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FightBack Forums _ Council Tickets & Clamping and Decriminalised Notices _ Hatfield Galleria Penalty for Parking in residents parking zone

Posted by: Rob36 Sat, 9 Feb 2019 - 15:16
Post #1460419

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.






Posted by: stamfordman Sat, 9 Feb 2019 - 15:21
Post #1460422

I think we've seen this scheme before - all those streets designated as a resident parking zone fairly recently . So no parking bays needed and your case will probably depend on whether it is indeed private land.

EDIT

successful case here based on defective order?

http://forums.pepipoo.com/index.php?showtopic=115415

Posted by: Rob36 Sat, 9 Feb 2019 - 15:25
Post #1460423

And now some pictures.

On entry there is a sign shown below indication that beyond it enforcement would be under contract law rather than council powers:




The Actual space and the sign is overgrown with vegetation and hence the sign is poorly seen in the dark.






Posted by: Rob36 Sat, 9 Feb 2019 - 15:39
Post #1460427

Entry to parking zone and exits.

The signs are straight after turning from the main road and mounted quite high - so not easy to see or notice especially that they are not simple no-entry / speed limit signs.








Posted by: DancingDad Sat, 9 Feb 2019 - 15:47
Post #1460430

These are the entry signs to the zone at one entrance
https://www.google.co.uk/maps/@51.7597737,-0.2370291,3a,75y,331.93h,87.46t/data=!3m7!1e1!3m5!1sK8-JzcdIGGGiM3hkHIWfJg!2e0!6s%2F%2Fgeo1.ggpht.com%2Fcbk%3Fpanoid%3DK8-JzcdIGGGiM3hkHIWfJg%26output%3Dthumbnail%26cb_client%3Dmaps_sv.tactile.gps%26thumb%3D2%26w%3D203%26h%3D100%26yaw%3D235.60382%26pitch%3D0%26thumbfov%3D100!7i16384!8i8192
The ones you pictured are repeaters and less effect if missing or obscured, the entry signs are key.

Council didn't think the road was private in 2012 either
https://www.google.co.uk/maps/@51.7600102,-0.2394097,3a,75y,242.69h,67.27t/data=!3m6!1e1!3m4!1sV9dYLcGGrBHGN_e-Fr4PQA!2e0!7i13312!8i6656
Can't see them thinking different now or to be honest, that an adjudicator would. Off road parking, yes, private and nothing to do with council, on road, the best is that signs confused into thinking could park on someone else's land without repercussion.

Stamfords Order thread may be best bet.



Posted by: cp8759 Sun, 10 Feb 2019 - 16:16
Post #1460665

IMO the PCN suffers from a fundamental flaw. The schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 lists the name of the enforcement authority as a mandatory element of a regulation 9A PCN, but Welwyn Hatfield Borough Council cannot be the enforcement authority for an on-street contravention. Nothing on the PCN states that Welwyn Hatfield Borough Council is acting as an agent for Hertfordshire County Council, which is the enforcement authority for on-street contraventions.

So either Welwyn Hatfield Borough Council issued the PCN in its own right, in which case the PCN is ultra vires as Welwyn Hatfield Borough Council has no on-street enforcement powers, or the PCN was issued by Welwyn Hatfield Borough Council as an agent for Hertfordshire County Council, in which case there has been a procedural impropriety because the name of the enforcement authority is not stated on the PCN.

Posted by: Rob36 Sun, 10 Feb 2019 - 20:09
Post #1460744

QUOTE (stamfordman @ Sat, 9 Feb 2019 - 15:21) *
I think we've seen this scheme before - all those streets designated as a resident parking zone fairly recently . So no parking bays needed and your case will probably depend on whether it is indeed private land.

EDIT

successful case here based on defective order?

http://forums.pepipoo.com/index.php?showtopic=115415


Thanks a lot, that thread raises quite a few good points about TRO being really an incompetent joke. Looked through the thread and it appears adjudicator held TRO ... to be not defective. This raised a question that perhaps there is some newer TRO that council supplied on appeal. In particular adjudicator stated the following about the TRO:

"As regards the relevant Traffic Regulation Order as produced by the Council, it creates a civil contravention, and does not refer either to “criminal” actions. Nor does the TRO impose additional requirements as to the content of a PCN, which I am satisfied comply with statutory requirements."

