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PCN in Reading Town centre, Not parked on road
MFM
post Sun, 25 Feb 2018 - 20:36
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I got a PCN from Reading council today for not displaying a valid parking ticket. I wasn't parked on the road where the signs are and the restrictions apply. I was parked adjacent on a piece of land where they have a market every day apart from Sundays.

People have been parking there forever as they have never enforced the parking regulations there, plus there are no signs prohibiting you from parking there in the first place.

In the picture my car is the white Audi. The parking where you should display a parking ticket is to the left where the row of cars are. You can also see the sign. Should I fight this, as I think it's an overzealous parking warden taking a chance?
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post Sun, 25 Feb 2018 - 20:36
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DancingDad
post Fri, 4 May 2018 - 09:08
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QUOTE (MFM @ Fri, 4 May 2018 - 09:28) *
Ok I've submitted the appeal. I submitted it as a message as I couldn't see any other way of doing it. Is this correct?........


Not sure with TPT online process now.
Can always phone them and check.
They are usually helpful
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MFM
post Fri, 4 May 2018 - 09:18
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QUOTE (DancingDad @ Fri, 4 May 2018 - 10:08) *
QUOTE (MFM @ Fri, 4 May 2018 - 09:28) *
Ok I've submitted the appeal. I submitted it as a message as I couldn't see any other way of doing it. Is this correct?........


Not sure with TPT online process now.
Can always phone them and check.
They are usually helpful


Submitted now so let's hope for the best.
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MFM
post Tue, 22 May 2018 - 19:07
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I've had a decision and frankly I don't know what to make of it.

The adjudicator seems to have not read my appeal in its entirety which I submitted as a message. He states a few times that I haven't argued the points I made which means he never read my appeal.

What's more confusing is it says in red above the decision that I've lost the appeal and I have to pay the council, yet at the bottom of his decision he says he has allowed the appeal and I have nothing to pay. What now?

Here is his decision.

