NTO but no PCN - Motorbike in space - Lewisham Options

[MsCee]

Hi all,

Hoping for help with a very frustrating parking fine I've received.

I was sent an NTO in respect to a PCN that was apparently issued to me for parking on a footway.

This particular evening I returned home and there were no spaces to park (within permit bays) along my entire road and I was especially disgruntled as a motorbike was parked selfishly, ensuring a lot of space was taken up where in fact a car could have fitted alongside it. I drove up and down for about 30 minutes desperately hoping someone would get in their parked car and drive away creating a space but nobody did.
In the end I had no choice but to park in what I believed to be the safest place possible. I then got out of my car and decided to take pictures of how the motorbike was parked because I recognised I shouldn't have been parking where I did but simply had no choice and wanted to have evidence to show the situation. (pictures attached)

I thought it was all fine because when I later moved my car there was no PCN on my windscreen.

However, a month later I have received an NTO through the post. I have looked online and can see that the traffic warden placed a large PCN on my windscreen and took pics of my car - but this PCN was certainly not there when I went out to my car later that evening and re-parked.

What would be the best way for me to appeal this? I am a permit holder for this street and it is not my fault that my neighbours had parked so selfishly, furthermore, the PCN was quite honestly NOT on my windscreen when I went to the car so it is also not my fault that the fine went unpaid as I was not even aware one was ever issued.

Any help would be greatly appreciated.

This post has been edited by MsCee: Sat, 6 Apr 2019 - 14:24

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[DastardlyDick]

You need to get onto the Legal Dept. at the Council and ask them for a copy of the Council Resolution which disapplies the otherwise universal ban on "Footway Parking" on the road you parked on.
Some Councils specify the parts of the road where it has been disapplied e.g 'outside no. 220 to outside no. 230' most, however, are lazy and simply disapply the whole road e.g Acacia Avenue from it's junction with High Street to it's junction with Main Street'. If this is the case here, then that's your 'get out of jail' card. Do not use an FoI request for this, it will take too long.


This post has been edited by DastardlyDick: Thu, 23 May 2019 - 21:27

[MsCee]

I've found an address for Lewisham Council Legal Services. They're actually located at the end of my road. Does anyone know if I can just walk in and request a copy of the Council Resolution or do I need to send them a formal letter request instead? If I need to request via mail I'm just conscious of their ability to supply me with it well within the 28 day period I have now been given to pay/appeal further.

[cp8759]

I've found an address for Lewisham Council Legal Services. They're actually located at the end of my road. Does anyone know if I can just walk in and request a copy of the Council Resolution or do I need to send them a formal letter request instead? If I need to request via mail I'm just conscious of their ability to supply me with it well within the 28 day period I have now been given to pay/appeal further.

I don't see how popping in and asking could possibly hurt, the worst that can happen is that they tell you to write in. Experience tells us that often the only way of getting a straight answer is by forcing their hand, by making an FOI request. This is because often where it's only the only bay it turns out there is no resolution, and the footway parking prohibition is still in force even though there is a bay painted partially on the pavement.

However the flip-side is if the council can't come up with the goods, the adjudicator could throw their case out, see for example Daniel Gentry v London Borough of Redbridge (2160356237, 21 September 2016) here http://bit.ly/2PiJqus

What they say about needing to be parked in a bay is rubbish, that only applies if there's a sign saying footway parking applies in marked bays only, see for example Lorna Jennifer Whittick v London Borough of Merton (2160383659, 10 October 2016) http://bit.ly/2KXHCIV

There is no rule that says that anybody parking on the pavement must parked within a marked bay. An Authority can decide to use pairs of blue signs to indicate where pavement parking is allowed. It can determine that this is also subject to vehicles being parked fully within marked bays. If this is the case, the blue signs must say so. The fact that pavement bays are present does not mean that vehicles must be within the bay.

This post has been edited by cp8759: Sat, 25 May 2019 - 11:52

[MsCee]

Thanks guys, seeing as it's bank holiday on Monday I will stop in on Tuesday and ask. In the meantime I'll also write a letter to post just in case.

[hcandersen]

Each case turns on its own facts.

OP, you posted 'along my entire road', therefore you live there.

So, legwork for you. On the side of the road where you were parked and in the line of travel of traffic are there any traffic signs of the form shown at item 14 of the Part 2 sign table here:

http://www.legislation.gov.uk/uksi/2016/362/schedule/7/made

Next, I would write back to the authority.

Dear Sir,
PCN *******
Thank you for your letter dated *** rejecting my representations.

For the purposes of clarity and obtaining further particulars only would you please send me a copy of the council's resolution pursuant to which footway parking in marked bays only is permitted and advise me where the required traffic signs are placed to give effect to this policy, para 6 lines 2 and 3 of your letter refer. I should appreciate a prompt response in order to inform my decision whether to appeal your decision or not.

Yours ****

As cp and others know, I am not in favour of FOI requests, keep within parking procedure and get them to do the work. And if they don't before an appeal is heard, then postpone citing this as the reason. But we're not there yet.

[cp8759]

To be honest because I'm sure the resolution does not exist, I wouldn't bother making an FOI request either. It's only really worth doing where the resolution could sink the authority's case (which isn't applicable if the resolution doesn't exist).

[hcandersen]

And of course if the signs aren't present then, resolution or not, parking on the footway outside markings cannot be treated any differently from parking inside, which is exactly what the authority need to establish.

