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FightBack Forums _ Council Tickets & Clamping and Decriminalised Notices _ File of cases to assist arguments

Posted by: Hippocrates Wed, 7 May 2014 - 23:01
Post #958207

I am offering this list of cases to help people find cases quickly in order to support their arguments. It also saves me time in cross-referring to my other browser!

http://www.patasregistersofappeals.org.uk/

Please feel free to add. If you do so, please indicate at the start of your post the type of case your chosen decision(s) e.g. legitimate expectation.

Charge Certificate: premature issue

2130230240 and 2050339777. 213021691A. 213040742A 2140034850 2130622819 2140065151
2130296792, 2140068375.

Evidence not served in time

2110144328, 2130131442, 2120451094, 2130259672.


Will/may cases

2110072817, 2100649871, 2110415753, 2120021652, 2130049862, 2120448511, 212058885A, 2130236316, 2130516990, 2140068320, 2140026692, 2140006797, 2140046893, 2110029250

Legitimate expectation

2120130716, 2120134353 , 2110055104,. 2130190430, 2120088937, 2130288681, 213031735A

Mandatory info missing from Reg. 10 PCN

The PCN does not contain mandatory information re viewing the evidence. Case Nos.: 2120293222, 2130089798, 2130149029, 2130034162, 2130397290, 2130011644, 2130430807, 2140026692, 2140006797, 2140068320. 213009616A, 2120473279

Regulation 3(4) opening statement and 3(5) and (6) in their entirety. The adjudicator in the first case cites the legislation in her decision.

Representations treated as requests

2120488345, 2100587978, 2120408958, 2110494261.

Multiple choice decision: Code 12

2120562288

Failure to consider

http://davidmarq.com/uploaderv6_1/files/7/Father%2520Daly%2520case.pdf

http://davidmarq.com/uploaderv6_1/files/7/TR05993K.pdf%2520Lack%2520of%2520discretion.pdf

http://davidmarq.com/uploaderv6_1/files/7/Informal%25201%2520decision.pdf

http://davidmarq.com/uploaderv6_1/files/7/Informal%25202%2520decision.pdf

http://davidmarq.com/uploaderv6_1/files/7/Informal%25203%2520decision.pdf

Fettered discretion: I am unable to cancel

2130316200, 2130521902, 2130497615.

Posted by: Mad Mick V Thu, 8 May 2014 - 08:10
Post #958258

Super stuff. Saves a lot of time consuming searches.

Don't we need a moderator or systems guy to pin this to the top of the forum as an "Important Topic" as they have done with the Read this First section?

Mick

Posted by: 2cupsofcoffee Thu, 8 May 2014 - 08:57
Post #958273

sending correspondence to address other than that given
2140070027
2140008894
2130464026

failure to properly consider representations
2140086060

wrong offence on pcn
2140162657

postal pcn claimed not to have been received, i.e. rebuttal of presumed service (maybe because recipient is a solicitor??)
2140155822

Posted by: qafqa Thu, 8 May 2014 - 09:33
Post #958281

PATAS Key Cases
http://keycases.parkingandtrafficappeals.gov.uk/
TPT Example Cases
http://www.trafficpenaltytribunal.gov.uk/site/scripts/documents_info.php?documentID=132

The Appellant claims the Penalty Charge Notice was not handed to the driver.

http://www.patasregistersofappeals.org.uk/StatReg/
2110488859
2110284167
2110249100
2110577904
2110475267
2110655076
2110507181
2110492233
2120052237
2110434033
2110542717
2120501319
2110564877
2120406409
2120399711
2110367617
2110214398
2110411300
2110496562
2110409706
2110579375
2110334888
2110494465
2110287609
2110287278
2110507975
2110430495
2110507104
2120524427
2110304683
2120564727
211040591A
2110282004

Posted by: bama Thu, 8 May 2014 - 10:13
Post #958298

make it a FAQ

Posted by: jemann Thu, 8 May 2014 - 10:18
Post #958301

Very good reference, thanks.

Is there a reason we can't use hyperlinks to the cases on these forums, e.g. http :// www.patasregistersofappeals.org.uk/StatReg/case.aspx?caseref=xxxxxxxxxx ?

Posted by: Hippocrates Thu, 8 May 2014 - 10:25
Post #958305

QUOTE (jemann @ Thu, 8 May 2014 - 11:18) *
Very good reference, thanks.

Is there a reason we can't use hyperlinks to the cases on these forums, e.g. http :// www.patasregistersofappeals.org.uk/StatReg/case.aspx?caseref=xxxxxxxxxx ?

I always separate the case from the link which works for me. Great and informative posts so far BTW. This forum has to be the best! smile.gif

Posted by: bama Thu, 8 May 2014 - 10:49
Post #958316

QUOTE (Hippocrates @ Thu, 8 May 2014 - 11:25) *
QUOTE (jemann @ Thu, 8 May 2014 - 11:18) *
Very good reference, thanks.

Is there a reason we can't use hyperlinks to the cases on these forums, e.g. http :// www.patasregistersofappeals.org.uk/StatReg/case.aspx?caseref=xxxxxxxxxx ?

I always separate the case from the link which works for me. Great and informative posts so far BTW. This forum has to be the best! smile.gif


its easy to put the link under descriptive text http://forums.pepipoo.com/index.php?autocom=ibwiki&cmd=article&id=102
CODE
[url="http://forums.pepipoo.com/index.php?autocom=ibwiki&cmd=article&id=102"] as in this FAQ[/url]

Posted by: Mad Mick V Thu, 8 May 2014 - 12:40
Post #958374

Hippo you are the owner of this thread so why don't you contact Fredd to see what's best.

Two issues---

One ---what would you call it? Case Law? Key Cases? FAQ?

Second -- posting access? On the speeding side of the house case law was strictly moderated with the poster having to satisfy a mod before it was published.

Mick

Posted by: Hippocrates Thu, 8 May 2014 - 12:43
Post #958375

No time at the moment. Have to go to a place!

Posted by: 2cupsofcoffee Sun, 11 May 2014 - 18:37
Post #959512

evidence not served in time
213058625A

multiple choice offence (bay for special class of vehicle)
2130542108

Notice to Owner failing to describe in general terms or at all the form and manner in which an appeal to the adjudicator may be made. The notice states instead "We will tell you how to do this when we write to you".
2130536590
213008458A

failure of adhesive on parking ticket on a warm day
2130469449

Posted by: Hippocrates Mon, 12 May 2014 - 17:54
Post #959910

Mandatory info missing from Reg. 10 PCN

A tough one, but cracked: 2140174849. http://www.patasregistersofappeals.org.uk/

And they have just changed the wording. BangHead.gif

Dear Council:

SEA OWE PEA WHY AND PEA EH S TEA EE. Seemples.

http://en.wikipedia.org/wiki/File:Suricates,_Namibia-2.jpg

Posted by: mashkiach Tue, 13 May 2014 - 10:27
Post #960142

I am looking to download all PATAS cases in order to make my own searches for example one particular box junction. I am told this is done in Mozilla (that I use) but can not fathom how to do it.

Posted by: angrybish Tue, 13 May 2014 - 10:46
Post #960147

QUOTE (Hippocrates @ Mon, 12 May 2014 - 18:54) *
Mandatory info missing from Reg. 10 PCN

A tough one, but cracked: 2140174849. http://www.patasregistersofappeals.org.uk/

And they have just changed the wording. BangHead.gif

Dear Council:

SEA OWE PEA WHY AND PEA EH S TEA EE. Seemples.

http://en.wikipedia.org/wiki/File:Suricates,_Namibia-2.jpg


Hippo!!
He La Re us!!! laughing6.gif

Posted by: mashkiach Tue, 13 May 2014 - 16:56
Post #960267

Some old notes i have

due to vehicles stopping after the vehicle had entered the box 2080009884
2110192014 Failed to reject one of the grounds within representation.
211000654A/2110217738 At least witness statement approved device
2110344156 Regulation 5(2) duty consider the representations, no mistake
2110342412 accurate reflection of the location
2110379820 legally removed could not refund the parking fine or the removal fee, wrong!
2110717548 Mare Street car park the scout centre
2120268305 lowered to meet the level of the carriageway
2120227895 nominate a correspondence address if it is then ignored
211055831A TfL 'And' not an 'or'

And more.
2130539191:incumbent Authority clear Notice of Rejection representations considered
2130516833:entitled stop momentarily another vehicle vacates space
213049855A:cannot expect to enforce box junction markings not adequately maintained
2130435061: TfL conflation two periods ambiguity
2130552123:not proved reason why footway lowered
2130496871: Although charge certificate cancelled procedural impropriety
2130536182:NoR appeal to PATAS 28 days of this letter being served misstates the time
213047747A:identical contravention not contest no reasons entitled
2130533093:attendant had sufficient opportunity to prepare and serve
2130534948/2130535667:requisite consideration but sweeping statement opposed particularized
2130459820 stop due to moving and not stationary
2130314602 wording Notice of Rejection not suggest considered exercising discretion
2130416238 not satisfied VCA Approved Device
2130509124 TMO "leaving "of the vehicle not waiting/parking
2130515193 purpose Notice of Rejection enable make informed decision
2130531167 "active" yellow line
2130521902 unable to consider
2130477516 not entitled removal not off ground driver present no evidence
2130507355 PCN issued/served previous entries chronological
2130524784 NoR footway parking regardless of the circumstances involved inaccurate

Posted by: 2cupsofcoffee Wed, 14 May 2014 - 11:31
Post #960527

failure to allow viewing of CCTV recording = PI 2130360654

this one appears to be partially because recipient claimed he did not receive a postal PCN 2130368248

Posted by: mashkiach Wed, 14 May 2014 - 11:49
Post #960536

2130603428 Authority must demonstrate adherence to Code of Practice it issues

Posted by: mashkiach Wed, 14 May 2014 - 21:58
Post #960753

2140131154 no requirement hirer give England/Wales address

Posted by: Hippocrates Fri, 23 May 2014 - 12:26
Post #963827

Premature issue of Charge Certificate:

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Reference: 214008540A
Appellant:
Authority: Lambeth
VRM:
PCN: LH57834750
Contravention Date: 29 Oct 2013
Contravention Time: 18:23
Contravention Location: Westminster Bridge Road
Penalty Amount: £130.00
Contravention: Being in a bus lane
Decision Date: 22 May 2014
Adjudicator: Michael Burke
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons: The Notice of Rejection in this case was dated 28.01.14 and the Notice of Appeal in this case was received by PATAS in time on 20.02.14. I am satisfied that by 06.03.14 the Local Authority would have been aware there was a live appeal before PATAS. Despite this, they issued a Charge Certificate to the Appellant on that date.
The Local Authority will be aware of the then Chief Adjudicator's decision in case reference 2050339777 Miah v. City of Westminster in which the Local Authority had issued a Charge Certificate in similar circumstances. The Chief Adjudicator pointed out that the Charge Certificate amounted to an unlawful demand for money coupled with a threat of court action in default, and stated:
'The procedural impropriety in the issuing of this unlawful demand in my view fundamentally undermines the lawfulness of the enforcement process in this case, and undermines the authority and jurisdiction of this tribunal. This unlawful act debars the local authority from pursuing further enforcement of this penalty.'
I take the same view in this case as the Chief Adjudicator took in Miah and accordingly I allow the appeal.

Posted by: Hippocrates Sat, 24 May 2014 - 14:43
Post #964208

Continuous contravention: Case Reference: 2110166557 and:

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Reference: 2140191859
Appellant:
Authority: Merton
VRM:
PCN: MT62515081
Contravention Date: 28 Nov 2013
Contravention Time: 09:20
Contravention Location: Quicks Road SW19
Penalty Amount: £110.00
Contravention: Parked in a residents or shared use pay without displaying a permit, voucher or Pay & display ticket
Decision Date: 23 May 2014
Adjudicator: Gerald Styles
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons:
I am recording the appeal against the penalty charge incurred on 28 November as allowed.

I am recording the appeal against the penalty charge incurred on 30 November as refused.

I refer to my reasons written in connection with the 30 November penalty charge
(MT61117210) and recorded earlier today.

Case Reference: 2140191859
Appellant:
Authority: Merton
VRM:
PCN: MT61117210
Contravention Date: 30 Nov 2013
Contravention Time: 14:19
Contravention Location: Quicks Road SW19
Penalty Amount: £110.00
Contravention: Parked in a residents or shared use pay without displaying a permit, voucher or Pay & display ticket
Decision Date: 23 May 2014
Adjudicator: Gerald Styles
Appeal Decision: Refused
Direction: None
Reasons: I believe the motorist in bringing this appeal challenging the outstanding penalty charges and insisting payment had been made in December was wrong.

The Council has prepared its adjudication case summary correctly I believe in referring to three different like penalty charge notices. I have consequently proceeded on the basis that the first penalty charge that is to say the one incurred on 27 November has been paid. (£55)

The two under my adjudication are those relating from 28 and 30 November.

On both these occasions, as on 27 November, the officer was correct in his decision to impose a penalty charge. The required S2 permit was not displayed. I have read about changing zones but the appellant has the responsibility for ensuring a permit for the correct zone is displayed and it was not in this instance.

The Council in relation to the present appeal has sought to insist in its demand that the appellant now pay £110 on each of the outstanding penalty charges.

It says the opportunity was given for the discounted payment but that discount has expired. I will correctly point out that Adjudicator at the adjudication stage is not able to reset discount.

I consider I have however a duty in cases where there are cumulative penalties for the same, effectively a continuous contravention, to have regard to a general principle that the total demand for penalties should not be exorbitant.

In the present case I am aware that the Council would have entitled to impound this vehicle for lack of proper permit and there would be have been no tenable argument for a refund of any of the £255 minimum that would have been required upon release from the pound.

Despite that point I have decided the fair and proper course in this instance, given the nature the case overall, is to uphold only the second of the penalty charges under appeal today.

Taking into account the £55 paid, the total penalty will thus be £165.

I am recording the appeal against the penalty charge incurred on 28 November as allowed.

I am recording the appeal against the penalty charge incurred on 30 November as refused.

Posted by: Enceladus Sat, 24 May 2014 - 16:34
Post #964254

A very useful thread. And my thanks to Hippocrates for starting it.

I would like to suggest that when quoting an adjudication verbatim, as distinct from simply quoting the case number, that we edit out the appellant's name and vehicle reg. Although these details are a matter of public record some people might take offence as their name and/or vehicle reg will now be directly returned by a google (or similar engine) search. I simply suggest that it is good manners not to name a private individual or company when it is not directly relevant.

That said quoting a key case or high court decision is different as these cases are habitually referenced by the parties involved and are usually already in the public domain.

Posted by: 2cupsofcoffee Sat, 24 May 2014 - 19:34
Post #964303

unconscionable level of delay before obtaining registration of the debt at Court: 2140188388

council to re-serve PCN - wrong box ticked on Witness Statement/change of address: 2140217191

Posted by: Hippocrates Sat, 24 May 2014 - 23:49
Post #964367

QUOTE (Enceladus @ Sat, 24 May 2014 - 17:34) *
A very useful thread. And my thanks to Hippocrates for starting it.

I would like to suggest that when quoting an adjudication verbatim, as distinct from simply quoting the case number, that we edit out the appellant's name and vehicle reg. Although these details are a matter of public record some people might take offence as their name and/or vehicle reg will now be directly returned by a google (or similar engine) search. I simply suggest that it is good manners not to name a private individual or company when it is not directly relevant.

That said quoting a key case or high court decision is different as these cases are habitually referenced by the parties involved and are usually already in the public domain.

Point taken and have edited two last posts of mine. smile.gif

Posted by: 2cupsofcoffee Thu, 29 May 2014 - 16:05
Post #966087

sending correspondance to address other than that specified: 214017906A

Case Reference:214017906A
Appellant:

Authority:Camden
VRM:
PCN:CU38562559
Contravention Date:
04 Feb 2014
Contravention Time:12:05
Contravention Location:
Guildford Street WC1
Penalty Amount:£80.00 Contravention:Parked after the expiry of paid for time
Decision Date:28 May 2014
Adjudicator:
John Lane
Appeal Decision:
Allowed
Direction:
cancel the Penalty Charge Notice and the Notice to Owner.

Reasons:
It is a procedural impropriety to send the evidence to the wrong address specified.
It is contrary to the provision in paragraph 17(6) of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
The notice of appeal states that correspondence be sent to xxxxxxx.
The evidence shows it was sent to yyyyyyyy.
I will therefore allow the appeal.

Posted by: Hippocrates Thu, 29 May 2014 - 22:02
Post #966207

Sending correspondence to wrong address courtesy of Mr Mustard:


Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

This decision was corrected by the Proper Officer on the direction of the Adjudicator as per Paragraph 16 of Part 2 of the Schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

Case Reference: 2130093365
Appellant:
Authority: Barnet
VRM:
PCN: AG19026290
Contravention Date: 25 Nov 2012
Contravention Time: 11:37
Contravention Location: West Heath Road
Penalty Amount: £110.00
Contravention: Parked in a residents or shared use pay without displaying a permit, voucher or Pay & display ticket
Decision Date: 09 Aug 2013
Adjudicator: Anthony Chan
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: This is an application for review of the decision of the original Adjudicator. Mr Levy represents the Appellant and attended on his behalf. The Authority did not attend and it was not represented.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal on one or more of the following grounds:

(i) the decision was wrongly made as the result of an administrative error;
(ii) the adjudicator was wrong to reject the notice of appeal;
(iii) a party who failed to appear or be represented at a hearing had good and sufficient reason for his failure to appear;
(iv) where the decision was made after a hearing, new evidence has become available since the conclusion of the hearing, the existence of which could not reasonably have been known of or foreseen;
(v) where the decision was made without a hearing, new evidence has become available since the decision was made, the existence of which could not reasonably have been known of or foreseen; or
(vi) the interests of justice require such a review.

A review is not an opportunity for a party to attempt to get another decision when the first one is not as they wished. An Adjudicator considering such an application must do so within the provisions of Paragraph 12 of the Schedule and be mindful of the guidelines in Ross -v- London Borough of Enfield (PATAS 1950094429) where, in particular, it was held that: "Where one of the grounds set out in the Regulations is proved, that merely gives an adjudicator a discretion whether or not to review the decision. Even if a ground is proved, the adjudicator is not bound to exercise that discretion to review the decision.

Mr Levy, who had appeared before the previous Adjudicator, was essentially seeking to re-argue his case. This is not a reason for a review. I can only review the decision if I find that the adjudicator was not entitled to come to the decision that he reached.

I have read Mr Levy's written submission and listened to his oral arguments. The first point that he took was that there had been a procedural impropriety because the Authority's evidential bundle had been sent to the Appellant rather than Mr Levy. This is not disputed as a matter of fact. The issue is whether this amounted to a procedural impropriety.

Paragraph 17 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the appeals regulations) deals with the service of documents i.e. the service of any notice or other document required or authorised by the Regulations to be sent to a party to an appeal. The Authority's submissions lies in the case summary so the case summary is required to the Appellant. Its service is therefore covered by Regulation 17.

Paragraph 17 (2)(b) provides that any document shall be regarded as having been sent to that party if it is left at his proper address. Paragraph 17 (6) goes on to provide that the proper address of the appellant is the address for service specified pursuant to paragraph 2(2)© or, if no address is so specified, the address specified pursuant to regulation 2(2)(b).

Paragraph 2 (2)© provides that the proper address is a address which the Notice of Appeal may specify as being the address to which the appellant wishes documents to be sent to him in connection with the appeal. The Appellant has specified on the Notice of Appeal that the service of documents should be upon Mr Levy at Mr Levy's address. Mr Levy's address is therefore the proper address to which documents should be sent.

Sending the Authority's case summary to an address which is not the proper address is therefore a procedural impropriety. The previous Adjudicator indicated to Mr Levy that he would allow an adjournment so that Mr Levy can look at the evidence bundle and as Mr Levy had chosen to continue with the hearing, no prejudice was caused.

It seems to me, and it is not clear whether the point has been pressed on the previous Adjudicator, that once he found that the evidence bundle was served on the Appellant rather than Mr Levy, the first question that must be asked is whether there was a procedural impropriety, not whether there was prejudice. Regulation 7 (2) of the appeals regulations provides that if, on an appeal under this regulation, the adjudicator concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal. I hold that this means that once the Adjudicator finds that there had been a procedural impropriety, he must allow the appeal irrespective of whether prejudice had been caused.

Having read the previous decision I am not satisfied that this approach had been taken.

Regulation 4 (5) of the appeals regulations provides that a procedural impropriety means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations and includes in particular the taking of any step, whether or not involving the service of any document, otherwise than in accordance with the conditions subject to which; or at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken.

The requirement is that service of the case summary must be at the proper address. The delivery of the papers to an address other than the proper address is therefore a procedural impropriety. The fact that prejudice can be avoided by Mr Levy giving an opportunity to read the papers does not cure the impropriety.

The previous Adjudicator had taken a route that was pragmatic and which could not be said to be unfair. However, it would appear that he had not directed himself to the relevant regulations and in particular the need firstly to make a finding as to whether there had been a procedural impropriety and then the implication of this finding.

Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the appeal is allowed.




Original Decision Subsequently Reviewed Under Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

Decision Date 21 Jun 2013
Previous Decision Refused
Adjudicator Michael Burke
Direction None
Reasons The allegation in this case is that the vehicle was parked in a residents or shared-use parking place or zone without clearly displaying either a permit or voucher or pay and display ticket issued for that place. On behalf of Mr. Hackenbroch his representative Mr. Levy states that he did not receive any evidence bundle. The Enforcement Authority have stated that the evidence bundle was sent to the Appellant on 07.03.13 and I am satisfied that this is the case. In the circumstances I indicated to Mr. Levy that I would allow him an adjournment to consider the evidence should he wish it. He chose to proceed with the hearing.
Mr. Levy advances a number of technical arguments. He asserts that the PCN fails to comply with Paragraph 1. (g) and (h) of the Schedule to the General Regulations in the manner in which it sets out the 14 and 28 day periods for payment of the penalty charge. However, when asked he was unable to identify any material difference between the periods as described on the PCN in this case and as set out in paragraph1. above.
The PCN in this case sets out the periods for payment as 'before the end of the period of 28 days (or 14 days) beginning with the date on which the penalty charge notice was served'. I am not satisfied that there is any material difference between the words used on the PCN and those in Paragraph 1. I am satisfied that the PCN was substantially compliant.
Mr. Levy asserts a procedural impropriety in the failure by the Enforcement Authority to honour the indication given on the PCN that if informal representations were refused the Enforcement Authority would offer a further opportunity to pay the reduced amount of £55.
'Procedural impropriety' means a failure by the Enforcement Authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by the Appeals Regulations in relation to the imposition or recovery of a penalty charge or other sum. Mr. Levy was unable to identify the requirement of the Act or Regulations which the Enforcement Authority had failed to observe. He relies on 3 decisions of Adjudicators to allow an appeal in these circumstances. None of these decisions identifies a procedural impropriety and I am not satisfied that there has been any procedural impropriety.
Mr. Levy asserts that the Notice to Owner is defective in that it fails to comply with Regulation 4 and 5(2)(b)(i) and (ii). However, neither of these provisions sets out formal requirements for a Notice to Owner. Again he relies on 3 decisions of other Adjudicators but PATAS case reference 2080351250 relates to a defective PCN, 211061246A a defective Notice of Rejection and 2120342259 was concerned with a Regulation 10 PCN, whereas the case I have to consider involves a Notice to Owner issued following a Regulation 9 PCN.
Mr. Levy complains that the Enforcement Authority did not provide him with a copy of the Traffic Management Order at his request. They have as required provided a copy extract with their evidence bundle. As indicated above I would have allowed Mr. Levy an adjournment but he chose to proceed with the hearing. He has not therefore established any prejudice.
As to the allegation in this case has provided evidence of 3 attempts made to pay for parking of the vehicle, none of which were successful.
Anyone who has used automated payment facilities with any regularity will be familiar with intermittent malfunctions. Where this happens the motorist must find a way to park legally, whether this be to keep trying or to find an alternative method of payment, or an alternative parking place. There would come a stage when I could properly say that the motorist had taken all reasonable steps to pay for his parking but I do not feel able to say it was reached in this case.
Mr account amounts only to mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion. The Law does not give Adjudicators the power to allow an appeal which establishes mitigating circumstances only.
Having considered all the evidence, I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies and there is no proper basis on which I could allow the appeal. Nevertheless, on 07.07.13 I wrote to the Enforcement Authority in the following terms:
'The PCN in this case indicated that if informal representations received within 14 days of the day of issue were refused a further opportunity would be given to pay the reduced amount. The letter of 31.12.12 did not allow a further opportunity to pay the reduced amount. The email representations are stamped 'Date Received: 13 December 2012' which would have been outside the 14 day period. However, the email header shows 'Sent: 06 December 2012 14.22'. On the face of this evidence it appears the email was received within the 14 days and that when the representations were refused a further opportunity to pay the reduced amount ought to have been afforded. The Adjudicator will assume this is the case and allow the appeal to the extent of a further opportunity to pay the reduced amount unless you send full written reasons as to why you pursue the full penalty charge.'
In the meantime Mr. Levy has written indicating that he wishes to attend 'the hearing'. Mr. Levy had nearly an hour and a half at the personal hearing to advance the arguments he wished to advance. This is exceedingly generous for an appeal against a PCN. There is no further hearing for him to attend.
I am grateful to the Enforcement Authority for the indication that they are prepared to accept the reduced amount of £55 in full and final settlement. This must be paid within 21 days of today or the full penalty charge will fall due.

Posted by: Hippocrates Fri, 30 May 2014 - 18:06
Post #966534

Wrong appeal form sent with NOR: (2120221618), 2120089430, 211013314A, 2120039979, 2100488397.

http://www.patasregistersofappeals.org.uk/

Many thanks to Bogsy for a couple of those cases. And OP on this thread:

http://forums.pepipoo.com/index.php?showtopic=69820&pid=689742&mode=threaded&start=#entry689742

Posted by: Enceladus Fri, 30 May 2014 - 23:19
Post #966600

@Hippocrates

In your magic catalogue do you have any more cases on legitimate expectation similar to 2120088937 above? IE. where the appellant relied on advice from a CEO as to where to park, as distinct from lack of enforcement by the EA.

Thanks,

Posted by: Hippocrates Fri, 30 May 2014 - 23:57
Post #966604

QUOTE (Enceladus @ Sat, 31 May 2014 - 00:19) *
@Hippocrates

In your magic catalogue do you have any more cases on legitimate expectation similar to 2120088937 above? IE. where the appellant relied on advice from a CEO as to where to park, as distinct from lack of enforcement by the EA.

Thanks,

Fraid not. They are the only ones I have at present: trying to lead a normal life and avoiding PATAS registers etc! I stand corrected: here is another one 213031735A but this may not fit your requirements.

Posted by: 2cupsofcoffee Sat, 31 May 2014 - 07:52
Post #966654

This may be of help in cases regarding loading where the item is small - involves a locksmith collecting/dropping off keys: 2140199205, 2140199216, 2140199227

late service of evidence (3 clear days): 2140177676

The Notice to Owner does not describe in general terms or at all the form and manner in which an appeal may be made. 2140008668

multiple choice offence: in a bay for a special class of vehicle: 2140170917

Posted by: 2cupsofcoffee Sat, 31 May 2014 - 08:12
Post #966661

QUOTE (Enceladus @ Sat, 31 May 2014 - 00:19) *
@Hippocrates

In your magic catalogue do you have any more cases on legitimate expectation similar to 2120088937 above? IE. where the appellant relied on advice from a CEO as to where to park, as distinct from lack of enforcement by the EA.

Thanks,


Enceladus - 2140075643

Case Reference:2140075643
Declarant:

Authority:Transport for London
VRM:

PCN:GF62949714
Contravention Date:
09 Aug 2013
Contravention Time:
18:50
Contravention Location:
Mile End Road
Penalty Amount:
£130.00
Contravention:
stopped where prohibited
Referral Date:
18 Feb 2014
Adjudicator:
Carl Teper
Appeal Decision:
Allowed
Direction:cancel the Penalty Charge Notice and the Notice to Owner.
Reasons:The Appellant has attended his appeal I find him to be an honest, consistent and convincing witness I believe what he tells me.

The authority's case is that the Appellant's vehicle was stopped where prohibited in Mile End Road on 9 August 2013 at 18.50 having exceeded the permitted hour as he had been seen parked at 17.39.

The Appellant's case is that he had just arrived and had spoken to the two Civil Enforcement Officers at the location and asked if it was alright to collect some food. He was told that as long as he was no more than an hour it would be ok. On his return 6 or 7 minutes later he was astonished to see them issuing a Penalty Charge Notice.

I have also considered the evidence in this case and I find the Appellant's evidenc to be credible and stronger than that of the Enforcement Authority's.

Accordingly, the appeal is allowed.

Posted by: qafqa Sat, 31 May 2014 - 08:56
Post #966681

Three more where the appellant checked with a CEO before parking.
2110170441
2110613600
2110508322

Posted by: 2cupsofcoffee Sun, 1 Jun 2014 - 16:42
Post #967004

another asked the CEO first 2140203335

Posted by: Hippocrates Wed, 4 Jun 2014 - 00:49
Post #967915

An interesting continuous contravention case: 2140184092



Posted by: Hippocrates Wed, 4 Jun 2014 - 01:00
Post #967917

Legitimate expectation: 2140205217

Posted by: Hippocrates Thu, 5 Jun 2014 - 20:38
Post #968578

Fettered discretion and not true copy of PCN: 2140124818

Posted by: Enceladus Tue, 10 Jun 2014 - 10:59
Post #969943

Where a Statutory Declaration or Witness Statement has been successful on the specified grounds then the EA is supposed to "refer the case to the adjudicator who may give such directions as he considers appropriate and the parties shall comply with those directions". Normally an appeal is scheduled.

Both TMA2004 and RTA1991 are silent on the time limit allowed for the EA to refer the matter. The PATAS Chief Adjudicator's Practice Manual for London Enforcement Authorities says this at paragraph 20.5 in Section 20.

QUOTE
20.5 The EA should comply with the statutory duty to refer the case promptly. Failure to do so may result in the Adjudicator finding that delay in doing so debars the EA from enforcing the penalty and directing cancellation of the PCN and/or NTO.


Has your research thrown up any cases where "promptly" in the above context is discussed? IE what is a reasonable time and what is unreasonable.

Posted by: 2cupsofcoffee Tue, 10 Jun 2014 - 12:46
Post #970008

E, not a discussion, but an example. Found in the "closed" section.

