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2 PCNs for parking on the pavement in SW15 / Putney
obwan1212
post Thu, 12 Jul 2018 - 08:58
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Hello all and thank you in advance for any help and sorry – it’s a long one!

Tildesley Road on the Ashburton Estate in SW15 is almost entirely half and half parking with marked bays demanding that you park half on the pavement and half on the street. On 10th and 11th May I was parked half and half at the very end of the road which I can now see looking closely appears not to be a half and half parked bay, just a normal parking spot, although I and many on the estate park there regularly with no PCN. I received two PCNs just inside 24 hours of each other. I was away that weekend so didn’t see the tickets until I got back on the Sunday. The whole of the estate is free parking on the streets.

I made online representations to www.wandsworth.gov.uk/pconline for both PCNs on 15th May, and then no response at all other than an email auto confirmation of my representation - this one and a second very similar: 1st representation

I then received one NTO dated 29 June for the later issued ticket. The first issued PCN number is now not showing up as recognised on the www.wandsworth.gov.uk/pconline system, so it looks like this one may have been cancelled, but no communication at all.
Notice to Owner p.1
Notice to Owner p.2

Tildesley Road showing parking on both sides or road with half and half parking
Tildesley Road I was parked half half about where black Peugeot is.

Pavement and tape measure
Pavement Tape measure 2
Cars behind my car up on pavement
Pavement and tape, (yellow blossom in the gutter no yellow line)
Shows Learner plate enforcement bike behind
Showing first ticket on windscreen (so this must be second day?)

Since receiving the PCNs I’ve kept more of an eye on the parking space, and people are still able to park there all day without a PCN. I’ve taken quite a few photos showing other cars parked here or on the adjacent street and none seem to get tickets. I was wondering as there are no other posts on pepipoo for here, that is might not be a regular PCN offence, maybe. I can post these photos too with the reg blacked out if that might help.

There is a .pdf document published by Wandsworth: “Parking Enforcement Protocols In Wandsworth”

On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.” In the same document on page 2 it says CEOs “cannot ignore vehicles parked in contravention of the regulations” – which they seem to be doing for all the other cars parked on Tildesley and other streets close by in the last bay that ‘isn’t’ half and half.

On my photos, you can see that the parking warden has photographed using a tape measure to measure the width of the pavement that I’d left. My PCN is a Contravention code 62: Parked with one of more wheels on or over a footpath or any part of a road other than a carriageway and doesn’t mention anything further with regards to space. I’m guessing the tape measure may be to show I had not left sufficient space possibly, but this does seem to be an arbitrary measure as to what is ‘sufficient’ and not mentioned elsewhere in the pdf above, and you also can’t actually see the measurement in the photo, just a bit of tape measure, so who knows what width it is?

You can also see from the cars parked behind my car on the same street that the rest of this street is half and half parking. Also as the parking spot is close to a junction, you would have thought it would make far more sense for it to be a half and half, rather than block a junction. Even when parking half and half on this street I get scraped regularly.

Also, on Wandsworth’s website says that, “If an informal representation against a PCN is received within the 14-day discount period, the discount will be re-offered if we decide to uphold the charge”, but I’ve had no response nor offer of the original discount on this link: Appealing a Penalty Charge Notice

Any help or suggestions would be much appreciated.

Should I make a formal representation and should I complain that I’ve not received a response and an opportunity to pay a reduced fine, and to who / how?

Thanks, all, Obwan

This post has been edited by obwan1212: Thu, 12 Jul 2018 - 10:00
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cp8759
post Thu, 25 Oct 2018 - 08:46
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This is not common, but it does happen. We need to see the council's submissions to the tribunal.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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obwan1212
post Thu, 25 Oct 2018 - 14:22
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Thank you, cp8759.

Wandsworth's submission to the tribunal - Attached File  EA_review_request_full_Redacted.pdf ( 7.65K ) Number of downloads: 12
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obwan1212
post Thu, 25 Oct 2018 - 14:43
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Adjudicator decision: Appeal allowed

I am satisfied on the evidence before me that this vehicle was parked with two of its wheels on a footpath.

Parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies.

On the council's case is applies a de facto footway parking exemption within its borough allowing vehicles to park on the footway outside of a CPZ where a space of 1.2 metres has been left to allow pedestrians with double buggies and wheelchairs to pass.

Upon the appellant raising the point I am not satisfied in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist and I accordingly find that the contravention has not been proved.


==================================================================

EA review request [The adjudicator has agreed to review the case].
Case reference:
Appellant name:
Task details:
EA review request task created for Case reference
Task notes:

The Council are requesting a review of the adjudicators decision in the interest of justice.

It is noted that Mr Andrew Harman in reaching his decision found that parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies. However in summarising Mr Harman found that in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist.

The Councils position is that we operate a declared discretionary policy whereby no enforcement action will be taken if the vehicle is not parked within a Controlled Parking zone and is parked to allow 1.2 metres space for pedestrians to pass. Although Mr Harman found that our discretionary policy is unambiguously , it remains the Councils position that Footway parking is prohibited throughout the whole of London at all times. Furthermore it has long been the policy in the borough of Wandsworth to allow motorists to park on the footway where the carriageway is narrow and where there are no kerbside restrictions in place as long as a minimum 1.2 metres of footway space is left for wheelchair users or pedestrians with a double buggy. The Councils discretionary policy was also referred to and the relevant pages within the guide were provided in the appeals submission.

Further to the above it would appear that Mr Harman was suggesting that we should convey our discretionary footway parking policy. The Council are of the view that we cannot be expected to sign every street in Wandsworth (where the above restrictions do not exist) stating that you are allowed to park more than 1.2 meters from the kerb It is for the reasons set out above that the Council requests a review of Mr Harman's findings.

Stephen Essex
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hcandersen
post Thu, 25 Oct 2018 - 14:57
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I am surprised by LT's letter only to the extent that you are invited to submit additional evidence.

From a personal perspective, I hope they lose and then apply for a Judicial Review because for far, far too long authorities have been playing fast and loose with the Act as written and the intervention of the courts is overdue whichever way that decision goes because we need clarity.

But this is not a re-hearing, it is a review OF YOUR CASE in the interests of justice. Yes there are issues of principle, but it's the facts of your case which apply.

Initally, I would reply to LT and thank them for their letter. At this stage you would be grateful if the tribunal would confirm the limits of the review - which you require to inform your decision whether you could usefully submit additional evidence- and whether the authority, if successful, would intend to pursue the penalty. It occurs to me that what you could usefully submit is whether before seeing the authority's evidence to the orginal adjudicator you had ever become aware of their policy and that despite driving for 100 years in Wandsworth and being a local resident/businessman or whatever ( we can refine this, if true) you had ever seen or come across anything in writing e.g. is there a local council newsletter, which refers to the policy.

Absent the policy being communicated effectively, it's not a rational policy to penalise drivers simply because they are unaware of the unique-among-34 enforcement authorities policy which is applied in Wandsworth.


What I thought was standard practice both with internal reviews and Judicial Reviews is that the authority do not pursue the penalty whatever the outcome. But this is not stated here.

This post has been edited by hcandersen: Thu, 25 Oct 2018 - 15:20
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obwan1212
post Thu, 25 Oct 2018 - 15:19
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Done, thank you. I will update you with the reply.
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hcandersen
post Thu, 25 Oct 2018 - 15:21
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Always post drafts here first.

In this case, my draft was incomplete and, as I said, there were some matters to be determined and fine-tuned.

But that's history as you've sent something.

Well at least post what you sent.
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obwan1212
post Thu, 25 Oct 2018 - 15:29
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It was an email to queries@londontribunals.org.uk

Dear Sir / Madame,

I hope you are well, and thank you for your letter dated 19th October 2018, Case Reference:

Following an application by the Enforcement Authority, the adjudicator has agreed to review the decision on this case. At this stage, I would be grateful if the tribunal would confirm the limits of the review, which I require to inform my decision as to whether I could usefully submit additional evidence.