So OP, we still need that little bit of legwork from you please.

[MsCee]

So, legwork for you. On the side of the road where you were parked and in the line of travel of traffic are there any traffic signs of the form shown at item 14 of the Part 2 sign table here:

http://www.legislation.gov.uk/uksi/2016/362/schedule/7/made

So I took a walk to inspect and there are no signs of this nature at all on the road, neither in the section where I was parked nor at any points further along (it's a pretty long road). The only signs in reference to parking are 'permit holders only' signs.

I'll write back to the authority as you've advised. Seems it might be looking pretty good for my case.

[MsCee]

Hi guys,

I wanted to check in because I haven't yet heard back from the council regarding my request for them to present a resolution. This may be a silly question to those in the know, but I wondered if the 28 day timer for payment is essentially on pause because I sent that letter and I'm now awaiting a response? (I sent it tracked so I have a postal receipt)

Their last letter to me rejecting my representation was dated 21/05, so my 28 days will be up 18/06. Problem is, I am going away on holiday from 14/06-23/06.

If I don't hear anything over the next few days is there anything I should do before I head off on holiday? Assuming nothing will need my immediate attention if anything gets delivered whilst I'm away as well?

[PASTMYBEST]

We cannot confirm your date calculation so will have to accept it.

You MUST register your appeal before you leave, you do not have to submit anything at this stage. In the box for evidence just write full submission to follow

[MsCee]

(Sorry a few questions as I just want to clarify. Really want to get this right and I'm not the best at these things. I've never had any legal dealings before of any kind! Any guidance is greatly appreciated)

What do you mean by 'REGISTER' my appeal? Do you mean just to go to Londontribunals.gov.uk and begin my appeal as instructed on the rejection letter?

If so...

Which appeal basis should I be selecting? I assume - "The traffic order allegedly contravened is invalid" or "There has been a procedural impropriety on the part of the Enforcement Authority" - ?

The next page asks for evidence. What do I upload here? The letter I sent to the council? A screenshot of the GSV? Photos of the area? Nothing at all? (PASTMYBEST I didn't quite get what you meant when you said write 'full submission to follow' - there is no writing space)

In the box that asks for 'Further info about your appeal' shall I mention that I have requested a copy of the resolution from the council?

Do you recommend attending the appeal hearing?

[hcandersen]

Frankly it doesn't matter, everything can be amended later: the important thing is to register.

Contravention didn't occur;
Personal hearing, if you can make it;
Further info, I would suggest: 'As the existence or otherwise and contents of a resolution under the GLC Act is material to my appeal, I requested the council to supply the same on ** (date of request). I would hope that this would be provided in a timely manner.'

[MsCee]

Hey guys, just wanted to update!

I registered my appeal and the hearing is due to take place this coming Thursday.

The council have sent me a huge document for their representation. Would you guys like to see it? If so I can scan it in tomorrow but it is a LOT of pages!

Does anyone have any advice for the court hearing on Thursday? I'm a bit nervous, not because I feel i'm in the wrong but because I've not done this before!


This post has been edited by MsCee: Sun, 14 Jul 2019 - 13:14

[Incandescent]

Nothing to be nervous about, it is a civil adjudication, not a court, so much less formal. Key thing to see is their statement of case. They must include a copy of the PCN, and I think this must be certified as a copy. If you could list the documents we can pick what we want to see. Your reps should be in there as well.

[cp8759]

You must confirm two things:

1) The date of the Notice of Appeal, the tribunal will have sent this to you
2) The date that the council sent the evidence to the tribunal.

The tribunal rules say the internal between 1 and 2 cannot be more than 7 days, so if it took them longer than that to submit their evidence, that's a procedural impropriety.

[MsCee]

@cp8759, Is this > https://ibb.co/MPd20kH what you're referring to as 'The date of the Notice of Appeal' ?

I'll be able to list all the documents tomorrow and check what date the council sent the evidence - unfortunately I'm away for work today and don't have them with me.

Thank you

[cp8759]

@cp8759, Is this > https://ibb.co/MPd20kH what you're referring to as 'The date of the Notice of Appeal' ?

Yes, the council was required by the regulations to file its evidence no later than 25 June, if they didn't then that's a procedural impropriety.

[MsCee]

The 'Evidence Checklist' they have sent me says the 'Date Sent to Appellant' is 12/07/19

They have also sent me the Greater London Council (General Powers) Act 1974

Aswell as:

Permitted Footway Parking List

The Road Traffic Act 1991 Increase in Additional Parking Charges

Evidence Forms

a copy of the PCN

On street text notes

Photos of my car

DVLA report

a copy of the NTO

Copies of my correspondence with them

My right to appeal

Case status report

[cp8759]

The regulations require in the first instance that the PCN, the representations and the Notice of Rejection be sent to the tribunal (rather than to you) within 7 days, on the face of it the council has not complied with this. It sounds like the council has not supplied a case summary (they don't have to - it's optional). I also think they've submitted their evidence far too late in any event - they posted it on 12 July meaning you're deemed to have received it today, two days before the hearing. This is far too late in any event but we can use it to our advantage. I'll draft something later this evening.

[cp8759]

I need to see the Permitted Footway Parking List uploaded by the council.

If possible, please upload all the council evidence, I wouldn't want to miss anything.

This post has been edited by cp8759: Tue, 16 Jul 2019 - 18:52