Case Reference: 2140148780
Declarant:
Authority: Enfield
VRM:
PCN: EF02306389
Contravention Date: 30 Aug 2013
Contravention Time: 17:00
Contravention Location: Woodcroft N21
Penalty Amount: £110.00
Contravention: Footway parking (one - four wheels on footway)
Referral Date: 25 Mar 2014
Declaration Direction Date: 05 Jun 2014
Adjudicator: Monica Hillen
Appeal Decision: Closed
Direction: the Enforcement Authority to re-serve the Notice to Owner within 28 days
Reasons: Enforcement Authority has referred a witness statement made by Mr Butler on 25 February 2014. The ground relied on is clearly wrong as he indicated to the Enforcement Authority he neither received the Penalty Charge Notice served on the vehicle or the Notice to Owner posted on 1 October 2013. The following direction is made in the interests of justice. Direction 1. The Enforcement Authority to re-serve the Notice to Owner within 28 days. 2. Mr Butler to make formal written representations to the Enforcement Authority within 28 days of receipt of the said Notice. Direction made under Reg.23 (7) of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007

2140104264 witness statement 13 Feb, referred 28 Feb

Posted by: 2cupsofcoffee Tue, 10 Jun 2014 - 15:35
Post #970074

Case Reference: 2140252454
Declarant:
Authority: Merton
VRM:
PCN: MT80267607
Contravention Date: 24 Jun 2013
Contravention Time: 12:21
Contravention Location: Windermere Avenue SW19
Penalty Amount: £110.00
Contravention: Parked in a restricted street
Referral Date: 02 Jun 2014
Declaration Direction Date: 10 Jun 2014
Adjudicator: Austin Wilkinson
Appeal Decision: Closed
Direction: the LA to cancel the Penalty Charge Notice

Reasons: draw the local authority's attention here to the PATAS User Manual issued to all Enforcement Authorities in December 2008 at paragraph 20.5 where there is reference to the statutory duty to refer cases promptly to this Tribunal once the Court has made its Order upon presentation of a Statutory Declaration or Witness Statement. Failure to do so may result in the Adjudicator finding the delay in doing so debars the Enforcement Authority from enforcing the penalty charge notice and directing cancellation of the penalty charge notice and the Notice to Owner. In addition, in exercising its functions under the provisions of the Traffic Management Act 2004 the local authority has a duty to act fairly. I note the case of R-v- Secretary of State for Home Department ex p. Doody (1994) (House of Lords) per Lord Mustill : "Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances" . I have also considered Davis-v- Royal Borough of Kensington and Chelsea ( PAS 1970198981) where it was considered that a delay of more than 2/3 months in responding to an appellant's representations was prima facie evidence of unfairness in the absence of explanation . Here, the Date of referral of the Witness Statement is 23rd May 2014 but the Order of the Court is 30th October 2013 and I have no explanation for this level of delay. This is an unreasonable and , in my view, an unfair delay causing potential evidential prejudice to the Appellant. Enforcement cannot be permitted in these circumstances.

Posted by: Hippocrates Wed, 11 Jun 2014 - 17:05
Post #970481

Legitimate expectation: 2140212143

Photographic evidence wanting: 2140213463, 2140213430.

PCN inaccurate re description of loading bay: 2140213758

Wrong time on PCN by 19 seconds: 2140214193

Posted by: 2cupsofcoffee Fri, 13 Jun 2014 - 08:07
Post #971066

possibly useful for loading cases - 2140116172 " In my view, the placing of a large item of dry cleaning into a vehicle is just as much an act of loading as would be, for example, the placing of a box or a suitcase. "

another "did not receive evidence 3 clear days before" 2140161712

Posted by: 2cupsofcoffee Fri, 13 Jun 2014 - 08:28
Post #971068

wording in Kingston upon Thames pcns in regard to the 28 day payment period not compliant - 214020982A referring to 2130497615. They're different contraventions too.

Blimey! appellant is TOLD by adjudicator to ask for costs because council had 2 versions of NoR!! 2140217602

Posted by: Hippocrates Fri, 13 Jun 2014 - 13:58
Post #971176

QUOTE (2cupsofcoffee @ Fri, 13 Jun 2014 - 09:28) *
wording in Kingston upon Thames pcns in regard to the 28 day payment period not compliant - 214020982A referring to 2130497615. They're different contraventions too.

Blimey! appellant is TOLD by adjudicator to ask for costs because council had 2 versions of NoR!! 2140217602

The RBK wording issue is being decided by a panel decision soon. Frankly, I think the two expressions mean the same . The NOR case warrants investigation. Appellant must have raised the issue of costs which explains the direction.

Posted by: Hippocrates Sun, 15 Jun 2014 - 11:08
Post #971614

Legitimate expectation: 2140095775

Posted by: Hippocrates Sun, 15 Jun 2014 - 11:21
Post #971620

QUOTE (Hippocrates @ Fri, 23 May 2014 - 13:26) *
Premature issue of Charge Certificate:

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Reference: 214008540A
Appellant:
Authority: Lambeth
VRM:
PCN: LH57834750
Contravention Date: 29 Oct 2013
Contravention Time: 18:23
Contravention Location: Westminster Bridge Road
Penalty Amount: £130.00
Contravention: Being in a bus lane
Decision Date: 22 May 2014
Adjudicator: Michael Burke
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons: The Notice of Rejection in this case was dated 28.01.14 and the Notice of Appeal in this case was received by PATAS in time on 20.02.14. I am satisfied that by 06.03.14 the Local Authority would have been aware there was a live appeal before PATAS. Despite this, they issued a Charge Certificate to the Appellant on that date.
The Local Authority will be aware of the then Chief Adjudicator's decision in case reference 2050339777 Miah v. City of Westminster in which the Local Authority had issued a Charge Certificate in similar circumstances. The Chief Adjudicator pointed out that the Charge Certificate amounted to an unlawful demand for money coupled with a threat of court action in default, and stated:
'The procedural impropriety in the issuing of this unlawful demand in my view fundamentally undermines the lawfulness of the enforcement process in this case, and undermines the authority and jurisdiction of this tribunal. This unlawful act debars the local authority from pursuing further enforcement of this penalty.'
I take the same view in this case as the Chief Adjudicator took in Miah and accordingly I allow the appeal.


2140192669

Posted by: Hippocrates Tue, 17 Jun 2014 - 00:07
Post #972266

Failure to serve evidence pack upon person nominated on Notice of Appeal. Courtesy of Mashkiach:

Adjudicator Joanne Oxlade 213019425A, 2130369739, 2130292270
Adjudicator Anthony Chan 2130189216, 2120075786, 2130093365
Adjudicator Andrew Harman 2130169183
Adjudicator Austin Wilkinson 2120194978
Adjudicator Mark Eldridge 2130062496 and 2130060592
Adjudicator John Lane 2130521913, 2130440662, 2130521913, 2140023617, 2140114086
Adjudicator Andrew Harman 2130169183
Adjudicator Carl Teper 2110705232
Adjudicator Belinda Pearce 2130221782, 214010820A
Adjudicator Anthony Edie 213042389A
Adjudicator Alastair McFarlane 2130421227, 2130603665
Adjudicator Michael Burke 2130375072
Adjudicator Jennifer Shepherd 2140126052
Adjudicator Michael Nathan 2130074043

http://www.patasregistersofappeals.org.uk/

Posted by: 2cupsofcoffee Thu, 19 Jun 2014 - 16:30
Post #973266

legitimate expectation - on advice of CEO - 2140213532

failure to consider (unable to) 2140226170

Posted by: Hippocrates Fri, 20 Jun 2014 - 23:40
Post #973703

Yellow Box Junction de minimis: 2140226090

In the light of the very small amount by which the vehicle is seen to be in the entrance to the junction and the brief time it is in this position I treat this on its facts as a case where the principle of de minimis ( i.e legal insignificance) should be applied, and on that basis no contravention occurred. The Appeal is therefore allowed.


Viewing evidence re Reg 10 CCTV issued PCNs: 2140232457

The case also raises the question as to whether the wording on the Council's PCN complies with the requirement of Regulation 3(4)(e) to state the effect of 3(5) and (6) - again a matter which seems on the face of it a little doubtful but which may await some future decision of the point is raised.



Posted by: Hippocrates Tue, 24 Jun 2014 - 01:16
Post #974588

Continuous contravention: 2140234882

Posted by: 2cupsofcoffee Tue, 24 Jun 2014 - 19:35
Post #974839

failure to consider: 2140233369

failure of authority to provide means of payment in good working order: 2140218343

Posted by: mashkiach Tue, 24 Jun 2014 - 22:41
Post #974891

QUOTE (2cupsofcoffee @ Tue, 24 Jun 2014 - 20:35) *
failure to consider: 2140233369
most important the Notice of Rejection contains clear and accurate reasons to explain why the Penalty Charge Notice is to be enforced.
Though not as far as Makda, R (on the application of) v The Parking Adjudictor [2010] EWHC 3392 (Admin)
Para 8
A local authority is obliged to consider any representations made and respond to them. If the representations are not accepted, the reasons must be set out in a "Notice of Rejection" which is provided for by Regulation 6 of the 2007 Regulations.

Posted by: 2cupsofcoffee Sun, 29 Jun 2014 - 08:01
Post #976114

could be of use for close together bus lane cases:

Case Reference: 2140244922
Appellant:
Authority: Barnet
VRM:
PCN: AG80947821
Contravention Date: 25 Jul 2013
Contravention Time: 18:46
Contravention Location: The Hyde, West Hendon Broadway
Penalty Amount: £130.00
Contravention: Being in a bus lane
Decision Date: 28 Jun 2014
Adjudicator: Gerald Styles
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Enforcement Notice.

Reasons: The appellant has attended today at the Angel with her husband Mr F. The Council was not represented at the hearing.

I am asked to overturn this penalty charge notice which the appellant emphasises was one of a pair of bearing the same time and date.

Mr F tells me that he calculates there is approximately some 250 metres between what is recorded.

The other penalty charge has been paid at £130 and I regard that as a closed file.

Given the proximity in time and space between the two occurrences I am not persuaded to uphold Barnet's claim to the second penalty charge under appeal today. Any Council arguments that separate bus lanes have a discrete legal status and thus justify two separate penalty charges on the facts of this case appear to me artificial and I do not accept them. I consider the appellant case stronger.

These considerations have resulted in me recording this appeal as allowed.

Posted by: Hippocrates Tue, 1 Jul 2014 - 20:39
Post #977136

will/may: 2120448511

Posted by: 2cupsofcoffee Tue, 8 Jul 2014 - 15:23
Post #979442

parked following instructions of CEO 2140260102

Posted by: astralite Tue, 8 Jul 2014 - 22:03
Post #979571

2140263304 Multiple PCNs. Bus lane

Posted by: mashkiach Thu, 10 Jul 2014 - 23:54
Post #980405

2140265569
signing scheme as a whole meets the criterion of providing "adequate information
and this 2140250889

Posted by: mashkiach Fri, 11 Jul 2014 - 00:09
Post #980407

Parked in bay cos broken mirror 2140252057

Posted by: mashkiach Thu, 17 Jul 2014 - 15:13
Post #982926

Just gone over 14/15/16 Jul cases
Case Reference: 2140167322 Regulation 3(4) (e)
Case Reference: 2140278017 unable to cancel
Case Reference: 2140089499 Notice of Rejection failed to deal
Case Reference: 2140126744 not criminal but penal prove appropriate standard
Case Reference: 2140264078 signage temporarily rendered unclear
Case Reference: 2140208849 failure to comply occurred prior to that stated in PCN

Posted by: Enceladus Tue, 29 Jul 2014 - 09:44
Post #986597

No signs or markings are required for so called dropped kerbs. Parking adjacent is a contravention anywhere in a Greater London and anywhere within a Special Enforcement Area.
Case 2110067442 concerns parking by such a dropped kerb where the area is marked by a yellow line. The presence of the line is held to "confusing and misleading" and the appeal allowed.

Does anyone have any further examples?

QUOTE
Case Reference: 2110067442
Appellant:
Authority: Westminster
VRM:
PCN: WM64562084
Contravention Date: 31 Oct 2010
Contravention Time: 17:52
Contravention Location: North Audley Street
Penalty Amount: £120.00
Contravention: Parked adjacent to a dropped footway
Decision Date: 12 Apr 2011
Adjudicator: Neeti Haria
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The appellant does not deny parking at the location but states that she was misled by the single yellow line marked at the location into thinking that the area was subject to the single yellow line restrictions.

The Appellant states that she was misled by the single yellow line road marking alongside the dropped kerb. She states that as parking on a Sunday is permitted on the single yellow line on North Audley Street, she thought he was permitted to park at the location. The Appellant states that had the Authority marked the dropped kerb with a double yellow line as opposed to a single yellow line she would have had no doubt that parking was prohibited and would not have parked at the location.

The Authority relies on the copy Penalty Charge Notice and the civil enforcement officer's contemporaneous notes and photographs.

It is the Authority's case that there is no legal requirement for a dropped kerb to be signed. The Authority is of the view that as there is no legal obligation to indicate a dropped kerb with any sign or road marking the fact that they marked the area with a single yellow line is irrelevant.

I adjourned the appeal with a request that the Authority provide an explanation as to why it has chosen to mark the area with a single yellow line as opposed to a double yellow line when as a result of the dropped kerb parking is prohibited at all times. The Authority has responded by simply reiterating its view that as there is no obligation on them to sign the prohibition it is irrelevant that the area is marked by a single yellow line.

I accept that there is no requirement to sign the prohibition against parking adjacent to a dropped kerb. However the Authority in this case has chosen to extend the single yellow line to the area of the carriageway adjacent to the dropped kerb. Having done so the Authority is open to the criticism advanced by the Appellant as to the use of single yellow lines as opposed to double yellow lines. The use of a single yellow line is misleading as it indicates that the waiting of vehicles is prohibited for specified times and not at all times. It is a nonsense to state that as there is no legal obligation to indicate that prohibition "it makes no difference as to whether a single or double yellow line marks the area". If the Authority decides to mark the prohibition it is under a duty to ensure that the road marking is adequate and indicates the prohibition clearly so that the motorist is informed of what is required in order to park in accordance with the prevailing prohibition. I find the single yellow line road marking by a dropped kerb to be confusing and misleading. Accordingly I allow the appeal.

Posted by: astralite Tue, 29 Jul 2014 - 11:28
Post #986629

Location: YBJ - two or more possible locations, and not at location stated

2060381000 Inadequate information on PCN
210056419A
2120507905
2130069145
2140187691

2140111099 No YBJ at location stated on PCN (or on photos)
2140200836

Not sure whether any of the above are already in other posts - but maybe useful together.

Posted by: astralite Tue, 29 Jul 2014 - 11:41
Post #986633

Time: YBJ

2140214193 not as stated on PCN (alleged contravention would have occurred later)

And
2140201293

The PNC alleges a contravention at 10:13. One of the issues raised in representations was that any contravention occurred at 10:12 and not 10:13.
The local authority did not refer to this issue at all in the Notice of Rejection. In the case summary the local authority states that the car stopped at 10:13.
… the CCTV. .. shows that Mr xxx's car enters the box at 10:12:48. It stops at 10:12:56. It moves off at 10:13:36 and then exits the box.
The contravention occurs if a vehicle enters and then stops in a box junction and the stopping is due to the presence of stationary vehicles.
I find that the car stopped before 10:13. Therefore I am not satisfied that any contravention occurred at the time alleged.

Posted by: astralite Tue, 29 Jul 2014 - 12:13
Post #986641

QUOTE (Hippocrates @ Sat, 21 Jun 2014 - 00:40) *
Yellow Box Junction de minimis: 2140226090

In the light of the very small amount by which the vehicle is seen to be in the entrance to the junction and the brief time it is in this position I treat this on its facts as a case where the principle of de minimis ( i.e legal insignificance) should be applied, and on that basis no contravention occurred. The Appeal is therefore allowed.


Viewing evidence re Reg 10 CCTV issued PCNs: 2140232457

The case also raises the question as to whether the wording on the Council's PCN complies with the requirement of Regulation 3(4)(e) to state the effect of 3(5) and (6) - again a matter which seems on the face of it a little doubtful but which may await some future decision of the point is raised.


YBJ de minimis

2140244445
The appellant has attended at the Angel today.
… I do not allow yellow box junction appeals on the basis of the timing and sequence of traffic lights. Nor in general are appeals properly allowed because a vehicle in front slows or stops unexpectedly. I detected fault over the appellant entering the box as he did without certainty of clearing it without stopping. The Council dossier … does not tell me precisely how many seconds the appellant car was stopped. It is not especially easy to detect precisely how many in this particular case but on my calculation it was approximately five or under. The vehicle when stopped was towards the perimeter exit of the box and straddling it. … but given the evidence overall I have on balance, decided the occurrence was too minor to establish unlawful stopping and liability for a penalty charge.


2140186189
I have concluded that the driver was at fault in entering the yellow box as he did. I am not bound by earlier decisions of other Adjudicators … about a required number of seconds of stopping … In my judgment the correct approach is not simply a case of counting seconds but examining the full CCTV clip and having regard to the full facts. I have however been persuaded that the stop that occurred … can be regarded as insignificant enough as to be classed as legally inconsequential.

214018619A
The footage shows that Mr xxx's car entered the box junction without having a clear exit. However, the car was stopped for only 3 seconds before the wheels were again in motion. I do not believe that this constitutes stopping in a sense sufficient to constitute a contravention. A vehicle might come to a halt in a box for 2 to 3 seconds while a driver changes gear and moves forward. A vehicle might similarly come to a halt for a few seconds due to stalling. I agree with Mr xxx that this is simply too de minimis to amount to stopping for the purposes of the alleged contravention.

Posted by: astralite Thu, 14 Aug 2014 - 10:12
Post #991718

Time, location, signage, moving traffic: 2140254631
(courtesy of qafqa)

"….. I am persuaded by this and by the lack of any compelling evidence from the authority to show otherwise, that the signage at this location is not adequate.
In addition I note that the recording shows that contravention actually occurred at 08.01.35, whereas the time given in the PCN is 08.02. By 08.02 the vehicle
had passed the alleged contravention site, and was stationary at the next junction. As this is a moving traffic alleged contravention there is a need for complete
accuracy as to time and location which is not satisfied on this occasion. The PCN should not stand on this ground also. The appeal is allowed."


Posted by: 2cupsofcoffee Wed, 27 Aug 2014 - 09:20
Post #995808

Blue Badges: if the TMO doesn't refer to a clock being displayed, the badge itself is enough:

214033669A
The Penalty Charge Notice was issued when Mr X's car was parked in a disabled badge in Temple Fortune Lane. There was a disabled badge and clock in the car. The bay is for disabled badge who may park for up to three hours. The clock in the car was set at about 12:00. The Penalty Charge Notice was issued at 09:51. the local authority states that the car had been parked for more than three hours. I accept Mr X's evidence which is supported by a letter from his GP surgery that the car was parked for about 30 minutes. I find as a fact that the car was parked in the bay for less than three hours.

The local authority provides a copy of the Traffic Management Order. The Order states that a car parked in a disabled bay must have a disabled badge displayed. The Traffic Management Order does not refer to any requirement to display a clock. As there is no requirement to display a clock it follows that the incorrect setting of the clock does not amount to a contravention.

I allow this appeal.

Posted by: astralite Fri, 29 Aug 2014 - 10:11
Post #996405

Yellow Box Junction – stopped for pedestrian. 2140345227
Authority: Kingston Upon Thames
Contravention: Entering and stopping in a box junction when prohibited
Decision Date: 28 Aug 2014
Reasons: The appellant claims that she stopped briefly for a pedestrian to cross and then moved forwards out of the box.
The Regulations provide "...no person shall cause a vehicle to enter the box junction so that the vehicle has to stop within
the box due to the presence of stationary vehicles." I find as fact that the vehicle did not stop in the box junction due to the
presence of stationary vehicles. The vehicle stopped for a pedestrian to cross. The vehicle then moved out of the junction.
I am not satisfied that the contravention occurred. I allow the appeal.

Posted by: Hippocrates Thu, 11 Sep 2014 - 22:18
Post #1001148

"Parked" for less than a minute: 2140097930 and 2130139739. Original adjudicator in both is Michael Lawrence. Good bloke IMO.

Posted by: astralite Wed, 17 Sep 2014 - 07:04
Post #1002870

QUOTE (2cupsofcoffee @ Sun, 1 Jun 2014 - 17:42) *
another asked the CEO first 2140203335


Asked CEO first: 2140369203 - Parked after expiry of time. Driver did not have reading glasses with her so relied on information given to her by the CEO.

Failure to pursue PCN within reasonable time. 2410263676. More than 6 months is not reasonable.

Posted by: Enceladus Wed, 24 Sep 2014 - 11:18
Post #1005373

Do you have a list of cases involving Reg 3(5) and 3(6) of http://www.legislation.gov.uk/uksi/2007/3482/regulation/3/made? EG PATAS 2120293222.
Thanks,

"(5) The recipient of a penalty charge notice served by virtue of regulation 10(1)(a) of the General Regulations may, by notice in writing to the enforcement authority, request it—

(a)to make available at one of its offices specified by him, free of charge and at a time during normal office hours so specified, for viewing by him or by his representative, the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or
(b)to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention."
"(6) Where the recipient of the penalty charge notice makes a request under paragraph (5), the enforcement authority shall comply with the request within a reasonable time."

Posted by: 2cupsofcoffee Wed, 24 Sep 2014 - 11:36
Post #1005379

QUOTE (Enceladus @ Wed, 24 Sep 2014 - 12:18) *
Do you have a list of cases involving Reg 3(5) and 3(6) of http://www.legislation.gov.uk/uksi/2007/3482/regulation/3/made? EG PATAS 2120293222.
Thanks,

"(5) The recipient of a penalty charge notice served by virtue of regulation 10(1)(a) of the General Regulations may, by notice in writing to the enforcement authority, request it—
(a)to make available at one of its offices specified by him, free of charge and at a time during normal office hours so specified, for viewing by him or by his representative, the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or
(b)to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention."
"(6) Where the recipient of the penalty charge notice makes a request under paragraph (5), the enforcement authority shall comply with the request within a reasonable time."



2130360654?

The Appellant attended in person. The Authority did not attend and it was not represented.

The Appellant had made a written request to see the CCTV recording. He said that he did not receive a response and the Authority did not challenge that. The failure to allow the Appellant to see the CCTV recording is a procedural impropriety.

I am allowing the appeal.

Posted by: Hippocrates Wed, 24 Sep 2014 - 20:36
Post #1005551

QUOTE (2cupsofcoffee @ Wed, 24 Sep 2014 - 12:36) *
QUOTE (Enceladus @ Wed, 24 Sep 2014 - 12:18) *
Do you have a list of cases involving Reg 3(5) and 3(6) of http://www.legislation.gov.uk/uksi/2007/3482/regulation/3/made? EG PATAS 2120293222.
Thanks,

"(5) The recipient of a penalty charge notice served by virtue of regulation 10(1)(a) of the General Regulations may, by notice in writing to the enforcement authority, request it—
(a)to make available at one of its offices specified by him, free of charge and at a time during normal office hours so specified, for viewing by him or by his representative, the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or
(b)to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention."
"(6) Where the recipient of the penalty charge notice makes a request under paragraph (5), the enforcement authority shall comply with the request within a reasonable time."



2130360654?

The Appellant attended in person. The Authority did not attend and it was not represented.

The Appellant had made a written request to see the CCTV recording. He said that he did not receive a response and the Authority did not challenge that. The failure to allow the Appellant to see the CCTV recording is a procedural impropriety.

I am allowing the appeal.

Panel decision has now reversed this p.i. Mashkiach thread.

http://forums.pepipoo.com/index.php?showtopic=90663&pid=964810&mode=threaded&start=#entry964810

214015350A

Posted by: Mad Mick V Fri, 10 Oct 2014 - 10:19
Post #1010256

Our old friend Clements Road.

Case Reference:2140372354 Appellant:Tube Lines Authority:Redbridge VRM:WP61ZXJ PCN:AF91271385 Contravention Date:04 May 2014 Contravention Time:07:23 Contravention Location:Clements Road Penalty Amount:£130.00 Contravention:Failing to comply with a sign indicating a prohibition on certain types of vehicle Decision Date:02 Oct 2014 Adjudicator:Anthony Chan Appeal Decision:Allowed Direction:cancel the Penalty Charge Notice. Reasons:The Appellant Company is represented by Mr Skilton who attended the hearing in person. The Authority was not represented.

Mr Skilton seeks to rely on an exemption contained in the Redbridge Prescribed Routes (no.1) Traffic Order 2010. The Authority submits that this is the incorrect TMO. It says that the correct TMO is the Ilford Town Centre Prescribed Routes Order 1987 no1.

The allegation is about a section of a bus route in Clements Road. The former TMO refers to a bus route in Clements Road. The latter order does not refer to Clements Road save for a mention of it as a marking the commencement of a restriction in Clements lane.

I accept that the 2010 TMO applies and as the Authority has not provided any arguments as to the application of the exemption in that Order, I am allowing the appeal.

I gather that there may be further appeals under similar circumstances. I wish to make it clear that this decision is not to be treated to be a blanket cover for all Tube Lines vehicles to travel on Clements Road. I have not made a finding on the application of the exemption. This may be the subject of any future appeals. I would suggest that both parties must now pay c loser attention to what the TMO says, and come to the Tribunal equipped with proper evidence and legal submissions.


PLUS

Case Reference:2140352867 Appellant:[Redacted] Authority:Redbridge VRM:[Redacted] PCN:AF91278806 Contravention Date:09 May 2014 Contravention Time:17:37 Contravention Location:Clements Road Penalty Amount:£130.00 Contravention:Failing to comply with a sign indicating a prohibition on certain types of vehicle Decision Date:02 Sep 2014 Adjudicator:Andrew Harman Appeal Decision:Allowed Direction:cancel the Penalty Charge Notice. Reasons:This appeal was scheduled for hearing today.
Neither party to the proceedings attended.
The matter has now been listed before me for determination on the papers.
The contravention alleged in this case is that this vehicle failed to comply with a prohibition on certain types of vehicle.
The types of vehicle that are subject to the prohibition are motor vehicles and motorcycles. An exemption applies for buses and for access.
On the point being raised by the appellant I note that the penalty charge notice does not specify the types of vehicles that are subject to the prohibition. I am not for that reason satisfied that the notice states the grounds upon which the council believes that the penalty charge is payable and find that it is for that reason not compliant with the legal requirements.
The contravention did not I find therefore occur.

Posted by: Enceladus Sun, 12 Oct 2014 - 16:29
Post #1010945

Any more like this case below?
IE what is a reasonable time limit for PATAS referral following a WS or SD? The practical meaning of "promptly".
Thanks,
Enceladus

QUOTE (2cupsofcoffee @ Tue, 10 Jun 2014 - 16:35) *
Case Reference: 2140252454
Declarant:
Authority: Merton
VRM:
PCN: MT80267607
Contravention Date: 24 Jun 2013
Contravention Time: 12:21
Contravention Location: Windermere Avenue SW19
Penalty Amount: £110.00
Contravention: Parked in a restricted street
Referral Date: 02 Jun 2014
Declaration Direction Date: 10 Jun 2014
Adjudicator: Austin Wilkinson
Appeal Decision: Closed
Direction: the LA to cancel the Penalty Charge Notice

Reasons: draw the local authority's attention here to the PATAS User Manual issued to all Enforcement Authorities in December 2008 at paragraph 20.5 where there is reference to the statutory duty to refer cases promptly to this Tribunal once the Court has made its Order upon presentation of a Statutory Declaration or Witness Statement. Failure to do so may result in the Adjudicator finding the delay in doing so debars the Enforcement Authority from enforcing the penalty charge notice and directing cancellation of the penalty charge notice and the Notice to Owner. In addition, in exercising its functions under the provisions of the Traffic Management Act 2004 the local authority has a duty to act fairly. I note the case of R-v- Secretary of State for Home Department ex p. Doody (1994) (House of Lords) per Lord Mustill : "Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances" . I have also considered Davis-v- Royal Borough of Kensington and Chelsea ( PAS 1970198981) where it was considered that a delay of more than 2/3 months in responding to an appellant's representations was prima facie evidence of unfairness in the absence of explanation . Here, the Date of referral of the Witness Statement is 23rd May 2014 but the Order of the Court is 30th October 2013 and I have no explanation for this level of delay. This is an unreasonable and , in my view, an unfair delay causing potential evidential prejudice to the Appellant. Enforcement cannot be permitted in these circumstances.


Posted by: Mad Mick V Sun, 12 Oct 2014 - 17:42
Post #1010964

In that instance less than 3 months. This one via Mr Mustard uses the same timescale but also quotes the Human Rights Convention and explains how unfairness might occur.

PATAS 2130453008

There has been a great deal of unexplained delay in this case. The Notice to Owner was issued on 24th August 2011. However the Charge Certificate was only issued on 22nd March 2013. The Council has not given any explanation for the level of delay before issuing the Charge Certificate and obtaining registration of the debt at Court. In my judgement there is a compromise of Article 6 of the Human Rights Convention here. It is a problem for the Adjudicator to give a fair hearing in the case if the delay has potentially affected the recollection of events by either the Appellant or the parking attendant. Also, for this enforcement to be lawful the Council has a duty to exercise its powers with reasonable expedition and fairness. I note the case of R-v- Secretary of State for Home Department ex p. Doody (1994) (House of Lords) per Lord Mustill : "Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances" . I have also considered Davis-v- Royal Borough of Kensington and Chelsea ( PAS 1970198981) where it was considered that a delay of more than 2/3 months in responding to an appellant's representations was prima facie evidence of unfairness in the absence of explanation . I am not satisfied that the local authority has conducted the timetable of this enforcement with reasonable expedition and that, as a result, there is an unfairness. For both of these reasons I find that the appropriate Direction here is that the Penalty Charge Notice must now be cancelled.

Mick

Posted by: astralite Tue, 14 Oct 2014 - 10:59
Post #1011423

QUOTE (Hippocrates @ Thu, 11 Sep 2014 - 23:18) *
"Parked" for less than a minute: 2140097930 and 2130139739. Original adjudicator in both is Michael Lawrence. Good bloke IMO.


Stopped (less than a minute) where prohibited - red route 2140351445 (TFL)
'The term to stop on a red route does not require the vehicle to be left in the sense of being unattended, it simply has to come to a stop or become
stationary; however it has to be more than nominal; one would expect with camera enforcement that a vehicle would have to be stationary for at
least a minute, not to be regarded as nominal. In this case the vehicle is seen for about 58 seconds before the passenger returns, gets aboard and
the vehicle starts to move off.'

Posted by: astralite Tue, 14 Oct 2014 - 11:21
Post #1011428

Wrong contravention – footway parking. 2140409319 (TFL)
Cycle lane is part of the carriageway.

Posted by: astralite Tue, 14 Oct 2014 - 11:41
Post #1011435

Failure to act fairly – LA used wrong postcode. 2140413123 (TFL)
YBJ case.



Posted by: astralite Tue, 14 Oct 2014 - 12:14
Post #1011458

Failure to investigate - Costs awarded - 2140285792 (TFL)
LA failed to investigate/deal properly with representation (no evidence of a sign) before issuing NOR.

Posted by: Enceladus Wed, 15 Oct 2014 - 15:58
Post #1011951

Do you have any cases where expenses have been claimed, successfully or otherwise for N244 court fees? Specifically where an appellant has had to resort to an N244 application for review of the TEC decsion to refuse an Out Of Time application, in order to get the matter before PATAS and the appeal has been allowed.

