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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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post Sat, 9 Feb 2019 - 15:16
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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


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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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