Secondly, please would you also confirm whether the authority, if successful, would intend to pursue the penalty?

Many thanks and kind regards,



From the Case reference 2170011526:

There is no dispute that this vehicle was parked with one or more of its wheels on a footpath or otherwise than on the carriageway.

Parking in this manner is prohibited 24/7 throughout Greater London unless an exemption applies but this council operates a discretionary policy whereby it does not take enforcement action if the vehicle is not parked within a CPZ and is so parked so as to allow 1.2 metres space for pedestrians to pass by this information being given on its website.

I note the points raised by the appellant in relation to this issue. It seems to me that in the absence of signage on the point a motorist who has not consulted the council's website may be completely unaware of its footway parking enforcement policy and that, even if they were aware of it, it would be almost impossible for a motorist to calculate with any degree of accuracy how much space was left for pedestrians to pass by unless they were carrying a tape measure with them.

I am not satisfied against this background that the prohibition the council seeks to enforce is adequately communicated to the motorist and find for that reason that the contravention has not been proved.

This post has been edited by obwan1212: Thu, 25 Oct 2018 - 15:28
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hcandersen
post Thu, 25 Oct 2018 - 15:48
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Thanks.

I know what the adj said.

But this all occurred at the hearing and you've not been able to bolster it.

Hence my questions:
Do you live in the area, is there a local council magazine, have you had to consult their website before e.g. perhaps another PCN, or applying for a permit etc.

Now for the Latin, lawyers love Latin.

Non sequitur.
an inference that does not follow from the premises;

The council submitted:
Mr Harman was suggesting that we should convey our discretionary footway parking policy. The Council are of the view that we cannot be expected to sign every street in Wandsworth...

Mr Harman did not say they should, perhaps if the council made any effort to communicate the 'policy' at all, that would be a start.

But I don't know (well I probably do, but I moved out of the borough 15 years ago and I'd never seen anything about a policy). I'm just trying to get a local feel. We don't need to use local knowledge, only if we think it supports the adjudicator's decision.
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obwan1212
post Fri, 26 Oct 2018 - 11:02
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Thank you.

2170011526 isn't my case, but one of the other several appeals allowed in Wandsworth that I posted from four different adjudicators. This one I think he particularly summed up well. The others all reach the same conclusion and all allowing the various appeals.

I do live in the area and folk have been parking in this space on this road and the next seemingly without penalty and I have lots of photos showing that too.

The Wandsworth Council magazine is Brightside, latest editions: http://www.wandsworth.gov.uk/downloads/dow...e_2018_editions. I've never spotted anything in Brightside about kerbside parking or the 1.2m rule.

I did track down 'Parking enforcement protocols in Wandsworth' on Wandsworth's website but it wasn't easy to find, and I mentioned it in the very first post here: http://www.wandsworth.gov.uk/downloads/fil...s_in_wandsworth

On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.”, but doesn't mention 1.2m and I can't find that figure anywhere else in the document.

If you put "parking in Wandsworth" into their website search you get over 8,000 results!: http://www.wandsworth.gov.uk/site/custom_s...amp;bgresponse=

Mr. Essex mentions "The Council's discretionary policy .. provided in the appeals submission" in the EA review request. This document isn't in the first 10 pages of results from putting "parking in Wandsworth" into their website search box as above. Edit: In the 58 page document "provided in the appeals submission' - posted to me, the words, 'discretionary policy' aren't even mentioned.

How can this not now be vexatious by the council?

This post has been edited by obwan1212: Fri, 26 Oct 2018 - 11:50
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hcandersen
post Fri, 26 Oct 2018 - 11:55
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Don't get this 'vexatious' bee under your bonnet, the adjudicator has determined that there should be a review, not Wandsworth, they simply made the application. IMO, implicitly you're criticising the adjudicator's decision to allow a review.

