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Hatfield Galleria Penalty for Parking in residents parking zone, Penalty is issued even though a sign suggests it is private land
Rob36
post Sat, 9 Feb 2019 - 15:16
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Hi,

An elderly relative parked on what was a poorly maintained and unmarked space off the end of possibly private road (that did not even have proper marking as a parking bay). There were no markings on the road to suggest parking restrictions. (If you look on Google Earth there is actually single yellow line but it is no longer there so please refer to pictures I will post below). There was no sign to be seen and he was parking when it was dark. A daylight picture attached does show a small sign at the distance obstructed by vegetation growth.

More to it there is a big sign "PRIVATE GARDENS" one has to drive past to get to that place (see pictures) which to me would indicate that council enforcement would not apply and any enforcement would be through contract law for which to apply the sign should be such that the person cold not escape noticing as opposed had to search the place for it with a torch.

I also attach pictures of signs on entrance to this so called residents parking zone. I note that they are straight after one enters from a main road and mounted quite high. The terminating signs are even more of a joke - just letters black on white more like place name.

The PCN does not appear to re offer a discount if it is challenged and appears quite amateurish. On the website they state the following which appears to re-offer a discount though it is not clear whether to ensure discount is re-offered one has to write to that postal address only or email will also do :


"As of 17th January 2019, individuals will no longer be able to appeal a PCN over the phone. You should write promptly to the address shown below, as this will still provide the opportunity for you to pay at the reduced rate should your challenge be turned down.

Welwyn Hatfield Council
PO Box 1186
Uxbridge
UB8 9DZ

Alternatively, appeals can be entered via email to the following address;

parking@eastherts.gov.uk "


I attach below PCN and also map showing exactly where the car was parked (with red blob). In the post below I will add more pictures.

Attached Image


Attached Image


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hcandersen
post Mon, 11 Feb 2019 - 12:38
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And this 'wasteland' is in the council's photos?

It is pointless taking a driver's recollections when there is or should be objective evidence. You cannot turn up at adjudication and claim that you were parked at X when photos show Y.

Pl post the photos then we can stop guessing.

Anyway, they apparently passed 'permit holder' gateway signs and did not see the repeater. These are the objective facts as we know them. IMO, the only solid defence on this point is that they were not parked at a location subject to that restriction. And to support this, or alternatively to not flog a dead horse on this point, you and we must see the photos.

Item 5, Part 3 Sign Table refers:
http://www.legislation.gov.uk/uksi/2016/362/schedule/5/made

The council's burden is to show that the restriction applied and was signed, road markings are not required and may not be placed...see (b) of definition of Permit Holder's Area:
http://www.legislation.gov.uk/uksi/2016/362/schedule/1/made

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Rob36
post Mon, 11 Feb 2019 - 13:17
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QUOTE (hcandersen @ Mon, 11 Feb 2019 - 12:38) *
Pl post the photos then we can stop guessing.


I attach pictures but it was dark and hence difficult to infer location from the pictures but can confirm it is the location that I posted pictures above.

There are more close up pictures in their "evidence" but they are close up views into the car presumingly taken to prove that no permit was displayed.


The repeater sign can be seen on this picture but that is because they are taking with a flash and the sign is reflective. In the darkness that that "wasteland" is it is not seen.



Attached Image



Attached Image



Attached Image




So I believe that this is the TRO:
http://www.welhat.gov.uk/CHttpHandler.ashx?id=12387&p=0

And based on this webpage I believe it is a current order as opposed to being a superseded one:
http://www.welhat.gov.uk/article/4304/Comp...gulation-Orders


So the facts are these:
1. The TRO (faulty as it may be) is is made by Welwyn Hatfield Borough Council.
2. The PCN implies that Welwyn Hatfield Borough Council is the enforcement authority.
3. It looks like East Hertfordshire council actually considers challenge representations

Can Welwyn Hatfield Borough Council be a valid Enforcement Authority? Who is the EA in this case Welwyn Hatfield Borough Council or East Hertfordshire council?

This post has been edited by Rob36: Mon, 11 Feb 2019 - 13:16
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hcandersen
post Mon, 11 Feb 2019 - 13:34
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The order states clearly that WBC are exercising powers under s19 of the LG Act 2000. This permits the traffic authority, in this case Hert CC, to delegate a function to another council.