So either there is a new TRO or that particular adjudicator was delusional. Is there an easy way to find out where there is a newer TRO than the one discussed in that thread?


QUOTE (cp8759 @ Sun, 10 Feb 2019 - 16:16) *
IMO the PCN suffers from a fundamental flaw. The schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 lists the name of the enforcement authority as a mandatory element of a regulation 9A PCN, but Welwyn Hatfield Borough Council cannot be the enforcement authority for an on-street contravention. Nothing on the PCN states that Welwyn Hatfield Borough Council is acting as an agent for Hertfordshire County Council, which is the enforcement authority for on-street contraventions.

So either Welwyn Hatfield Borough Council issued the PCN in its own right, in which case the PCN is ultra vires as Welwyn Hatfield Borough Council has no on-street enforcement powers, or the PCN was issued by Welwyn Hatfield Borough Council as an agent for Hertfordshire County Council, in which case there has been a procedural impropriety because the name of the enforcement authority is not stated on the PCN.


Thanks a lot for a reply. Why does not Welwyn Hatfield Borough Council have on-street enforcement powers and Hertfordshire County Council has them? Is there some master list of councils that have that authority or is it the case of only county councils having it and city / borough / smaller councils never having them?

Posted by: Rob36 Sun, 10 Feb 2019 - 20:36
Post #1460757

With regard to a discount being re-offered if representations are not successful:
1. There is nothing on PCN stating that the discount will be re-offered.
2. On their website (I provide a link and a screenshot below) there is a vague statement that states that it will be re-offered.

Do they have to re-offer a discount as a matter of law? How is their promise to be interpreted and will it be binding on them? What does "promptly" mean and does it apply just to representations by post or by email as well?


Links to the website where they promise to re-offer:
http://www.welhat.gov.uk/article/5059/Pay-or-challenge-a-parking-fine


Screenshot:



Posted by: DastardlyDick Sun, 10 Feb 2019 - 21:59
Post #1460771

QUOTE (Rob36 @ Sun, 10 Feb 2019 - 20:36) *
With regard to a discount being re-offered if representations are not successful:
1. There is nothing on PCN stating that the discount will be re-offered.
2. On their website (I provide a link and a screenshot below) there is a vague statement that states that it will be re-offered.

Do they have to re-offer a discount as a matter of law? How is their promise to be interpreted and will it be binding on them? What does "promptly" mean and does it apply just to representations by post or by email as well?


Links to the website where they promise to re-offer:
http://www.welhat.gov.uk/article/5059/Pay-or-challenge-a-parking-fine


Screenshot:


They don't have to put it on the original PCN. They do have to put that if you pay within 14 days you get a 50% discount.
They only re-offer the discount after an unsuccessful appeal and give you another 14 days in which to pay or appeal to the Adjudicator. If you decide to go to Adjudication, the discount is lost.

Posted by: stamfordman Sun, 10 Feb 2019 - 22:40
Post #1460784

QUOTE (DastardlyDick @ Sun, 10 Feb 2019 - 21:59) *
They only re-offer the discount after an unsuccessful appeal and give you another 14 days in which to pay or appeal to the Adjudicator. If you decide to go to Adjudication, the discount is lost.



This is a windscreen PCN so there is a formal NTO stage before adjudication. They sometimes also reoffer the discount after a formal rejection, especially if they don't want you to take it to adjudication...

Posted by: hcandersen Mon, 11 Feb 2019 - 07:57
Post #1460825

OP, can we just row back:

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.

So, let's start with the account - credibility at potential adjudication can be an important factor in outcomes.

All info is second-hand;
Except that if you know that markings are 'poorly maintained..', then this implies you know the area, which by extension suggests that the relative lives in the area.


Does the driver live in the area? If so, this could place a completely different slant on the account and background info, for example irrespective of where they parked, why didn't they have a permit??

And where are the council's photos? When these are posted, make sure it's clear they're the council's otherwise the evidence gets confusing.

Let's clear first base before we get immersed in TROs wink.gif

Posted by: Rob36 Mon, 11 Feb 2019 - 09:41
Post #1460849

QUOTE (hcandersen @ Mon, 11 Feb 2019 - 07:57) *
OP, can we just row back:

So, let's start with the account - credibility at potential adjudication can be an important factor in outcomes.

All info is second-hand;
Except that if you know that markings are 'poorly maintained..', then this implies you know the area, which by extension suggests that the relative lives in the area.