Posted by: astralite Fri, 17 Oct 2014 - 13:41
Post #1012475

Event day signage. Parked in a restricted street. Controlled Zone. 2140405442
Richmond Upon Thames

…. even if the hours on the Zone sign were adequate to override the time plate there is … a dearth of evidence to prove that the Appellant must have passed
such a sign …No plan of the Zone showing the location of the signs has been provided nor is there any evidence that all the signs had been correctly set to show
the dates of the event days. (There is also no evidence of the Secretary of State's authorisation for the sign, although I suspect on the basis of other cases that
this has in fact been granted). … I am unable to be satisfied the restriction relied on was adequately drawn to the Appellant's attention.

Posted by: astralite Fri, 17 Oct 2014 - 13:54
Post #1012479

Assisted boarding. Driver’s mobility. Parked in a restricted street. 2140398085
Richmond Upon Thames
The picking up exemption must allow time for a driver to assist a passenger to a vehicle especially where the passenger is young, elderly, disabled
or otherwise vulnerable. A period of 5 or even 10 minutes is not excessive especially where the driver is also suffering from a mobility problem.

Posted by: Hippocrates Thu, 8 Jan 2015 - 11:32
Post #1036180

QUOTE (astralite @ Tue, 8 Jul 2014 - 22:03) *
2140263304 Multiple PCNs. Bus lane


http://www.patasregistersofappeals.org.uk/

Posted by: Hippocrates Thu, 8 Jan 2015 - 11:46
Post #1036187

This panel decision has now scuppered the mandatory information arguments re Reg 10 PCNs.

214015350A

http://www.patasregistersofappeals.org.uk/

Madame will hear nothing against it - not even a review application. She is now treating panel decisions as precedent, even though they are not. Another reason why she should resign.

From post 1.

Mandatory info missing from Reg. 10 PCN

The PCN does not contain mandatory information re viewing the evidence. Case Nos.: 2120293222, 2130089798, 2130149029, 2130034162, 2130397290, 2130011644, 2130430807, 2140026692, 2140006797, 2140068320. 213009616A, 2120473279

Regulation 3(4) opening statement and 3(5) and (6) in their entirety. The adjudicator in the first case cites the legislation in her decision.

Posted by: mashkiach Thu, 8 Jan 2015 - 15:24
Post #1036247

QUOTE (Hippocrates @ Thu, 8 Jan 2015 - 11:46) *
Another reason why she should resign.
Who is going to put the bell on the cat?

Posted by: angrybish Sun, 18 Jan 2015 - 01:28
Post #1039265

QUOTE (Hippocrates @ Thu, 8 Jan 2015 - 11:46) *
This panel decision has now scuppered the mandatory information arguments re Reg 10 PCNs.

214015350A

http://www.patasregistersofappeals.org.uk/

Madame will hear nothing against it - not even a review application. She is now treating panel decisions as precedent, even though they are not. Another reason why she should resign.

From post 1.

Mandatory info missing from Reg. 10 PCN

The PCN does not contain mandatory information re viewing the evidence. Case Nos.: 2120293222, 2130089798, 2130149029, 2130034162, 2130397290, 2130011644, 2130430807, 2140026692, 2140006797, 2140068320. 213009616A, 2120473279

Regulation 3(4) opening statement and 3(5) and (6) in their entirety. The adjudicator in the first case cites the legislation in her decision.



Does this now mean the above is no longer a valid ground for challenging a Reg 10 pcn as PI? Please kindly enlighten. Tx

Posted by: hcandersen Sun, 18 Jan 2015 - 09:37
Post #1039287

Do not fall into the trap of drawing the general from the specific.

Each argument turns on its own merits. If all adjudicators were to adopt the approach set out in the panel's conclusions, which doesn't have to be the case because an adj is not bound by any other adjudication decision, then this would change the framework against which any particular argument would be considered.

What the panel did not agree is that any old wording, however vague and however distant from the wording of the regs, should be considered compliant.

Read the decision. There are several useful phrases which could be included in appeals.

Posted by: astralite Sat, 24 Jan 2015 - 21:33
Post #1041540

Yellow Box Junction - stopped due to moving vehicle
2140537840. Haringey: Green Lanes.
Appellant stated that a driver on the right cut into her lane taking the space she was intending to drive for and leaving her no option
but to stop. Her vehicle was caused to stop in the box junction not by stationary traffic ahead but by the actions of a vehicle to the
right which was a moving vehicle. Appeal allowed.

Posted by: Hippocrates Sat, 24 Jan 2015 - 22:59
Post #1041573

QUOTE (angrybish @ Sun, 18 Jan 2015 - 01:28) *
QUOTE (Hippocrates @ Thu, 8 Jan 2015 - 11:46) *
This panel decision has now scuppered the mandatory information arguments re Reg 10 PCNs.

214015350A

http://www.patasregistersofappeals.org.uk/

Madame will hear nothing against it - not even a review application. She is now treating panel decisions as precedent, even though they are not. Another reason why she should resign.

From post 1.

Mandatory info missing from Reg. 10 PCN

The PCN does not contain mandatory information re viewing the evidence. Case Nos.: 2120293222, 2130089798, 2130149029, 2130034162, 2130397290, 2130011644, 2130430807, 2140026692, 2140006797, 2140068320. 213009616A, 2120473279

Regulation 3(4) opening statement and 3(5) and (6) in their entirety. The adjudicator in the first case cites the legislation in her decision.



Does this now mean the above is no longer a valid ground for challenging a Reg 10 pcn as PI? Please kindly enlighten. Tx

The incumbent C.A. will have it no other way. Read her "evidence" to Parliament of two years ago.

Posted by: mashkiach Sun, 25 Jan 2015 - 09:36
Post #1041614

QUOTE (Hippocrates @ Sat, 24 Jan 2015 - 23:59) *
The incumbent C.A. will have it no other way. Read her "evidence" to Parliament of two years ago.

Did not quite get this one. I presume this is referring to: http://www.publications.parliament.uk/pa/cm201314/cmselect/cmtran/118/118we10.htm JaffaJim has inDeed disseminated how PATAS misrepresent the case quoted. http://forums.pepipoo.com/index.php?s=&showtopic=90663&view=findpost&p=1017674

The adjudicators have been given internal guidance to trample on the rights of the motorist all in the name “of dealing with cases proportionately, efficiently and cost-efficiently”.


Posted by: Hippocrates Wed, 4 Feb 2015 - 12:44
Post #1044508

Defective NOR cases: http://forums.pepipoo.com/index.php?showtopic=96349&pid=1044496&mode=threaded&start=#entry1044496

And 2130377056

Posted by: Hippocrates Fri, 6 Feb 2015 - 18:00
Post #1045279

Failure to serve 3 mandatory documents: 2110237531 and 2130295122.

http://www.patasregistersofappeals.org.uk/


Posted by: Hippocrates Wed, 11 Feb 2015 - 15:30
Post #1047036

Cannot issue a PCN unless enforcement requested: 2140506235

http://www.patasregistersofappeals.org.uk/

Posted by: Hippocrates Wed, 11 Feb 2015 - 16:30
Post #1047054

Failure to consider even if the submission has no merit: 2150008449.

http://www.patasregistersofappeals.org.uk/

Failure to consider even if the adjudicator did not agree with the submission: 2130627007.

Posted by: Hippocrates Wed, 11 Feb 2015 - 16:46
Post #1047057

No response from EA re exercise of discretion: 2140527031 and 2140535368.

A stark attack on a CEO's version of events re a drive away PCN: 2140543286

Posted by: Hippocrates Wed, 11 Feb 2015 - 19:12
Post #1047107

Council abuse of process re issue of disabled badge: 2140524281

Unclear signage in CCTV footage: 214053821A; 2140544620

No evidence of signage: 2140546331

CEO v appellant: 2140563534.

Always request their notes.

Posted by: Hippocrates Thu, 19 Feb 2015 - 22:06
Post #1049874

Herron case re substantial compliance of signs and lines:

http://forums.pepipoo.com/index.php?showtopic=96999&pid=1049870&mode=threaded&show=0&st=0#entry1049870

Posted by: 2cupsofcoffee Fri, 20 Feb 2015 - 10:17
Post #1049990

patas 2140558680 - allowed - legitimate expectation

traffic warden tells man to move car - which he does - but got cctv issued penalty. cctv shows warden talking to driver

I also came across 2 cases where drivers were issued PCNs for parking legitimately!!

2150009317 - This PCN was issued for the alleged contravention of being parked in a resident's or shared use parking bay without displaying a valid permit or pay and display ticket.

I have looked at the CEO's photographs and these show that Mr M's car was parked in a bay which was clearly signed as being for parking by permit holders only during the restricted hours of 8.30am to 5.30pm Mondays to Fridays. This PCN was issued at 8.06am on 4 August 2014 which was clearly outside of the restricted hours so that the alleged contravention did not occur. It is unclear as to why the Council might have considered the PCN to be enforceable in these circumstances.

2140558206 - The Penalty Charge Notice alleged that the Appellant's vehicle was in a suspended space on 11 August 2014 at 6:38. The suspension notice stated that suspension commenced at 7:30. The bay was therefore not suspended at 6:38 and it follows that there was no contravention.

2140393922 - procedural impropriety by the issue of a Notice of Rejection by TFL before the Appellant has been sent a copy of the recording.

Posted by: Hippocrates Fri, 20 Feb 2015 - 13:52
Post #1050076

"Parked" for less than a minute=not parked: 21500172466; 2150020524; 2140097930; 2130139739.

http://www.patasregistersofappeals.org.uk/

Posted by: astralite Fri, 20 Feb 2015 - 15:31
Post #1050109

QUOTE (2cupsofcoffee @ Fri, 20 Feb 2015 - 10:17) *
patas 2140558680 - allowed - legitimate expectation

traffic warden tells man to move car - which he does - but got cctv issued penalty. cctv shows warden talking to driver

I also came across 2 cases where drivers were issued PCNs for parking legitimately!!

2150009317 - This PCN was issued for the alleged contravention of being parked in a resident's or shared use parking bay without displaying a valid permit or pay and display ticket.

I have looked at the CEO's photographs and these show that Mr M's car was parked in a bay which was clearly signed as being for parking by permit holders only during the restricted hours of 8.30am to 5.30pm Mondays to Fridays. This PCN was issued at 8.06am on 4 August 2014 which was clearly outside of the restricted hours so that the alleged contravention did not occur. It is unclear as to why the Council might have considered the PCN to be enforceable in these circumstances.

2140558206 - The Penalty Charge Notice alleged that the Appellant's vehicle was in a suspended space on 11 August 2014 at 6:38. The suspension notice stated that suspension commenced at 7:30. The bay was therefore not suspended at 6:38 and it follows that there was no contravention.

2140393922 - procedural impropriety by the issue of a Notice of Rejection by TFL before the Appellant has been sent a copy of the recording.


CCTV evidence – failure to provide and procedural impropriety
2140393922 and 2130360654 (case noted earlier on this thread) both demonstrate the importance of making early requests, where necessary, in writing for access to or provision of video evidence.
Thanks 2 cups.

Posted by: Hippocrates Fri, 20 Feb 2015 - 15:37
Post #1050111

No footage supplied to PATAS: 2150019729 http://www.patasregistersofappeals.org.uk/

The council does not provide its cctv footage of this incident.
I cannot be satisfied on its cctv images alone that the contravention occurred.


So, if an adjudicator cannot be satisfied, then neither can an appellant. (My underlining.)

Posted by: mashkiach Sat, 21 Feb 2015 - 19:57
Post #1050472

QUOTE (2cupsofcoffee @ Fri, 20 Feb 2015 - 11:17) *
2140393922 - procedural impropriety by the issue of a Notice of Rejection by TFL before the Appellant has been sent a copy of the recording.
Would this be the same if the recording came with the NoR without further chance of more representations.

Posted by: i need help Sat, 21 Feb 2015 - 20:31
Post #1050479

CCTV does not show BUS LANE signs BEFORE ENTERING



Case Reference: 2100308010
Declarant: Mr xxxxxxxxxxxxxx
Authority: Kingston Upon Thames
VRM: xxxxxxxxxxxx
PCN: xxxxxxxxxxxxxxxxx
Contravention Date: 19 Sep 2009
Contravention Time: 10:23
Contravention Location: Eden Street
Penalty Amount: £120.00
Contravention: Being in a bus lane
Referral Date: 24 Jun 2010
Adjudicator: Teresa Brennan
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons: Mr XXXXXXX raises numerous issues in relation to this appeal. One of these is that he states that adequate and proper signage was not in place at the time of this alleged contravention.

Following an adjournment I have now seen the CCTV footage. This shows Mr Tyler's car in the bus lane driving towards the camera. The footage does not show any of the bus lane signs or any of the signs that Mr Tyler would have driven past before entering the bus lane. The local authority relies on a map of Eden Street that has been annotated to show the location of cameras and the bus lane and other traffic sings. However I have not seen any evidence that this signage was in place on 19 th September 2009. Therefore I allow this appeal.


Posted by: Hippocrates Fri, 27 Feb 2015 - 15:50
Post #1052792

QUOTE (Hippocrates @ Wed, 11 Feb 2015 - 16:30) *
Failure to consider even if the submission has no merit: 2150008449.

http://www.patasregistersofappeals.org.uk/

Failure to consider even if the adjudicator did not agree with the submission: 2130627007.


Although I did not agree with the representation I was persuaded that transport for London had not fulfilled its duty by considering the representation. There was no clear discussion in the notice of rejection, which led the appellant and me to conclude Transport for London had not considered it.
I will therefore allow the appeal.

Posted by: Hippocrates Wed, 11 Mar 2015 - 08:42
Post #1056907

QUOTE (Hippocrates @ Thu, 11 Sep 2014 - 22:18) *
"Parked" for less than a minute: 2140097930 and 2130139739. Original adjudicator in both is Michael Lawrence. Good bloke IMO.

However, Mr Styles does it his own way: 2130612804. This references two other decisions by Mr Lawrence: 211010867 and 2110164868. The emboldened case number is missing a digit.

http://www.patasregistersofappeals.org.uk/

Posted by: Incandescent Wed, 11 Mar 2015 - 09:57
Post #1056924

The law is a complete ass on this, and Mr Styles seems determined to keep it that way. When will PATAS sort themselves out on consistency. Never, no doubt !

Posted by: Hippocrates Wed, 11 Mar 2015 - 11:47
Post #1056956

QUOTE (Incandescent @ Wed, 11 Mar 2015 - 09:57) *
The law is a complete ass on this, and Mr Styles seems determined to keep it that way. When will PATAS sort themselves out on consistency. Never, no doubt !

Whenever they have a panel decision, it usually goes the way of the Councils! For example, last June's panel decision re Reg 10 PCN wording about viewing the evidence. U turns, YBJs etc...................

Posted by: Hippocrates Fri, 13 Mar 2015 - 10:38
Post #1057653

QUOTE (Hippocrates @ Thu, 11 Sep 2014 - 22:18) *
"Parked" for less than a minute: 2140097930 and 2130139739. Original adjudicator in both is Michael Lawrence. Good bloke IMO.


2110273047

Posted by: astralite Thu, 25 Jun 2015 - 10:46
Post #1087581

Bus Lane: Confusing, non-compliant signage, inadequate advance warning.
Eden Street, Kingston. See PATAS 2150055021A, 2140379546, 2150125409, 2150154553
and, CCTV recording of this lane/gate does not show upright signs: see PATAS 2100308010 (as on thread above ref CCTV)

Posted by: Hippocrates Thu, 30 Jul 2015 - 20:06
Post #1097614

Multiple choice: after the illustrious Bogsy's hard work re the Code 12 wording, and one PATAS decision, does anyone have a case or any other success to report which has used this argument, please?

Posted by: Mr Mustard Thu, 24 Sep 2015 - 08:02
Post #1113623

Yesterday I prevailed with this argument in case 2150275729. I told the adjudicator of the two prior decisions which I learnt of on this forum and I am obliged, as a regular representative, to tell the adjudicator of any contrary decisions I know about, so I did tell him of 2150193726 which I lost but luckily he preferred the view of Mr Austin. Phew.

Posted by: Mad Mick V Thu, 8 Oct 2015 - 20:40
Post #1117530

2150299217 Premature issue of Charge certificate in a bus lane case (unlawful demand and undermining the case for any payment):-

The appellant attended the hearing on 3 October. The Council did not send a representative to the hearing.

I watched with him the CCTV clip available online.

It shows the appellant entering the bus lane just short of the junction when a van in front rather unexpectedly switches into it. It was this I thought which predominantly triggered the mistake made by the appellant in performing a similar manoeuvre.

I was concerned that the website was demanding £195 when I looked at it. The appellant told me that he had twice asked for cancellation of the charge certficate. Councils will know that in parking cases premature charge certficates will generally be classed as a procedural impropriety automatically invalidating the penalty charge.


The bus lane penalty charge is sought however under a local Act of Parliament which has not introduced a defined appeal ground of procedural impropriety. I shall refer here however to the Adjudicator's decision in the old case of Miah decided by Adjudicator Wood which is authority for the Adjudicator treating a premature charge certificate as an unlawful demand and undermining the case for any payment.

In relation to the present appeal I have seen that the Council has apologised for the system error which resulted in the charge certificate being issued before the period of 28 days from the notice of rejection.

I have noted thus that the penalty charge demanded exceeded the relevant amount. I have decided the case is one where it is proper for me to cancel the penalty charge in line with Miah.

I shall record for completeness that I have considered technical points about the surface markings and passages in the Traffic Signs Manual. I gave an indication during the hearing that these did not incline me to overturn the penalty charge as I viewed the status of the lane as adequately indicated and comments from the appellant about wear rather exaggerated.

However for the procedural reasons (charge certificate error) indicated here I have recorded the appeal as allowed.





Posted by: i need help Thu, 8 Oct 2015 - 22:36
Post #1117576

QUOTE (Mr Mustard @ Thu, 24 Sep 2015 - 08:02) *
Yesterday I prevailed with this argument in case 2150275729. I told the adjudicator of the two prior decisions which I learnt of on this forum and I am obliged, as a regular representative, to tell the adjudicator of any contrary decisions I know about, so I did tell him of 2150193726 which I lost but luckily he preferred the view of Mr Austin. Phew.



2150275729 was an EDW find, what a genius he was, and sadly missed.

I hear sHamilton is having life-size statue of him erected in her office.


Posted by: Bogsy Thu, 8 Oct 2015 - 23:06
Post #1117580

QUOTE (i need help @ Thu, 8 Oct 2015 - 23:36) *
QUOTE (Mr Mustard @ Thu, 24 Sep 2015 - 08:02) *
Yesterday I prevailed with this argument in case 2150275729. I told the adjudicator of the two prior decisions which I learnt of on this forum and I am obliged, as a regular representative, to tell the adjudicator of any contrary decisions I know about, so I did tell him of 2150193726 which I lost but luckily he preferred the view of Mr Austin. Phew.



2150275729 was an EDW find, what a genius he was, and sadly missed.

I hear sHamilton is having life-size statue of him erected in her office.


I wasn't aware that my code 12 multiple argument had succeeded. I always thought it had merit. After all, it's nonsense that a PCN recipient should have to work out which of the multiple contraventions is applicable. It was a bit nonsensical of the adjudicator to make an issue of the suffix. Suffixes mean nothing to Joe Public. Suffixes require access to London Councils contravention code list in order to decipher them which is something the public have no knowledge of.


Posted by: Bogsy Thu, 8 Oct 2015 - 23:24
Post #1117581

QUOTE (Mr Mustard @ Thu, 24 Sep 2015 - 09:02) *
Yesterday I prevailed with this argument in case 2150275729. I told the adjudicator of the two prior decisions which I learnt of on this forum and I am obliged, as a regular representative, to tell the adjudicator of any contrary decisions I know about, so I did tell him of 2150193726 which I lost but luckily he preferred the view of Mr Austin. Phew.


If you get any other adjudicators that look like they are not swayed then you should argue that as the point is accepted by some and rejected by others then there must be a degree of ambiguity and where ambiguity exists then the practiced legal principle is to lean towards the side most favourable to the defendant.

Posted by: astralite Sat, 2 Jan 2016 - 13:06
Post #1138722

Loading: various types of items and various circumstances
See London Tribunals Key Case 2140139666

http://www.londontribunals.gov.uk/eat/key-cases?field_subjects_value=Loading%2FUnloading+exemptions&combine=&=Search

There are also some other potentially useful Adjudication case references to various types of loading on this thread.
Enter Loading in the search query box on this thread to find them.

Posted by: Mad Mick V Tue, 23 Feb 2016 - 09:12
Post #1152520

The following judgment sets out some principles which might help with Review type cases relating to procedural issues, unfairness and errors of law etc.

Section 14
EVERY LITIGANT’S RIGHT TO A FAIR HEARING: THE GOVERNING PRINCIPLES

His Hon J McCloskey is top notch IMO.

http://www.bailii.org/uk/cases/UKUT/IAC/2014/%5B2014%5D_UKUT_105_iac.html

Mick

Posted by: Mad Mick V Wed, 24 Feb 2016 - 20:46
Post #1153099

The following judgement on U-Turns reinforces the PATAS Panel Decision. The case centres on Talgarth Road and Gliddon Road and the original decision was 212047824A.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2014/560.html

Mick

Posted by: Mad Mick V Sun, 20 Mar 2016 - 00:11
Post #1160191


2150253522

Legitimate Expectation but with an unfairness and prejudice argument, since the Council did not warn residents in advance of enforcement commencing.

Mick


Posted by: Mad Mick V Tue, 22 Mar 2016 - 18:12
Post #1161007

2150200694 --What constitutes a goods vehicle? Estate cars et al.

At a hearing when the appellant attended on 8 September last I identified the essential issue in the case as being whether the appellant Audi estate car was entitled to use the loading bay it had.

I was quite willing to accept that the vehicle was engaged in loading. As I indicated at the hearing the outcome of the appeal hinged however essentially on the status of the vehicle rather than the activity which was being performed.

I chose to adjourn the hearing to permit extra correspondence from the appellant.

I have now seen that the appellant wrote in response referring me to the earlier well known adjudication in Jane Packer Flowers and to such matters as the tow bar and roof bars added to the estate car. It is my finding that neither of these items nor taxation arguments advanced by the appellant bring this Audi estate within the relevant definition of goods vehicle.

The arguments the appellant has presented very much focus on what is and what is not classed as loading. Until recently the fullest analysis of that legal question in this tribunal was generally accepted to be the case of Jane Packer Flowers to which the appellant in his submissions drew to my attention.

I considered it expedient to wait to deal finally with this appeal until I was able to refer to the recent Tribunal panel decision in the case of Bosworth and Others where the Tribunal revisited the Jane Packer case. Bosworth is a major decision but it is not helpful to the appellant. It does not represent any marked departure from Jane Packer Flowers and it certainly does not rule on what I regard as the central issue in this appeal. There is nothing in what is now the leading case Bosworth that can assist the appellant any more than there is in Jane Packer.

The arguments the appellant has rehearsed about an estate car for his business and being entitled to occupy the goods vehicle only bay are ones frequently recorded in this Tribunal.

I have not accepted the appellant case is strong enough for cancellation of the penalty charge.

I consider it suffices in this present appeal that I refer to my earlier decision in De Santana supported by my colleague Adjudicator Mr Wilkinson on a review application. In De Santana (2080245650) he wrote-

"I have before me 2 applications for review. Mr Santana's (2080245650) was due to be heard today. Mr Struett's (2080245661) was due to be heard on 11th March.

Neither Appellant has attended the respective hearings and I am therefore deciding the applications upon the written submissions.

These Appellant ask for a review in the interests of justice because they assert that the respective decisions of Adjudicator Mr Styles are too brief to be correct since he has not made specific reference to Regulation 4 of the Traffic Signs Regulations & General Directions 2002.

It seems to me that the learned Adjudicator was not precluded from giving a summary decision if he believed that this was a sufficient reason for the decision.

However in deciding whether or not it was sufficient I will give a longer assessment.

The definitions of "goods vehicle" is to be found in Regulation 4 of the Traffic Signs Regulations & General Directions 2002 (the same Regulations which authorise the local authority to use the form of signing which says "goods vehicles" ).

A "goods vehicle" is a motor vehicle or trailer constructed or adapted for use for the carriage or haulage of goods or burden of any description.

For a vehicle to be adapted for the use of carriage of goods there does need to be some form of alteration of the vehicle (case of French -v- Champkin [1920] 1 KB 76). A private car with a boot, for example, has not been altered as such to make it a goods vehicle.

If there has been an adaptation of the vehicle after its construction then the appropriate test at law is: would an ordinary reasonable person believe that the vehicle was a goods vehicle if it had been originally made in that way? (Taylor -v- Mead [1961] 1 WLR 435).

The Appellants here concede that the top boxes on their motorbikes were later added and would not have been constructed as such in that way.

Looking at the above test it seems to me that Adjudicator Mr Styles has plainly concluded, in commendably few words, that no objective reasonable person (without a personal financial stake in the question ) would believe that a motor cycle constructed with a box on the back could be considered a goods vehicle.

There is no basis for any review of those decisions by Mr Styles. It was clearly one at which he was entitled to arrive and the interests of justice do not require a review.

If these gentlemen wish to engage in loading or unloading of their vehicles they may well be able to claim such exemptions where they subsist. But they do not subsist in a bay where the vehicle itself ( rather than the action performed from it) is prohibited by the local Traffic Management Order.

These appeals will stand as refused."

I will also incorporate here the Tribunal decision in Stephany (2090210517).

The definitions of ‘goods vehicle’ and of ‘passenger vehicle’ are to be found in Regulation 4 of the Traffic Signs Regulations & General Directions 2002 .

A ‘passenger vehicle’ is a vehicle constructed or adapted for the carriage of passengers and their effects .

The reference to effects means that the mere fact that a car has a boot does not, of itself, make it a goods vehicle.

A ‘goods vehicle’ is a motor vehicle or trailer constructed or adapted for use for the carriage or haulage of goods or burden of any description.

Adjudicator Mr Lawrence considered the question of use or adaptation. I have therefore also needed to give attention to this and, although the local authority do not cite any previous case law, I have noted a number of High Court cases on the point.

For a vehicle to be adapted for the use of carriage of goods there does need to be some form of alteration of the vehicle (case of French -v- Champkin [1920] 1 KB 76). A private car with a boot has not been altered as such to make it a goods vehicle.

Is the boot a sufficient construction? The Courts say not: because one has to look at how the vehicle is ordinarily used. A car is ordinarily used to transport people and not goods, say , in the course of a business (Taylor -v- Mead [1961] 1 WLR 435). If there has been an adaptation of the vehicle then the appropriate test at law is: would an ordinary reasonable person believe that the vehicle was a goods vehicle if it had been originally made in that way?

It is not unreasonable for a local authority to assume from the signs that a car driver ought to know he is not driving a goods vehicle. The sign at the bay included the national blue logo showing a workman with his loading trolley - because a driver might expect to know that ‘goods vehicles’ are primarily constructed or adapted to carry goods in commerce. If Mrs Stephany were using her car, say, showing a commercial name on the side of the vehicle as a livery and, say, with the rear seats removed or permanent box on the roof to increase storage of goods, she might have succeeded in calling her vehicle a goods vehicle.

But the decision of Mr Lawrence is the correct one on the evidence before him. Although I am not unsympathetic to the plight of small businesses, the Adjudicators have no power to alter the law.”

In summary it is my finding the Audi estate car was not a goods vehicle entitled to be in the bay and the Council has accordingly correctly sought the penalty charge.

I have recorded this appeal as refused.

Posted by: Bogsy Tue, 22 Mar 2016 - 18:35
Post #1161009

QUOTE
Looking at the above test it seems to me that Adjudicator Mr Styles has plainly concluded, in commendably few words, that no objective reasonable person (without a personal financial stake in the question ) would believe that a motor cycle constructed with a box on the back could be considered a goods vehicle.


Maybe they should have a word with Adjudicator Harman who decided case 2110011801

This matter was scheduled for personal hearing earlier today. Neither party to the proceedings appeared. It has now been listed before me for decision on the papers. The contravening vehicle is a motorcycle fitted with a pannier. The allegation in this case is that this vehicle not being a goods vehicle was parked in a goods vehicle only loading bay not designated for that type of vehicle. The appellant, a courier, submits that he parked to collect and deliver goods providing a receipt in support. His evidence in undisputed. Paragraph 4 of Part 1 of The Traffic Signs Regulations and General Directions 2002 defines a "goods vehicle" as " . . .a motor vehicle or trailer constructed or adapted for use for the carriage or haulage of goods or burden of any description". A "passenger vehicle" is defined therein as " . .a vehicle constructed or adapted for the carriage of passengers and their effects" I note the authority's submissions on the point and have regard to the authorities upon which it relies but I am satisfied that given this motorcycle was fitted with a pannier for I infer the carriage of goods it was adapted for use for the carriage of goods and is thus a "goods vehicle" within the meaning of the statutory definition as set out above. I am therefore satisfied that this vehicle was lawfully parked in this bay. The contravention has not I find occurred. I accordingly allow the appeal.

QUOTE
I have now seen that the appellant wrote in response referring me to the earlier well known adjudication in Jane Packer Flowers and to such matters as the tow bar and roof bars added to the estate car. It is my finding that neither of these items nor taxation arguments advanced by the appellant bring this Audi estate within the relevant definition of goods vehicle.


a roof rack excluded but folding seats down is ? Case 2110092541

It is claimed that the Appellant had parked in a parking place or area not designated for that class of vehicle, namely a goods vehicle loading only bay. The Authority issued a Penalty Charge Notice through the post after camera observation. The Appellant claimed in his representations that his vehicle, which is an estate car, falls within the definition of a goods vehicle, and thus is within the class of vehicle designated on the time-plate sign at the location in question. He also referred to an out of London case, Warrington v Hart District Council, with which I am familiar, involving a hatchback in which the rear seats were capable of being lowered to enable goods to be carried, and in which the Adjudicator ruled in favour of the Appellant. However, the representations were rejected, and the reduced penalty was reoffered for a limited period, but the offer was not taken up. In his appeal details, the Appellant provided additional details relating to the construction of his vehicle and included extracts from the vehicle handbook, dealing with aspects related to the use of the vehicle for carrying goods. The Enforcement Authority claim that there was no entitlement for the Appellant to use the parking place at all as his vehicle was not a goods vehicle. Although I am not bound to follow the decisions of other Adjudicators, I am inclined to follow the learned Adjudicator's decision in the case of Warrington v Hart District Council, as I am satisfied that the Appellant's car was of similar construction, and falls within the definition of "goods vehicle" in the Traffic Management Order provided with the Enforcement Authority's evidence. I find that a contravention did not occur and allow the appeal.

The problem is, there is no consistency!!

Posted by: Mad Mick V Tue, 22 Mar 2016 - 19:45
Post #1161030

Bogsy,

That seems to have come from a recent Panel. Did we have anyone there do you know?

Mick

Posted by: Neil B Fri, 15 Apr 2016 - 16:15
Post #1167985

Bay signage and Adjudicator using GSV!

2160116302

The allegation in this case is that the vehicle was parked in a residents or shared-use parking place or zone without either clearly displaying a valid permit or voucher or pay and display ticket issued for that place, or without payment of the parking charge. Mr. Payne does not in fact dispute this but he criticises the quality of the signage. He says that there was no time plate in the parking space in which he parked so he assumed it was a pay and display bay as was opposite and duly paid and displayed.

