraph that refers to the give way line. The representations do not, however, engage with that decision at all. Indeed, they simply repeat the assertion – which I found to be completely unsustainable on the evidence – that Mr. Williams’ vehicle failed to comply with the ‘no entry’ signs on Giffin Street. As I stated in my decision on the facts, there is no evidence whatsoever that his vehicle was ever on that street. In particular, I am very concerned that:

1. The electromagnetic or similar device at this location that triggers the camera and the process of issuing a PCN appears to be capable of detecting a contravention in circumstances when no contravention has in fact occurred. The device (in which I include its associated software), as it has been placed and/or programmed, appears capable of error.

2. Even if I assume that the decision to issue the PCN was automatic and did not have any human involvement, once Mr. Williams had made representations against the PCN a suitable person at the EA should have reviewed the CCTV footage and read the terms of the traffic management order (TMO). Any reasonable decision-maker who reviewed the CCTV footage by reference to the terms of the TMO would have immediately appreciated that no contravention of the ‘no entry’ sign had occurred and would have upheld Mr. Williams’ representations. Instead, the EA made assertions of fact in its notice of rejection that had no basis in evidence.

3. Similarly, upon receiving Mr. Williams’ notice of appeal a suitable person at the EA, acting reasonably, would have taken the above steps and would not have resisted Mr. Williams’ appeal. Instead, the EA continued to make assertions of fact that had no basis in evidence. It is alarming that any public authority should do this.

4. Even after having received my decision on appeal, which described what the CCTV shows and repeated the terms of the TMO, no-one at the EA appears to have appreciated that its case was always completely unsustainable on the evidence.

I have in mind, first, the test in Regulation 12(1)(b), namely whether the decision to issue the PCN in this case was wholly unreasonable. Even on the assumption that the decision to issue the PCN was automated, I find that the decision is still capable of being unreasonable. After all, the placing and programming of the device was done by a human by or on behalf of the EA. The placing and/or programming of the device that identifies contraventions in this location is such that it generates ‘false positives’. It is capable of identifying a contravention when no contravention has occurred. It is, I find, wholly unreasonable to issue a PCN, fixing an owner of a vehicle with a financial liability for an alleged moving traffic contravention, when on proper scrutiny of the evidence in the possession of the EA at the time the PCN is generated it is clear no such contravention occurred. I have no hesitation in finding this sub-paragraph satisfied. The device in question needs to be re-placed and/or re-programmed.

I turn then to sub-paragraph 12(1)(a). For the reasons I have given above, the EA has had ample opportunity to consider and reflect on the evidence and on the terms of the TMO. It has not done so at any stage, from the receipt of Mr. Williams’ representations to my decision on the facts. I have even questioned whether anyone at the EA has actually viewed the CCTV. The EA has simply repeated its assertions of fact that have no basis in evidence. Not to review or analyse the evidence and/or (where applicable) a TMO prior to deciding to resist an appeal is unquestionably wholly unreasonable. Indeed, to resist an appeal in circumstances where there has been no such review or analysis might be described as a frivolous decision. This sub-paragraph is also amply satisfied.

The costs sought are modest and it is disproportionate to undertake any sort of detailed assessment. I order that the EA pay Mr. Williams the sum of £20.

I hope that a suitable person at the EA, even at this late stage, is able to learn from its decisions in this case to ensure they are not repeated.
-----------------------------------------

Mick

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Incandescent
post Sun, 6 Jan 2019 - 18:31
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Yes, all very nice but they will just carry on in the same old way, because there is NOTHING to stop them doing so.I have said this many times and will say again, until people in these council departments end up in jail for malfeasance, all the malpractice will continue. Personally, I'd like to see some people hanged or boiled in oil, frankly, but we don't do these things nowadays, more's the pity..
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cp8759
post Sun, 6 Jan 2019 - 21:00
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QUOTE (Incandescent @ Sun, 6 Jan 2019 - 18:31) *
Yes, all very nice but they will just carry on in the same old way, because there is NOTHING to stop them doing so.I have said this many times and will say again, until people in these council departments end up in jail for malfeasance, all the malpractice will continue. Personally, I'd like to see some people hanged or boiled in oil, frankly, but we don't do these things nowadays, more's the pity..

I've said this before and I'll repeat it again. Incompetence, even of a high degree, is not without more evidence of criminality. If I thought there were evidence of malfeasance, I'm sure between us we could put together a private prosecution against the individuals concerned (or even the council as a whole). However throwing accusations like this around without substantive evidence could result in a defamation claim so I'd be a bit careful if I were you.

That being said, it only takes a handful of costs awards at £76 a pop and someone is going to question why there's a hole in the budget of what is meant to be an income generating department.


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Mr Meldrew
post Mon, 7 Jan 2019 - 21:37
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QUOTE (cp8759 @ Sun, 6 Jan 2019 - 21:00) *
QUOTE (Incandescent @ Sun, 6 Jan 2019 - 18:31) *
Yes, all very nice but they will just carry on in the same old way, because there is NOTHING to stop them doing so.I have said this many times and will say again, until people in these council departments end up in jail for malfeasance, all the malpractice will continue. Personally, I'd like to see some people hanged or boiled in oil, frankly, but we don't do these things nowadays, more's the pity..

I've said this before and I'll repeat it again. Incompetence, even of a high degree, is not without more evidence of criminality. If I thought there were evidence of malfeasance, I'm sure between us we could put together a private prosecution against the individuals concerned (or even the council as a whole). However throwing accusations like this around without substantive evidence could result in a defamation claim so I'd be a bit careful if I were you.

That being said, it only takes a handful of costs awards at £76 a pop and someone is going to question why there's a hole in the budget of what is meant to be an income generating department.

I agree with you CP because your view is relating to individuals concerned, it’s just that I feel Incandescent’s tongue-in-cheek comments were aimed at the local authority as a whole, or a body of councillors or administrators, and you will be aware that a council in receipt of uninhibited criticism does not have the right to maintain an action of damages for defamation AIUI (Derbyshire County Council v Times Newspapers (1993) 1 All ER 1011 HL).


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I do tend to have a bee in my bonnet re failing to consider and fairness
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