The delegated function in this case is the power to make certain TROs. Which brings us to this:

https://www.legislation.gov.uk/ukpga/2004/18/schedule/8

S8(5)(a)(ii) of Part 2 to Schedule 8 refers.

Can WBC make the order - yes.
Does WBC's name appear in the PCN? Yes. It might not be prefixed with the words.. the EA is... but this is not required, all that's mandated is that the name is stated, and it is.
May the EA contract-out consideration of pre-NTO challenges? Yes.

So where does this leave us?

If your photo is accurate then IMO part of the car was on the carriageway - this is obvious from the presence of the yellow lines which mark its edge - so now where are we?

This is not the stuff of guaranteed wins at adjudication, IMO.
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Rob36
post Mon, 11 Feb 2019 - 13:59
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QUOTE (hcandersen @ Mon, 11 Feb 2019 - 13:34) *
So where does this leave us?

If your photo is accurate then IMO part of the car was on the carriageway - this is obvious from the presence of the yellow lines which mark its edge - so now where are we?

This is not the stuff of guaranteed wins at adjudication, IMO.


Ok, thanks for clarifying that the argument that Welwyn Hatfield Borough Council is not an Enforcement Authority and hence PCN is invalid is not a valid argument.


I will still pursue the "Private Garderns" argument as I believe motorists are entitled to assume that on-street enforcement does not apply to what is signposted (correctly or incorrectly) as private land.


Also is not TRO defective due to criminalization provision in it namely 19©(iv), 19(d) and 19(e):
Attached Image

http://www.welhat.gov.uk/CHttpHandler.ashx?id=12387&p=0


Is not this case a carbon copy of the case won on defective TRO:
http://www.davidmarq.com/bama/Validity_of_...%20v%20Bury.pdf

Has the above decision been subsequently overruled by higher judicial authorities or by more recent decisions?

This post has been edited by Rob36: Mon, 11 Feb 2019 - 14:01
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hcandersen
post Mon, 11 Feb 2019 - 14:11
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No chance.

Should all TMO/TROs have removed all references to how enforcement is to be carried out? Yes.

Does this make the whole order invalid, no, and you cannot challenge on this ground neither is the error of such magnitude as to render the order unsafe.

Is the restriction specified? Yes.

Does the TMA deal with this AND use the word offence? Yes. (People can get so het up with the use of the word offence, but it's there in the primary legislation!)

Para. 4(2)(b) of Part 2 to Schedule 7 of the TMA refers.

https://www.legislation.gov.uk/ukpga/2004/18/schedule/7

This post has been edited by hcandersen: Mon, 11 Feb 2019 - 14:13
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Rob36
post Mon, 11 Feb 2019 - 14:25
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QUOTE (hcandersen @ Mon, 11 Feb 2019 - 14:11) *
No chance.

Should all TMO/TROs have removed all references to how enforcement is to be carried out? Yes.

Does this make the whole order invalid, no, and you cannot challenge on this ground neither is the error of such magnitude as to render the order unsafe.

Is the restriction specified? Yes.

Does the TMA deal with this AND use the word offence? Yes. (People can get so het up with the use of the word offence, but it's there in the primary legislation!)

Para. 4(2)(b) of Part 2 to Schedule 7 of the TMA refers.

https://www.legislation.gov.uk/ukpga/2004/18/schedule/7


That order is actually quite recent, 2017. The fact that back in 2006 in a similar case the order was made post decriminalization was taken into account by the adjudicator.

On what basis do you say "No Chance"?

Has this decision been explicitly overruled?
http://www.davidmarq.com/bama/Validity_of_...%20v%20Bury.pdf

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Rob36
post Sun, 3 Mar 2019 - 19:36
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Hi,

This question relates to the case in which I represent a relative:
http://forums.pepipoo.com/index.php?showtopic=125963

As at this stage I need advice on specific point of law, potentially of wider significance than just my case, I decided a separate thread is appropriate.


The TRO in my case suffers the same deficiencies as those in a case decided back in 2006, "Isaacson vs Bury Metropolitan Borough Council":
http://www.davidmarq.com/bama/Validity_of_...%20v%20Bury.pdf


The deficiencies are that TRO refers to crimes that have been decriminalized and has provisions for such irrelevant information relating to "crimes" to be put on PCN. What makes my case even stronger is that in 2006 the offending TRO was made just several months after decriminalization. In my case more than a decade has passed.