Mr. Payne has provided photographs as supporting evidence and I have been able to consider these together with Google Streetview and photographs taken by the Civil Enforcement Officer. Having done so I am satisfied that the ‘permit holder only’ time plate shown in the Enforcement Officer’s photograph had originally related to the space in which Mr. Payne parked. However, some time between the Google Streetview survey in June 2015 and the issue of this PCN on 22.10.15 a disable badge holder’s bay had been marked out which separated the time plate from the space in which Mr. Payne parked.

There is an argument that the permit holder only time plate remained sufficient in that this space was the only parking space to which it could relate but having considered the matter carefully I do not feel able to say that the signage of restrictions was substantially compliant, clear and adequate. Accordingly I allow the appeal.

Posted by: Neil B Fri, 15 Apr 2016 - 16:53
Post #1168003

Time allowed to pay by phone.

2160048949

Posted by: Neil B Fri, 15 Apr 2016 - 17:09
Post #1168010

2160049985

Electric Avenue.

This PCN was issued for the alleged contravention of failing to comply with restrictions on vehicles entering a pedestrian zone in Electric Lane. The alleged contravention occurred at 3.46pm on 10 May 2015. The controlled hours when entry is restricted to all vehicles are from 8am to 6pm on all days except Wednesdays and from 8am to 2pm on Wednesdays.

I have reviewed the CCTV footage. This shows Mrs Agyeiwaah's car making a left turn into Electric lane from Electric Avenue.

I am, however, allowing the appeal because I do not consider that the signage of the restrictions is adequate for a vehicle making a left turn. It is clear from the footage that a driver making the left turn will not see the pedestrian zone restriction sign set back on the pavement on the left hand side of the road as the sign faces traffic coming from the opposite direction. The driver is therefore reliant upon the sign set back on the far edge of the pavement on the right hand side. I have looked several times at the footage and this sign does not directly face the driver making the left turn. It is a wide entrance to the road and a driver keeping close to the kerb line, as was the case with Mrs Agyeiwaah's vehicle, will not have the sign directly within their eye line.


To balance that, as we should >

2150430617

His case is, in summary, that he did an emergency three point turn and only reversed into Electric Lane. However this seems to me incompatible with what is seen in the CCTV footage, which clearly shows the vehicle exiting Electric lane having driven along it. As the Council’s site photographs show the presence of the required signs at the entrance at the other end of Electric lane I am satisfied on balance that the Appellant must have passed the signs at some point. It follows that the vehicle was in contravention and that the PCN was lawfully issued.


Posted by: Mad Mick V Sun, 8 May 2016 - 07:44
Post #1174182

Request to attend one of the offices of Transport for London to view the CCTV footage (stopping/parking contraventions).

2160132149

Transport for London also states that it no longer offers any facility to view CCTV footage at any of its office. The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 require this facility to be offered. I am not satisfied that Transport for London can send CCTV to motorists instead of offering the facility provided for in the Regulations.

Mick

Posted by: Mad Mick V Tue, 24 May 2016 - 14:14
Post #1178642

Small, wall mounted City of London suspension sign----inadequate.

2160127207

The Appellant’s case is that the suspension relied on was not clearly and correctly signed; and refers me to my decision in case 2160042614. In that decision I said this:-

The Council insists that the small yellow notice is not a "traffic sign". I would agree, as it does not comply, even substantially, with any sign in the Traffic Signs Regulations and General Directions 2002 and has not been authorised by the Secretary of State. However this does not assist the Council at all; quite the reverse. The Traffic Management Order for this designated parking place requires (as they invariably do) that on the suspension of the parking place a "traffic sign" be erected; and the contravention relied on by the Council only occurs if the vehicle is waiting in a bay where there is a traffic sign in place (see Article 20). The various powers granted in the Crossrail legislation to stop up highways etc. have no bearing on this. Whether or not the suspension was clearly indicated (and I am by no means convinced that these little signs have the impact of a proper standard, three sided sign) in the absence of a traffic sign no contravention can occur and the Appeal is therefore allowed.

The sign does not comply with any sign in the 2016 incarnation of the TSRGD, the Department for some reason remaining unwilling to include a prescribed form of suspension sign. I remain of the view that this very small and unusual form of suspension signage requires authorisation. I would only add that it seems the Council might have difficulty in obtaining it for what appears to be a three year suspension since the standard triangular signage authorised for many Councils nationwide is normally subject to a period of use of a maximum of six months. As I am not satisfied the suspension was correctly and clearly indicated and/or that no “traffic sign” was in place as required by the TMO the Appeal is allowed.




Mick



Posted by: PASTMYBEST Wed, 22 Jun 2016 - 16:41
Post #1187051

Authority get a bollocking for not acting fairly



Case reference
2160193256

Appellant
Lubna Ali

Authority
London Borough of Redbridge

VRM
ARO7EGD




PCN Details


PCN
AF62644387

Contravention date
22 Sep 2015

Contravention time
10:10:00

Contravention location
Lambourne Road IG3 OS 32

Penalty amount
GBP 110.00

Contravention
Parked in a restricted street


Decision date
21 Jun 2016

Adjudicator
Anthony Chan

Appeal decision
PCN appeal allowed

Direction
cancel the Penalty Charge Notice and the Enforcement Notice.

Reasons

The Appellant said that she was dropping off her one year old child at the child minder. She of course had to carry the child into the house. The Appellant provided evidence from her child minder to support her claim.

The Authority's response at the two representation stages were bewildering. It says that there is no grace period for the restriction and parking is not allowed under the circumstances described by the Appellant. The Appellant is not relying on a grace period. She is relying on an alighting exception. It is one of the most fundamental and common exceptions when it comes to yellow line restriction.

The Authority changed its tact at the appeal stage. It argued that the child minder's letter was not on headed paper and the child minder's utility bill did not identify her as a child minder.

The fact that the Authority changed its tact in this manner suggests to me that by the appeal stage, the Authority must have realised that its previous position is untenable. In stead of considering whether it should bring the proceedings to a close, not least because the decision to reject the formal representations is likely to be held as a procedural impropriety, the Authority then started to challenge a point which it had already seeming accepted. I ought to remind the Authority that as a public body given legal powers to impose financial penalties, it should act fairly when doing so. It has not acted fairly.

The challenge is in itself misconceived. I would not have thought it common that child minders working at home would have headed notepaper. Why should the Appellant need to conspire with another person to provide false evidence that the latter is a child minder? Does it make any difference to the reliance of the alighting exception if a friend or relative is minding a child? I note also that the Appellant's vehicle was blocking a dropped kerb, which rather suggests a brief stay with the consent of the occupier

I accept the Appellant's account and I find that the alighting exception applied. I find that there has been a procedural impropriety. I allow the appeal.


Posted by: PASTMYBEST Tue, 28 Jun 2016 - 09:23
Post #1188469

2160188391





Direction

accept the reduced amount of £65 in full and final settlement if received within 14 days of the date on this decision letter.


Reasons

The allegation in this case is that the vehicle was in the bus lane during the hours of operation. Ms Bilal does not now dispute that the contravention occurred but she challenges the Enforcement Authority demand for the full penalty charge of £130.

Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.

The penalty charge in this case has always been £130 but the Enforcement Authority must accept half this amount if payment is received within 14 days beginning with the date of the PCN. Outside this period the Enforcement Authority may accept the reduced amount as a matter of their discretion but Adjudicators have no power to direct them to do so. The Enforcement Authority Notice of Rejection of 11.04.16 offered a further opportunity to pay the reduced amount ‘if paid within 14 days from the date of this Notice’. The Enforcement Authority say that an attempt was made to pay on 25.04.16. I am satisfied that this was within the 14 days as stated. The Enforcement Authority ought therefore to have accepted the reduced amount.

In all the circumstances I direct that the Enforcement Authority must accept the reduced amount of £65 in full and final settlement if received within 14 days of the date on this decision letter. In the absence of payment within this time the full penalty charge will fall due.

Seems a strange one to me. The adjudicator instructs the authority to accept the discount payment within 14 day's surely should have been penalty exceeded

Posted by: Mad Mick V Thu, 30 Jun 2016 - 07:06
Post #1189054

Red route restriction has to be in operation to justify use of CCTV for a parking PCN (otherwise prohibition of camera enforcement).

2160220111

A contravention can occur if a vehicle is stopped on a pedestrian crossing or the zig-zag markings adjoining it.

There appears to be no dispute that at 01:07 on 22 November 2015 a vehicle with the registration mark LT63YXF was stopped outside 137-155 Clapham High Street, London SW4, as shown in the closed circuit television (cctv) images produced by the Enforcement Authority.

Mr Kedir’s case is that he is a licenced hackney carriage driver and stopped to allow a passenger to get out to go to a nearby automated teller (‘cash’) machine.

I have had the opportunity of hearing Mr Kedir personally and accept what he tells me but it does not amount to an exemption from the prohibition.

However, the Penalty Charge Notice was issued under Regulation 10 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (‘the 2007 Regulations’) on the basis of a record produced by an approved device.

The Penalty Charge Notice was issued after the coming into force of Regulation 9A of the 2007 Regulations, as inserted by Regulation 2 of the Civil Enforcement of Parking Contraventions (England) General (Amendment No. 2) Regulations 2015.

It is correct that Paragraph (2) of Regulation 9A provides that, except as provided by the following paragraphs, a penalty charge notice with respect to the vehicle may be served only by the fixing of a notice to the vehicle by a civil enforcement officer who has reason to believe that a penalty charge is payable with respect to it.

Under Paragraph (3), the requirement in paragraph (2), that the notice may be served only by the fixing of a notice to the vehicle, does not apply in various specified situations including (a) giving it to the person appearing to the civil enforcement officer to be in charge of the vehicle and © in any of the circumstances specified in paragraph (6).

Paragraph (6) provides that the circumstances referred to in regulation 9A(3)© are that a vehicle is stationary in a civil enforcement area on are there set out, including, at (d), a red route.

Taking the relevant parts of Regulation 9A, on a true construction a Penalty Charge Notice must either be fixed to the vehicle or handed to the person in charge except when the vehicle is parked in a limited number of places including a red route.

The effect of this is that the restriction on camera enforcement does not apply in respect of a red route.

The red route restriction, just like a waiting restrictions which are indicted by a double or single yellow line, extends from the centre of the carriageway to the building line. Thus a vehicle waiting on the footway could also be in contravention of an operative red route restriction.

The red route Traffic Management Order for this location was not produced by the Enforcement Authority, as it was not the contravention alleged.

It appears that, certainly at this part of Clapham High Street outside 137-155, the restriction is from 07:00 to 19:00 every day. Accordingly, at 01:07 when Mr Kedir's vehicle was observed, there were no red route restrictions in force.

If the red route restrictions are not operative, then there is nothing to enforce in reliance of them. A contravention such as being stopped on a pedestrian crossing exists outside the red route provisions and is obviously enforceable at any time. However, the exemption for camera enforcement cannot be relied upon by the Enforcement Authority at a time when the reason for them is not effective.

Considering all the evidence before me carefully in this present case, as no red route restriction was in force at the material time, the exemption provided by Regulation 9A(6)(d) of the 2007 Regulations, as amended, did not apply, which means that the general prohibition against camera enforcement in that Regulation did.

Accordingly, this appeal must be allowed and no other issue need be determined.

Mick

Posted by: Mad Mick V Wed, 13 Jul 2016 - 20:43
Post #1192993

Interesting case for costs:-

2160217671

Ms G has indicated that she wishes to make an application for costs on the basis that she highlighted to the Council in her representations the decision of Huw Cooper in appeal case 21600048676. That case involved the same bay and the same alleged contravention. Mr Cooper allowed the appeal for the same reason that this appeal is allowed. Ms G considers that it was unreasonable for the Council to resist this appeal in the light of Mr Cooper's previous decision.

Ms G is to submit an application setting out the costs that she seeks and the Council will then have an opportunity to respond to the application.

The TfL suspended bay situation which they continue to enforce when half a dozen adjudicators have ruled the signage inadequate is such a case ---- O/S 106 Stoke Newington High Street N16.

Mick

Posted by: Mad Mick V Tue, 26 Jul 2016 - 11:28
Post #1196295

2160242602

Adjudicator refuses an appeal on removal costs even tho' he cancels the PCNs.

Strange!

Mick

Posted by: Mad Mick V Tue, 26 Jul 2016 - 11:50
Post #1196305

2160277323

Owner/Driver issues:-

Mrs Nicholl attended as the Appellant.

The owner of the vehicle is Mr John Nicholl, Mrs Nicholl's husband. Mr Nicholl was correctly served with the Notice to Owner but Mrs Nicholl responded. Mrs Nicholl identified herself as the driver and that her husband was the owner of the vehicle. This does not give Mrs Nicholl the right to make formal representations nor can anything Mrs Nicholl said be treated as formal representations. The Notice of Rejection which in addressed to Mr Nicholl is therefore invalid because Mr Nicholl had not made any representations.

There has been a procedural impropriety. I allow the appeal.

Mick


Posted by: DancingDad Thu, 28 Jul 2016 - 22:15
Post #1197234

Assisted Alighting

http://forums.pepipoo.com/index.php?showtopic=104764&view=findpost&p=1197199

2160249306

heard from the appellant, the driver, at a hearing today. I entirely accept her account which is supported by a witness statement of Mr Gary Hutcheson, her ex-partner, and the father of the 7 month old baby at the centre of the appeal.

The Penalty Charge Notice was issued after a 2 minute observation period, for the alleged contravention of leaving a vehicle waiting where a waiting restriction applied, indicated by a single yellow lien and a timeplate.

In her original representation Ms Yardley pointed out that she could not read the alleged contravention on the PCN, which is partly overprinted on standard text. I have seen the PCN, and it is the case that the text is partially obscured. However it is insufficiently so as to strike it down.

Ms Yardley did not mention the purpose of her leaving the vehicle there, and she explains that this was because she did not realise until later that the waiting restriction applied on Saturday. That is an adequate explanation for her failure to mention the purpose of the waiting, which was to drop off her 7 month old at the flat of his father, from whom she is now separated and with whom she has a strained relationship. She stayed long enough to hand over the child, his necessary requirements of for the visit, and to inform the father of the child's medical condition (conjunctivitis) and the need for medication.

In my view this brings the purpose of the waiting within the standard exemption for setting down/picking up. (The Authority has not provided a copy of the relevant extract from the TMO). In the case of a baby the exemption must be taken to include the time necessary for a safe handover to a responsible adult, and included in that will be such time as it reasonably necessary to assist the carer in providing for his health and wellbeing. In any event I accept Ms Yardley's evidence that the whole handover took no longer than 5 minutes at the outside.

The appeal is allowed.

Posted by: Mad Mick V Tue, 2 Aug 2016 - 12:51
Post #1198339

Another driver/keeper "defence"/c*ck-up to add to post 130.

2160284726


Dr Mason appeals as she was the driver on 28th April 2016. The registered keeper and owner of the car is her father, James Mason.

The Penalty Charge Notice was issued on 28th April 2016. Dr Mason states that she wrote to the local authority immediately she received the Penalty Charge Notice and posted the letter on 6th May. The local authority received a letter from Dr Mason on 2nd June. The letter is undated. The letter also refers to a signed testimony from Dr Mason’s friend which was not enclosed. Dr Mason’s letter gives a correspondence address at 3 Finsbury Park Road.

The local authority issued a Notice to Owner to the registered keeper, Mr Mason on 2nd June. The Notice to Owner was sent to the registered keeper’s address in Summerlee Avenue N2.

The local authority sent a Notice of Rejection to Dr Mason to the address in Finsbury Park Road on 13th June 2016. The Notice of Rejection is a response to the undated representations received on 2nd June.

Dr Mason’s letter to the local authority was not a formal representation in response to the Notice to Owner. Firstly the letter was received by the local authority on the same date that the Notice to Owner was issued. Secondly, the local authority should not have issued a formal Notice of Rejection to Dr Mason because she is not the registered keeper of the car.

One of the grounds of appeal set out in Regulation 4(4) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 is that there has been a procedural impropriety on the part of the enforcement authority. Procedural impropriety is defined as a failure by the enforcement authority to observe any requirement imposed by the Traffic Management Act 2004 and the Regulations issued under that Act.

I find that a Notice of Rejection was issued in circumstances where no formal representations had been made by the recipient of the Notice to Owner. I find that the local authority failed to comply with the requirements of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

I allow this appeal.

Mick

Posted by: DancingDad Sat, 6 Aug 2016 - 20:59
Post #1199747

Continuous contravention
2160141081

QUOTE
The Appellant said that her vehicle was on the pavement for several days and had apparently received several penalty charge notices. She has not stated whether the vehicle had been moved in between these dates. The Authority had not said otherwise.

The Appellant's submissions about not knowing that one cannot park on the pavement in London is wholly untenable. At the appeal stage, Her focus is that she should only be penalised once.

The Authority said that it can issue a ticket every 24 hours. It has not offered any authority for this proposition. There is some authority to support this approach but even these authority restrict this to restrictions which do not run overnight. It does not therefore apply to the present case anyway.

The starting point is that one wrong doing should only be penalised once. The Authority has not offered anything which goes against this point.

I allow the appeal. I take it that the Appellant will not complain if her car is removed should this recur. She will find that the removal charges cost more than three PCNs.


Mr Chan exhibiting a sense of humour in his closing remark.

Posted by: DancingDad Sat, 6 Aug 2016 - 21:26
Post #1199751

Failure to Consider

2160276772

QUOTE
The appellant's case is that he stopped in this goods vehicle only loading bay to collect his disabled father, who was suffering from cancer, from a restaurant.

The council in its rejection notice stated that the appellant had said that he was assisting a mobility impaired passenger alight the vehicle and that there is no loading/unloading exemption in respect of bays of this type.

The appellant did not say that he was assisting his father alight the vehicle and the availability or otherwise of a loading exemption is not relevant to whether or not a boarding/alighting exemption applies (which it appears on a cursory examination of the TMO it may well).

I am not satisfied against this background that the council properly considered the representations made to it as it is required to do under the Regulations and find for that reason that a procedural impropriety on its part has occurred in these proceedings.

The appeal must accordingly be allowed.


Posted by: DancingDad Sun, 14 Aug 2016 - 20:53
Post #1202331

De Minimus Box Junction
2160303194

This PCN was issued for the alleged contravention of entering and stopping in a box junction when prohibited. The alleged contravention occurred in Cricklewood Broadway at 7.19pm on 25 April 2016.

It is an offence for a vehicle to enter a box junction without a clear exit and to then stop within the box unless the vehicle is stopping to perform a right turn out of the box.

I have reviewed the CCTV footage in this case. The footage shows that Mr Choudry's vehicle entered the box junction without having a clear exit. However, I am satisfied from the footage that the alleged contravention did not occur. Immediately upon stopping, the vehicle was put into reverse motion. It then stopped for all of 2 seconds before being driven forward again and out of the box.

I do not accept that this constitutes stopping in a sense sufficient to constitute a contravention. A vehicle might come to a halt in a box for 2 to 3 seconds while a driver changes gear and moves forward. A vehicle might similarly come to a halt for a few seconds due to stalling. This is simply too de minimis to amount to stopping for the purposes of the alleged contravention.

Posted by: Bogsy Sun, 14 Aug 2016 - 21:54
Post #1202356

QUOTE (DancingDad @ Sun, 14 Aug 2016 - 21:53) *
De Minimus Bos Junction
2160303194

This PCN was issued for the alleged contravention of entering and stopping in a box junction when prohibited. The alleged contravention occurred in Cricklewood Broadway at 7.19pm on 25 April 2016.

It is an offence for a vehicle to enter a box junction without a clear exit and to then stop within the box unless the vehicle is stopping to perform a right turn out of the box.

I have reviewed the CCTV footage in this case. The footage shows that Mr Choudry's vehicle entered the box junction without having a clear exit. However, I am satisfied from the footage that the alleged contravention did not occur. Immediately upon stopping, the vehicle was put into reverse motion. It then stopped for all of 2 seconds before being driven forward again and out of the box.

I do not accept that this constitutes stopping in a sense sufficient to constitute a contravention. A vehicle might come to a halt in a box for 2 to 3 seconds while a driver changes gear and moves forward. A vehicle might similarly come to a halt for a few seconds due to stalling. This is simply too de minimis to amount to stopping for the purposes of the alleged contravention.


Typical inconsistency from adjudicators. The fact that he had to reverse means that there was not enough space to clear the box junction when he entered it. I really feel for Londoners because they seem to be penalised more than anybody else in the country and at a much higher financial discriminatory rate! Most PCN's on Poo are London based (have you noticed?). In the South West (where I currently reside) and elsewhere, there are bus lanes, box junctions and moving traffic signs but almost zero enforcement of them. In London you can probably accrue £500+ a day in fines should you contravene the congestion charge, tunnel, a bus lane, moving traffic, parking etc. Shoplifters get fined less than car owners who unwittingly make errors!

Posted by: PASTMYBEST Sun, 14 Aug 2016 - 22:03
Post #1202359

Principal of PI applies to MTC and bus lanes

2160251953

The Appellant attended the hearing in person. The Authority was not represented.

The Appellant said in her Notice of Appeal that she was sent a photograph of a vehicle which she did not own. She attached a copy of the photograph. The photograph does not seem to have any relevance to this case, but it does appear to be a photograph taken by a CEO of a vehicle for a parking contravention in Twickenham. This the only point raised on the Notice of Appeal. The Authority did not address it.

The Appellant raised the point again at the hearing. I note from the Notice of Rejection that photographs were sent to the Appellant, but the Authority has not attached copies of these photographs. I thought that I would give the Authority a further opportunity to explain itself.

The Authority's reply, from Mr Robert Johnson Parking Appeals and Payments Manager, was that it has checked all six photographs in the evidence pack and it does not include a photograph of another vehicle. He asks how the Authority can comment on the point.

This reply, especially coming from a manager, is of concern to me. I did not say that the photograph was in the evidence pack. I would have thought that the fact that the Appellant had submitted it with her Notice of Appeal would make it clear that the photograph was sent before the appeal was made and therefore before the evidence pack was sent.

I should also say that there are in fact eight photographs/images in the pack, six still extracts form the CCTV recording and two site photographs.

If the Authority denies sending the photograph, it should have but did not say so in the case summary. It was given a second chance to deny it, and it still has not done so. The Authority might also wish to concede that it was sent in error, in which case a settlement should perhaps have been considered. This did not happen either.

The PCN cannot be upheld. I allow the appeal.

I should also point out to Mr Johnson that it is inappropriate to send evidence or submissions by email to the Authority without copying the email to the Appellant. A fair hearing requires parties to have an opportunity to deal with fresh issues which in this case is essentially an allegation that the Appellant has sought to mislead the Tribunal. In parking enforcement, the failure by an enforcement to copy submissions to an Appellant would be a procedural impropriety. The same principle applies in moving traffic and bus lane enforcement.

Posted by: DancingDad Sun, 14 Aug 2016 - 22:06
Post #1202360

QUOTE (Bogsy @ Sun, 14 Aug 2016 - 22:54) *
.......Typical inconsistency from adjudicators. The fact that he had to reverse ...

The words do not show exactly what happened although one can visualise.
However the vehicle has to be stationary and if the guy can get away with reversing, good luck to him.
The reason I posted it is simply because of the 2 seconds referred to.

Fully agree on the use of CCTV on boxes etc as being mainly for revenue raising.
Simple fact is that as so many get caught, the system isn't working.
Which means it needs fixing.
For my money, someone blocks a box when the lights change, deserve the penalty.
There are plenty of examples I see daily where people just ignore the box.
But a 10 second stop while the lights are green?
Rear wheels not quite clearing?
Give me a break, these are not justifiable penalties even if the law allows them.

Posted by: Bogsy Mon, 15 Aug 2016 - 00:05
Post #1202376

QUOTE (PASTMYBEST @ Sun, 14 Aug 2016 - 23:03) *
Principal of PI applies to MTC and bus lanes

2160251953

The Appellant attended the hearing in person. The Authority was not represented.

The Appellant said in her Notice of Appeal that she was sent a photograph of a vehicle which she did not own. She attached a copy of the photograph. The photograph does not seem to have any relevance to this case, but it does appear to be a photograph taken by a CEO of a vehicle for a parking contravention in Twickenham. This the only point raised on the Notice of Appeal. The Authority did not address it.

The Appellant raised the point again at the hearing. I note from the Notice of Rejection that photographs were sent to the Appellant, but the Authority has not attached copies of these photographs. I thought that I would give the Authority a further opportunity to explain itself.

The Authority's reply, from Mr Robert Johnson Parking Appeals and Payments Manager, was that it has checked all six photographs in the evidence pack and it does not include a photograph of another vehicle. He asks how the Authority can comment on the point.

This reply, especially coming from a manager, is of concern to me. I did not say that the photograph was in the evidence pack. I would have thought that the fact that the Appellant had submitted it with her Notice of Appeal would make it clear that the photograph was sent before the appeal was made and therefore before the evidence pack was sent.

I should also say that there are in fact eight photographs/images in the pack, six still extracts form the CCTV recording and two site photographs.

If the Authority denies sending the photograph, it should have but did not say so in the case summary. It was given a second chance to deny it, and it still has not done so. The Authority might also wish to concede that it was sent in error, in which case a settlement should perhaps have been considered. This did not happen either.

The PCN cannot be upheld. I allow the appeal.

I should also point out to Mr Johnson that it is inappropriate to send evidence or submissions by email to the Authority without copying the email to the Appellant. A fair hearing requires parties to have an opportunity to deal with fresh issues which in this case is essentially an allegation that the Appellant has sought to mislead the Tribunal. In parking enforcement, the failure by an enforcement to copy submissions to an Appellant would be a procedural impropriety. The same principle applies in moving traffic and bus lane enforcement.


The adjudicator is correct in these circumstances but what is odd is that the law only requires councils to send a copy of the PCN, a copy of the formal reps and a copy of the rejection to the adjudicator (not to the appellant). I'm baffled why councils don't just stick to this. There is no legal requirement to send informal challenges and their reply, no requirement to sent photos or even CEO notes and photos unless the adjudicator invites it. If he does then these things fall under "further representations" and then the council must also send a copy to the appellant. London Tribunals and TPT seem to make much of it up as they go along.

Posted by: Mad Mick V Fri, 19 Aug 2016 - 06:53
Post #1203707

PCN to be re-served after Witness Statement

2160249372

The appellant disputes the PCN on the basis that she never received the original penalty charge notice and had to make a witness statement to set aside the enforcement action.

The local authority should have reserved the PCN upon receipt of the Order from the County Court based on a Ground 1 witness statement.

The local authority have not enclosed a copy of the PCN that should have been re -served on the appellant and I therefore cannot be satisfied that the PCN was properly issued.

I therefore allow this appeal.

Posted by: DancingDad Fri, 2 Sep 2016 - 21:56
Post #1208218

None service of PCN/CEO photos do not show

2160298287

At the Appellant's request a Personal Hearing was re-scheduled for 10.30 a.m. today, 23rd August 2016; the Appellant did not attend, therefore it falls to me now to determine this matter on the evidence presently before me.

There is no dispute as to the whereabouts of vehicle ML06UJK at the relevant time, on the material date; namely at a location subject to a restriction denoted by a double yellow kerb delineation accompanied by double kerb blips signifying an additional restriction against waiting, loading/unloading at all times.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances and challenge as stated in his written representations.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion, and the due issue of the Penalty Charge Notice.
The evidence upon which the Enforcement Authority rely to substantiate the assertion comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, and notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ and the applicable kerb markings notifying motorists of the restriction.

No signage is required since the kerb markings convey the restriction.

It is incumbent upon a motorist to consult and comply with kerb indications, and to be acquainted with the nature of such restrictions by reference to The Highway Code.

Evidentially I am satisfied that this contravention occurred.
The Appellant maintains non-receipt of the Penalty Charge Notice.

The 'Ticket History' suggests that the Penalty Charge Notice was 'affixed to vehicle,' yet the photographic capture, taken after the issue time, shows the said vehicle from angles which do not facilitate sight of the same.

Although photographic evidence is not requisite, where it is adduced it is of value; in the present instance the images do not assist the Enforcement Authority's case in that respect.

In light of the appellant's contention I cannot be satisfied that the Penalty Charge Notice was issued in accordance with the legislative prescriptions, therefore I allow this Appeal.

Posted by: Mad Mick V Fri, 9 Sep 2016 - 10:13
Post #1210475


2160310203

Legitimate expectation and continuous contravention-- footpath parking Redbridge:-

2160323533

Penalty Charge Notice must contain a description of the alleged contravention ----Failing to comply with a prohibition on certain types of vehicle.


The Road Traffic Act 1991 section 66 mandates that the Penalty Charge Notice must state the “grounds on which the [authority] believes that a penalty charge is payable..”.

Accordingly, the Penalty Charge Notice must contain a description of the alleged contravention that must be sufficient in that the essential facts are stated so that the Appellant knows what case he/she needs to answer, the grounds being the facts that constitute the relevant contravention. In this case the grounds were that the Appellant's vehicle was one that exceeded a maximum weight of 7.5 tons, but the Penalty Charge Notice described the contravention as failing to comply with a prohibition to certain types of vehicles without specifying what that type was i.e. in excess of 7.5 tons. Moreover, the Penalty Charge Notice did not include a photograph of the sign indicating the prohibition with a symbol of a 7.5 ton vehicle. Thus, on receiving this Penalty Charge Notice, after the event in the post, the motorist would not necessarily know whether his/her vehicle was in fact the certain type. He/she would not have the essential facts so that she/he knows what case he/she needs to answer. To this extent the Penalty Charge Notice is non compliant with the relevant legislation and cannot be enforced.

In these circumstances, I must allow this appeal.

Mick

Posted by: Mad Mick V Fri, 9 Sep 2016 - 11:10
Post #1210500

Pay by Phone--Wrong VRM input.

Looks like ETA are tightening the legal side but discretion is an option:

2160337185

The Appellant, whom I have heard in person, parked her vehicle and made payment by phone. Unfortunately, as I am satisfied is the case from the phone record produced by the Council she paid for the wrong vehicle. Although this was clearly some sort of error on her part it is the case that the correct VRM is essential ( see the decision of the High Court in Walmsley v TfL [2005] EWCA Civ 1540 – a congestion charge case where a motorist made a similar type of error). In the absence of payment, or a P&D ticket on display, the vehicle was in contravention and it cannot be said the PCN was issued anything other than lawfully.

That said, the Appellant parked and paid in good faith and in respect of a single physical vehicle. It seems to me this is the type of case where discretion could and should be exercised in the absence of any evidence of similar previous errors. I recommend accordingly.

It was Edward Houghton so expect other adjudicators to follow his lead.

Mick

Posted by: Mad Mick V Tue, 13 Sep 2016 - 14:45
Post #1211567

Evidence portal shows increased penalty at Tribunal stage.

2160338869

I do not accept the Appellant's submissions that the bus lane was not obvious. The Appellant said that the main carriageway does not appear to enable a left turn. He has not said why. More importantly, the issue is not really about what the junction looks like. There are bus lane signage. The Appellant has not explained why he had not seen them.