Does the driver live in the area? If so, this could place a completely different slant on the account and background info, for example irrespective of where they parked, why didn't they have a permit??


Well I think it is a strange implication... I know the situation with regard to the markings because I visited the area after the relative was issued with a PCN, I am the one who took the pictures attached to this thread. I do not see how this implies that myself or the relative lives in the area. I see how it might imply that we are not from hundreds of miles away but surely one does not have to actually live in the very area to bother to drive to it and take pictures? In fact the relative lives about 5-10 miles from that area. The car in question is registered in his name and he is quite elderly.

But how exactly is this even relevant?

Unfair as it is it seems people here think signage is compliant (and it is grossly unfair as the "P" letter has to be just on a 20cm blue square while for example much more noticeable "no parking" sign in the same circumstances would have to be much larger to be compliant.)

I do intend to pursue the point that "Private Gardens" constitutes misinformation with regard to the end of council enforcement zone and motorist seeing that would be reasonable to assume that on-street parking enforcement does not apply past it, though the advice received here is that there are other points to pursue. For this point only, perhaps, age or residence of the driver could matter but members here do not like this point anyway.


With regard to points advanced by members here, that I also would like to pursue, namely TRO being invalid or the ticket being invalid because the council that issued has no power to issue such tickets and there is no reference to a higher council, how does identity, residence or even credibility matter at all? If TRO is invalid it is invalid isn't it? If the PCN is invalid as issued in the name of council that has no enforcement powers than again it is something that can be established from the PCN itself and does not rely on credibility of the complaint isn't it? I can not see how for these two arguments the deciding authority would have to make some complicated finding of fact based on witness statement of the complainant - I wold imagine it is a matter of correctly applying law to quite clear undisputed facts (The facts being the PCN that was issued and the wording of TRO).

Posted by: DancingDad Mon, 11 Feb 2019 - 09:53
Post #1460853

The question on whether or not you or the driver were residents was simply to see if any implications that may or may not be detrimental or indeed be beneficial.
We do not ask questions for fun, only to try to find what may help and what may not.

Posted by: hcandersen Mon, 11 Feb 2019 - 10:06
Post #1460855

OP, if you are already embarked on a course of action, 'I intend to pursue', then what's our function?

Back to the start. The contravention relates to not displaying a valid res permit. This also covers display of a visitor's permit.

So, what were the circumstances of the car being there e.g. to visit a resident? If so, why was a visitor's permit not obtained and displayed. We need some meat on the bones of a car parking 5 - 10 miles from someone's residence and in what appears to be an out-of-the-way location.

I might be considered by some to be - among other things biggrin.gif , quite elderly, but I still have to know what's what when I drive.

And you cannot sensibly develop an argument without addressing the above and posting the council's pictures.

Posted by: Rob36 Mon, 11 Feb 2019 - 10:20
Post #1460861

QUOTE (hcandersen @ Mon, 11 Feb 2019 - 10:06) *
OP, if you are already embarked on a course of action, 'I intend to pursue', then what's our function?


I am asking members for advice to help to build up my case. Namely based on posts of members I now know (and intend to use) the following:
1. Signage might not be a strong argument as the obstructed sign is just a repeater sign. (Though I do still believe that "Private Gardens" sign kills off on-street council enforcement.)
2. That TRO is just a madness written incompetently by some incompetent person.
3. That PCN does not comply with Schedule 1 of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007



QUOTE (hcandersen @ Mon, 11 Feb 2019 - 10:06) *
Back to the start. The contravention relates to not displaying a valid res permit. This also covers display of a visitor's permit.

So, what were the circumstances of the car being there e.g. to visit a resident? If so, why was a visitor's permit not obtained and displayed. We need some meat on the bones of a car parking 5 - 10 miles from someone's residence and in what appears to be an out-of-the-way location.

I might be considered by some to be - among other things biggrin.gif , quite elderly, but I still have to know what's what when I drive.

And you cannot sensibly develop an argument without addressing the above and posting the council's pictures.


I will try to get and post council pictures though not sure how they would help (or harm).

With regard to your questions the car was parked their because the relative thought the car could be parked there without displaying permit. In particular he thought so because he did not see any restrictions signs in the very vicinity of that space which I can not really describe as "parking space" to irregular and improperly maintained. When I visited I did see a sign but it was somewhat obstructed by grossly overgrown vegetation and quite aback from the space and in poor lighting conditions I can see how it would not be seen.