Some of the posts in my case thread have indicated (though not explicitly stated) that that decision back from 2006 does not reflect the current tribunal practice.

So the question I have is: have current TRO related cases been decided in line with "Isaacson vs Bury Metropolitan Borough Council" or has the tribunal departed from that case in its more recent decisions?



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DancingDad
post Sun, 3 Mar 2019 - 21:52
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In general adjudicators will run a mile from declaring a TRO invalid, they simply cannot.
They may decide that due to a relevant part being missing or defective the PCN cannot be upheld.
That is fairly common.
Or as in 2006 that the TRO was so bad that they would not uphold a PCN against it.
That isn't common.

It also has always to be remembered that no decision is binding on another adjudicator or even on themselves, they can change their mind.
So it not a case of whether or not the Bury decision has been overruled, it is whether you can persuade an adjudicator that it is relevant and that the same sort of wording that was found damning in that case should also damn this one.
Try it by all means but don't be surprised should it be disregarded, even if Mr Hinchcliffe was to hear your case, there is no guarantee he would decide the same.
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cp8759
post Sun, 3 Mar 2019 - 22:48
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You need to remember that most decriminalised contraventions are based on an underlying criminal offence. The fact that a TRO contains the word "offence" is not likely to win the day. If you show us the TRO, we can give you a more informed view.


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Rob36
post Sun, 3 Mar 2019 - 23:21
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QUOTE (cp8759 @ Sun, 3 Mar 2019 - 22:48) *
You need to remember that most decriminalised contraventions are based on an underlying criminal offence. The fact that a TRO contains the word "offence" is not likely to win the day. If you show us the TRO, we can give you a more informed view.


Thanks a lot for a reply.

The TRO actually has very similar deficiencies to the TRO in "Isaacson vs Bury Metropolitan Borough Council". The TRO for my case can be accessed via the link below:
https://www.welhat.gov.uk/media/12387/Conso...317514460770000


The TRO has many flaws but in my representations I focused on just some of them and put in the following:

"
The relevant TRO is grossly deficient to the extent of being invalid and/or PCN is invalid for non compliance with the TRO.
This part of the argument is essentially a carbon copy of the well known “Aubrey Isaacson vs Bury Metropolitan Borough Council” case (which I attach as a pdf file to the email) except that the passage of time since parking decriminalisation made the present TRO even more outrageous. In the case concerned the TRO was made just months after parking decriminalisation yet presence of provisions that might have been relevant under criminalised regime but not under decriminalised regime rendered it invalid. In this case TRO was made in 2017, more than a decade later.

There are multiple deficiencies with the TRO/PCN the ones I would like to focus on at this stage are:
1. Paragraph 19©(v) of the TRO requires that PCN contains “a statement that it is an offence under Section 47 of the Road Traffic Act 1984 for the driver of the vehicle who has left it in parking place to fail to duly pay the penalty charge. The PCN is invalid as it contains no such statements. So if you believe the TRO is valid then PCN is invalid anyway for non-compliance with the requirements of the TRO.
2. Paragraph 19(d) of the TRO appears to empower the authority to require information from the owner which it has no right to require under decriminalised enforcement regime.
3. Paragraph 19(e) of the TRO appears to create a criminal offence which the authority has no right of creating under decriminalised regime.

Below I attach a relevant section of the TRO with the invalidating sections of the TRO highlighted in yellow. It is also attached to the email. I also attach the TRO in full to the email.

In your reply please address in details why paragraphs 19©(v), 19(d) and 19(e) are included in the TRO and why PCN does not comply with paragraph 19©(v) of the TRO.

"

This post has been edited by Rob36: Sun, 3 Mar 2019 - 23:22
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cp8759
post Sun, 3 Mar 2019 - 23:41
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Show us the Notice of Rejection, Welwyn Hatfield Borough Council has a known flaw in its Notice of Rejection template (see row 163 here http://bit.ly/2ALghSS)


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Rob36
post Mon, 4 Mar 2019 - 00:17
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QUOTE (cp8759 @ Sun, 3 Mar 2019 - 23:41) *
Show us the Notice of Rejection, Welwyn Hatfield Borough Council has a known flaw in its Notice of Rejection template (see row 163 here http://bit.ly/2ALghSS)


Thanks a lot for replying so quickly.