1. I have decided this appeal without a hearing. The parties did not ask for a hearing.
2. Mr Coetzee has submitted this appeal on behalf of his wife, who is the registered keeper of the vehicle. He was driving her vehicle on this occasion. He identifies two grounds for appeal. Firstly, that there has been procedural impropriety on the part of the Council. Secondly, that the alleged contravention did not occur.
3. In relation to the first ground, he refers to the argument made in his representations but also argues the notice of rejection significantly fails to comply with the specific requirements of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the Appeals Regulations). Mr Coetzee does not elaborate on his reasons for saying the notice of rejection fails to comply with these requirements.
4. I have considered the notice of rejection and conclude that it provided the information which regulation 6(1) of the Appeals Regulations required to be included in it. Mr Coetzee has not explained why he says it does not. Consequently, I conclude there is no procedural impropriety in relation to the notice of rejection.
5. Mr Coetzee’s argument in his representations that there has been a procedural impropriety concerns the content of the notice to owner. He refers to the provision of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (specifically regulations 19(2)(g) and 21(1)) the effect of which is that if the recipient of the notice to owner does not either pay the penalty charge or make representations within the specified time the Council “may” serve a charge certificate which increases the penalty charge by 50%. He points out that the Council’s notice to owner says that if he does neither of these things a charge certificate “will” be served and the penalty charge “will” increase by 50%. He argues this fetters the Council’s discretion because it conveys that the Council’s decision to serve a charge certificate is a foregone conclusion, and this is a procedural impropriety.
6. The information in the notice to owner must be read as a whole. Mr Coetzee’s argument overlooks the fact that the notice to owner also states, in the section concerning making representations: “Representations must be made within the period of 28 days beginning with the date on which the Notice to Owner was served. Any representations made after this time may be disregarded”. This is a clear indication that the Council recognise they have discretion to consider representations made after the 28 day period in which representations in response to the notice to owner are required to be made. In circumstances where this discretion is exercised the penalty charge will not increase and the charge certificate will not be served on expiry of the 28 day period. The wording Mr Coetzee has quoted must be read in the context of, and is qualified by the reference the discretion to consider late representations. In light of the express reference to this discretion, the wording of the notice to owner as a whole does not fetter the Council’s discretion in relation to service of a charge certificate and the consequent increase in the penalty charge.
7. For these reasons, I find that the notice to owner satisfactorily conveys the required information in relation to the increased penalty charge. I conclude there has been no procedural impropriety on the part of the Council in this case.
8. Mr Coetzee’s second ground of appeal is that the alleged contravention did not occur. He does not elaborate on this in his appeal submission, and so I have considered what he said in his representations to the Council. Mr Coetzee argued that he was not parked in a marked bay, or where payment was required. He also argued that there were no signs where he parked that required payment or related to that area, and that the signs that relate to marked out bays on the carriageway only relate to the marked bays.
9. The Council, in the notice of rejection, said the vehicle was parked on a public pavement and not in a marked parking space. They also said the restriction adjacent to where the vehicle was parked is a pay and display bay but his vehicle was not parked within the bay markings. They argue this was sufficient information for the motorist to know where they can park legally, and that driving over the kerb and onto a pavement is not a legal place to park.
10. Mr Coetzee explained, in his challenge in response to the PCN, that he was parked off the road behind a sign that applies to the parking bays next to the pavement in Hosier Street. It is common ground, therefore, that the vehicle was parked on the pavement where the adjacent carriageway was marked as a parking bay. This is confirmed by the Council’s photographs which show his vehicle was parked on the pavement next to a marked and signed pay and display bay.
11. The question raised by this appeal is whether the pavement on which Mrs Coetzee’s vehicle was parked is subject to the restrictions conveyed by the sign and bay marking adjacent to which he had parked; and, if so, whether the contravention alleged in this case did occur.
12. The Council have produced a traffic regulation order (TRO) which provides that the length of road in Hosier Street on its south side from a point 20 metres west of its junction with St Mary Butts for 50 metres is a pay and display parking place subject to a maximum stay 2 hours with no return prohibited within 2 hours from 8am to 8pm Sunday to Tuesday. The signage in the vicinity of which Mr Coetzee’s vehicle was parked conveys this restriction, and so I conclude, in the absence of any evidence to the contrary, that his vehicle was parked on the south side of Hosier Street in the length of that road which the TRO makes a pay and display parking place.
13. The TRO goes on to provide that a vehicle is not permitted to wait in this parking place unless it “is in the specified position” which is defined as having “the same meaning given by section 79(7) of the Act of 2004” (for these purposes this is the Traffic Management Act 2004). This section defines an on-street parking place as “a parking place designated by an order under section 45 of that Act,…” (which for that purpose means the Road Traffic Regulation Act 1984 (RTRA 1984)).
14. Section 45 of the RTRA 1984 provides that the Council may by order designate parking places on highways and may make charges for vehicles left in a parking place so designated. The TRO in this case refers to section 45 RTRA 1984, and the pay and display parking place in Hosier Street has been designated as such pursuant to that provision.
15. Section 45 RTRA provides that an order may designate parking places on the “highway”. The terms of the TRO in this case designate the “length of road” specified above as a pay and display on street parking place. Section 142 of the 1984 Act defines “road” as “any length of highway or of any other road to which the public has access…”. The terms of the TRO, therefore, apply to the side of the highway on which they are placed. “Highway” is not defined in the 1984 Act or elsewhere. Consequently, for the definition of “highway” recourse must be had to common law.
16. Put simply, at common law, highway is a way of which all members of the public have the right to pass and re-pass without hindrance (see Suffolk County Council v Mason [1979] AC 705). Clearly, the carriageway in Hosier Street falls within this definition. Equally, it is clear that the highway is not confined to the carriageway and so will include footway, pavement of verge of adjoining the carriageway, even though the public right of passage may only be on foot (see the Suffolk County Council case referred to above).
17. Consequently, the pavement on the south side of the length of Hosier Street identified in the TRO is part of the length of road and highway to which the terms of the TRO apply. In short, the terms of the TRO which provide that the length of the south side of Hosier Street described above is a pay and display parking place, and impose conditions on parking there, apply to the pavement as well as the carriageway. Mr Coetzee’s argument that the pay and display signage did not apply to the pavement where he parked is incorrect.
18. I accept, therefore, that the Council’s case that bay markings convey the limits of the area where it is permitted to park on the side of the highway on which they are placed (the highway including pavement as well as carriageway) is arguable in principle. Indeed, it would be a surprising result if a motorist were able to evade the requirement to pay and display at a particular location by parking on the pavement next to a marked pay and display bay instead of in the bay marked on the carriageway. It is arguable, therefore, that a vehicle parked on the pavement next to a marked bay commits the contravention alleged in this case, provided the relevant traffic regulation order imposes the requirement to park within a marked bay.
19. The difficulty for the Council in this case is that the wording of the TRO in this case does not impose a requirement that a vehicle parked in the parking place must park only within the limits of the bay markings. This, or something similarly worded, is a common provision where a traffic regulation order designates an area of highway as a parking place, but this TRO does not contain it. In this case, the TRO is expressly worded so as to require that the vehicle is not permitted to wait other than in the “specified position”, the “specified position” means “within the limits of the parking place” but “the parking place” is defined, by reference to section 79(7) of RTRA 1984 as “a parking place designated by an order under section 45 of that Act,…” The parking place designated by the TRO is the length of road in Hosier Street on its south side from a point 20 metres west of its junction with St Mary Butts for 50 metres. The “specified position” is, therefore, anywhere on the highway within that length of road, and is not restricted only to that part of it which is within the confines of bay markings.
20. Consequently, the fact that Mrs Coetzee’s vehicle was parked in this length of road but not within the marked bay is, unusually, because of the way in which the TRO is drafted, not a contravention. The TRO is drafted in such a way as to make the part of Hosier Street in which Mr Coetzee parked (even though on the pavement) a pay and display parking place, but not so as to require motorist parking there to park only within the marked parking bay on the carriageway. The vehicle was parked in contravention of the requirements to pay and display which, contrary to his argument, applied where he parked, but not the contravention alleged in the PCN, which was not being parked correctly within the markings of the bay or space.
21. I allow Mr Coetzee’s appeal on the ground the alleged contravention did not occur, although not for the reasons he argued (which were incorrect for the reasons I have explained). Mrs Coetzee has nothing to pay.