Posted by: Rob36 Mon, 11 Feb 2019 - 10:34
Post #1460870

I spoke to the Council with regard to the discount being re-offered in case of unsuccessful representation and in that 1 minute or so call got two for the price of one !!! :

1. They confirmed the discount will be re-offered.
2. The phone number is actually of East Herts Council. I actually queried and they said that it is them who enforce these tickets. So I take it that it does mean that it is them who are an Enforcement Authority and hence the PCN is deficient as does not comply with paragraph 1(b) of the Schedule of the The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 as it does not actually state that East Herts council are the enforcement authority.


Though... would be still great to know why Welwyn Hatfield Borough Council could not be an Enforcement Authority even in principle. After all what if the argue that Welwyn Hatfield Borough Council is the actual Enforcement Authority and North Hertfordshire council are just processors for them for efficiencies (like some councils hire even disreputable private companies to process things for them)?

Posted by: hcandersen Mon, 11 Feb 2019 - 10:38
Post #1460872

So the relative stumbled across this location as a one-off while en route to nowhere.

If you won't answer, then that's your choice.

Posted by: Rob36 Mon, 11 Feb 2019 - 10:49
Post #1460879

QUOTE (hcandersen @ Mon, 11 Feb 2019 - 10:38) *
So the relative stumbled across this location as a one-off while en route to nowhere.

If you won't answer, then that's your choice.


I am sorry but short of making some sort of very emotional appeal for the exercise of discretion by the council I do not see how it matters whether the relative was:

1. Visiting a friend there
2. Collecting something he bought on Ebay
3. Attending a Football match nearby
4. Decided it is a good place to stop and go for a walk
5. Visited shops
6. Was visiting an ill relative while himself quite unwell
7. Was doing a school run
8. Something else


Perhaps you could make it clearer why you think such circumstances are relevant?

Posted by: hcandersen Mon, 11 Feb 2019 - 11:25
Post #1460904

Why don't you let us advise on these matters rather than you guess.

Let's be frank: I'm not getting good vibes here and I'm certain your elderly relative's pension income could do without you risking their money on your theories.

We start with what they did and why, not what the council haven't done.

The PCN does not contain any information which would lead a reasonably observant and intelligent reader to infer other than that the EA is Welwyn Borough Council. Borough councils can be upper-tier authorities and therefore there is no contradiction between the inference and local govt. structure.

But all you've got is a tel call. What counts is making the point smartly and eliciting the answer needed in writing.

Posted by: Rob36 Mon, 11 Feb 2019 - 12:10
Post #1460924

QUOTE (hcandersen @ Mon, 11 Feb 2019 - 11:25) *
Why don't you let us advise on these matters rather than you guess.

Let's be frank: I'm not getting good vibes here and I'm certain your elderly relative's pension income could do without you risking their money on your theories.

We start with what they did and why, not what the council haven't done.

The PCN does not contain any information which would lead a reasonably observant and intelligent reader to infer other than that the EA is Welwyn Borough Council. Borough councils can be upper-tier authorities and therefore there is no contradiction between the inference and local govt. structure.

But all you've got is a tel call. What counts is making the point smartly and eliciting the answer needed in writing.



The place concerned is close to the location he wanted to visit, he looked for parking restrictions and could not see any as the relevant sign (which we now know to be a repeater sign) was well back and obstructed and hence not seen in the dark. He parked thinking that no restrictions apply to that piece of "wasteland".

It was not a case of car breakdown. It was not some emergency such as visiting extremely ill relative or to facilitate emergency hospital admission.


So we are in a situation that I believe better not to dwell on reasons because as soon as you mention any reason a hate campaign can be made against you:
1. I live there and have the permit just forgot to display - "Oh fool, your own fault. And as you live there can't use excuses such as did not know / has not been aware. It is all your own fault and the ticket is perfectly valid! What an idiot!" (Personally have been in this situation in the past.)
2. Was visiting someone. "Oh why didn't people you were visiting explain you the parking arrangements? Perhaps your visit was unwelcome?"
3. Was doing a school run. "Oh, we do hate you you selfish parents polluting the environment and other children when taking your little piglets selfishly in your polluting vehicles to school. We want to fine people exactly like you!"
4. Was shopping. "Oh yes! This is exactly why we introduced those restrictions so that shoppers do not park there! We caught exactly whom we wanted in our nets. No getting out of it for you!"
5. To attend job interview / work. "Commuter! Whom do we hate more than the worst of murderers? Commuters!"