The contravention has occurred. However, the Authority (Lambeth) has (yet again) indicated in the evidence portal that the penalty stands at £195. This is incorrect and it can amount to an unlawful attempt to increase the penalty. I allow the appeal for this reason.

Mick

Posted by: Mad Mick V Sat, 17 Sep 2016 - 15:04
Post #1212798

Pay By Phone ---- failure to display a ticket in a car park

2160351346

The agreed facts are that the vehicle was at the stated location and a Penalty Charge Notice was issued. Mr G made an error when trying to pay for parking via his telephone and did not read the error message. I am satisfied that the contravention occurred.

A Penalty Charge Notice was issued for contravention code 85 which says, “Parked in a car park without clearly displaying a valid pay & display ticket or voucher or parking clock”.

Mr G says this does not include a contravention for payment made through the Dash system and so “does not cover all possibilities of contravention, specifically the contravention I inadvertently made”. The authority says that Code 83 is the most appropriate code to use since the wording of the codes was set out before the introduction of pay by phone services.

In fact the Civil Enforcement Officer could have used Code 73: “Parked without payment of the parking charge”. I agree with Mr G that the wrong contravention has been cited. I allow the appeal on grounds that the contravention alleged did not occur and, in the alternative, that there has been a procedural impropriety.

Mick

p.s. The above case was Greenwich but Birmingham have got away with this for ages.

Posted by: Mad Mick V Thu, 22 Sep 2016 - 17:47
Post #1214301

footway parking---inability of Redbridge to provide the resolution

2160356237

Mr Gentry appeared before me today for the personal hearing of his appeal. He gave evidence in the same terms as his earlier representations to the Enforcement Authority and his Notice of Appeal, adding further details to his account.

He does not dispute that his car was parked with two wheels on the footway in Fairway Gardens not far from its junction with Loxford Lane when this Penalty Charge Notice (PCN) was issued to it. He does not now dispute either that there was a sign on a lamp post in front of his car indicating that footway parking was permitted beyond that point. However he has challenged the Authority’s power to issue a PCN in these circumstances, on the basis of information which he saw on plans published on their own website.

Mr Gentry has repeatedly asked the Authority to produce copies of the resolution(s) which he argues were required under Section 15(4) of the Greater London Council (General Powers) Act 1974 (as amended) to authorise the exemption (and more particularly the extent of such exemptions at this location) from the London-wide ban on footway parking. Having first informed him that no such resolutions were required, and that they were entitled to simply rely on the signs, the Authority asserted in their Notice of Rejection that they had indeed “obtained the relevant resolutions to exempt roads from the Great London Councils footway ban". They have not, however, seen fit to produce any such resolutions for the appeal.

By way of background, Mr Gentry explained that he had lived for 10 years at his parents’ house just round the corner from this location in Loxford Lane, and that for many years vehicles routinely parked on the full length of the footways in all the streets in the area, save for where there were double yellow lines on the corners. He acknowledged that on this occasion he had parked where he did for that reason, and accepted that he had not actually seen the footway parking sign on the lamp post at the time.

However he has produced the plans from the Authority’s website, which indicate that they relate to a review carried out in 2014 of footway parking provision in the area. As far as I can interpret them, the streets marked in blue were those subject to review. The Key appears to indicate that dotted black lines indicated the Existing lengths of street which were currently exempt from the ban. That dotted black line appears to include the part of Fairway Gardens where Mr Gentry’s car was parked when this PCN was issued to it.

It is apparent that the review proposed the erection of signs which were in fact in place at the location when the PCN was issued, but what is conspicuously lacking in the evidence before me is any resolution by the Authority which puts those changes (between existing and proposed exemptions) into effect.

Without that evidence, which Mr Gentry has clearly and repeatedly requested, I cannot be satisfied that the point in Fairway Gardens where he parked was not in fact, despite the positioning of the signs, still not subject to a footway parking exemption. Consequently I cannot be satisfied that the contravention alleged occurred.

Posted by: PASTMYBEST Fri, 30 Sep 2016 - 11:48
Post #1216343

A variation on the Will/May. This adjudicator finds may be issued father than may be served is PI

2160363662

I am, however, allowing the appeal because there has been a procedural impropriety on the part of the Council. Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.

The notice of rejection served on Mr Banka stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety. "Issue" and "service" are two distinct processes.

Posted by: PASTMYBEST Fri, 30 Sep 2016 - 12:16
Post #1216358

De minimis less than 10 seconds

216036762A

The Enforcement Authority say that the vehicle came to a stop for 8 seconds and that is sufficient time to prove that the vehicle stopped in the box junction.

The DVD shows the Appellant 's vehicle moving through the box junction following other vehicles and it comes to a complete stop. The issue is how long was the vehicle stopped (stationary) and whether that constituted this contravention. The dvd shows the vehicle stopped at 10 seconds, then move again 3 seconds later and stop and then move again to go out of the box 5 seconds after that. There is no minimum time for a vehicle to become stationary for the contravention to occur, but it has to be more than a few seconds, otherwise it is nominal or de minimis and does not constitute coming to a stop. 7 or 8 seconds can just about be said to be nominal or de minimis, especially as there was a double movement and the total time stopped was less than 10 seconds.

Accordingly, I am not satisfied that the contravention occurred and must allow this appeal

Posted by: Mad Mick V Thu, 6 Oct 2016 - 07:08
Post #1217878

Broken Ticket Machine --No obligation to Pay By Phone

2160377929

There seems to me no reason to doubt his evidence as to what occurred in the absence of any evidence from the Council to refute it. In summary, the Appellant has a disability and walks with the aid of crutches; and having gone to the nearest P&D machine found it was not working. He then went to another machine where he purchased a ticket, even though this was outside payment hours. This occurred 14 minutes after the PCN was issued.

On parking a vehicle in any sort of bay the motorist is of necessity permitted a reasonable time to do whatever is necessary to validate the parking, in this case to go to the nearest working P&D machine, obtain a ticket, and return to display it in the vehicle. In normal circumstances that time will be brief and certainly a good deal shorter than 14 minutes. However he circumstances in this case are not normal. If a machine is not working it is inevitably the case that more time is required to look for another one; and if the motorist has an ambulant disability this will naturally slow down the whole process. Taking all the circumstances into account I would not regard 14 minutes as excessive on the facts and am satisfied that the Appellant throughout this time was trying his best to purchase a ticket.

The Council states that he could have paid by phone. No doubt this is so. However the bay in question is (on the basis of the sign, the full TMO not having been provided) not a pay by phone bay but a pay and display bay. In such a bay the motorist is entitled, indeed, strictly, legally required by the TMO, to purchase and display a ticket. The Council must provide the means to do so. The motorist must arm himself with the change or card with which to pay, but cannot be required to arm himself with a mobile phone (as he might be expected to do if he parks in a pay by phone bay).

Although the CEO cannot be faulted for issuing the PCN this is a case where, as it transpires, it was incorrectly issued and the Appeal is allowed.

Posted by: PASTMYBEST Fri, 14 Oct 2016 - 10:05
Post #1220550

A simple case really but the council get a bollocking


2160383400

Miss Bashir appeared before me today for the personal hearing of her appeal. She gave evidence in the same terms as her earlier representations to the Enforcement Authority and her Notice of Appeal, adding further details to her account.

The Civil Enforcement Officer (CEO) noted all the details of Miss Bashir’s car and recorded that this Penalty Charge Notice (PCN) was issued because the vehicle was said to have been parked for longer than permitted. The CEO recorded what was said to have been on the relevant timeplate, showing that parking was permitted from Monday to Saturday between 8 am and 6.30 pm for a maximum of 2 hours, with no return being permitted within 1 hour. Photographs were taken, one of which showed a timeplate bearing that information.

Miss Bashir’s case is that where she parked the timeplate showed that parking was permitted from Monday to Saturday between 8 am and 6.30 pm, but did not show any limitation on the amount of time vehicles could park within those hours. She produced a photograph of the timeplate, which she said that she took on the day the PCN was issued, which appears to show that the lower part of the legend has been obliterated by spray paint. She explained at the hearing that this had been the case for months, and that consequently she and other car owners in the street routinely parked at this location, and had not been issued with PCNs until now.

The Authority’ position is that the restrictions were clearly signed, and that as the street was one-way, Miss Bashir would have passed at least one timeplate before parking her vehicle.

In light of Miss Bashir’s claims, we looked together at the location on Google Street View (GSV). I accept that her car was parked nearly outside Paddy Power, close to a post bearing a timeplate, which at the time the images were captured (June 2015) showed the full terms of the restrictions. However I am satisfied that it was also the timeplate that Miss Bashir photographed at the time the PCN was issued, and that at that time it was indeed partly obscured, so as not to show any time limit on parking.

What is of considerable concern is that it can be clearly seen from the GSV images that the timeplate photographed by the CEO in support of the issue of this PCN is in fact located on the opposite side of the road. Enforcement Authorities correctly insist in other cases that motorists cannot rely on signs on the opposite side of a street to where they park, but must always look for signs on the same side. I therefore consider it reprehensible for the CEO, and in turn the Authority, to rely on this sign as showing that the restrictions were properly signed.

I have had the advantage over the Authority of hearing from Miss Bashir in person, and found her a convincing and credible witness. In light of the above, I am not satisfied that at the particular location where Miss Bashir parked her car the restrictions relied on by the Authority were properly signed. They may not therefore enforce this penalty charge. I trust that they will also admonish this particular CEO, and make clear to all their CEOs that they should not resort to such devices to prove signing when it is not actually in place.

The appeal is therefore allowed.

Posted by: Mad Mick V Thu, 27 Oct 2016 - 19:43
Post #1224423

Automatic issue of MTC PCN---- no consideration by EA

Barnet cutting out the middle man!!

The legislation indicates "have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle". Ergo consideration is necessary.

2160378014

At the original hearing, the Appellant’s representative produced further evidence received on 7 October 2016, regarding the Penalty Charge Notice apparently being issued entirely automatically and thus not considered by the Enforcement Authority. Included was information for Videalert.

I found that the Enforcement Authority may not have had a full opportunity to consider this further evidence. I therefore adjourned the matter for them to do so and indicated that if the matter was still contested, then the Enforcement Authority should produce a full and detailed response, copied to the Appellant's representative.

Nothing further has been received from the Enforcement Authority and I therefore assume that the matter is no longer contested.

The appeal is therefore allowed without any finding being made.

Mick


Posted by: Mr Mustard Thu, 27 Oct 2016 - 21:51
Post #1224481

Mad Mick V is very fast at reporting my cases. I only fell over that one myself this morning as I perused yesterday's decisions.

If it is possible to entirely automate box junction PCN, and I believe that it is, then the statement 'The council believes' which has to be on the PCN simply cannot be true unless the council can prove which person reviewed the footage, selected by the system, to show the contravention had occurred. I think I will be using this one for a while until Barnet Council change procedures to make sure a human being makes the decision based upon, as a minimum:

1 The exit box not being clear at the point of entry
2 There being a stop of more thana trivial amount
3 The registration plate being correct

Posted by: Hippocrates Thu, 27 Oct 2016 - 21:56
Post #1224483

QUOTE (Mr Mustard @ Thu, 27 Oct 2016 - 22:51) *
Mad Mick V is very fast at reporting my cases. I only fell over that one myself this morning as I perused yesterday's decisions.

If it is possible to entirely automate box junction PCN, and I believe that it is, then the statement 'The council believes' which has to be on the PCN simply cannot be true unless the council can prove which person reviewed the footage, selected by the system, to show the contravention had occurred. I think I will be using this one for a while until Barnet Council change procedures to make sure a human being makes the decision based upon, as a minimum:

1 The exit box not being clear at the point of entry
2 There being a stop of more thana trivial amount
3 The registration plate being correct


Good luck with this as the Tribunal has already had a triumvirate on box junctions!

Posted by: PASTMYBEST Mon, 7 Nov 2016 - 11:02
Post #1227818

Biggest costs award I've seen council make a right royal screw up then ask for a review

2150480728

Posted by: PASTMYBEST Mon, 7 Nov 2016 - 11:15
Post #1227827

TMO creates driver liability not owner/keeper ??????????

2160306319

BT91579807

Contravention date
12 Sep 2015

Contravention time
14:48:00

Contravention location
Glacier Way

Penalty amount
GBP 130.00

Contravention
Fail drive in direction shown by arrow - blue sign

Referral date
14 Jul 2016


Decision date
05 Nov 2016

Adjudicator
Joanne Oxlade

Appeal decision
PCN appeal allowed

Direction
The EA do cancel the PCN

Reasons

The issue in the case is whether the Appellant as the driver of the vehicle has been in contravention of the requirement to drive the vehicle in a direction as specified on a sign.

The EA rely on the contemporaneous footage, and stills derived therefrom, and the DVLA details of ownership.

The Appellant's case is that he was in West Africa at the time, and has adduced in evidence his itinerary. He says that his vehicle was in the garage at the time, for works to be done, and has provided a note of the works to be done by them.

I accept the Appellant's account and in light of the TMO specifying that "every person" to comply with the requirement, it is a driver liability matter, not the registered keeper liability.

I therefore allow the appeal.


Posted by: mashkiach Wed, 9 Nov 2016 - 19:45
Post #1228797

QUOTE (PASTMYBEST @ Mon, 7 Nov 2016 - 12:02) *

cant find 2150480728

Posted by: mashkiach Wed, 9 Nov 2016 - 20:30
Post #1228808

QUOTE (PASTMYBEST @ Mon, 7 Nov 2016 - 12:15) *
TMO creates driver liability not owner/keeper ??????????

Is this it?
Traffic Management Act 2004
Part 6Civil penalties for road traffic contraventions Section 72
(2)The regulations shall include provision specifying the person or persons by whom a penalty charge in respect of a contravention is to be paid (who may be the owner of the vehicle involved in the contravention, its driver at the time of the contravention or any other appropriate person).

Posted by: PASTMYBEST Wed, 9 Nov 2016 - 22:02
Post #1228865

QUOTE (mashkiach @ Wed, 9 Nov 2016 - 19:45) *
QUOTE (PASTMYBEST @ Mon, 7 Nov 2016 - 12:02) *

cant find 2150480728


Here


2150480728

Appellant
Katia Jean Isakoff

Authority
Royal Borough of Kensington and Chelsea

VRM
LA08OBD

Decision
Cost award allowed




PCN Details


PCN
KE25701848

Contravention date
01 Aug 2015

Contravention time
08:41:00

Contravention location
Redcliffe Place

Penalty amount
GBP 130.00

Contravention
Parked wholly/partly in a suspended bay or space


Decision date
22 Mar 2016

Adjudicator
Teresa Brennan

Appeal decision
PCN appeal allowed

Direction
cancel the Penalty Charge Notice and the Notice to Owner.

Reasons

Ms Isakoff attended today. She previously attended on 21st January when I adjourned the hearing to make further enquiries of the local authority.

One of the issues raised by the appellant is that the suspension was not properly authorised.

The local authority provides a document headed suspension summary for suspension KES177017. It gives the name of the person who had booked the suspension and refers to the location as four resident’s permit bays outside 12 Redcliffe Place. The log states that the order was made on 20th July and the sign was put in place on 24th July and lifted on 3rd August. The suspension was for a removal on 1st August 2015.

Ms Isakoff provides a copy of a suspension application form. The form states that an application for suspension of a resident’s bay should be made 10 working days before the suspension starts. It also states that a suspension cannot be granted unless full payment is received in advance. Ms Isakoff provides a copy of an email sent to her on 8th December 2015. It is from Antoinette Miller who is the bi borough information and special events team leader for parking services at the London Borough of Hammersmith and Fulham and the Royal Borough of Kensington and Chelsea. Ms Miller states that all suspensions must be paid for before the signs are erected on street.

The suspension sign for the removal on 1st August 2015 had not been paid for before it was erected. The cost to suspend four bays for one day is £204. The applicant for the suspension paid £102 to the Royal Borough of Kensington and Chelsea on 29th December 2015. The balance of £102 is outstanding.

Ms Isakoff raises issues about whether the suspension had been properly authorised. I am not satisfied on the evidence that I have seen that it was. In this case I am not satisfied that the log which refers to a suspension booking indicates that it was authorised. On the local authority’s own policy a suspension cannot have been properly authorised in circumstances where no payment had been made. I have seen on evidence to suggest that a payment was made that was subsequently rejected or any explanation as to why the sign was put up when no payment had been made.

I allow the appeal. I make no finding on the other issues raised by the appellant.


Authority Response
Recommendation not accepted due to


Decision date
08 Aug 2016

Adjudicator
Henry Michael Greenslade

Previous decision
PCN appeal allowed

Review decision
PCN appeal allowed

Direction
cancel the Penalty Charge Notice and refund forthwith the penalty charge and the release fees paid.

Reasons

An application for review can be made by a party under strictly limited criteria. The Enforcement Authority sought such a review under 12(1)(b)(vi) in the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 on the ground that the interests of justice require such a review.

It now appears that the Enforcement Authority do not seek to dispute the original Adjudicator’s decision to allow the appeal. Rather, they believe that the original Adjudicator’s reasons suggest certain aspects of the Authority’s administrative processes regarding the suspension of resident parking bays are incorrect.

The original Adjudicator did not make any such finding. The original Adjudicator found on the evidence before her that in this particular case a suspension cannot have been properly authorised in circumstances where no payment had been made. The original Adjudicator found no evidence to suggest that a payment was made that was subsequently rejected or any explanation as to why the sign was put up when no payment had been made. It would have been open to the Enforcement Authority at the time to produce evidence of exceptions and variations. There was nothing before the Adjudicator on this occasion.

In allowing the appeal, the original Adjudicator specifically stated that she made no finding on the other issues raised by the appellant.

Accordingly, the Enforcement Authority not contesting the appeal and the penalty charge and release fees having been refunded, the original decision must stand.

The appellant has indicated that she will seek costs. These should be particularised and submitted without delay. I note that at the hearing the Enforcement Authority were not unsympathetic to any such application they but must have the opportunity to make representations under Paragraph 13(2) in the Schedule referred to.





ORIGINAL DECISION:

Ms Isakoff attended today. She previously attended on 21st January when I adjourned the hearing to make further enquiries of the local authority.

One of the issues raised by the appellant is that the suspension was not properly authorised.

The local authority provides a document headed suspension summary for suspension KES177017. It gives the name of the person who had booked the suspension and refers to the location as four resident’s permit bays outside 12 Redcliffe Place. The log states that the order was made on 20th July and the sign was put in place on 24th July and lifted on 3rd August. The suspension was for a removal on 1st August 2015.

Ms Isakoff provides a copy of a suspension application form. The form states that an application for suspension of a resident’s bay should be made 10 working days before the suspension starts. It also states that a suspension cannot be granted unless full payment is received in advance. Ms Isakoff provides a copy of an email sent to her on 8th December 2015. It is from Antoinette Miller who is the bi borough information and special events team leader for parking services at the London Borough of Hammersmith and Fulham and the Royal Borough of Kensington and Chelsea. Ms Miller states that all suspensions must be paid for before the signs are erected on street.

The suspension sign for the removal on 1st August 2015 had not been paid for before it was erected. The cost to suspend four bays for one day is £204. The applicant for the suspension paid £102 to the Royal Borough of Kensington and Chelsea on 29th December 2015. The balance of £102 is outstanding.

Ms Isakoff raises issues about whether the suspension had been properly authorised. I am not satisfied on the evidence that I have seen that it was. In this case I am not satisfied that the log which refers to a suspension booking indicates that it was authorised. On the local authority’s own policy a suspension cannot have been properly authorised in circumstances where no payment had been made. I have seen no evidence to suggest that a payment was made that was subsequently rejected or any explanation as to why the sign was put up when no payment had been made.

I allow the appeal. I make no finding on the other issues raised by the appellant.


Authority Response
Recommendation not accepted due to:




Cost Details


Application by
Appellant

Decision date
05 Nov 2016

Adjudicator
Carl Teper

Decision
Cost award allowed

Direction
-

Reasons

The Appellant has attended this personal application for costs I find her to be an honest, convincing and consistent witness. Mr G. T Jones the Authority's Appeals Team Leader has attended.

The Appellant has applied for an order for costs to be made against the Authority on the basis of their conduct in resisting her appeal. The Authority has been sent a copy of her request for costs, and asked to make any representations as to why an order for costs should not be made.

In this appeal the Authority responded and denied that the Authority had acted frivolously, vexatiously or wholly unreasonably. However, Mr Jones on behalf of the Authority has now accepted before me that the Authority did act wholly unreasonably and has apologised to the Appellant.

I have considered the Appellant's request for £930.00 and the Authority's response, I accept Appellant's claim, and find that the conduct of the Authority has been wholly unreasonable - this is, as stated, no longer disputed by the Authority.

To summarise (in light of the Authority's acceptance of acting wholly unreasonably) I confirm find that to pursue an appeal in the knowledge that the Notice of Rejection was served outside the 56 day period, and then to pursue an application for a review and abandon it on the day of the personal hearing was wholly unreasonable. I have cited these as the most serious acts of the Authority acting wholly unreasonably.

The Regulations cited do not contain any provisions as to the rate to be awarded when an order for costs is made. However, Adjudicators take as their guidance the Civil Procedure Rules as applied to Small Claims in the County Court. These allow for an award of £18.00 per hour for a litigant in person (i.e. one not represented by a lawyer) in respect of preparation for and attendance at any hearing, together with reasonable expenses actually incurred. I therefore apply that rate to the Appellant's claim.

The Regulation above limits any award to "the costs and expenses incurred by that other party in connection with the proceedings". "The proceedings" commence at the point when a Notice of Rejection has been served and the recipient of the Notice submits a Notice of Appeal.

The Appellant has requested costs in the sum of £930.00 and this has been set out in a five page document.

My approach is to consider a realistic amount of time since the Notice of Appeal stage commenced, which would reasonably have been spent in preparation, travel and attendance, and incidentals such as phone calls, stamps, photographs etc.

The Appellant attended three hearings. She claimed 36 hours for the first, 25 hours for the second hearing and 35 hours for third hearing. The Authority does not disputed the £66.00 for stationery, materials, telephone and travel costs. Mr Jones argues that 30 hours overall preparation time, travel and attendance time would be sufficient for the three hearings.

In the rare circumstances of this case I find that 40 hours preparation time, travel and attendance time is a fair amount incurred by the Appellant.

Accordingly, I direct the Authority to pay to the Appellant £786. I have calculated the costs as follows:

The first hearing 18 hours @ £18.00 = £324.00

The second hearing 12 hours @ £18.00 = £216.00

The third hearing 10 hours @ £18.00 = £180.00

Additionally, for stationery, materials, telephone and travel costs £66.00

This totals £786.00.

The Appellant's application for costs succeeds and I direct the Authority to pay her the above sum of £786.00 forthwith.

















Posted by: Chitlord Fri, 11 Nov 2016 - 16:30
Post #1229442

QUOTE (Mad Mick V @ Fri, 9 Sep 2016 - 10:13) *
2160310203

Legitimate expectation and continuous contravention-- footpath parking Redbridge:-

2160323533

Penalty Charge Notice must contain a description of the alleged contravention ----Failing to comply with a prohibition on certain types of vehicle.


The Road Traffic Act 1991 section 66 mandates that the Penalty Charge Notice must state the “grounds on which the [authority] believes that a penalty charge is payable..”.

Accordingly, the Penalty Charge Notice must contain a description of the alleged contravention that must be sufficient in that the essential facts are stated so that the Appellant knows what case he/she needs to answer, the grounds being the facts that constitute the relevant contravention. In this case the grounds were that the Appellant's vehicle was one that exceeded a maximum weight of 7.5 tons, but the Penalty Charge Notice described the contravention as failing to comply with a prohibition to certain types of vehicles without specifying what that type was i.e. in excess of 7.5 tons. Moreover, the Penalty Charge Notice did not include a photograph of the sign indicating the prohibition with a symbol of a 7.5 ton vehicle. Thus, on receiving this Penalty Charge Notice, after the event in the post, the motorist would not necessarily know whether his/her vehicle was in fact the certain type. He/she would not have the essential facts so that she/he knows what case he/she needs to answer. To this extent the Penalty Charge Notice is non compliant with the relevant legislation and cannot be enforced.

In these circumstances, I must allow this appeal.

Mick



s.66 RTRA 1991 was repealed by the TMA 2004, from 31 March 2008.

Schedule 12, pt 1.

See The Traffic Management Act 2004 (Commencement No. 5 and
Transitional Provisions) (England) Order 2007


Posted by: Mad Mick V Wed, 23 Nov 2016 - 10:01
Post #1233343

Invalid NOR from Transport for London



2160347134

Reverend Steinhart has appeared in person on this application for a review of the Decision of Andrew Harman entered on 15 September 2016.

I accept the evidence of Reverend Steinhart that he did not receive the notice of hearing from London Tribunals so that he was unaware of the personal hearing listed for 15 September 2016. Reverend Steinhart was deprived of the opportunity to be heard in person through no fault of his own. It follows that the interests of justice require that the Decision should be reviewed.

This PCN was issued for the alleged contravention of being stopped where prohibited on a red route in Clapton Common at 1.34pm on 8 July 2016.

The CCTV footage shows Reverend Steinhart's car stopped on a single red line for some 10 seconds before being moved forward and then reversed. Reverend Steinhart tells me that his car had just been involved in a collision and that he was pulling over to speak with the other driver involved. He tells me that he stopped on the single red line to reverse into a bay for this purpose.

I find Reverend Steinhart to be an honest witness and I accept his evidence. A driver is required to stop at the scene of an accident. I am satisfied that this was an emergency situation in that the driver had to stop and I find for this reason that the alleged contravention did not occur.

I also find that there has been a procedural impropriety on the part of TfL.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.

The notice of rejection served by TfL and dated 3 August 2016 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. The words "may be issued" convey a different meaning to the motorist than the use of the words "may be served" since the acts of issue and service are separate and distinct.

The notice of rejection served by TfL also stated that a charge certificate may be issued if "you do not follow any of the prescribed actions" instead of stating that a charge certificate may be served if payment is not made or an appeal made to an adjudicator. Again, the use of the wording is mandatory. This is a fundamental divergence, leaving the motorist to guess as to what are "the prescribed actions".

This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety.


Mick

Posted by: Mad Mick V Wed, 23 Nov 2016 - 13:18
Post #1233436


Inadequate mounting height of signs


2160444800

The Appellant said he did not see the sign on the side of the street he parked because it was low down and obscured by furniture and other items that were being loaded or unloaded. He looked across the street and saw a the pay & display ticket machine and pay and display sign and assumed it applied to where he was parked and bought and displayed a ticket.

The Sign Manual gives the following recommendations for the placement of signs:

MOUNTING

1.21 The normal mounting height measured to the lower edge of a sign or backing board (or any supplementary plate) is between 900 mm and 1500 mm above the carriageway alongside. The greater height should be used where vehicle spray is likely to soil the sign, or above planted areas. Careful consideration should be given to any proposal to mount signs at a low height, such as on railings or bollards, as there is a risk of drivers not noticing them, especially at night or when they could be obscured by parked vehicles or pedestrians. Where signs are erected above footways, or in areas likely or intended to be used by pedestrians (e.g. pedestrian refuges), a headroom of 2300 mm is recommended,

with 2100 mm as an absolute minimum. A clearance of at least 2300 mm should be maintained over a cycle track or shared cycleway / footway.

The effect of this that the sign should have been placed with a headroom of 2300mm and clearly the sign here was not; indeed it is not clear whether it was 900 mm above the pavement. The justification that the Enforcement Authority give is that it was in a preservation area, but they provide no evidence of that or the restrictions on the mounting of signs that were in force, if any. As such they have not established good reason why they did not follow the guidelines and the signage is therefore inadequate.

Mick

Posted by: PASTMYBEST Tue, 29 Nov 2016 - 11:19
Post #1235327

proportionality of removal after reason for suspension ends, I have only posted the review

2160362240

refund the release charges paid.
Reasons
This is an application by the Council for review of a decision of my learned colleague Mr Styles allowing the Appeal in part in the following terms:-
The appellant attended on 22 September accompanied by her husband. The appellant presented her appeal.
The Council did not send a representative.
She had mistakenly parked close by the suspension sign. It was daylight when she did. I accept she genuinely failed to see it.
I repeatedly see in this Tribunal motorists who park close to their homes and do actually genuinely miss the crucial sign but have to admit afterwards it was obvious. This I believe is a case of that type. The appellant told me her brother was arriving that day and there was a lot to do and she had to do it in haste. I thought they were probably contributory factors but not very weighty mitigation.
The appellant had researched Council policy in relation to impounding. It was apparent that any 15 minutes interval between ticketing and removal that may have been a general local policy stipulation had been followed.
I mentioned at the hearing that in cases where a foreman completing his digging up of the road encourages the motorist to park contrary to the prohibition on the suspension placard, a penalty charge issued thereafter will normally be upheld in this Tribunal. The same approach is applied to the drivers of household removal lorries telling a neighbour the suspended place is no longer needed as all has been packed and the truck is now going. The principle I apply in such cases is that such appellants have no legitimate basis to use information of that sort to override the terms notified on the suspension placard.
Although I have accepted the water company highway works for which the four-day suspension had been introduced had been completed when the appellant parked, I have not seen that as any basis for penalty charge cancellation.
I have allowed this appeal however but to a limited extent only. The appellant in bringing this appeal has emphasised the argument of proportionality and its application to the facts of the case and in particular to the fact that the car was removed only some 45 minutes before the end of the suspension. In my judgment the Council has not really satisfactorily demonstrated that the decision to impound the car in this particular case was in line with a proportionate exercise of its removal powers.
I have consequently upheld the penalty charge as paid (£65) but ordered a refund solely of the £200 paid by way of release fee.
The grounds of the Council’s application are essentially that having complied with its own removal policy it was proportionate to remove the vehicle as it might have to refund the suspension fee if the bay were not kept clear; and that motorists are not entitled to decide whether works have been completed – a proposition with which Mr Styles clearly agreed..
The Appellant attended to resist the Council’s application and submitted detailed grounds in support of that opposition.
It seems to me that the Adjudicator’s finding that the Council had not demonstrated that the removal of the vehicle 45 minutes before the time the suspension was due to finish was a proportionate exercise of its removal powers sis one which he could reasonably arrived at. The fact that the Council might have to refund the payment for a suspension is, as I agree with the Appellant, neither here nor there; however refund or no, if the Council were able to demonstrate that at the time of the removal the vehicle was in fact preventing access for the purpose for which the suspension had been granted, that might well render the exercise of the power to remove perfectly proportionate, even if only shortly before the expiry of the suspension. However there appears to have been no evidence in the present case to suggest that access was being impeded or that, although this was not the case, there was merely some short break occurring in the works which might have bene required to resume at any time. There appears to be no evidence to refute the Appellant’s case that the works had in fact been completed. In these circumstances the Adjudicator was entitled to take the view he did. I can see no grounds for reviewing what is a carefully considered and justifiable decision on the evidence in this particular case. Mr Styles' decision allowing the appeal in part and ordering the refund of the release fee therefore stands
For future reference the Council might like to be aware of the provision in Para 6(1)(2) of Part 2 Traffic Signs Regulations and General Directions 2016 which a reviewing a Adjudicator would be required to consider if ( as is not the case) the Appeal fell to be considered de novo. This provides that a sign conveying a restriction or prohibition of a temporary nature “must not remain in place longer than it is needed”. Although every suspension will turn on its particular facts it does seem to me at the very least arguable that a sign that remains in place when the works for which the suspension has been granted have been completed is in place for longer than it is needed. The motorist would perhaps be wise to exercise some caution in relying on this provision, since it seems to me the onus of proving that it was in place for longer than needed would lie on the motorist; and it might be possible to envisage circumstances where the ending of particular works did not necessarily render the sign otiose.