Actually, there was a second, separate, point of law I wanted advice on. In my representations I raised three very distinct points with TRO point being the third one. In their reply they have:
1. Attempted to address point 1 of my representations.
2. Did not even attempt to address points 2 and 3 of my representations.
3. Got the name wrong. Representations clearly stated the drivers/owners first name and surname. The email address itself contains also a middle name that was not actually mentioned in any correspondence. Yet their reply is sent to Mr "Middle Name".
4. Stated that failing to pay will result in NtO and implies that formal representations can be made again at that stage.

The point of law I have a question about:
I understand that total failure to even attempt to address some of the major points clearly raised in formal representations is in itself sufficient to win an appeal. (In this case they totally ignored my challenge of the TRO in their reply and one other point.) Does the same apply to these "informal" representations? (After all even if they do address them at their second reply stage I will have lost right to 50% discount. I invested my time into initial representations under assumptions they will properly consider my points and if they do not consider them valid will at least briefly explain why they think so and re-offer the discount. So in a way they induced me to research the issue and put representations in and by not actually considering my representations I am inclined to proceed further thus loosing the 50% discount should my points not succeed. Had they properly addressed them in the initial address I would be better placed to decide how likely (or unlikely) are my points to succeed at later stages..)



The actual letter of rejection is attached below:


Attached Image


Attached Image

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cp8759
post Mon, 4 Mar 2019 - 08:28
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Well the letter is pretty abysmal, it says that the reasons for his decision are set out below, but there are no reasons at all set out below that paragraph. Shows us your representations, the PCN (both sides in full), the CEO pictures and a link to the location on Google Street View.

To answer your question, the answer is in theory yes, in practice no, but if the formal Notice of Rejection does not show proper consideration for your representations that can win on its own.


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hcandersen
post Mon, 4 Mar 2019 - 09:33
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have current TRO related cases been decided in line with "Isaacson vs Bury Metropolitan Borough Council" or has the tribunal departed from that case in its more recent decisions?

Adj decisions are made in line with the law.

Adjudication decisions do not form the body of the law.

So on this basis, the answer is no.

Also, the case did NOT relate to a TRO, whatever title it was given, it related to an order made to establish and regulate a car park!

A TRO applies to a road.

So far the omens are not good for you on this point and your relative who it appears to me deliberately sought out this location - fully knowing they were in a permit zone - because they thought the signs might give them sanctuary, would be advised not to risk the discount on the theories advanced to date.
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peterguk
post Mon, 4 Mar 2019 - 09:50
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QUOTE (Rob36 @ Sun, 3 Mar 2019 - 19:36) *
Hi,

This question relates to the case in which I represent a relative:
http://forums.pepipoo.com/index.php?showtopic=125963



So9 why start a new thread? The forum works on a "one case - one thread" basis. A mod will merge.


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DastardlyDick
post Mon, 4 Mar 2019 - 10:58
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QUOTE (Rob36 @ Mon, 11 Feb 2019 - 13:17) *
QUOTE (hcandersen @ Mon, 11 Feb 2019 - 12:38) *
Pl post the photos then we can stop guessing.


I attach pictures but it was dark and hence difficult to infer location from the pictures but can confirm it is the location that I posted pictures above.

There are more close up pictures in their "evidence" but they are close up views into the car presumingly taken to prove that no permit was displayed.


The repeater sign can be seen on this picture but that is because they are taking with a flash and the sign is reflective. In the darkness that that "wasteland" is it is not seen.



Attached Image



Attached Image



Attached Image




So I believe that this is the TRO:
http://www.welhat.gov.uk/CHttpHandler.ashx?id=12387&p=0

And based on this webpage I believe it is a current order as opposed to being a superseded one:
http://www.welhat.gov.uk/article/4304/Comp...gulation-Orders


So the facts are these:
1. The TRO (faulty as it may be) is is made by Welwyn Hatfield Borough Council.
2. The PCN implies that Welwyn Hatfield Borough Council is the enforcement authority.
3. It looks like East Hertfordshire council actually considers challenge representations

Can Welwyn Hatfield Borough Council be a valid Enforcement Authority? Who is the EA in this case Welwyn Hatfield Borough Council or East Hertfordshire council?


Welwyn Hatfield share CEOs with East Herts Council - Welwyn Hatfield gets 4 of them. This location is regularly abused by people who want to avoid paying to park at the Galleria.
The EA will be Herts County Council.

