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Hackney School Streets Restrictions - Rushmore Road PCN, Hackney School Streets Restrictions - Rushmore Road PCN
RootieTootie
post Tue, 16 Oct 2018 - 18:41
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Hi there,

So Hackney Council have placed a new restriction on the roads surrounding Millfields School. All the roads in this area are dead ends and Rushmore Road, which runs along side the school, is the only exit route out of the area.

A flyer delivered in February offering all information, prior to the enforcement, gave the impression that all vehicles assigned to residents in Zone N would automatically be registered for exemption. On reading it again - there seems to be a contradiction.

A PCN has been delivered. Please see the attached, as well as the flyer initially received by all in the area.

All comments and thoughts welcome. The local council has been called, however, they will not cancel it over the phone, so a strong initial case is necessary.

Side note: the image on the right is as unclear as it appears - only the reg number is visible.

Here's the PCN and flyer:


Thanks in advance.

UPDATE: This is a 6 page doc - but I'm having difficulty saving the pdf with all pages to a JPEG (it's just saving the first page) - any advise appreciated. tinypic is not playing ball anymore it would seem.... or for now, so I can't add them as separate pages.

smile.gif

This post has been edited by RootieTootie: Tue, 16 Oct 2018 - 19:12
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post Tue, 16 Oct 2018 - 18:41
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RootieTootie
post Thu, 6 Dec 2018 - 14:45
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Hi all, I've added a very quick draft below. I've never had to write an appeal and so am not sure of the best format/language to use and if I've covered all bases. Please advise. Thanks!



Dear Sir/Madam,

REF:……

My reasons for going to appeal are as follows:

1/ Hackney Council has ignored my representations in their letter of rejection of 23rd November 2018, by making no reference to my challenge and the evidence I submitted to support my appeal. This is procedural impropriety.

2/ No formal correspondence was sent to residents in Zone N who would be affected by the School Street restrictions. 


3/ A flyer, which looks very much like an advert for a school fête, was the only correspondence delivered to local residents regarding the new restrictions in the area.

4/ Bullets 3 and 4 on the flyer state that access for residents would be maintained and that holders of a Zone N permit would be exempt and automatically registered. As a resident reading this flyer, it seemed clear to me I did not need to take further action as my vehicle would be automatically registered.

5/ I am a proofreader by trade and clarity of language when communicating through correspondence is essential. I believe Hackney Council failed in their communications in this instance. They neglected to clearly inform local residents through any official communications of the proposed restrictions and significant changes to vehicle access within the School Street area. The language used in the only form of communication to residents within the area, a flyer, uses misleading and contradictory language.

6/ Additional evidence to follow.

Yours sincerely,

This post has been edited by RootieTootie: Thu, 6 Dec 2018 - 14:52
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cp8759
post Thu, 6 Dec 2018 - 18:52
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Needs rewriting to be honest, don't have time now, might look at later or tomorrow.


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RootieTootie
post Thu, 6 Dec 2018 - 19:59
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Thank you. I just reread the last sentence which makes no sense (!) – definitely written in a rush!
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cp8759
post Fri, 7 Dec 2018 - 12:51
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Keep all formatting exactly as I have used it below, including bold and italics. You may want to put this in a PDF call Grounds of Appeal and upload it to the tribunal website, you can use this template if you want https://drive.google.com/open?id=1xDgGcrLLV...2INEJI34LkuHrkU

Ground 1:
The council delivered a flyer, which I submit in evidence, advising residents of the new restrictions. The flyer states that "Zone residents with vehicles in possession of a Zone N parking permit will be automatically registered; any other resident/business needs to apply for an exemption", I understood this to mean that because I was a resident of Zone N and in possession of a Zone N permit, I would be automatically registered for an exemption.

It is not open to the council to issue such a communication and then resile from it in order to enforce a penalty charge notice, this is intrinsically unfair and all public authorities are under a duty to act fairly, as per R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 Lord Mustill: ‘Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances

The flyer states that access for residents would be maintained and that holders of a Zone N permit would be exempt and automatically registered. As a resident reading this flyer, it seemed clear to me I did not need to take further action as my vehicle would be automatically registered.

Ground 2:
While previous adjudications are not binding they can be persuasive and I draw the tribunal's attention to Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432):

"The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed."

Hackney Council has ignored my representations in its letter of rejection of 23rd November 2018, by making no reference to my challenge and the evidence I submitted to support my representations. Instead the Notice of Rejection drones on about largely irrelevant matters, such as a commentary on the nature of the restrictions, the quality of the signage and the purpose behind the scheme. As complaint as the scheme may be with the Traffic Signs Regulations and General Directions 2016, and as laudable as the reasons behind the scheme might be, none of this was raised in my representations.

