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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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post Thu, 12 Jul 2018 - 08:58
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Longtime Lurker
post Wed, 7 Nov 2018 - 23:29
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Are we missing a trick here?

The decision in Case 2160498752 hinges on "Leaving aside this ambiguity, where is the evidence that 1.2 meters was not left?"

I think the OP didn't bring this up first time. If not, can they add it this time? Some adjudicators seem to want to find favour of the appellant without addressing a big contentious issue like the one the council want to get a ruling on, and this might give them a chance to do that.
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hcandersen
post Thu, 8 Nov 2018 - 11:26
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With respect, no it hasn't.

And this is the key point IMO.

The adj did not rule on a contravention of the GLA Act's specified provision, he ruled on the basis that even if one accepted that there was a lawful resolution to park, whereas the GLC Act does not require the display of signs, any substituted provision under s15(4) does.

The grounds cited of 'parked in a road other than on ...the carriageway' apply equally to any highway authority alternative as to the GLA Act provision itself, therefore the alleged 'contravention' in this case was the authority's 'exception' (back to quote marks again!) which could not stand because it wasn't communicated as required.
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cp8759
post Thu, 8 Nov 2018 - 13:54
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I agree with hcandersen that the contravention has not been proven because where there is an exception to the general prohibition, s15 requires that restriction to be adequately signed. Post 55 clearly explains why this was a decision that was open to the original adjudicator, as such there is no error of law in the original decision, therefore the request for review should be denied.


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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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PASTMYBEST
post Thu, 8 Nov 2018 - 14:04
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QUOTE (cp8759 @ Thu, 8 Nov 2018 - 13:54) *
I agree with hcandersen that the contravention has not been proven because where there is an exception to the general prohibition, s15 requires that restriction to be adequately signed. Post 55 clearly explains why this was a decision that was open to the original adjudicator, as such there is no error of law in the original decision, therefore the request for review should be denied.



I see where HCA and you are coming from and don't disagree in some way. but it is the finding that the contravention has not been proved that opens a door for review The council are effectively arguing that it is not for an adjudicator to rule on their use of discretion. My point is to effectively say we will allow footway parking at the behest of our CEO's is an abuse of process
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cp8759
post Thu, 8 Nov 2018 - 14:15
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QUOTE (PASTMYBEST @ Thu, 8 Nov 2018 - 14:04) *
My point is to effectively say we will allow footway parking at the behest of our CEO's is an abuse of process

I think that's what I said in post 55, albeit in different terms. If circumventing the statutory protections enacted by Parliament isn't an abuse of process, I don't know what is.


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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, 8 Nov 2018 - 14:34
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Thank you all, very much appreciated.

So should I go with post 55 with post 57 as a further ground added at the top?
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cp8759
post Thu, 8 Nov 2018 - 15:16
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Personally I would go with post 55, followed by the contest of your post 54. hcandersen had suggested you ditch all of that in favour of his post 57. You know my view but it's your case so only you can decide.


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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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PASTMYBEST
post Thu, 8 Nov 2018 - 15:33
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QUOTE (cp8759 @ Thu, 8 Nov 2018 - 15:16) *
Personally I would go with post 55, followed by the contest of your post 54. hcandersen had suggested you ditch all of that in favour of his post 57. You know my view but it's your case so only you can decide.



HCA point re the consideration of all other points in the appeal should be made
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obwan1212
post Thu, 8 Nov 2018 - 16:37
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Thank you both. I will post up the final version tomorrow.
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obwan1212
post Fri, 9 Nov 2018 - 09:08
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In a letter dated 19th October, 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 have been unable to add this evidence to my original case 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 the London Tribunals and was advised to send in any further evidence via email, and hence the below evidence. I have also attached several photos to support ground 3 below.

At the original hearing, the adjudicator Mr. Harman dealt with and determined my appeal on the basis of the first grounds for appeal that the alleged convention did not occur. 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, please.

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 within 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 Wandsworth’s 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 they had exempted roads lawfully-which they hadn't- the council are still obliged to convey this through prescribed or authorised signage under section 15(4) of the Greater London Council (General Powers) Act 1974.

The adjudicator did not rule on a contravention of the GLA Act's specified provision, he ruled on the basis that even if one accepted that there was a lawful resolution to park, whereas the GLC Act does not require the display of signs, any substituted provision under s15(4) does.

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.

Extra Evidence:
Ground 1

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 statutory provisions Parliament has enacted for the benefit of motorists, and this would in practice frustrate the will of Parliament.

Ground 2: I have also found 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.
I haven’t found a double buggy nor a wheelchair close to 1.2m width:
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/
Recommended Wheelchair Access widths: 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.

Ground 3: 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).

Ground 4: 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/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. This is a live document on their website currently. Please see several widths of buggies and wheelchair space suggestions above.

Ground 5 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.
If you put ‘1.2m’ into the search box, you get 4 responses, none about parking.
http://www.wandsworth.gov.uk/parking - if it’s on here, I can’t find it.

Ground 6: 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. 10 pages of results is over 100 links to documents, so it is almost impossible to find on their website. In the 58 page document provided in the appeals submission - posted to me, the words, 'discretionary policy' aren't even mentioned. There is no search I’ve put in that returns a document with the 1.2m mentioned within it.
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 applied solely in Wandsworth.

This post has been edited by obwan1212: Fri, 9 Nov 2018 - 10:41
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cp8759
post Fri, 9 Nov 2018 - 11:06
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Replace Extra Evidence with Additional Grounds, change section 15(4) of the Act to be in italics or in quotation marks (otherwise it's not clear what text is quoted from the legislation, and what text is yours).


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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 Fri, 9 Nov 2018 - 13:08
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Thank you. Will do and then send it off. Thanks all for your help.
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