This post has been edited by MFM: Tue, 22 May 2018 - 19:08
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Mad Mick V
post Tue, 22 May 2018 - 19:22
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OP---very well done for sticking with this one.

I did mention in post 18 about the fluidity of the highway definition but the adjudicator has found the Order to be duff anyway.

This is the third case this week where the substantially compliant/read as a whole hogwash has been proffered. I would repeat that where there is prejudice or potential prejudice (will not may) then that line cannot be sustained.

Likewise if an adjudicator is given cast iron proof of a procedural impropriety he or she has not got any discretion (or opinion) in the matter ----as the legislation says the appeal shall be allowed.

Mick
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MFM
post Tue, 22 May 2018 - 19:34
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QUOTE (Mad Mick V @ Tue, 22 May 2018 - 20:22) *
OP---very well done for sticking with this one.

I did mention in post 18 about the fluidity of the highway definition but the adjudicator has found the Order to be duff anyway.

This is the third case this week where the substantially compliant/read as a whole hogwash has been proffered. I would repeat that where there is prejudice or potential prejudice (will not may) then that line cannot be sustained.

Likewise if an adjudicator is given cast iron proof of a procedural impropriety he or she has not got any discretion (or opinion) in the matter ----as the legislation says the appeal shall be allowed.

Mick


But what do I do now as I'm asked to pay the council? I'm busy drafting a review of the adjudicator's decision which I assume is the only thing I can do?
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Mad Mick V
post Tue, 22 May 2018 - 19:37
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You won didn't you? Para 21---- "I allow Mr Coetzee’s appeal on the ground the alleged contravention did not occur, although not for the reasons he argued (which were incorrect for the reasons I have explained). Mrs Coetzee has nothing to pay"

Get in touch with the Tribunal and ask their staff to sort it out with a confirmatory letter to you. A simple error on their part.