My representations were in substance the same as ground 1 above, however no mention of this is made at all in the Notice of Rejection. Indeed, the Notice of Rejection appears to be nothing more than a generic template that could be issued as a response to any representations that raise issues about the visibility or lawfulness of the signage.

Paragraph 1(7) of schedule 1 to the London Local Authorities and Transport for London Act 2003 provides that:

(7) It shall be the duty of the enforcing authority to whom representations are duly made under this paragraph—
(a) to consider them and any supporting evidence which the person making them provides; and
(b) to serve on that person notice of their decision as to whether they accept that the ground in question has been established.


The Notice of Rejection makes no mention at all of the grounds submitting in the representations, and the enforcement authority has thus failed to discharge its duties under the statutory scheme. While the Act does not include a procedural impropriety as a ground of appeal, in the circumstances the only penalty that may be demanded is zero.

This post has been edited by cp8759: Fri, 7 Dec 2018 - 13:10


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RootieTootie
post Sat, 8 Dec 2018 - 13:06
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Thank you. I really appreciate this. Will get it sent.

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RootieTootie
post Mon, 17 Dec 2018 - 01:17
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The hearing date has come through for early Jan. I have never attended a hearing before and would appreciate any advice on how to present the case. Should anyone else be present with the appellant? What's the best approach to presenting the evidence? Should the cases referred to in the appeal above be researched (and where would the full cases be found?). It feels like it will be quite a daunting situation!
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cp8759
post Mon, 17 Dec 2018 - 09:31
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Well let's start by saying that you can ask for a decision to be made based solely on your written submissions, there is no requirement to have a hearing at all. That having been said, the tribunal is not a court and the procedure is informal, if you do opt for a hearing nobody needs to be present with the appellant and the adjudicator will go through the evidence that has been submitted.

R v Secretary of State for the Home Department, ex p. Doody is published here https://www.bailii.org/uk/cases/UKHL/1993/8.html but frankly you don't need to read it.

Jaffer Husseyin v Royal Borough of Greenwich you will find on https://londontribunals.org.uk and it should be self-explanatory.


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RootieTootie
post Wed, 19 Dec 2018 - 17:21
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Hi,

Following my FOI request, I've had an email response for the council today. Do you think the following is something that can be used at the tribunal? I realised I should have also requested how many residents in Zone N, own a Zone N permit to understand the % of those issued with a PCN – although it's really residents in the immediate area that this relates to more than those permit holders in whole Zone. Perhaps I can still request this as it may arrive in time.

Also this was sent via email - is a printed email acceptable to present at a tribunal?

You requested the following:

Please could you provide me with the following: 1/ The number of Penalty Charge Notices issued by Hackney Parking Services (Hackney Council) to vehicles driving through the Hackney Millfields Community School Streets Zone, on the following roads, between 1st February 2018, to date (5th December 2018): Hilsea Street Elmscroft Road Rushmore Road (between Hilsea Street and Mayola Road). 2 / How many of those PCNs issued, were to registered vehicle owners/drivers resident in the Hackney Zone N area


The Council’s Response

A total of 1,230 PCNs have been issued on Rushmore Road between 1 February 2018 and 5 December 2018 for failing to comply with a restriction on vehicles entering a pedestrian zone of which 210 are Zone N permit holders.

Keen to know your thoughts on the above statistics.

This post has been edited by RootieTootie: Wed, 19 Dec 2018 - 17:23
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cp8759
post Wed, 19 Dec 2018 - 17:27
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To be honest this sort of statistical information is of very little value. You don't know how many people were driving down that road before the scheme was introduced, so you cannot say how much of a difference the signs have made.

If you could say that the week before the restrictions were put up you had 100 cars a day drive through, and the week after you had 50 cars a day drive through, you could say "well look, half of all drivers are missing these signs, so they can't be adequate", but as the data you would need doesn't exist, I think there's not much point in pursuing this.

You have even less of a chance to determine how many zone N residents with a zone N permit would have driven through that road, had the scheme not been in place...


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RootieTootie
post Wed, 19 Dec 2018 - 18:27
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I was thinking more along the lines of it being quite a high percentage of drivers in Zone N who supposedly also received the flyer and as a result logically thought they were automatically exempt, or worse, didn't realise this flyer was imparting crucial information (as it looks like an flyer for a school fete) as it's not on an official letter headed document. Technically, no one, or very few resident drivers in Zone N should have received a PCN if the communication by the council was effective.