Leave it until you know more.
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obwan1212
post Fri, 26 Oct 2018 - 13:27
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I have to admit, I do like that word! rolleyes.gif
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obwan1212
post Tue, 30 Oct 2018 - 12:57
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The auto reply from London Tribunals seems to suggest that my question will be added to my case for consideration, but it hasn't yet been. Should I add it or try to telephone them directly?

===========

Thank you for contacting London Tribunals.

Please note that we do not accept attachments via this e-mail address and they will not be added to your case.

If you wish to submit evidence in support of an appeal that you made via our website please go to www.londontribunals.gov.uk and upload your evidence through the 'Online Appeals' option.

If you do not have an appeal, or you did not appeal via the website, correspondence can be sent to London Tribunals, PO Box 10598, Nottingham, NG6 6DR.

If your email is in relation to a personal appeal hearing scheduled to take place either today or tomorrow, please contact our call centre during opening hours on 020 7520 7200.

Details of our opening hours are on our website at www.londontribunals.gov.uk. Please have your case reference number to hand when you call.

If your email is in relation to an appeal already registered with us or a Statutory Declaration/Witness Statement that has been referred to us by the Enforcement Authority, it will be added to your case for consideration.

If you wish to register an appeal, please note that the quickest way to do this is through our website www.londontribunals.gov.uk or to complete the Notice of Appeal form. You can only appeal online or by post. Please only submit your appeal once.

The Notice of Appeal form should have accompanied the Notice of Rejection sent to you by the Enforcement Authority. You can send the form to us by post (details are contained on the form). If you did not receive a Notice of appeal form, please contact the Enforcement Authority directly to request a copy.

Further information about London Tribunals and the appeals process is available on our website: www.londontribunals.gov.uk

Yours sincerely

Case Management Team
London Tribunals
PO Box 10598, Nottingham, NG6 6DR
Tel: 020 7520 7200
Fax: 020 7520 7206
www.londontribunals.gov.uk
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cp8759
post Tue, 30 Oct 2018 - 20:21
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If in doubt, phone them and check.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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obwan1212
post Wed, 7 Nov 2018 - 10:55
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Hello! I got a reply today from the Tribunal, and it looks like the penalty will be enforced if the decision is in their favour:

I am writing in regards to your email received 25 October 2018. You can submit further evidence if you wish for the scheduled review application at London Tribunals. The London Borough of Wandsworth, unless stated otherwise, will continue to enforce the Penalty Charge Notice if the Adjudicator decides in their favour.
Yours sincerely, Case Management Team, London Tribunals, PO Box 10598, Nottingham, NG6 6DR

=========

Unfortunately, I can’t now update my appeal on the Tribunal website as I get the message, 'Your appeal has been decided and is no longer available to track on this website. You can view the decision made on the statutory register on the ETA website." The ETA website just has the original decision. I called them and they said to send in any further evidence via email.

This is what I’m planning to submit, any advice would be gratefully accepted and appreciated!

Dear Sir / Madam,

Thank you for your time. Please would you consider my original representations and grounds of appeal along with the extra evidence provided below.

Evidence 1: The following four cases where appeals were allowed in similar circumstances by 4 separate adjudicators: 2180226529, 2180256075, 2160498752 and especially 2170011526.

2180226529 The civil enforcement officer measured the distance from the car to the grass verge. The distance was I metre. The local authority argues that there should be a 1.2 metre gap. The appellant provides evidence that some double buggies have a width of less than 1 metre.
Double Buggy 1: https://www.dunelm.com/product/chicco-echo-...ller-1000126975 H 107cm x W 78cm.
Double Buggy 2:Specifications for Britax B-Agile Double Pushchair: Dimensions: H 104 x W 78 x D 105 cm
https://www.buggybaby.co.uk/britax-b-agile-...VRoCxEwQAvD_BwE
Double Buggy 3 Open Width 72cm
https://www.uberkids.com/uk/out-n-about-nip...p;gclsrc=aw.ds/
Wheelchair Access: http://info.stantonhomes.com/bid/55331/acc...ys-and-doorways Minimum clear width for a wheelchair is 36 inches (91.44 cms) for a hall and 32 inches (81.28cms) for a door.