This post has been edited by DastardlyDick: Mon, 4 Mar 2019 - 11:00
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DancingDad
post Mon, 4 Mar 2019 - 11:09
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QUOTE (DastardlyDick @ Mon, 4 Mar 2019 - 10:58) *
.........….Welwyn Hatfield share CEOs with East Herts Council - Welwyn Hatfield gets 4 of them. This location is regularly abused by people who want to avoid paying to park at the Galleria.
The EA will be Herts County Council.


Sorry DD but the EA is Welwyn.
From their website.....
QUOTE
The council, working in partnership with East Herts Council and APCOA Parking Services, is responsible for the enforcement of parking restrictions in the borough.

They create the TROs, they are responsible.
East Herts/APCOA may well supply the manpower and may well be involved with the consideration process but as long as it is under the supervision on Welwyn, nay problem.
If issues can be found with correct delegation/supervision then the Gloucester cases could become relevant.
Otherwise tis like TFL contracting Capita to handle PCNs. Acceptable within limits.
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hcandersen
post Mon, 4 Mar 2019 - 11:29
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This location is regularly abused by people who want to avoid paying to park at the Galleria.


The issue that dare not speak its name..at last.

Relative who knew they were in a permit zone parked in what they thought was a chink in the council's restriction armour and has come unstuck.

OK, if I'm wrong, I'm wrong. But you cannot get to that location by accident, only by design.

Do not risk the discount on what you have to date.



This post has been edited by hcandersen: Mon, 4 Mar 2019 - 12:45
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Rob36
post Tue, 5 Mar 2019 - 00:17
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QUOTE (hcandersen @ Mon, 4 Mar 2019 - 09:33) *
have current TRO related cases been decided in line with "Isaacson vs Bury Metropolitan Borough Council" or has the tribunal departed from that case in its more recent decisions?

Adj decisions are made in line with the law.

Adjudication decisions do not form the body of the law.

So on this basis, the answer is no.


Could you clarify your answer? (My question was such that if answered as yes/no it is not entirely clear to which part the yes/no relates to. That is please expand on whether:
1. Subsequent similar cases followed "Isaacson vs Bury Metropolitan Borough Council" decision (which can be found here http://www.davidmarq.com/bama/Validity_of_...%20v%20Bury.pdf )
2. Have ignored it and made ruling contrary to it.
3. Have openly criticized that decision when ruling against it.




QUOTE (hcandersen @ Mon, 4 Mar 2019 - 09:33) *
Adj decisions are made in line with the law.

Adjudication decisions do not form the body of the law.


Sorry but I would disagree with both of the above.

Adj decisions are not always made in line with the law. Indeed many higher court decisions are no made in line with the law leading to successful appeals on points of law, sometimes even decades later (in criminal cases).


I understand that adjudicator's decisions do not become binding precedents. However the set of previous decisions of adjudicators are very relevant to for practical purposes as they are of great persuasive force on other adjudicators, especially if there are several past decision deciding on a particular point of law in the same way. While your second statement from some purely academic point of view might be correct, in practice for those arguing in Tribunal and not prepared to tale the matter any further the previous decisions of the tribunals are part of the law.







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Rob36
post Tue, 5 Mar 2019 - 00:37
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QUOTE (hcandersen @ Mon, 4 Mar 2019 - 09:33) *
have current TRO related cases been decided in line with "Isaacson vs Bury Metropolitan Borough Council" or has the tribunal departed from that case in its more recent decisions?

Also, the case did NOT relate to a TRO, whatever title it was given, it related to an order made to establish and regulate a car park!

A TRO applies to a road.

So far the omens are not good for you on this point and your relative who it appears to me deliberately sought out this location - fully knowing they were in a permit zone - because they thought the signs might give them sanctuary, would be advised not to risk the discount on the theories advanced to date.


OK I am not sure what exactly are you trying to say.

Are you trying to say that "Isaacson vs Bury Metropolitan Borough Council" (http://www.davidmarq.com/bama/Validity_of_TRO_Isaacson_v_Bury%20%20Validity%20of%20TRO%20Isaacson%20v%20Bury.pdf) was badly decided and unlikely to be followed in the future because adjudicator, in your view, was so stupid that he did not even know the difference between TRO and some other type of parking order?

Or are you trying to say that essentially constitutional law arguments used by the adjudicator to decide that the Parking Order is invalid would not be applicable to a TRO?

It would be great if you could support your views with some adjudicator cases.
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