This post has been edited by RootieTootie: Wed, 19 Dec 2018 - 18:29
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cp8759
post Wed, 19 Dec 2018 - 18:41
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But maybe, absent the restrictions, vehicles would have driven along that road 1,230,000 times, meaning that maybe the flyer has been over 99% effective...

The problem is you cannot say what effect the flyer has or hasn't had, if you can't show what would have happened if the flyer hadn't been sent.


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stamfordman
post Wed, 19 Dec 2018 - 19:23
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Had a quick look on Tribunal cases - most refused, a few allowed on signage. A few have tried the N permit angle without success but couldn't see one reference the flyer.
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RootieTootie
post Thu, 3 Jan 2019 - 16:29
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Just received the council's evidence pack.

It contains mostly reference to their signage, the legality of the devices they used to capture the vehicle, the public consultation regarding the restrictions dated Sept 2017 and the council documents found online regarding the restrictions. They have included the same flyer.

There is still no reference to the language used in the flyer. I now know they should have referred to the SS3 zone as the area in which exemption applied. There is no reference to this zone at all in the flyer.

Should I list here everything they have supplied?

I'm not sure if it's too late now (I think I have up to 3 days to add evidence). I was thinking to enclosed a map with my residence pinned to show how close I am to the zone and why it made sense to me that I would be exempt as this is the closest route out due to all other roads out being dead ends. Is it worth doing this?
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cp8759
post Thu, 3 Jan 2019 - 17:25
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For now just show us the council's case summary.


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RootieTootie
post Thu, 3 Jan 2019 - 18:11
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Got it. What should i redact before uploading?

I was also thinking, if this school street zone has been implemented in other boroughs it might be worth finding evidence of correspondence to those residents as a means of comparison.
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cp8759
post Thu, 3 Jan 2019 - 18:14
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QUOTE (RootieTootie @ Thu, 3 Jan 2019 - 18:11) *
Got it. What should i redact before uploading?

Just your name, address and number plate, I can't imagine anything else in there would identify you.

QUOTE (RootieTootie @ Thu, 3 Jan 2019 - 18:11) *
I was also thinking, if this school street zone has been implemented in other boroughs it might be worth finding evidence of correspondence to those residents as a means of comparison.

I think you're thinking outside the box a bit too much, this is a relatively straightforward case and you're not making an appeal to the Supreme Court. Correspondence in other boroughs is likely to be completely irrelevant and to be honest I suspect it would just irritate the adjudicator, at the end of the day either they accept your flyer was misleading, or they don't.


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RootieTootie
post Thu, 3 Jan 2019 - 18:47
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cp8759
post Thu, 3 Jan 2019 - 19:46
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Send this response:
------------
The council's submissions are noted and the following is submitted in response:

There is clearly an irreconcilable difference between the parties as to whether the flyer issued by the council could mislead or cause a motorist to misunderstand the extent of the automatic exemption for local residents. This is a matter on which the tribunal will need to make a finding of fact and little can be added to what has been previously said.

However it is inescapable that the council failed to consider the representations originally submitted against the PCN. In its case summary under the column headed "The Council's Evidence", the respondent submits that the appellant's point regarding the flyer is not accepted. The council goes on to explain that the respondent does not benefit from the exemption due to residing outside of the exempted area (though this does not address the fact that the flyer is, at best, ambiguous).

I have already drawn the tribunal's attention to Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) but I would re-emphasise the following passage from that decision: "Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected.". If the Notice of Rejection had included any explanation as to why the council did not accept the representation which had been submitted in relation to the flyer, using wording similar to those found in the council's case summary, the Notice of Rejection could not be impugned on procedural grounds.

However no such explanation can be found in the Notice of Rejection, which is simply silent on the matter. In light of this, the NoR is effectively silent on the only representation that had been submitted.

It follows that regardless of the tribunal's findings in relation to the flyer, it is self-evident that the respondent has failed to discharge its duties under paragraph 1(7) of schedule 1 to the London Local Authorities and Transport for London Act 2003 to "consider [representations] and any supporting evidence which the person making them provides" and "to serve on that person notice of their decision as to whether they accept that the ground in question has been established". This will always be the case where the notice of rejection make no mention whatsoever of the representations that had been submitted, as is the case here.

It is submitted that in light of this failure to consider, even if the alleged contravention occurred, the only penalty that may be lawfully demanded is zero.


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RootieTootie
post Thu, 3 Jan 2019 - 19:49
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Do I submit this as an attached document under further evidence?
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cp8759
post Thu, 3 Jan 2019 - 19:51
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QUOTE (RootieTootie @ Thu, 3 Jan 2019 - 19:49) *
Do I submit this as an attached document under further evidence?

I would do that (it preserves formatting), and I would also send a message through the messaging system to confirm that you've attached further submissions.


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