2180256075 Where there is an acknowledged policy of non-enforcement, then the Council cannot expect to enforce PCNs unless there has been a clear communication of the grounds upon which enforcement will take place. A motorist using this area will have a belief that footway parking is acceptable due to non-enforcement and the motorist has no way of knowing that enforcement will take place unless they have parked leaving a space in excess of 1.2 meters.

2160498752 Leaving aside this ambiguity, where is the evidence that 1.2 meters was not left? The civil enforcement officer does not record any measurement and the photographs are not conclusive.
I am allowing this appeal on grounds both of the ambiguity in the policy and the failure to provide any measurement evidence.
In my case there was a photo of a tape measure. Unfortunately that tape measure doesn’t show any measurement at all due to the lack of resolution / clarity. How can you be sure that the Civil Enforcement Officer hadn’t made a mistake, hence not conclusive.

2170011526 . It seems to me that in the absence of signage on the point a motorist who has not consulted the council's website may be completely unaware of its footway parking enforcement policy and that, even if they were aware of it, it would be almost impossible for a motorist to calculate with any degree of accuracy how much space was left for pedestrians to pass by unless they were carrying a tape measure with them.

Evidence 2: I live in the area and folk have been parking in this space on this road and the next seemingly without penalty and I have lots of photos showing this too, [attached to this email (reg numbers blacked out)]. And a highway maintenance truck parked exactly where I was parked: https://www.google.com/maps/@51.4524098,-0....6384!8i8192

Evidence 3 Lack of effective communication: I live in this area, and I can’t find any evidence of the 1.2m that they mention. The Wandsworth Council magazine is Brightside, latest editions which don’t mention anything on parking: http://www.wandsworth.gov.uk/downloads/dow...e_2018_editions. I've never spotted anything in Brightside about kerbside parking or the 1.2m rule.
I did track down 'Parking enforcement protocols in Wandsworth' which is live on Wandsworth's website but it wasn't easy to find:http://www.wandsworth.gov.uk/downloads/file/4706/parking_enforcement_protocols_in_wandsworth
On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.”, but doesn't mention 1.2m and I can't find that figure anywhere else in the document. Please see several widths of buggies and wheelchair space suggestions above.

Evidence 4 Lack of effective communication: If you put "parking in Wandsworth" into the Wandsworth website search you get over 8,000 results! http://www.wandsworth.gov.uk/site/custom_s...amp;bgresponse=
If you put ‘discretionary policy parking’ in the same search box you get 17 results, none on parking.

Evidence 5: In the information provided for the review of the Tribunal’s decision Mr. Essex from Wandsworth mentions an online document where the 1.2m is mentioned: "The Council's discretionary policy ….. provided in the appeals submission" in the EA review request. This document isn't in the first 10 pages of results from putting "parking in Wandsworth" into their website search box as above - so over 100 links to documents, after which I gave up. In the 58 page document provided in the appeals submission - posted to me, the words, 'discretionary policy' aren't even mentioned.

All this supports the fact that it is very difficult to find anything on the Wandsworth website about their ‘discretionary policy’. With the lack of communication / signage etc., and it doesn’t therefore seem to be a rational policy to penalise drivers simply because they are unaware of the unique-among-34 enforcement authorities’ policy which is applied in Wandsworth.

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cp8759
post Wed, 7 Nov 2018 - 14:07
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Rename "Evidence 1, Evidence 2..." etc to "Ground 1, Ground 2..."

Put the following as Ground 1 and move everything else down):
------------------------
Parliament has provided, under section 15(4) of the Greater London Council (General Powers) Act 1974, that a highways authority may lift the footway parking restriction, and it has further provided under subsection 5 that:

A highway authority shall, before the date specified in a resolution passed or notice issued in accordance with the last foregoing subsection, take such steps as are necessary to secure the placing on or near the footway, grass verge, garden, space or land, or the part thereof, to which the resolution or notice relates of such traffic signs in such position as they consider requisite.