Posted by: PASTMYBEST Fri, 2 Dec 2016 - 14:54
Post #1236632

A view on regulation 6 of part 2 of TSRGD 2016 re suspended bay's


216045915A

Mr Vigus attended the Tribunal to present Mr Killington’s appeal.
The circumstances of the alleged contravention are fully encompassed in two photographs taken by the civil enforcement officer (CEO). They show Mr Killington’s black cab, LF06CUU, parked immediately next to a suspension sign in Gresham Street at 07:21 on 14 September 2016. The suspension sign reads “Bay/s suspended Suspension ,… From 10-09-2016 Until 14-09-2016 Purpose Road Works”. Mr Killington could not help but to have seen the sign, but parked there anyway. The CEO affixed a penalty charge notice to the windscreen.
Mr Vigus acknowledges that he cannot make any point about the merit of the alleged contravention, and the point that he makes is technical. When making written representations on Mr Killington’s behalf, Mr Vigus brought to the attention of the City of London authority Paragraph 6 of part 2 to the Traffic Sign Regulations General Direction 2016, which states that, in relation to temporary signs, “The sign must not remain in place for longer than is needed”. Mr Vigus submitted that when Mr Killington parked, there was no indication of road works, and he confirmed that with the proprietor of a nearby restaurant. The sign therefore, Mr Vigus submitted, should have been removed and it cannot be relied on to support a contravention. In any event, it is apparent that City of London did not respond to that submission at either the informal representation stage, or when responding to the notice to owner.
The Regulation 6 submission was new to me, and indeed the Regulations have only been in force for a short time. My views on it however are that I believe it places a responsibility on enforcement authorities to keep under review suspensions in their area. It cannot apply such that whenever a motorist parks in a suspended area, the enforcement authority has to demonstrate that the purpose of the suspension still applies. In many cases they will not know, other than by liaising with third parties, whether that is the case, as the suspensions are at those third party requests. Nor would it be fair on motorists to have to work out whether the reason for a suspension had come to an end.
My assessment of the Regulation therefore is that it is to encourage good traffic management by the enforcement authority, not to create a lottery for motorists who may choose to park in a suspended bay in a belief that turns out to be mistaken about whether the purpose of the suspension has ended; nor to place on enforcement authorities or civil enforcement an unrealistic burden to demonstrate in every alleged suspended bay contravention that the purpose of the suspension remained. While a valid sign is in place, motorists must comply.
Rather than this provision applying to individual contraventions therefore, I would find that it is to encourage general good traffic management. Whether a motorist could demonstrate in an individual case that a suspension no longer served a purpose would not enable him to avoid the penalty for parking there. In short, the duty imposed by the Regulation on enforcement authorities relates to traffic management, not contraventions. I would therefore not allow the appeal on that point, although my views on the Regulation are not binding.
However, the failure by City of London to respond to the representations raises a separate issue of “procedural impropriety”. I make the point that in my view the substance of Mr Vigus’ representations is not entirely without merit, so that Mr Killington was entitled to a response before deciding whether to pay the mitigated penalty or the full penalty and not appeal.
Procedural impropriety is defined in regulation 4(5) of the Appeals Regulations as follows:
"In these Regulations 'procedural impropriety' means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular -
(a) the taking of any step, whether or not involving the service of any document, otherwise than -
(i) in accordance with the conditions subject to which; or
(ii) at the time or during the period when it is authorised or required by the General Regulations or these Regulations to be taken;"
In particular Mr. Vigus submits that City of London has failed to consider his representations adequately or at all. Under Regulation 5(2) of the Appeal Regulations, the Enforcement Authority is required:
"(a) to consider the representations and any supporting evidence which the person making them provides; and
(b) within the period of 56 days beginning with the date on which the representations was served on it, to serve on that person notice of its decision as to whether or not it accepts that -
(i) one or more of the ground specified in regulation 4 (4) applies; or
(ii) there are compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled and any sum paid in respect of it should be refunded."
In essence, City of London did not respond to the point raised by Mr Vigus. They therefore cannot show that they have “considered” those representations, as required by Regulation 5(2)(a). Regulation 5 (2) imposes a duty on enforcement authorities to consider the representations made, and then to serve a notice as to whether they accept, either that one or more of the Regulation 4(4) grounds applies or that there are compelling reasons why the notice should be cancelled. There is no express requirement in the Regulation to give reasons for what they decide. However, the best way for an enforcement authority to demonstrate that they have considered something is to give reasons for so doing. As there is no evidence that City of London has considered the representations on this albeit novel point I find that have committed a procedural impropriety and I allow the appeal on the ground.

Posted by: John U.K. Fri, 23 Dec 2016 - 18:02
Post #1243077

COVENTRY PCN FLAWS IN WORDING - UPHELD

Case Number CV XXXXX
Adjudicator’s Decision
XXXX
and
Coventry City Council
Penalty Charge Notice CV XXXXX


Appeal allowed.
I direct the Council to cancel the Penalty Charge Notice.
Reasons


1. The PCN is dated 1 September 2015 and was issued by post in respect of a
contravention on 16 August 2015 at 07:26 relating to vehicle BBBBB in
Hales Street ('Whittles Arch') for being in a bus lane.


2. This is a reserved decision following a personal hearing in Leeds on the 17
February 2016. Mr. AAAA represented the Appellant. The Council was not
represented although I have considered the evidence and written
representations submitted on their behalf.



3. Mr. AAAA said that XXXX accepted she had inadvertently passed
through the bus lane and referred me to his written representations
submitted with the appeal document. He submitted that the Council’s
documents contain such a cacophony of errors as to render the process as
invalid. He suggests there are 3 significant errors in the Penalty Charge
Notice (PCN), 2 errors on the Councils website and 4 errors in the Notice of
Rejection (NOR). In summary Mr. AAAA points to the following:



a. In the grounds of appeal section of the PCN it states a ground of
appeal as being “The penalty charge exceeded the relevant amount”
whereas regulation 9(2)(f) of the Bus Lane Contraventions (Penalty
Charges, Adjudication and Enforcement) (England) Regulations 2005
states the ground of appeal is “that the penalty charge exceeded the
amount applicable in the circumstances of the case”. He says this a
material difference;


b. Within the PCN it states “To claim a discounted rate of 50% to
£30.00 the reduced penalty charge must be paid within 14 days
…You cannot pay the discounted rate and make representations at
the same time. Representations, if made, are against the £60.00 penalty charge”. Mr. AAAA submits this is contrary to the
regulations because the regulations do not say representations can
only be made against the £60.00 and that provided payment is
made within 14 days, the Council is obliged to accept the reduced
amount. Mr. AAAA submitted this particular section has a potential
of causing real prejudice to the motorist because if representations
are submitted and then within the 14 day period the motorists thinks
better of it, he may choose not to pay what would still be a reduced
amount;


c. The second page of the PCN is headed “Notice to Owner”. Mr. AAAA
says there is no concept of a Notice to Owner with the Bus Lane
Regulations which refers to Penalty Charge Notice only;


d. The Councils website is set up such that a motorist is restricted to
identifying one ground of appeal only. He says this is contrary to the
regulations in that whilst the grounds of appeal limited to 6 general
grounds, it is open to a motorist to submit representations on more
than one ground;


e. The Councils website includes a ground of appeal as being
“procedural impropriety” which is not a ground set out in regulation
9(2);


f. The NOR is stated to have been issued under the Traffic
Management Act 2004 whereas it was or should have been issued in
accordance with the Bus Lane Contraventions (Penalty Charges,
Adjudication and Enforcement) (England) Regulations 2005. He says
a motorist is entitled to know which legislation applies and a failure
to cite the correct legislation makes him question whether the
Council has applied the correct principles to the representations
originally made;


g. In the NOR the Council refers to procedural impropriety and the fact
that they do not consider there has been a procedural impropriety
on their part. Mr. AAAA says that as procedural impropriety is not a
ground of appeal for bus lanes, the Council has failed to properly
consider his representations;


h. The Council state in the NOR that the Council acts consistently and
that any other cars would have received a Notice to Owner. Again
Mr. AAAA believes this shows the Council do not understand the
nature of the regulations they are supposed to operate under; and,
i. The NOR states that a failure to pay within 28 days WILL result in a
charge certificate being issued, whereas the regulations state a
charge certificate MAY be issued.


4. Mr. AAAA referred me to a number of other adjudications dealing with
similar points.


5. The Council say XXXX’s vehicle was captured by an approved device
to be in the bus lane on the 16 August 2015 and the PCN was issued on 1
September 2015. They have provided a copy of the CCTV footage in
support of their contention that a contravention occurred.


6. The Council say they have followed the correct process in issuing the PCN
and in relation to the NOR. They follow strict procedures and guidelines
towards enforcement and the issuing of notices. They go on to say “the
appeals process is clearly stated on the front of the notice and by
submitting an appeal, the appellant has agreed to the terms of the notice.”
(My emphasis). They say the level of the Penalty Charge is set by DfT and
“…in line with their guidelines the Council offers a 50% discount for those
who pay within 14 days”. (Again my emphasis).


7. I will deal with a couple of points made by the Council before dealing
specifically with the issues raised by Mr. AAAA. The scheme for civil
enforcement of bus lanes and the appeals process is established under a
statutory regime set down by Parliament. The Council is not at liberty to
depart from the scheme so that they cannot offer alternatives to that which
is laid down in the Transport Act 2000 and the Bus Lane Contraventions
(Penalty Charges, Adjudication and Enforcement) (England) Regulations
2005. Terms expressed on a notice that differ from the statutory regime do
not become binding simply because a motorist submits representations or
chooses to appeal. Furthermore, the Council does not “offer a discount” for
payment within 14 days. If payment is made within 14 days, the Council
MUST accept one half of the standard charge (regulation 4(4) of the Bus
Lane Contraventions (Penalty Charges, Adjudication and Enforcement)
(England) Regulations 2005).


8. As Mr. AAAA rightly says, procedural impropriety on the part of the
Council is not a ground of appeal so the mere fact that the Council has
failed to do something required of by the regulations is not in itself a
ground to allow an appeal. However as I have alluded to earlier, the
Council cannot choose to opt in and opt out of various parts of the
legislation. If a departure is so great, particularly in relation to the PCN, it
becomes flawed to the extent that it cannot be relied upon as an authority
to enforce the penalty charge.
9. Mr. AAAA draws my attention to the words used on the PCN which he says
deviates from the wording of the regulations. He is entirely correct about
those factual deviations. However, it is now well established that the words
used by a Council are not prescribed by the regulations so that the Council
has to slavishly follow the precise words used in regulations themselves
(although if they did, their documents could not be challenged in the way
Mr. AAAA now challenges them). What is required is that the wording is
“substantially compliant with the terms of the regulations” (see R v. The
Parking Adjudicator ex parte London Borough of Barnett [2006] EWHC
2357 (Admin)) and that the wording of the PCN should be assessed as a
whole (see R v. The Parking Adjudicator and Lancashire County Council ex
parte Hackney Drivers Association Ltd. [2012] EWHC 3394 (Admin)).


10.What concerns me in this particular case is the wording in relation to
representations: “To claim a discounted rate of 50% to £30.00 the reduced
penalty charge must be paid within 14 days …You cannot pay the
discounted rate and make representations at the same time.
Representations, if made, are against the £60.00 penalty charge”. There
are two significant errors in this statement:


a. A motorist does not claim a discount – it is his as of right by paying
within 14 days; and,


b. The submission of representations does not in itself remove the right
of the motorist to pay the reduced amount. If the Council considers
any representations promptly enough and manages to inform the
person making them before the 14 days expires I believe the
motorist can still make payment of the reduced sum if he does so
within 14 days of the issue of the PCN.


11.It seems the Council is confusing the submission of representations with
the making of an appeal. Representations are made to the Council, appeals
are made to this Tribunal. A motorist cannot appeal and then expect to pay
the reduced sum, but it does seem that if time permits he can still pay the
reduced amount following unsuccessful representations.


12.I find there is a significant divergence between the words used by the
Council on its PCN to that used in the Bus Lane Contraventions (Penalty
Charges, Adjudication and Enforcement) (England) Regulations 2005) and
the divergence is such that the PCN is fundamentally flawed. On that basis
the appeal will be allowed.



13.There are other issued raised by Mr. AAAA that also have merit –
particularly with regard to the Councils website. However, it was not necessary for me to adjudicate on those issues in order to resolve this
appeal.


14.The appeal is allowed and I direct the Council to cancel the PCN. Mr. AAAA
wins the appeal and XXXX is no longer liable for payment of the PCN.


P W Pearson
Adjudicator 22 February 2016

Posted by: Hippocrates Sat, 24 Dec 2016 - 21:03
Post #1243313

Excellent! So how many of these illegally-worded documents have been issued I wonder! And so does Lady Godiva.

Posted by: Mad Mick V Mon, 26 Dec 2016 - 09:10
Post #1243382

Newham---event day---Zone Signs---don't comply

2160486039

he Appellant’s vehicle was parked in a bay on an event day where a permit or P&D ticket was required. His case is essentially that the signage informing him that it was not clear from the time plate an event day other than Monday to Saturday was covered and that in any event there was no signage informing him that the day in question was an event day. The issue having been raised the onus is on the council to prove that its signage was substantially compliant with the Regulations and adequate to inform the motorist of the restriction relied on.

The Council has provided a plan of the Zone in question, but this is of poor quality does not clearly show the roads and the location of the Zone signage relied on the give notice to motorists entering the Zone of a forthcoming event day. Nevertheless the Council has provided a very full set of photographs dated the 17th June showing signs in place at a large number of locations, and it may conceivably be the case that the Appellant made what is a not uncommon type of error of simply missing one of these signs as he drove past it to enter the Zone. I would, however, be unable to be satisfied in view of the state of the plan that the evidence was sufficient to show that every vehicular entrance was covered by one of these signs.

The Council, however, faces a more fundamental difficulty. Neither of the signs shown in its photographs comply with the Secretary of State’s authorisation produced in evidence. In the case of the white timeplate (not shown as one of the authorised signs A, B, or C) the situation is saved by the changes made by the latest edition of the Traffic Signs Regulations and General Directions 2016 which include provisions not included in the previous regulations, allowing references to event days without bespoke authorisation. I am satisfied therefore that it is technically correct and also clear enough to indicate that event days, i.e. any day that is an event day, is covered. However the Zone sign continues to require the authorisation; and that authorisation allows only for a single date of the next event to be displayed. This is not merely an academic point where the principle of substantial compliance should apply. The motorist already has quite enough information to absorb when driving briefly past these signs and adding extra dates reduces the comprehensibility of the signage. Where the Secretary of State is prepared to authorise more than one date on a sign the authorisation says so in terms.

I am therefore unable to be satisfied for both these reasons that the Council has proved that the signage was compliant and adequate; and it follows that the Appeal must be allowed.

Plus-----

2160487483 (Extract)

The Council relies on the Zone sign shown in its photographs displaying two dates one of which was the date in question. In the absence of any clear evidence to suggest otherwise I would be satisfied on balance that the sign was in place on the 14th July and that the Appellant could not have reached her parking destination without passing it. It seems to me that this is a case where the Appellant missed the sign or failed to register the significance of its contents. However the sign is of a complex and non-prescribed type which requires the authorisation of the Secretary of State; and in the absence of any evidence – in the present case – of authorisation, and that the sign was compliant with that authorisation, I am unable to be satisfied the restriction relied on was correctly signed. The Appeal therefore falls to be allowed.

Posted by: Mad Mick V Fri, 6 Jan 2017 - 12:16
Post #1246101

Greenwich--Notice of Rejection --does not comply

2160499074 (Extract)

I am, however, allowing the appeal because there has been a procedural impropriety on the part of the Council.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.


The notice of rejection served on Mrs Clarkson and dated 22 November 2016 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. "Issue" and "service" are two separate and distinct legal processes.


The notice of rejection also stated that "failure to pay may result in the issue of a Charge Certificate" instead of stating that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the 28 day period beginning with the date of service of the notice. Again, the wording is mandatory.


This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety.


Posted by: Hippocrates Mon, 9 Jan 2017 - 11:22
Post #1246973

QUOTE (Mad Mick V @ Fri, 6 Jan 2017 - 12:16) *
Greenwich--Notice of Rejection --does not comply

2160499074 (Extract)

I am, however, allowing the appeal because there has been a procedural impropriety on the part of the Council.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.


The notice of rejection served on Mrs Clarkson and dated 22 November 2016 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. "Issue" and "service" are two separate and distinct legal processes.


The notice of rejection also stated that "failure to pay may result in the issue of a Charge Certificate" instead of stating that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the 28 day period beginning with the date of service of the notice. Again, the wording is mandatory.


This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety.


Similarly: 2160458383

Posted by: PASTMYBEST Mon, 9 Jan 2017 - 13:25
Post #1247031

QUOTE (Hippocrates @ Mon, 9 Jan 2017 - 11:22) *
QUOTE (Mad Mick V @ Fri, 6 Jan 2017 - 12:16) *
Greenwich--Notice of Rejection --does not comply

2160499074 (Extract)

I am, however, allowing the appeal because there has been a procedural impropriety on the part of the Council.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.


The notice of rejection served on Mrs Clarkson and dated 22 November 2016 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. "Issue" and "service" are two separate and distinct legal processes.


The notice of rejection also stated that "failure to pay may result in the issue of a Charge Certificate" instead of stating that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the 28 day period beginning with the date of service of the notice. Again, the wording is mandatory.


This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety.


Similarly: 2160458383


There are a whole lot of these in the last months, but all seem to be ruled by Sean Stanton dunne, has anyone seen any from another adjudicator

Posted by: Hippocrates Tue, 10 Jan 2017 - 18:34
Post #1247608

QUOTE (PASTMYBEST @ Mon, 9 Jan 2017 - 13:25) *
QUOTE (Hippocrates @ Mon, 9 Jan 2017 - 11:22) *
QUOTE (Mad Mick V @ Fri, 6 Jan 2017 - 12:16) *
Greenwich--Notice of Rejection --does not comply

2160499074 (Extract)

I am, however, allowing the appeal because there has been a procedural impropriety on the part of the Council.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.


The notice of rejection served on Mrs Clarkson and dated 22 November 2016 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. "Issue" and "service" are two separate and distinct legal processes.


The notice of rejection also stated that "failure to pay may result in the issue of a Charge Certificate" instead of stating that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the 28 day period beginning with the date of service of the notice. Again, the wording is mandatory.


This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety.


Similarly: 2160458383


There are a whole lot of these in the last months, but all seem to be ruled by Sean Stanton dunne, has anyone seen any from another adjudicator

I haven't and this is the potential problem. In fact, IMO it is such a fine point that I even doubt whether an appellant had even raised it? Having said that, he is a gentleman adjudicator, very fair and very patient.

Posted by: Hippocrates Thu, 19 Jan 2017 - 20:22
Post #1250748

QUOTE (Hippocrates @ Thu, 8 Jan 2015 - 11:46) *
This panel decision has now scuppered the mandatory information arguments re Reg 10 PCNs.

214015350A

http://www.patasregistersofappeals.org.uk/

Madame will hear nothing against it - not even a review application. She is now treating panel decisions as precedent, even though they are not. Another reason why she should resign.

From post 1.

Mandatory info missing from Reg. 10 PCN

The PCN does not contain mandatory information re viewing the evidence. Case Nos.: 2120293222, 2130089798, 2130149029, 2130034162, 2130397290, 2130011644, 2130430807, 2140026692, 2140006797, 2140068320. 213009616A, 2120473279

Regulation 3(4) opening statement and 3(5) and (6) in their entirety. The adjudicator in the first case cites the legislation in her decision.


http://www.londontribunals.gov.uk/sites/default/files/keycases/Miller%20%26%20Others%20v%20TfL%20%26%20Others.pdf

Posted by: John U.K. Sat, 21 Jan 2017 - 15:53
Post #1251266

Thanks to Mashkiach's link some ferreting around produced the latest Tribunal report which I find is now also available at the LT site:

http://www.londontribunals.gov.uk/about/annual-reports-and-appeal-statistics

Two things stood out
A key case on LOADING AND UNLOADING

and
Most common reasons for appeal and why they are often refused.
I put the here to help others, but wonder whether it is time to make this thread its own sub-forum, so that the many key cases can be given their own topic title??

A key case on LOADING AND UNLOADING updating Flowers.

QUOTE
5. 2016 PANEL HEARING: Alan Bosworth and others v. The London Borough of Tower Hamlets ETA (2015).
On 14 September 2015, a specially convened Panel of Adjudicators (Mr Edward Houghton and Mr Alastair McFarlane) heard seven appeals consolidated under the provisions of Paragraph 14 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 on the ground that common questions of law or fact arose in the appeals and that it was desirable for the issues to be determined together. None of the parties objected to the consolidation. The factual/legal connection between the cases was that all of them raised issues as to loading or unloading. The adjudicators considered that the consolidation of the appeals would provide an appropriate opportunity to revisit the law on this topic – the lead decision from this tribunal having been decided nearly 20 years ago in the case of Westminster City Council v. Jane Packer Flowers PATAS (1997)
The Approach of the Panel A large number of appeals that come before the Tribunal concern the issue of what constitutes the exemption of "loading and unloading" or "delivering or collecting" goods or what constitutes proper use of a loading bay. The standard form of exemption found in Traffic Management Orders is that:
"No person shall cause or permit any vehicle to wait during prescribed hours in a restricted street except…. For so long as may be necessary for delivering or collecting goods or loading or unloading the vehicle at premises adjacent to the street"
In the case of loading bays, Traffic Management Orders commonly provide that a vehicle may wait or be left in the bay for the purposes of loading or unloading goods. The Panel is satisfied that the term “loading” carries the same meaning and the same principles apply for loading/unloading exemptions and for loading bays. The meaning and extent of the term loading/unloading was set out in Mr Houghton’s decision in Westminster City Council v. Jane Packer Flowers PATAS (1997) where the extensive case law was considered. Although this decision is no more than the view of an individual adjudicator, it was arrived at following full legal argument from Counsel representing three parties, none of whom applied for review of the decision; and it has since been widely applied by adjudicators, Enforcement Authorities and Appellants.

Since the decision in Westminster City Council v. Jane Packer Flowers, many Councils and adjudicators have taken the view that any form of commercial or business context would remove the necessity to consider the bulk or weight of the items, no matter how small they might be. They have also taken the view that, unless goods have been pre-ordered, the process of going into a shop to make a purchase must be viewed as shopping rather than loading. Both these views require reconsideration in the light of the case of Marsh v Thompson [1985] QBD (Unreported).

The Panel’s Conclusion The Panel concluded that although much of the adjudicator’s decision in Westminster City Council v Jane Packer Flowers
remained good law, in the light of the authority of Marsh v Thompson, some modification and elucidation of its conclusions was required. The Panel concluded that the key points to be drawn from the case law as explained in Marsh v Thompson were as follows:-
a. Loading and unloading primarily means loading or unloading something heavy or bulky i.e. a "load".
b. The underlying principle when considering whether the exemption applies is whether it can fairly be said that what was taking place was the sort of activity the exemption was intended to cover. (Sprake v Tester)
c. Loading and unloading is essentially the movement of something heavy or bulky from premises to a vehicle and vice versa. The key test as to whether something is heavy or bulky enough to qualify, is whether the use of a vehicle was reasonably necessary for its transport. (Richards v McKnight)
d. It is not automatically the case that merely because items are being moved in a commercial context loading will be established, whether or not the goods are heavy or bulky (Marsh v Thompson).
e. However, in the case of couriers or professional deliverers of goods on a delivery round, this commercial context leads the Panel to conclude that this is certainly the sort of activity for which the exemption is designed - even if an individual item being delivered at any one point, is small and easily carried in the hand. In the Panel’s judgment it would be wholly unrealistic to expect, for example, a DHL courier to ask himself every time he parked whether his next parcel was big enough to qualify; or to require the milkman to find a parking bay every time he stopped to deliver a bottle of milk. The exemption to waiting restrictions and the provision of loading bays are, in the Panel’s view, designed exactly to allow the carrying on of essential commercial activity of this kind.
f. In the Panel's judgment different considerations may well apply to, for example, the greengrocer taking, say, a bag of lemons to his shop or the estate agent dropping off keys or the solicitor collecting a light file from his offices. As a one-off delivery of a small item, such cases are likely to fail, despite the commercial context. The case of Kenny PATAS (2013) 2130636755, where a gas engineer collecting paperwork was not found to be loading, provides an example of Adjudicators applying this approach.
g. The process of shopping is not loading. Most supermarket shoppers undertaking their weekly shop have heavy and bulky items to carry from the shop - normally because a large number of individual small items are heavy in total. In our view, such a motorist would not be entitled to use a loading bay while the items were selected and then paid for. Were it otherwise yellow lines and loading bays would effectively be turned into shoppers’ car parks - something which, in the Panel’s judgement, was not what the bays and lines were intended for. However, once the goods have been selected and paid for, it would, in the panel’s view, be within the purposes of the bay or the exemption for a vehicle to be brought round and parked whilst moving the purchased items into the vehicle.
h. Nonetheless, there may be circumstances, when the payment for a heavy and bulky item may be merely ancillary to the collection. For example, the motorist who has pre-selected a heavy chair and parked in a loading bay to collect it. The fact that he had not pre-paid for it would not, be fatal to a correct use of the loading bay. Each case must turn on its own merits and is a question of fact and degree for the individual Adjudicator. However it is the Panel's view that going round the shop and selecting items - even if they are heavy and bulky - cannot fall to be treated as loading.

Summary of the Panel's conclusions on the law

The Panel considered it might be helpful for both Councils and motorists to have a summary of the Panel’s conclusions in the light of the entirety of the case law. It has to be borne in mind that it is impossible to define “loading” so precisely that it will cover every factual situation and that there will inevitably be marginal cases and grey areas. Subject to that, the principles to be applied are as follows:-
- Loading is all about the movement of loads i.e. heavy or bulky items from premises to vehicles, items which necessitate the use of a vehicle for their transport.
- The overarching question is whether the activity that was taking place can fairly be said to be one which the exemption was intended to cover.
- Motorists – whether acting in a commercial or private capacity - should ask themselves:
- whether the items can reasonably be transported by hand, as opposed to needing the vehicle to transport them. Slynn J gave the examples of the motorist collecting their shoes or a fountain pen just having been repaired as cases falling the wrong side of line. Lord Goddard CJ gave the examples of the piece or two of furniture inside the vehicle or half a dozen pictures to be reframed or even a heavy laundry basket as items that would be covered. The issue may be affected by the physical characteristics of the driver, such as age or disability.
- A commercial context may be relevant to deciding whether the activity falls within the exemption, especially in the case of couriers and other professional deliverers. However, it is not the case that moving an item, no matter how small, is covered merely because it is in the course of trade or business. The smaller the item the more difficult it will be for the motorist to persuade the Council or an adjudicator that an exemption applies.
- Going round a shop or supermarket selecting goods is not “loading” but “shopping”, even if the items individually or cumulatively when purchased are heavy or bulky. Bringing a vehicle round to collect the items, once selected and paid for, would usually fall within the exemption.
- The one-off purchase of a large item may be covered even if payment is made for it before it is moved to the vehicle. The payment must be merely ancillary to the collection. If items have been pre-ordered, parking whist collecting them will normally be covered, even if payment is made, (provided they are sufficiently weighty or bulky to necessitate the use of a vehicle).
- The completion of necessary paperwork will normally be viewed as part and parcel of the loading process (even if it means a return to the premises once the goods are in the vehicle).
- Unexpected short delays in locating the goods will not normally remove the vehicle from the benefit of the exemption.
- If a vehicle is parked in the reasonable expectation that goods will be available to load, and it transpires that they are not, the benefit of the exemption will not be lost provided the driver then removes the vehicle promptly.
- Unloading includes taking the items to that part of the premises where they are required to go; however it would not normally include further unpacking or arrangement of the items
- Councils should not automatically assume that because no sign of loading was seen during a five minute or other observation period, loading cannot have been taking place. However, the longer the time during which no items enter or leave the vehicle the greater the evidential burden on the motorist to provide an explanation and demonstrate that something amounting to loading was in progress out of sight.


Most common reasons for appeal and why they are often refused.


QUOTE
1. Definition of a goods vehicle
Sovereign Recovery UK Ltd v Sovereign Recovery UK Ltd LT ETA (2016) 2160109985 2160109216 The adjudicator’s decision was given in these terms: “The Authority alleges that the Appellant company's driver failed to comply with a prohibition on goods vehicle exceeding 7.5 tonnes (maximum gross weight).

The Appellant submits that the vehicle is not a goods vehicle because it is a recovery vehicle. No issue is taken on the maximum gross weight. The Authority's response is that it matters not whether it is a goods vehicle because the Traffic Management Order restricts all vehicles over 7.5 tonnes. The Appellant points out that while this may be the case, the restriction sign only refers to goods vehicles. The Authority has not addressed this point. I should say that there is a further point, in that the PCN alleges that the contravention refers to a goods vehicle and it can be argued that the contravention as alleged did not occur.

I think that both parties have missed a fundamental point. The Appellant's submissions that a recovery vehicle is not a goods vehicle is seemingly based on a reference to the Goods Vehicles (Licensing of Operators) Regulations 1995 and the Vehicle and Excise and Registration Act 1994. The former exempts recovery vehicles from the requirement for an operator's licence. The 1974 Act deals with taxation classes. Neither affects the status as to whether the vehicle is a goods vehicle.

“Goods vehicle” is defined by the Traffic Signs Regulations and General Directions 2002 as a motor vehicle or trailer constructed or adapted for use for the carriage or haulage of goods or burden of any description. Furthermore, in DPP v Holtham [1991] RTR 5, the High Court held that a broken down vehicle towed by the arm of a recovery vehicle was a trailer to the recovery vehicle because a substantial part of its weight was taken by the recovery vehicle. The recovery vehicle was therefore deemed to be a vehicle constructed to carry a load. It seems quite clear to me therefore that a recovery vehicle which can carry a broken down vehicle on board and a recovery vehicle which has a boom to assist in the lifting and moving of vehicles (as in the present case) are both vehicles within the definition of a goods vehicle.

The situation is therefore this. The TMO places a weight restriction on the road and the restrictions applies to all vehicles. The Authority may have inadvertently limited the restriction to goods vehicles by the use of a sign which refers to goods vehicles only. It may also have limited enforcement to goods vehicle because of the wording of the PCN. However, the vehicle is in fact a goods vehicle so there should be no doubt in the driver's mind, when he sees the sign, that he should not go down Watson's Road. Equally, the Appellant company can have no complaint about the wording of the PCN.

Even if I limit the effect of the TMO to goods vehicles only and I do so in this case, I am satisfied that the contravention occurred because I am satisfied that the Appellant's vehicle is a goods vehicle. I refuse the appeal.”