In this case I suspect 4 is the most relevant. But as I said above whatever you say (very genuine emergency apart) you are not better of and probably worse of as you can immediately e labelled and despised as per the above.

Posted by: hcandersen Mon, 11 Feb 2019 - 12:38
Post #1460935

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


Posted by: Rob36 Mon, 11 Feb 2019 - 13:17
Post #1460948

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.













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/Completed-Traffic-Regulation-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?

Posted by: hcandersen Mon, 11 Feb 2019 - 13:34
Post #1460958

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.

Posted by: Rob36 Mon, 11 Feb 2019 - 13:59
Post #1460974

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):

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_TRO_Isaacson_v_Bury%20%20Validity%20of%20TRO%20Isaacson%20v%20Bury.pdf

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

Posted by: hcandersen Mon, 11 Feb 2019 - 14:11
Post #1460979

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

Posted by: Rob36 Mon, 11 Feb 2019 - 14:25
Post #1460985

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_TRO_Isaacson_v_Bury%20%20Validity%20of%20TRO%20Isaacson%20v%20Bury.pdf


Posted by: Rob36 Sun, 3 Mar 2019 - 19:36
Post #1467104

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_TRO_Isaacson_v_Bury%20%20Validity%20of%20TRO%20Isaacson%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?




Posted by: DancingDad Sun, 3 Mar 2019 - 21:52
Post #1467134

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.

Posted by: cp8759 Sun, 3 Mar 2019 - 22:48
Post #1467167

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.

Posted by: Rob36 Sun, 3 Mar 2019 - 23:21
Post #1467175

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/Consolidation-Order-2017/pdf/Sealed_WHBC_Consolidation_2017.pdf?m=636317514460770000


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.

"

Posted by: cp8759 Sun, 3 Mar 2019 - 23:41
Post #1467183

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)

Posted by: Rob36 Mon, 4 Mar 2019 - 00:17
Post #1467192

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:






Posted by: cp8759 Mon, 4 Mar 2019 - 08:28
Post #1467212

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.

Posted by: hcandersen Mon, 4 Mar 2019 - 09:33
Post #1467238

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.

Posted by: peterguk Mon, 4 Mar 2019 - 09:50
Post #1467241

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.

Posted by: DastardlyDick Mon, 4 Mar 2019 - 10:58
Post #1467263

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.













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/Completed-Traffic-Regulation-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.

Posted by: DancingDad Mon, 4 Mar 2019 - 11:09
Post #1467271

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.

Posted by: hcandersen Mon, 4 Mar 2019 - 11:29
Post #1467276

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.


Posted by: Rob36 Tue, 5 Mar 2019 - 00:17
Post #1467507

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_TRO_Isaacson_v_Bury%20%20Validity%20of%20TRO%20Isaacson%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.








Posted by: Rob36 Tue, 5 Mar 2019 - 00:37
Post #1467510

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.

Posted by: Rob36 Tue, 5 Mar 2019 - 00:58
Post #1467512

QUOTE (cp8759 @ Mon, 4 Mar 2019 - 08:28) *
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.


Thanks a lot for a reply. Now that threads have been merged all the things you have requested are available up the thread apart from my representations that I provide below as a link to a pdf file.

https://smallpdf.com/shared#st=06f6796e-7267-4ebc-a371-5228b45ec48f&fn=Representations+Redacted-converted.pdf&ct=1551747390505&tl=word&rf=link



Posted by: hcandersen Tue, 5 Mar 2019 - 07:07
Post #1467522

A single adjudicator's decision is exactly that, a single adjudicator's decision.

You would have to show that the order which created this restriction was so manifestly unsound as to render it unsafe to allow it to be used as the basis for restrictions. Whether at some stage in the past, in the vast panoply of adj decisions an adj had made a decision on this basis in respect of different circumstances and regarding an order made under different enabling powers within the Act is not the stuff of successful appeals on the balance of probabilities and worth me recommending that you should you risk your relative's money at appeal on this point.

Posted by: cp8759 Tue, 5 Mar 2019 - 17:25
Post #1467816

I'm not going to delve into a detailed analysis, suffice to say I don't think your grounds of appeal are very strong. Your best hope is that they mess up the response.

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