Parliament has determined that where the footway parking restriction is disapplied, signage must be used to alert motorists of the extent of the area where footway parking is permitted (It cannot reasonably be argued that the signage in question would serve any other purpose). Therefore if the council had passed a resolution formally disapplying the footway parking ban for a depth of 1.2 metres across on all roads outside a CPZ, the highways authority would have been required by section 15(5) to install signage to that effect. Had such signage been missing or defective, it would be open to the tribunal to find that the council has failed to adequately bring the extent of the area of permitted footway parking to the attention of motorists and a PCN could be overturned on the basis of missing or inadequate signage.

In the present case the enforcement authority is effectively seeking to circumvent the statutory requirements under substation 15(5) by allowing footway parking by means of a discretionary policy not to enforce the footway parking ban which, as a matter of law, is still in effect notwithstanding the lack of enforcement.

As a matter of public law it may well be that the council is entitled to take this approach to enforcement, but this cannot have the effect of depriving motorists of the statutory protection provided for at section 15(5) of the Act. If the tribunal were to allow enforcement to continue in these circumstances, this would have the effect of allowing the authority to circumvent one of the statutroy provisions Parliament has enacted for the benefit of motorists, and this would in practice frustrate the will of Parliament.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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obwan1212
post Wed, 7 Nov 2018 - 16:36
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Great thank you. I will get this updated and send it off.
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hcandersen
post Wed, 7 Nov 2018 - 18:49
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Well put but I would amend the whole submission and not just insert and re-order paragraphs.

On *** I was informed by ETA that Wandsworth Council, the highway authority and enforcement authority for the road, had requested and been granted a review 'in the interests of justice'. I was asked to submit further evidence if I wished.

I consulted your website which is silent on how such evidence should be formatted and therefore I apologise if what follows is improper.

At the original hearing, adjudicator Harman dealt with and determined my appeal on the basis of the first of my *** grounds of appeal. I would therefore submit that even if the authority's review of the decision on their single point were to succeed there is ample substance to my other grounds, which Mr. Harman felt it was not necessary even to consider, to still allow my appeal. At least these points should be considered.

The council's argument rests, I would suggest, on the meaning of the following:

From the written decision:

'On the council's case is[it] applies a de facto footway parking exemption withn its borough..'

'I am not satisfied that in the absence of this 'exemption' being signed that the prohibition that the council seeks to enforce is communicated clearly and unambiguously.'

From their application:
Further to the above it would appear that Mr Harman was suggesting that we should convey our discretionary footway parking policy.

I don't think Mr. Harman was suggesting, he was in effect saying that, even if you have exempted roads lawfully-which you haven't- the council are still obliged to convey this through prescribed or authorised signage.

I fully support Mr. Harman's approach and conclusions and ask the reviewing adjudicator to reject the council's contention that their 'policy' (it cannot of course be a legitimate policy if it is not lawful) and decision to not communicate this is substantially compliant with the law.

(sorry this has been late, terrible problems with my ipad).

This might need to be kicked around.

This post has been edited by hcandersen: Wed, 7 Nov 2018 - 18:51
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cp8759
post Wed, 7 Nov 2018 - 20:46
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Hcandersen I'm sorry but I'm not sure your draft would work as well as what the op put in post 54.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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hcandersen
post Wed, 7 Nov 2018 - 22:08
Post #59


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It's a mix.

My suggestion adds that the appeal as a whole does not fall to be determined on the single point, there were others which the adj did not feel it necessary to even consider. IMO, this point must be made.

In general I don't like the approach, it seems to start afresh when all that's needed is clear bolstering of the original decision.

But I'll go with the flow.
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PASTMYBEST
post Wed, 7 Nov 2018 - 22:27
Post #60


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I think Mr Harman got it wrong. "The contravention has not been proved" Yes it has and he said so in his opening sentence.


But he was not wrong to allow the appeal, IMO just the reason for doing so Which must be abuse of process.
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