2. I was entitled to park for 20 minutes to unload.
The exemption can only apply when the motorist is engaged in a continuous loading or unloading activity. The motorist has up to 20 minutes to unload not 20 minutes to park having unloaded. (See key case Alan Bosworth and others v The London Borough of Tower Hamlets and others ETA (2015)).

3. Parking restrictions in London do not apply after 1pm on Saturday or on Sundays. The motorist must not assume the extent of parking restrictions and is expected to read the times displayed on the controlled parking zone entry sign or attached to the stretch of road marking in order to ascertain the periods of control at the time of parking. It is not uncommon for restrictions to be in force 7 days a week and beyond 6.30pm.

4. Other vehicles were parked and I was told by a local that parking was permitted. Motorists should always check signs and road markings for themselves. That other vehicles appear to be parked at a location is not a reason for following suit – those motorists may have permits, or may be engaged in activities that cause an exemption to the parking restrictions to arise.

5. There was no T-bar on the yellow line, the bay markings were faded, the sign was bent. Lines and signs serve to advise the motorist of a restriction and must not mislead. Trifling omissions however do not render a sign or line unenforceable. So long as the sign or marking does not mislead and remains substantially compliant with the requirements of the regulations the restriction is enforceable. See key case R (on the application of Herron and Parking Appeals Limited) v The Parking Adjudicator and others (2010) and Letts v London Borough of Lambeth PATAS 1980151656 (1980).

6. Traffic was moving when I drove into the junction. I only became trapped in the yellow box junction because lights ahead of me changed to red and the traffic came to a halt. Motorists should not enter the marked junction until there is a space available for the vehicle to leave the junction. Motorists following a flow of traffic crossing a junction that comes to a halt before the driver is able to leave the marked area are in contravention. See key case Des Banks v London Borough of Hammersmith and Fulham PATAS 2130483643 (2013).

7. I was not driving at the time. The owner of the vehicle is responsible for the penalty issued even when the owner was not the motorist at the time of the contravention. This applies to parking and moving traffic contraventions. See key case Francis v Wandsworth, R v The Parking Adjudicator ex parte the Mayor and the Burgesses of the London Borough of Wandsworth (1996).

8. I sold the vehicle before the ticket was issued. Whilst this is a valid ground of appeal it must be remembered that the burden of proof rests with the appellant (who has been identified by the DVLA as the registered keeper at the date of contravention and therefore presumed owner of the vehicle) to demonstrate that a sale has taken place. A bare assertion will rarely be sufficient evidence to transfer liability.

9. The vehicle had broken down. This can be a valid ground of appeal but full details of the circumstances of the breakdown should be provided as well as evidence of the recovery and/or repair of the vehicle. It is for the appellant to prove that the vehicle could not be moved due to a mechanical failure. Again a bare assertion is unlikely to be sufficient.

10. I/ my passenger felt unwell and I pulled over to get some air, to use a lavatory, to buy some water.
Restrictions are not lifted in such circumstances, motorists are expected to find an appropriate parking space. A medical emergency is however a separate issue that, with supporting evidence could amount to a valid ground of appeal.

11. I had not parked, I remained in the vehicle with the engine running. The review decision of Schwarz v Camden (2001) PATAS 2110000692 considers the definition of 'parking' with reference to the Road Traffic Regulations Act 1984 and Strong v Dawtry (1961)1 WLR 841 confirming that as a matter of law waiting in the vehicle and parking are synonymous.
[b]
12. The penalty amount should only be £65 as I wrote to the council promptly.
[/b] The enforcement authority is only obliged to accept a reduced penalty amount when the payment is received by the authority within the discount period, as stated on the face of the penalty charge notice. Writing to the enforcement authority does not automatically cause an extension to the discount period to arise. The adjudicator has no power to direct an enforcement authority to accept a discounted penalty amount out of time.







Posted by: Mad Mick V Wed, 1 Feb 2017 - 08:41
Post #1254659

Vehicle Tow --Decision to Remove --Has to be Justified

At last an adjudicator has questioned Tower Hamlets unrestrained tow truck operations.

2160536669

The Appellant appeared in person assisted by her father.

The Appellant parked on a single yellow line on a Sunday. Seeing no timeplates she took it she was entitled to park. However it is clear from the Council’s evidence that the location, as so often in London, lies within a Controlled Zone, where roadside plating is not required, and the operational hours being shown on the large signs at the vehicular entrances to the Zone. The Council’s plan, though barely legible, shows the location off the Zone signs and at the hearing it is no longer in real dispute that Zone signage was in place.

The Appellant, however submits that the removal of the vehicle was unnecessary, it not causing any obstruction. This is something one very commonly hears in removal cases but the Council’s fundamental powers of removal arise from the contravention itself, not obstruction. However where this type of objection is taken to a removal ( in circumstances where there is no self-evident reason for doing so) it seems to me incumbent on the Council to demonstrate that in taking the decision to remove it has complied with its statutory duty to have regard to the Guidance of the Secretary of State. In the present case there is no evidence of the recommended a removal policy prioritising the exercise of this power together with evidence to show how the criteria set out in that policy are met. I am unable to be satisfied on the evidence that the Council has had regard or sufficient regard to the Guidance in removing what seems to be a rather innocuously parked vehicle in a side street; and it follows that I am unable to be satisfied that the removal of the vehicle was lawful. The Appeal is allowed to the extent that the removal fees (only) must be refunded leaving the Appellant to bear the cost of the penalty as a reminder to be on the lookout for of Controlled Zone signage in future.

Mick

Posted by: Mad Mick V Sun, 5 Feb 2017 - 18:02
Post #1256211

Bromley ----Stopped in a restricted area outside a school etc-----CCTV PCNs inadmissible

2170003696

The PCN in this case has been issued by post based on camera evidence.

The local authority's TMO only appears to makes provision for on street service of the PCN at the location and for the contravention in question.

Based on the evidence presented I am not satisfied that this PCN was properly issued and therefore allow this appeal.

Mick

Posted by: Mad Mick V Fri, 10 Feb 2017 - 15:13
Post #1258312

Baliffs charges recovered at Witness Statement stage

New LA Ombudsman Report --case study page 9:-

http://www.lgo.org.uk/assets/attach/4053/FR%20-%20Parking%20FINAL.pdf

Mick

Posted by: Hippocrates Fri, 17 Feb 2017 - 06:23
Post #1260294

QUOTE (Hippocrates @ Tue, 10 Jan 2017 - 18:34) *
QUOTE (PASTMYBEST @ Mon, 9 Jan 2017 - 13:25) *
QUOTE (Hippocrates @ Mon, 9 Jan 2017 - 11:22) *
QUOTE (Mad Mick V @ Fri, 6 Jan 2017 - 12:16) *
Greenwich--Notice of Rejection --does not comply

2160499074 (Extract)

I am, however, allowing the appeal because there has been a procedural impropriety on the part of the Council.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.


The notice of rejection served on Mrs Clarkson and dated 22 November 2016 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. "Issue" and "service" are two separate and distinct legal processes.


The notice of rejection also stated that "failure to pay may result in the issue of a Charge Certificate" instead of stating that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the 28 day period beginning with the date of service of the notice. Again, the wording is mandatory.


This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety.


Similarly: 2160458383


There are a whole lot of these in the last months, but all seem to be ruled by Sean Stanton dunne, has anyone seen any from another adjudicator

I haven't and this is the potential problem. In fact, IMO it is such a fine point that I even doubt whether an appellant had even raised it? Having said that, he is a gentleman adjudicator, very fair and very patient.


In 2160454429 Mr Houghton disagrees with Mr Sean Stanton-Dunne regarding the NOR.

Nevertheless, well done MrM!

Posted by: astralite Thu, 23 Feb 2017 - 14:40
Post #1262502

Yellow Box Junction: A box junction must be placed at the junction of two or more roads. Ewell Road Surbiton

2160509189
Contravention location: Ewell Road, Surbiton (Eastbound) at Junction with Elgar and Princes Avenue
Contravention: Entering and stopping in a box junction
Decision date: 10 Feb 2017
Adjudicator: John Lane
Appeal allowed: cancel the Penalty Charge Notice.
Reasons
The appellant did not attend.
The appellant raised this issue;
A box junction must be placed at the junction of two or more roads.
A junction means a place where two or more things are joined, meet or converge.
The on-line evidence persuades me that the two roads in question are not joined; they do not meet or merge.
There is a nonpenetrable barrier between the two.
I will therefore allow the appeal.

Posted by: Mad Mick V Thu, 23 Feb 2017 - 17:40
Post #1262604

Homerton Fire Station????

Mick

Posted by: Mr Mustard Thu, 23 Feb 2017 - 18:06
Post #1262614

Fire Stations have their own definition for a yellow box being allowed

Posted by: Hippocrates Thu, 23 Feb 2017 - 19:23
Post #1262652

Appeals refused: I think that cases refused should also be placed on this thread as they will also assist. Also, since a panel decision decided re the box junction some years ago, representatives must make adjudicators aware of cases lost when presenting their appeal. Personally, I like the idea of encouraging an adjudicator to feel so independent that sometimes it is not necessary to even seek support from other cases. In my experience, they have made their minds up already so that any case presented will only confirm their decision rather than influence it. Indeed, it is almost an insult to an adjudicator to turn up with successful appeals from other decisions.

Posted by: astralite Thu, 23 Feb 2017 - 20:04
Post #1262668

The decision (2160509189) I noted is a reminder about a basic requirement re a yellow box junction (except outside fire stations and similar).
As things stand only a few of the cases allowed (which we know are in the minority) are picked up and noted on the thread by Pepipoo members. Mostly that simply depends on their own interest, the day they looked at the register, or when they looked for a particular contravention, location etc. And, what about the workload? We all know how time consuming it is to look regularly at every appeal for even just one location. Maybe easier simply to remember to add caveats about disallowed cases and the independence of adjudicators? Appellants also can and do access the register to look at Key Cases and search for cases which relate to their alleged contravention...

Posted by: Mad Mick V Fri, 24 Feb 2017 - 17:22
Post #1262937

Surbiton Crescent PCNs do not comply --Types of vehicle unspecified

2170021610

The Appellant and his representative, Mr D, attended this hearing.

Mr D argued that the Penalty Charge Notice was defective because it failed to mention the type of vehicle that was prohibited.

The Penalty Charge Notice ('PCN') in this case describes the alleged traffic contravention as Failing to comply with a prohibition on certain types of vehicles. However, the PCN fails to particularise the vehicles to which this applies, namely all motor vehicles (including motor cycles) except buses and taxis. Also, whilst the Penalty Charge Notice ('PCN') includes superimposed pictures, it is impossible to see from them any actual traffic sign(s) that the appellant is alleged to have contravened or 'offended' against and there is no copy of the sign(s) themselves superimposed on the PCN. It is also impossible to see or read any markings on the carriageway that might indicate the type of vehicle.

In the circumstances I find that the PCN is invalid and unenforceable as it fails to comply with the requirements of section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 ('LLA & TFL Act 2003'), which states that the PCN "must (a) state (i) the grounds on which the council...believe that the penalty charge is payable with respect to the vehicle".

In these circumstances, I must allow this appeal.


More Kudos to Mr. M

Mick

Posted by: Hippocrates Sat, 25 Feb 2017 - 00:03
Post #1263050

They have changed the wording. Sometime before this decision, actually, so that it is extremely unlikely they will ask for a review.

Posted by: Mad Mick V Mon, 6 Mar 2017 - 10:22
Post #1265988

"No Return" prohibition triggered once original pay by phone session had expired. Unable to extend by phone.

This is a Camden case

217005313A

The Appellant said that he tried to renew his paid for parking vi RINGO but the system would not allow an extension within two hours of the original.

The Authority's records show that the Appellant purchased 45 minutes of parking at 16:26. At 17:11, the Appellant sought to renew his parking but the system would not allow it.

The Authority's case is that as the parking session finishes, the vehicle must be driven away. It would then be subject to a no return provision. It follows that parking cannot be be extended at or after 17:11.

The Appellant's submission is that the no return condition has not been stipulated on the sign. The Authority disagrees. It says that there is a sign indicating that one may only renew before paid for parking expires. After paid for parking expires, motorists must relocate their vehicles and not return within one hour.

The issue here is not whether the Appellant drove away and returned before he was allowed. The Authority's case is that he should have left when his paid for session expired thereby enabling a no return condition to bite, and the system's refusal to allow a further session was justified.

I have some concerns about this approach. First, the Appellant paid for his parking up to 17:11. It is arguable that the sessio0n had not expired at 17:11 when he tried to extend his session.

Secondly, while I can take notice that time-limited parking tends to have a no return condition, the Authority has not satisfied me that the Traffic Management Order provides for a condition requiring motorists to leave the save upon expiry of a parking session.

Thirdly, the Authority has not produced a clear image of a sign which informs motorists that they must relocate their vehicle when the parking session has lapsed so I am not satisfied that this condition has been brought to the attention of the Appellant.

I am not satisfied that the contravention occurred. I allow the appeal.

The Appellant seeks his costs. I do not consider the Authority's action in this case to be vexatious or frivolous, or any of its decisions to be wholly unreasonable.

As a matter of law generally and common sense would dictate that one must extend a parking session before it expires.There is a distinct possibility that the parking session has expired. The Appellant was therefore not extending his parking session but starting a fresh one. Just because one can extend by phone does not mean that one can start a fresh session by phone. The Appellant had no legitimate expectation that it is allowed. I would refuse the application for costs.

Mick






Posted by: Mad Mick V Thu, 9 Mar 2017 - 20:44
Post #1267351

Enforcement Authority must provide its evidence to an Appellant no later than 4 days before the Hearing

2170037563 (Extract)


As I started to go through the Enforcement Authority’s evidence on screen Mr C stated that he had not received any copies of this evidence by post prior to the hearing.

In February 2009 the Parking and Traffic Appeals Service (PATAS) issued the Practice Manual for London Enforcement Authorities (the Manual), which gave guidance on the practice to be followed by Enforcement Authorities (EAs) in relation to appeals to PATAS. Whilst PATAS has now been succeeded by the Environment and Traffic Adjudicators (ETA), the principles and practices set out in that guidance are equally applicable to appeals to the ETA.

Section 9 of the Manual is headed, “Sending Evidence to the Appellant”, and Section 9.3 provides as follows:

“9.3 It is the responsibility of the EA to serve evidence by first class post on the Appellant at their correspondence address, so that it would in the ordinary course of post arrive no later than 4 days before the hearing. Compliance with this requirement means that the Appellant will have advance notice of the EA’s case, and be in a position to decide what evidence to call and submissions to make. Failure to comply with the requirement may result in the appeal being adjourned or allowed on the basis that the Appellant’s right to a fair trial has been prejudiced.”

On examining the chronology of this appeal, it is evident that the Authority were notified of the hearing date on 3 February 2017. However the Evidence Checklist shows that they did not send copies of their evidence to Mr C until 7 March 2017, i.e. the day before the hearing. Whilst the evidence is before me, because it was uploaded electronically, it is not surprising that it had not been received by Mr C before he had to set off to be at his hearing at ETA at 9 am today. Even if it had been, that would clearly not have been 4 days before the hearing.

As the guidance above makes clear, it is an essential element of an appellant’s right to a fair trial that he should have the opportunity to consider the evidence in advance, and should not have to do so for the first time at the hearing itself. As Mr C and his barrister had taken the trouble to attend in person today, I was not prepared to adjourn the case to give them that opportunity, as it would have involved them having to make another trip to the hearing centre for the adjourned hearing.

In those circumstances I have decided that this appeal must be allowed. I made clear to Mr C that I do so without consideration of the merits of either party’s case,

Mick

Posted by: Hippocrates Thu, 9 Mar 2017 - 20:57
Post #1267357

Others may say 3 days! They are updating the old PATAS Guidance Manual. Personally, if an appellant has access to his online appeal, this argument would not hold water any more unless what they send by hard copy is substantially different from what they file online.

I started a thread on this 3/4 years ago. Total disparity.

Posted by: Bogsy Thu, 9 Mar 2017 - 22:34
Post #1267397

QUOTE
may result in the appeal being adjourned or allowed on the basis that the Appellant’s right to a fair trial has been prejudiced.
To play devil's advocate....

(2) If, on an appeal under this regulation, the adjudicator after considering the representations in question together with any other representations made to the effect referred to in regulation 4(2)(b) and any representations made by the enforcement authority, concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal and may give such directions to the enforcement authority as he may consider appropriate for the purpose of giving effect to his decision, and such directions may in particular include directions requiring—

(a)the cancellation of the penalty charge notice;

(b)the cancellation of the notice to owner; and

©the refund of such sum (if any) as may have been paid to the enforcement authority in respect of the penalty charge.


there is no such ground for cancellation as a right to a fair trial under 4(4)

http://www.legislation.gov.uk/uksi/2007/3482/regulation/4/made

And the PATAS guidance is not statutory guidance so failing to follow it is not a procedural impropriety as defined. One could also argue that the PATAS guidance is void since PATAS no longer exists.

Funny how adjudicators like to apply human rights law when it suits but ignore it when it does not suit. I'm glad the appellant won though.

Posted by: DancingDad Sun, 12 Mar 2017 - 09:23
Post #1268002

Nottingham Bus Lane/Pedestrian Area. High Court Judgement.
Basic that enforcing via Bus Lane legislation when pedestrian zone signs are used may not be allowed (Case dependent)
http://www.bailii.org/ew/cases/EWHC/Admin/2017/430.html

Posted by: John U.K. Mon, 13 Mar 2017 - 11:41
Post #1268339

Inadequate suspension signage in City of London

(See also 2160127207 in full below - the appellant also referenced these cases
Case Reference Adjudicator
2160435978 Gerald Styles
2160444753 Edward Houghton
2160341670 Edward Houghton
2140130184 Edward Houghton
2160346142 Carl Teper
216037270A Mamta Parekh
2160446136 Carl Teper
2160042614 Edward Houghton
2160047039 Edward Houghton
2160078305 Christopher Rayner
2160128196 Edward Houghton
2160153422 Sean Stanton-Dunne
2160160993 Sean Stanton-Dunne
2160236199 Andrew Harman
2150281277 Neeti Haria)
----------------------------------------------------

ETA Register of Appeals

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Details
Case reference 2170053399
Appellant Andrew ----
Authority City of London
VRM ----
PCN Details
PCN ----
Contravention date 17 Dec 2016
Contravention time 08:04:00
Contravention location Gresham Street
Penalty amount GBP 130.00
Contravention Parked wholly/partly in a suspended bay or space
Decision date 08 Mar 2017
Adjudicator John Lane
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons The appellant attended the hearing.
The issue of the appeal is essentially signage.
It was held in the case of Oxfordshire County Council and The Bus Lane Adjudicator and Shaun Duffy (2010) that If the signage is prescribed by the Traffic Signs Regulations and General Directions 2002 (TSRGD) or if it is authorised by the Secretary of State and it is not placed where it cannot be seen and not obscured, there must be strong reasons for saying the signage does not provide adequate information.
In the Court of Appeal case of R (Herron v The Parking Adjudicator it was held that parking restrictions are imposed by the applicable Traffic Management Order not by the signage and markings. The purpose of the signage required by the Traffic Signs Regulations and General Directions 2002 (TSRGD) is to convey to the motorist adequate information to the motorist of the relevant restriction. Therefore substantial compliance with the statutory specification in the TSRGD suffices as long as the signage adequately informs the motorist and does not mislead.
Misleading is to give false or confusing information.
The appellant provided photographs of other suspension signs to support his case. There was also a photograph of barriers that had been erected on the carriageway around the bay, in which his vehicle had been parked. I have caused these to be scanned onto the system.
Mr ---- also provided a list of decisions, in which the appeals had been allowed on this issue.
Although I am not bound by these decisions I found the decision in one of them, appeal 2160127207, most persuasive and relevant to this issue.
I will adopt the reasoning in that case and allow this appeal.

------------------

ETA Register of Appeals

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Details
Case reference 2160127207
Appellant -----
Authority City of London
VRM -----
PCN Details
PCN -----
Contravention date 01 Feb 2016
Contravention time 10:20:00
Contravention location FINSBURY CIRCUS
Penalty amount GBP 130.00
Contravention Parked in a suspended bay/part of bay
Decision date 23 May 2016
Adjudicator Edward Houghton
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons

The Appellant’s case is that the suspension relied on was not clearly and correctly signed; and refers me to my decision in case 2160042614. In that decision I said this:-

The Council insists that the small yellow notice is not a "traffic sign". I would agree, as it does not comply, even substantially, with any sign in the Traffic Signs Regulations and General Directions 2002 and has not been authorised by the Secretary of State. However this does not assist the Council at all; quite the reverse. The Traffic Management Order for this designated parking place requires (as they invariably do) that on the suspension of the parking place a "traffic sign" be erected; and the contravention relied on by the Council only occurs if the vehicle is waiting in a bay where there is a traffic sign in place (see Article 20). The various powers granted in the Crossrail legislation to stop up highways etc. have no bearing on this. Whether or not the suspension was clearly indicated (and I am by no means convinced that these little signs have the impact of a proper standard, three sided sign) in the absence of a traffic sign no contravention can occur and the Appeal is therefore allowed.

The sign does not comply with any sign in the 2016 incarnation of the TSRGD, the Department for some reason remaining unwilling to include a prescribed form of suspension sign. I remain of the view that this very small and unusual form of suspension signage requires authorisation. I would only add that it seems the Council might have difficulty in obtaining it for what appears to be a three year suspension since the standard triangular signage authorised for many Councils nationwide is normally subject to a period of use of a maximum of six months. As I am not satisfied the suspension was correctly and clearly indicated and/or that no “traffic sign” was in place as required by the TMO the Appeal is allowed.


Posted by: PASTMYBEST Wed, 5 Apr 2017 - 13:50
Post #1275343

adjudicator interprets LLAA 2003 re TMO and section 36 sign to discount the prescribed wording of a contravention (code 33C)

2170103395


Miss Wilkinson asserts in her Notice of Appeal that the photographs taken by the Enforcement Authority do not show a contravention occurring. “They show my vehicle on the approach to the location and not within any bus lanes…At the point the photograph was taken my vehicle is about to turn left.” She claimed that the daytime photographs were taken from a different direction, and that they show that the “bus and bike only” sign is located after the point where the bus lane begins. “I believe that this causes drivers to turn left slightly later than they would if the signage was located earlier.”
Where moving traffic contraventions are enforced by the use of CCTV cameras there is no statutory requirement to show in the same recording both the vehicle allegedly breaching a prohibition and the signage of that prohibition, and indeed it is often not possible to do so. In this case the Authority have provided footage of Miss Wilkinson’s car heading south along Rye Lane and clearly passing beyond the words, “Bus and (cycle symbol) Only” marked on the road surface to the left of the triangular island. When viewed alongside the “sweep” video footage, taken from a vehicle moving in the same direction as Miss Wilkinson’s, and the still images provided for the appeal, it can be seen that those road markings are beyond the blue signs which indicate the prohibition in force. It is clear from the video footage that Miss Wilkinson’s car was not about to turn left – and indeed the traffic lights also have an “Ahead only” sign implicitly prohibiting such a manoeuvre.
I am aware that Miss Wilkinson has cited another Adjudicator’s decision, but no Adjudicator binds another, and in any event I have looked at that case, and it involved a vehicle driving north, i.e. in the opposite direction to Miss Wilkinson, so I do not find it persuasive in relation to this appeal.
It follows that if this were the only issue in this appeal I would refuse it. However, in another case involving the same alleged contravention (Case No 2170058483) I concluded that I must allow the appeal on different grounds, based on the wording of the allegation contained in the PCN, which is as follows.
“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”
I am satisfied that Miss Wilkinson acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.
Section 4 of the 2003 Act provides, so far as is material to this case,
“(1) This section applies where
(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or
(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.
(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice
(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and
(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following
(i) the person appearing to them to be the operator of the vehicle; and
(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.

(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign.
(6) No penalty charge shall be payable under subsection (5)(a) above where
(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”
What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.
Whilst I accept that the Penalty Charge Notice (PCN) Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)
I find therefore that the PCN issued in this case was not a valid PCN, and so I must allow this appeal.
[I should add that I am aware that the Enforcement Authority have sought a review of my decision in Case No 2170058483, but unless and until that review is heard and allowed in their favour, I believe that the above application of the law is correct. I should nevertheless warn Miss Wilkinson that the Authority may seek a similar review in her case.]

Posted by: Mad Mick V Thu, 1 Jun 2017 - 08:18
Post #1289618

Pay by Phone --Wrong Registration Number ---DPA Issues

(Via aggreviedofBrighton)

In case it is helpful to anyone who has fallen into the trap of the Ring-go app defaulting to a previous vehicle, we have just won an appeal at the second stage (formal representations) with East Sussex County Council.
My wife downloaded the Ring go app and registered as a new user, inputting the correct vehicle registration details etc. Apparently she had also downloaded it 4 years ago on a different vehicle no longer owned, different phone etc which had no recollection of, but the app defaulted to the old vehicle.
We argued the PCN should be cancelled because the app was misleading - it sent my wife a welcome email clearly treating her as a new user with no reference to previous vehicles or the possibility it would default to one. It was only when my wife proceeded to input the parking session and pay for two hours parking that the old registration apparently appeared in the fine print - however my wife didn't notice or think to look for this as the app had registered her as a new user and she'd put in correct details for the current vehicle.
ESCC accepted that this was misleading and cancelled the PCN - but only at the second stage. The comment from the Council was that user error is not usually accepted as a valid ground, but as the app was misleading, they would cancel.
We argued the procedural impropriety ground (citing the Secretary of State guidance re approaching enforcement fairly and proportionately etc and statutory obligation to take account of it) and threw in an "other ground" arguing data protection breaches - i.e. the 1st data protection principle requires data controller to process personal data (including the details entered on the app) fairly and lawfully, but the misleading nature and poor design of the app meant that my wife's personal data was processed unfairly; the fourth principle - data not kept up to date; the seventh principle - appropriate technical measures not taken against unlawful processing due to resulting DPA breaches and finally the 8th principle - personal data held outside the EEA - we noticed the Ring-go privacy policy used to say that personal data is not held outside the EEA but current version doesn't say that, so part of the grounds was that we could only assume that personal data was held by Ring-go on behalf of the Council outside the EEA and depending on which jurisdiction was involved was a further potential DPA breach (i.e. it's usually the US, which is no longer covered by the Safe Harbour agreement). We said we weren't minded to complain to the ICO at this stage as we hadn't suffered financial loss at this point.

On the DPA points the Council denied it was the data controller and told us to take it up with Ring-go - I don't think that is right, but as our objective was to get the PCN cancelled we won't pursue the DPA breaches. might be useful additional arguments however to support the primary argument that the design flaw in the app means that it is misleading.

Evidence attached to appeal - Ring-go VAT receipt proving payment for parking (ask Ring-go for this); a copy of the welcome email sent by Ring-go evidencing that my wife was treated as a first time user; screen shots of the screens that come up during the registration process to demonstrate no reference to an old vehicle or the prospect of an automatic default to one and an exchange with Ring-go where they explain that the old vehicle registration appeared for the first time as part of the payment process.

The take-away lesson from this is to attach robust evidence and pinpoint precisely what it was about the app design that is misleading, arguing that no reasonable user exercising a reasonable amount of caution should have been expected to forensically searched through the fine print on the payment page on a mobile phone to find a reference to a previously owned default vehicle when the app had ostensibly registered the user for the first time and sent a welcome email to her as a new user. The misleading aspect was that the text about the default vehicle was not reasonably accessible to the user and the welcome email meant no reasonable person would have looked for it.

Mention that you've deleted the old vehicle and warned others so they don't fall into the same trap.

There was also a reference to our assumption that the Council is probably dealing with a fair few of these (a few of the mums on the school run had had the same experience so guessing it's not uncommon) and that we would be keen to see Ring-go improve the design of their app so that precious and scarce council resource is not unnecessarily expended on dealing with aggrieved drivers who have already paid for their parking and exercise reasonable care but still received a PCN.

Good luck to anyone fighting something similar. Hope you experience the relief we did when we got the notice of acceptance yesterday, although we would have been prepared to go to independent adjudication on this.

Posted by: Mad Mick V Sun, 2 Jul 2017 - 08:38
Post #1296940

Clapham Park Road Bus Lane--A very rare win

2170238667

The allegation in these proceedings is that this vehicle at Clapham Park Road was in a bus lane.

I refer to the council's images of this bus lane provided at section J of the evidence tree.

On the appellant's case she took the route she did through this junction (she thus entering the bus lane to do so) in order to turn left at it she making submissions as to on her case the inadequacy of signage and markings.

I recognise that this bus lane is correctly marked and signed but the road layout at this spot is in my view confusing the motorist it seems to me being encouraged by it to approach the junction in the bus lane in order to turn left at it and in the absence of additional signage being posted - on, for example, the traffic island at the junction - I am not satisfied that adequate warning is given to the motorist that they should not pass to the left of the traffic island to turn left.

I find for this reason that the contravention has not been proved.

The appeal is allowed.
----------------------------------
Be careful with this one I expect the Council to ask for a Review.

Mick

Posted by: Mad Mick V Wed, 5 Jul 2017 - 09:31
Post #1297835

Pro forma rejection letter does indicate consideration of representations

2170256432

The PCN was issued on the basis that the permit displayed in the vehicle only allowed the vehicle to park in North Road. The Appellant believed that it entitled him to park in any bay with an EC indication. Whether he was correct about this, or, if not, whether the limitation was made sufficiently clear to him on the permit or otherwise, is something that could only be determined from the permit itself which is not in evidence.

It is, however unnecessary to pursue this further since the Appeal falls to be allowed on other grounds. The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed.

Mick


Posted by: Neil B Fri, 7 Jul 2017 - 22:11
Post #1298838

QUOTE (Hippocrates @ Thu, 23 Feb 2017 - 20:23) *
Appeals refused: I think that cases refused should also be placed on this thread as they will also assist. Also, since a panel decision decided re the box junction some years ago, representatives must make adjudicators aware of cases lost when presenting their appeal. Personally, I like the idea of encouraging an adjudicator to feel so independent that sometimes it is not necessary to even seek support from other cases. In my experience, they have made their minds up already so that any case presented will only confirm their decision rather than influence it. Indeed, it is almost an insult to an adjudicator to turn up with successful appeals from other decisions.

+1

PMB me mucker, take note?

I would add that refused cases can also aid an appeal: That is, forewarning of a related matter or interpretation that may crop up and hence
having a counter point ready, or directly addressing the flaw of a previous refusal in written submissions.

Posted by: Mad Mick V Fri, 21 Jul 2017 - 08:39
Post #1302318

Illegal yellow box Richmond on Thames (beyond the junction)

York St Junction With Arragon Rd. Twick

2170285940

I have heard the Appellant's explanation as to why he had to stop in the junction. I have also noted his evidence3 that the stoppage was brief and no construction was caused. I do not think that these factors offer him a defence.

The Appellant did point out further the length of the junction and I note that the exit of the box junction exceeded the junction by at least one car length.