Mick

This post has been edited by Mad Mick V: Tue, 22 May 2018 - 19:39
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MFM
post Tue, 22 May 2018 - 19:40
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QUOTE (Mad Mick V @ Tue, 22 May 2018 - 20:37) *
You won didn't you? Para 21---- "I allow Mr Coetzee’s appeal on the ground the alleged contravention did not occur, although not for the reasons he argued (which were incorrect for the reasons I have explained). Mrs Coetzee has nothing to pay"

Am I missing something?

Mick


That's just it. When you open the decision it says "Mrs Coetzee, you have lost this appeal. You need to pay the penalty charge to Reading Borough Council". With a payment button next to it.

It looks like an administrative error.

Edit: Just seen your edit. Can I ring or is it best to follow the online review procedure?

This post has been edited by MFM: Tue, 22 May 2018 - 19:41
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hcandersen
post Tue, 22 May 2018 - 20:01
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You won.

Nothing to pay.

The TPT admin. staff have made a mistake, just phone them and point it out.

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MFM
post Tue, 22 May 2018 - 20:19
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Now that I know I've actually won, a massive thanks to everyone that helped.
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PASTMYBEST
post Tue, 22 May 2018 - 21:46
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QUOTE (MFM @ Tue, 22 May 2018 - 21:19) *
Now that I know I've actually won, a massive thanks to everyone that helped.


The adjudicator found that thee council using discretion to accept reps late means that they have not fettered their discretion to serve a CC. hogwash, People deserve better, they could at least given the view of the LT be a panel hearing
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MFM
post Thu, 24 May 2018 - 06:54
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Any mileage in putting in a claim for costs?
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Mad Mick V
post Thu, 24 May 2018 - 07:16
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No, you would have to show, without doubt, that the Council was wholly unreasonable and, whilst they have been rather incompetent, they mounted a reasonable case IMO.
Mick
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hcandersen
post Thu, 24 May 2018 - 09:23
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IMO, the adj lost the plot.

Before there can be a restriction there must be an order which is correctly marked.

There isn't.

Diagram 1028.4 provides for alternative markings, the distinction being that one type applies only where parking is wholly on the carriageway or footway, type (a). As this doesn't apply here, then (b) must apply. But this would require that markings are placed on the footway.

But they're not.

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

So when the adj stated that the restriction is arguable in principle, he was correct. But IMO he should then have gone to the contextual regulatory conditions which apply and not say that the OP was in the parking bay as authorised, which is what he did, because parking on the footway is not permitted unless markings are in place, as would be the case on the carriageway.
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MFM
post Thu, 24 May 2018 - 14:03
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QUOTE (hcandersen @ Thu, 24 May 2018 - 10:23) *
IMO, the adj lost the plot.

Before there can be a restriction there must be an order which is correctly marked.

There isn't.

Diagram 1028.4 provides for alternative markings, the distinction being that one type applies only where parking is wholly on the carriageway or footway, type (a). As this doesn't apply here, then (b) must apply. But this would require that markings are placed on the footway.

But they're not.

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

So when the adj stated that the restriction is arguable in principle, he was correct. But IMO he should then have gone to the contextual regulatory conditions which apply and not say that the OP was in the parking bay as authorised, which is what he did, because parking on the footway is not permitted unless markings are in place, as would be the case on the carriageway.


So if an adjudicator gets it wrong, you're screwed basically?
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hcandersen
post Thu, 24 May 2018 - 21:18
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No. He let you off because:
He read that the order created parking places on lengths of road, and
That you were parked on said length of road, ergo
You were parked lawfully, irrespective of road markings.

Nonsense.

The order created parking places on lengths of road including carriageway and footway, but these were not marked as required.

He should either have determined that as the markings did not mark the extent of the order then NONE of them was valid, including the carriageway, or that, putting the carriageway to one side, as the footway is not marked it cannot form part of the parking place and that as no attempt was made to park within the parking place the contravention did not occur.

IMO, given the order the former is the correct position.

Our initial position in this thread was the latter but that's because we'd not seen the order. I've never come across an order which specifies a parking place other than as a length of road bounded on one side by the kerb and with a minimum width on the carriageway of X.
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