The prohibition applies to a box junction. A “box junction” means an area of the carriageway where the marking has been placed and which is at a junction between two or more roads. Markings which extends beyond the junction of two or more roads do not therefore mark out a box junction covered by the prohibition. I am in no way suggesting that the Authority has to be inch perfect but, in my view, extending the box junction by a car length or more beyond the actual junction is neither compliant nor substantially compliant with requirements.

I allow the appeal.
________________

Mick

Posted by: PASTMYBEST Fri, 21 Jul 2017 - 09:11
Post #1302326

QUOTE (Mad Mick V @ Fri, 21 Jul 2017 - 09:39) *
Illegal yellow box Richmond on Thames (beyond the junction)

York St Junction With Arragon Rd. Twick

2170285940

I have heard the Appellant's explanation as to why he had to stop in the junction. I have also noted his evidence3 that the stoppage was brief and no construction was caused. I do not think that these factors offer him a defence.

The Appellant did point out further the length of the junction and I note that the exit of the box junction exceeded the junction by at least one car length.

The prohibition applies to a box junction. A “box junction” means an area of the carriageway where the marking has been placed and which is at a junction between two or more roads. Markings which extends beyond the junction of two or more roads do not therefore mark out a box junction covered by the prohibition. I am in no way suggesting that the Authority has to be inch perfect but, in my view, extending the box junction by a car length or more beyond the actual junction is neither compliant nor substantially compliant with requirements.

I allow the appeal.
________________

Mick


looked at this in relation to a live case but can find no legal basis for the finding, can anyone?

Posted by: mashkiach Sun, 23 Jul 2017 - 12:14
Post #1302802

QUOTE (PASTMYBEST @ Fri, 21 Jul 2017 - 10:11) *
2170285940
looked at this in relation to a live case but can find no legal basis for the finding, can anyone?

Acording to what diagram does this box relate to?
https://binged.it/2eFlzqG

Posted by: hcandersen Mon, 24 Jul 2017 - 10:19
Post #1302992

Interesting.

The offence is stopping etc.. within the 'box junction'.

NB. nothing to do with yellow markings per se, but of course it is provided the markings mark the 'box junction'.

And 'box junction' is defined as being 'a junction between two or more roads'.

So, the adjudicator's analysis seems sound i.e. was the vehicle stopped within the box junction? If the car is within, but the markings do not extend that far, then no contravention. Conversely, if not within a junction between two or more roads, irrespective of yellow markings, then no contravention.

Was the adjudicator able to find as a fact that the car was not stopped within a junction between two or more roads? Who knows, there's no evidence. But simplistically, within a junction in the case of a minor road entering from the left must surely mean no further along the major road than the limits of the radiused footway of the side road.

In the GSV linked to the thread IMO the junction ends at the lamp column and the yellow paint extends too far.

Posted by: PASTMYBEST Mon, 24 Jul 2017 - 11:46
Post #1303022

QUOTE (hcandersen @ Mon, 24 Jul 2017 - 11:19) *
Interesting.

The offence is stopping etc.. within the 'box junction'.

NB. nothing to do with yellow markings per se, but of course it is provided the markings mark the 'box junction'.

And 'box junction' is defined as being 'a junction between two or more roads'.

So, the adjudicator's analysis seems sound i.e. was the vehicle stopped within the box junction? If the car is within, but the markings do not extend that far, then no contravention. Conversely, if not within a junction between two or more roads, irrespective of yellow markings, then no contravention.

Was the adjudicator able to find as a fact that the car was not stopped within a junction between two or more roads? Who knows, there's no evidence. But simplistically, within a junction in the case of a minor road entering from the left must surely mean no further along the major road than the limits of the radiused footway of the side road.

In the GSV linked to the thread IMO the junction ends at the lamp column and the yellow paint extends too far.


I would suggest 12.8(iv) TSM 5 covers that scenario but a finding of fact for adjudicators

Posted by: mashkiach Mon, 24 Jul 2017 - 13:24
Post #1303050

The offence can only be not complying with the restriction of a valid yellow box within a junction. This box can only be either tsrgd diagram 1043 or 1044 and nothing more. Any other markings are either conveying an existing valid order (since Herron need not be compliant) that does not exist for box junctions or is mere paint.
In fact as the regulations give maximum and minimum allowance it is not up to the adjudicator to deem it substantial compliance or not.

Posted by: PASTMYBEST Mon, 24 Jul 2017 - 13:53
Post #1303060

QUOTE (mashkiach @ Mon, 24 Jul 2017 - 14:24) *
The offence can only be not complying with the restriction of a valid yellow box within a junction. This box can only be either tsrgd diagram 1043 or 1044 and nothing more. Any other markings are either conveying an existing valid order (since Herron need not be compliant) that does not exist for box junctions or is mere paint.
In fact as the regulations give maximum and minimum allowance it is not up to the adjudicator to deem it substantial compliance or not.



TSRGD 2016 schedule 9 part 5 item 25 in particular see reg 5 in part 8

Posted by: hcandersen Mon, 24 Jul 2017 - 22:44
Post #1303202

No. Sch 9 Part 7, para 11.

The diagrams themselves are next to useless because, unlike the TSM (in which the corners are situated at radiused kerbs), they are not located spatially: they could just as well be freestanding for all the diagram shows.

The key issue is that nowhere in the regs or contravention is YELLOW box or lines mentioned, the reference is to box junction which is a defined term predicated on being that area comprised at a road junction. 10 metres beyond a road is not within a junction irrespective of where the yellow lines are.

This is analogous with yellow line waiting restrictions which must be underpinned by a traffic order except that here the prohibition is underpinned by the geographical layout of a junction which does not, IMO, permit councils to slap paint on the highway and say hey, we've made a restriction. On its own a yellow box no more makes the restriction than yellow lines would on their own.

If it's not a 'road junction' then there's no restriction, however much paint is splashed on the carriageway.

Posted by: PASTMYBEST Tue, 25 Jul 2017 - 07:37
Post #1303256

QUOTE (hcandersen @ Mon, 24 Jul 2017 - 23:44) *
No. Sch 9 Part 7, para 11.

The diagrams themselves are next to useless because, unlike the TSM (in which the corners are situated at radiused kerbs), they are not located spatially: they could just as well be freestanding for all the diagram shows.

The key issue is that nowhere in the regs or contravention is YELLOW box or lines mentioned, the reference is to box junction which is a defined term predicated on being that area comprised at a road junction. 10 metres beyond a road is not within a junction irrespective of where the yellow lines are.

This is analogous with yellow line waiting restrictions which must be underpinned by a traffic order except that here the prohibition is underpinned by the geographical layout of a junction which does not, IMO, permit councils to slap paint on the highway and say hey, we've made a restriction. On its own a yellow box no more makes the restriction than yellow lines would on their own.

If it's not a 'road junction' then there's no restriction, however much paint is splashed on the carriageway.


Not disagreeing, my reference to the marking was to highlight the change in the requirements as to shape etc. 11(6)(a) confirms what you say, and in the other thread I have put this forward as a defence

Posted by: Fredd Tue, 25 Jul 2017 - 14:09
Post #1303381

This thread isn't going to be very useful as a resource if people have lengthy discussions in it about the cases posted. Perhaps it would be better to have those discussions in Government Policy or the Flame Pit?

Posted by: Mad Mick V Tue, 1 Aug 2017 - 13:47
Post #1305181

Transport for London's PCN for moving traffic contraventions has an error

(Appellant had 8 PCNs overturned)

2170270003

The appellant raised an issue concerning service of the penalty notices and their total amounts. I therefore checked the penalty notices for their amounts and dates of issue.
The penalty notices in this case were issued under Section 6 of the London Local Authorities and Transport for London Act 2003. The local authority is entitled to issue the penalty notice to the person appearing to them to be the owner of the vehicle concerned.
Section 4(8) of the London Local Authorities and Transport for London act 2003 says that the penalty notice must state:
1 the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;
2 the amount of the penalty charge which is payable;
3 that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
4 that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
5 that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
6 the amount of the increased charge;
7 the address to which the penalty charge must be sent;
8 that the person on whom the penalty notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to the Act; and
9 specify the form in which such representations are made.
I found that each penalty notice in this case states that the full penalty must be paid not later than the last day of the period of 28 days beginning with the date on which this penalty notice is served; and the reduced rate no later than 21 days from the date of service.
The wording is clearly wrong. To such an extent, I find the notices are invalid.
I will therefore allow the appeal.

__________________________

Mick



Broken ticket machine ---no requirement to pay by phone as bay noted in traffic order as P&D only

(Always check if they try this tactic)

2170277024

The Appellant, whom I have heard in person, and whose evidence I entirely accept, parked in the bay and was in the process of seeking out a working P&D machine at the time the PCN was issued. The Council states that she was required to pay by phone. However the Traffic Management Order produced by the Council shows Lyal Rd as a location requiring the display of “a valid ticket issued by a parking meter”. The bay was therefore a conventional P&D bay, whatever the sign might state. On parking a vehicle in a P&D bay the motorist is of necessity permitted a reasonable time to go to a working machine and obtain a ticket; and if the nearest machine is covered up in my judgement the motorist is entitled, indeed required, to have a good look round to find another one. I am satisfied that the PCN was issued whilst the Appellant was within the reasonable time required to validate the parking and that as a result it was, as it transpires, prematurely issued. The vehicle was not in contravention and the Appeal is therefore allowed.

___________

Mick

Posted by: Mad Mick V Mon, 7 Aug 2017 - 09:28
Post #1306609

TFL Failure to produce video evidence

On Saturday at least three appeals were successful at ETA because TFL failed to produce video evidence. Photographs of a car on a Red Route are insufficient if the appeal relates to issues such as checking tyres, sickness, temporary faults (overheating etc) which might have been evident from the video and corroborated the appellant's grounds. Here's two:-

2170298261

The Appellant said that he had to stop to check his tyres.

As the |Authority has not produced the CCTV recording, the three still extracts cannot rebut the Appellant's assertion. Moreover, as the recording might actually support the Appellant's case, it non-disclosure of is unfair.

I allow the appeal.

---------------------
2170300625

The Appellant attended the personal hearing listed for today.

I found him to be a sincere and honest witness.

He denied the contravention stating that his vehicle started overheating and he therefore stopped in order to avoid an accident and due to circumstances beyond his control.

At the time of overheating the appellant thought that this was because there was insufficient coolant in the engine and topped it up with water once the engine had cooled down before being able to move the vehicle.

However as this fault kept on happening intermittently he took his vehicle to a garage who found that the fault was due to the engine fan not working .

The appellant produced a copy of the receipt for the repair works at the hearing.

Although this PCN was issued by camera, the local authority have not supplied a copy of the video evidence which may have shown the appellant attending to the breakdown.

Based on the evidence presented I am not satisfied that the contravention did occur and find the appellant stopped to avoid an accident and/or due to circumstances beyond his control and therefore allow this appeal.
--------------------------------

Of late TFL have been reluctant to supply videos or there has been an inordinate delay in getting them. Ergo there is unfairness if an appellant's case relies on a valid excuse for stopping.

Mick

Posted by: PASTMYBEST Wed, 6 Sep 2017 - 08:08
Post #1313868

Council fail to refer to adjudicator after SD

2170317559

This is an application by the Enforcement Authority for review of the original Adjudicator’s decision to allow the appeal.
The general principles of review are that findings of fact and law are generally final. One Adjudicator will not overturn the findings of fact or law of another unless there are compelling reasons for doing so, such as where the findings are not compatible with the evidence before the original Adjudicator or the law. The question is whether the original Adjudicator was entitled to come to the conclusions that he or she did and that they are reasonable when looked at by reference to the law and the facts.
Unless the original Adjudicator can be shown to have taken into account some immaterial matter or to have overlooked or misapprehended some material matter that undermines his or her decision, or that decision was perverse in the sense that no reasonable Adjudicator could have reached it, or it was plainly wrong as a matter of law about which there is no alternative view or interpretation, his/her decision is final and cannot be reviewed.
One Adjudicator will not overturn the findings of fact of another unless there are compelling reasons for doing so, such as where the findings are not compatible with the evidence. In this case, they plainly are compatible with the evidence and are findings the Adjudicator was entitled to make.
The Enforcement Authority’s application merely states “The Adjudicator is incorrect as the council has followed the correct procedures. This case must be reviewed.”
The Enforcement Authority have failed to provide any substance to their submission.
Neither party is entitled to a review merely for disagreement with the original findings of the Adjudicator.
No grounds under the Regulations having been put forward for review, the original decision must stand.
____________________________________________________________
Original Decision:
The CCTV shows a vehicle driving down the bus lane and I am entirely satisfied on the basis of the Council’s explanation of its camera system that the vehicle in question was the Appellants. No other vehicles are in the bus lane at that moment.
The Appellant did not receive the Notice of rejection and as a result made a statutory declaration to that effect. The Council’s response was simply to write to the Appellant enclosing a copy of the original rejection notice and an appeal form. This was entirely incorrect, and if this is the Council’s normal practice in this situation it must change it. Following the making of a statutory declaration on that ground the Council is required to refer the matter to an adjudicator – see Schedule 1 Para 10(7) London Local Authorities Act 1996.
A Council cannot be permitted to disregard statutory procedures. It seems to me that in the circumstances, no such referral having been made, no penalty is currently payable and the Appeal is therefore allowed

Posted by: Mad Mick V Sat, 9 Sep 2017 - 15:27
Post #1314769

City of London--Bank Junction Scheme

Bartholomew Lane, Cornhill, Gresham Street, King William Street, Leadenhall Street, Lombard Street, Lothbury, Mansion House Place, Mansion House Street, Poultry, Princes Street, Queen Victoria Street and Threadneedle Street.

For those interested in the Experimental Traffic Order for the above scheme and how the concept of "access" applies, proper reasoning for the scheme and a duty to comply with Sect 122 of the RTRA 1984 may find the following HC case intriguing:-

http://www.alrc.co.uk/downloads/Marsden_2_judgment.pdf

Mick

Posted by: Mad Mick V Fri, 15 Sep 2017 - 08:11
Post #1316273

Continuous contravention case decided on excessive penalties

2170368185

The appellant told me when attending on 14 September explained that it was dark when he had mistakenly parked in a business bay near to where he lived. He said that he was concentrating on the zone letter and omitted focussing on the crucial word "business" element in the signage.

I understood that he had been issued with nine penalty charge notices. The explanation for the repetition was absence on business abroad,

The appellant told me that of the nine he had paid one and paid this at the discounted rate.

Administrative cancellations had resulted in there being now only three penalty charges outstanding and it was these that were under appeal to me.

The appellant has effectively accepted responsibility for the mistake he made.

The issues which have the focus of the Tribunal are those of quantum and the appellant argument that the contravention should be regarded as a "continuing offence" for which only a single penalty charge can legitimately be sought.

I mentioned during the course of the hearing that the "continuing offence" argument might be taken as failing as there were times in the day when the public at large could lawfully park in the bay.

More importantly I indicated that daily penalty charges were generally seen as legally unobjectionable in this Tribunal although adjudicators could on occasion be persuaded in their discretion that a single penalty charge alone was appropriate on account of there being but a "single driver mistake".

I decided against ruling for cancellation on the basis of "continuing offence" arguments presented.

I was more impressed by appellant arguments about the quantum of the combined penalty charges sought being excessive.

A starting benchmark is the regard I have for the financial consequences of impounding had the Council proceeded down that route as opposed to successive daily penalty charges.

Impounding would have cost £265 without daily storage charges. Some or all of daily storage charges are frequently waived where there is genuine explanation of absence abroad. This Tribunal regularly sees that as reasonable.

The Council has not persuaded me that there is sufficient justification for a further payment as high as £390.

The factors I have described have resulted in me upholding only the first and last of the three penalty charges under appeal.

The consequence is that the appellant must now pay £260 within 28 days to avoid further escalation.

_________________

Mick

Posted by: Mad Mick V Fri, 15 Sep 2017 - 09:22
Post #1316285

Council tries to decline transfer of liability on hire car where driver lives abroad

2170392656

The Council in this case pursues the penalty charge despite Europcar agreement 145576205. The penalty charge sought is of the type known as moving traffic which is distinct from London bus lane penalty charges which have a different statutory status and for which no vehicle hire firm exemption legally exists.

The Council has declined transfer of liability believing it is entitled to do this on the basis that the address for the appellant customer is in New Zealand.

Its decision to decline transfer lacked proper legal foundation.

The vehicle hire firm exemption depends upon hire formalities being completed satisfactorily and documented. The exemption is not restricted however to cases where hirer addresses are within the UK or other Member States. It also applies to hirers with addresses elsewhere, indeed anywhere.

I have recorded this appeal as allowed.

Posted by: Mad Mick V Tue, 19 Sep 2017 - 14:00
Post #1317244

Property Management Company paint their own Yellow Lines--PCN issued

2170376219

The allegation in this case is that the vehicle was parked in a restricted street during prescribed hours. Mr. Tardi disputes this on the basis he parked on a private street on double yellow lines which had been painted by the property management company. He has today for the first time provided supporting evidence.

The Enforcement Authority have provided photographs taken by the Civil Enforcement Officer which appear to show a straightforward example of the contravention with the vehicle parked on a double yellow line. The Enforcement Authority have provided a copy of the Traffic Management Order which sets out the restrictions ‘for a distance of 5 metres,' although the starting point for the 5m is not entirely clear.

I have considered Mr. Tardi’s photographs together with those taken by the Enforcement Officer and Google Streetview. Having done so I am satisfied that the double yellow line were the vehicle was parked had been painted by the property management company and was not subject to Local Authority enforcement. Accordingly I allow the appeal.

I would add that the fault here seems to me to lie with the private company having chosen to paint in a double yellow line which mimicked the Enforcement Authority restrictions.

Posted by: Mad Mick V Wed, 11 Oct 2017 - 13:03
Post #1322528

Transport for London Rounding Up Timings

The following case demonstrates why you should always request the TFL video evidence:-

2170426656

Mr Dlamini appeals as he states that there were no clear signs to indicate that parking was prohibited on a Sunday. The appellant states that he parked his car for a few minutes to buy bread. He states that in most of Islington there are no restrictions on a Sunday.

The Penalty Charge Notice was issued by Transport for London who operate red routes in London.

I have seen a photograph of the sign at the location it stated no stopping at any time except loading for up to forty minutes. The loading bay is indicated by white markings. The white lines indicate that the loading exemption applies at all times that the red route is operational.

The CCTV footage shows the appellant’s car stop in the bay. Mr Dlamini gets out and crosses the road. He does not appear to look at the sign. The appellant confirms that he did not see the sign. Mr Dlamini returns a short time later. He drives away at 10:39:36.

At the hearing I told Mr Dlamini that I was refusing the appeal. However I now note that the Penalty Charge Notice was issued for a contravention at 10:40. The car had driven away before 10:40. Therefore the car was not stopped on a red route at 10:40.

I allow this appeal. No penalty is due.

Posted by: Mad Mick V Mon, 30 Oct 2017 - 18:06
Post #1327723

Transport for London fails in its contention that Hackney Carriages parked on a Red Route should be attended

2170459338

It is common ground that the Appellant's vehicle is a London Taxi and it was parked in a section of the red route where London taxis can park. The Authority's case is that the vehicle was unattended and this is not allowed according to a blue sign identifying the location as a taxi rank.

The Appellant's case is that a taxi can stop at a taxi rank and he does not have to be with his vehicle. He also submits that a breach of a condition of use of a taxi rank does not amount to a red route contravention. The Appellant refers to the appeal number 217024954A, a case in which his Union is involved.

I shall deal with the two points in reverse order. I do not agree with the rationale in the appeal cited. The PCN alleged that the vehicle stopped where prohibited on a red route. If the parking is prohibited by any legislation or legal order, a vehicle is parked where prohibited. The nature of the prohibition is irrelevant. So, for example, a vehicle double parked on a red route can be penalised for parking on a red route where prohibited or for double parking under the traffic Management Act 2004.

I return now to the first point. A taxi rank is defined under the Traffic Signs Regulations and general Directions 2016 as "an area of carriageway reserved for use by taxis waiting to pick up passengers". It follows that the driver must be present in a taxi parked in a taxi rank or the taxi would not be waiting to pick up passengers. I note that the Authority has published guidance on taxi ranks. The Authority has provided, in addition to taxi ranks, rest and refreshment ranks. There is no need for the drivers to be in the taxi in the rest and refreshment ranks. The guidance also identified all the ranks in London. The one in Edgware Road (Crawford Place) is an ordinary rank. I also accept that there is a blue sign indicating that drivers must be present in their vehicles so there is an indication that the location is a taxi rank.

I must however query whether the Authority has created a taxi rank. The Traffic Management Order provides for a location where taxis can park. It makes no reference to a driver having to be present in the vehicle. It makes no reference to a taxi rank. There is a red route sign indicating parking for taxis only again without reference to it being a taxi rank. There is therefore no evidence that the location is a taxi rank as opposed to a location at which a taxi can be parked.

I am not satisfied that the contravention occurred. I allow the appeal.

----------------------------------------------

Mick



Occupier did not complain about dropped footway parking-----a prerequisite for enforcement --London

2170458834

The Appellant raises a number of points in her appeal, the most pertinent of which is a challenge to the EA entitlement to issue a PCN to the vehicle and then remove it; this is because she says that the householder of the house and drive adjacent to whose dropped footways she parked, did not make a complaint against her vehicle, indeed he tried to stop the removal by saying that he was not obstructed.

The EA assert that the householder complained/requested enforcement action, but have not adduced any evidence that this is so.

It is a precursor to removal of a vehicle in these circumstances that the householder makes a complaint; section 14(4) of the London Local Authorities and Transport for London Act 2003, which provides as follows:

"In the case where—

(a)residential premises have a driveway which is not shared by other premises; and
(b)the purpose of the dropped footway is to assist vehicles to enter or leave the road from or to the driveway,
the relevant borough council or Transport for London, as the case may be, may not issue a penalty charge notice in respect of any breach of the prohibition under subsection (3) above unless requested to do so by the occupier of the premises".
The EA have failed to file evidence on the point; it is a material omission as the photographs clearly show that this is a dropped footway which permits access via a driveway to a garage which services a single detached dwelling.
I allow the appeal and direct the EA to refund FORTHWITH the sum paid by the Appellant to effect the vehicles release.
I do not have jurisdiction to deal with the separate complaint about possible damage to the vehicle.
-----------------------------------

Mick

Posted by: Mad Mick V Mon, 30 Oct 2017 - 18:36
Post #1327736

Legitimate expectation that a Council will re-offer the discount

2170466220

The appellant attended.
He provided evidence that his informal representations were logged with the local authority on 28th May 2017. I have caused a copy of it to be scanned onto the system as evidence.
In the local authority's letter of 26th June 2016 they do not offer the reduced penalty amount.
There is no statutory provision stating that a local authority shall re-offer the reduced penalty amount when they reject representations received by them within 14 days of the service of the penalty notice. The inclusion or exclusion of this in the on-street penalty notice is at the discretion of the local authority. Should they include it, of course, they should honour it.
In their case summary the local authority states that the representations were received after the 14 days deadline but I find as a fact that this was not the case.
The test is whether the public body has issued a promise or adopted a practice, which represents how it proposes to act. The law requires it to be honoured. It takes its place alongside a fair trial. In the High Court case of Fivepounds.co.uk Mr. Justice Bean stated that a legitimate expectation must be a representation, which may include a regular practice and a course of dealing, whereby a public body may create an expectation from which it would be an abuse of power to resile. The representation must be clear, unambiguous and unqualified.
I will therefore allow the appeal because the reduced amount was not re-offered contrary to what is said in the penalty notice.

-------------------

Mick

Posted by: SoudanDrive Wed, 1 Nov 2017 - 13:57
Post #1328291

The website is closed! when you go to patasregistersofappeals.org.uk it shows as up for sale.
What a shame

Posted by: PASTMYBEST Fri, 10 Nov 2017 - 09:11
Post #1330515

TFL given a bollixing re their case summery and failing to attend when required by the adjudicator

2170215071

Posted by: PASTMYBEST Sun, 12 Nov 2017 - 12:07
Post #1331056

2170474513

bus lane ends at start of zig zags and re starts after

Posted by: Mad Mick V Mon, 4 Dec 2017 - 11:34
Post #1336811

Burke's Law and the failure to consider continuous contraventions, exorbitant penalty amounts and beyond the drivers control.

+5 more PCNs to come!

2170493041

Mr. Dawson listed as the subjects of this appeal a total of 9 PCNs. However, the Enforcement Authority say that 5 of these have not been the subject of Notices of Rejection and they are not therefore properly before the Tribunal. No right to appeal against those PCNs has yet arisen and I have removed them from the case. The Enforcement Authority did not wish to contest one of the 5, BU3050322A and Mr. Dawson should have received a letter to this effect.

As to PCN BU30498006 I have not found any evidence from the Enforcement Authority. It follows I cannot be satisfied that a valid PCN was properly issued and served and accordingly I allow the appeal

The remaining 3 PCNs were issued to Mr. Dawson’s vehicle in similar circumstances over the period 08.08.17 to 15.08.17. The allegation in this case is that the vehicle was parked in a residents or shared-use parking place or zone without either clearly displaying a valid permit or voucher or pay and display ticket issued for that place, or without payment of the parking charge.

Mr. Dawson does not dispute in any of these cases that his vehicle was parked as alleged or that the PCN was properly issued and served. What he says is that on 06.08.17 he became unwell as he was driving on the A13 and pulled over in an area with which he was not familiar. He parked and took a taxi home. The driver informed him they were on Ripple Lane. Mr. Dawson says that over the next 2 weeks he went looking for the vehicle without success. Both he and his fiancée telephone the Enforcement Authority to ask but were informed that no PCNs had been issued to the vehicle. He says that on 12.09.17 he received a Notice to Owner giving the location of the vehicle as Movers Lane. He returned to retrieve it and found 9 PCNs attached to the vehicle.

The Enforcement Authority have provided photographs taken by the Civil Enforcement Officer in each case. These show a time plate indicating ‘Residents permit holder only Monday-Sunday 8.30am-9.30pm’. Where a vehicle is parked in such a bay over a period of days a fresh contravention would occur at 8.30am each day and the Enforcement Authority would be entitled to issue and enforce a separate PCN each day.

Having considered all the evidence I am satisfied that each separate contravention occurred and that each PCN was properly issued and served. I am not satisfied that any exemption applies in any of these cases.

Mr. Dawson argues the Enforcement Authority are to blame for his predicament. He has provided evidence that he telephoned them on 07.08.17 in order to ask if any PCNs had been issued to the vehicle as a means of locating it. The Enforcement Authority say that they have no record of any phone calls. In any event, none of the PCNs I have to consider had been issued at that point and the motorist cannot impose on the Enforcement Authority responsibility for finding his vehicle for him. The fact Mr. Dawson’s vehicle was issued this number of PCNs is entirely attributable to Mr. Dawson’s error. That it was a genuine error would amount only to mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion but Adjudicators have no power to direct cancellation on the basis of mitigating circumstances.

It follows from all the above that I must refuse the appeals against PCN BU30485398, BU30484748 and BU3049820A.
------------------------------
If they towed it the cumulative penalties would be far less.

I am posting this one to demonstrate that there were significant considerations which were not properly touched on in the Decision. Indeed, given the cumulative penalties which might accrue, one might speculate that an element of unfairness creeps into this case both in the Council's insistence on ring fencing the remaining PCNs and in the adjudicator using mitigation as a catch-all.

Mick

Posted by: Neil B Tue, 5 Dec 2017 - 11:53
Post #1337227

Handy one on TWOC

2170507871

Mr Sheikh, the Appellant, appeared before me in person.

The Council's case is that the Appellant's vehicle failed to drive in the direction shown by an arrow on a blue sign in Savile Row on 1 September 2017.

Mr Sheikh does not dispute this. However he has consistently maintained that the vehicle was taken without his consent. The circumstances are somewhat unusual. Mr Sheikh and his wife and three daughters live in Ilford and have a practice of hanging all house and car keys on hooks in a space under the stairs. Mr Sheikh's nephew, Hammad Butt and his friend Bob Lerde, came over from France where they live to stay with Mr Sheikh's family spend a few days in London. Mr Sheikh told me that at no stage was there any express or implied consent from him for his nephew or his friend to drive his vehicle. No permission had been asked and the first Mr Sheikh knew of the matter was when he received the penalty charge notice after his guests and returned to France. They had taken his vehicle after the family had retired to bed for a late night trip to London. He rang his nephew, who apologised for taking the vehicle without permission and stated that Mr Lerde was in fact driving the vehicle.

I accept that Mr Sheikh is told me the truth. I am satisfied that in these particular circumstances, there was no express or implied consent and that Mr Sheikh has established the exemption that the vehicle was taken without his consent. Accordingly, I allow the appeal and cancel the notice to owner. The Council are entitled to pursue the driver, whose address has been provided.

Posted by: Mad Mick V Fri, 15 Dec 2017 - 12:41
Post #1339944

P&D Ticket--Stickability. An interesting experiment wins the case

2170444294

This PCN was issued for the alleged contravention of being parked in Church Road at 12.16pm on 23 May 2017 without clearly displaying a valid pay and display ticket or voucher.

The CEO's photographs show that Mrs Nixon's car was parked in a space which was clearly signed as being for pay and display parking during the restricted hours of 8.30am to 6.30pm Mondays to Saturdays.

Mrs Nixon appeals because she says that she had bought and displayed a valid pay and display ticket. A copy of the ticket is submitted in evidence and this shows an expiry time of 12.34pm on 23 May 2017. Mrs Nixon says that she affixed the pay and display ticket to the left hand side window of the car, using the sticky back on the ticket.

The Council correctly says that it is the motorist's responsibility to ensure that the ticket remains correctly displayed throughout the period of parking. It is equally, however, the Council's responsibility to ensure that the adhesive backing to the ticket is fit for purpose and I am not satisfied that this was the case. Although the Council refers to a random testing of the adhesive backing, I have seen Mrs Nixon's own evidence of testing the adhesive backing with 5 pay and display tickets. The test was carried out by Mrs Nixon at home and three out of the 5 tickets fell to the ground after being displayed. Mrs Nixon tells me that the tickets were the free tickets from the machine in Church Road. She says that the three tickets fell away within 10 to 15 minutes. I allow the appeal for this reason.
--------------------------------------

Mick

Posted by: Mad Mick V Fri, 15 Dec 2017 - 13:41
Post #1339962

Notice Of Rejection ----Procedural Impropriety -----Kensington and Chelsea

"Issue" and "service" are two separate and distinct legal processes.

2170537351

This PCN was issued for the alleged contravention of being parked in a resident's or shared use parking bay in Kempstead Gardens at 9.09am on 5 May 2017 without displaying a valid permit or pay and display ticket.

I am allowing the appeal because there has been a procedural impropriety on the part of the Council. Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.

The notice of rejection served on Mr Brandt and dated 13 October 2017 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety. "Issue" and "service" are two separate and distinct legal processes.
------------------------------------

Mick

Posted by: PASTMYBEST Fri, 15 Dec 2017 - 14:32
Post #1339990

QUOTE (Mad Mick V @ Fri, 15 Dec 2017 - 13:41) *
Notice Of Rejection ----Procedural Impropriety -----Kensington and Chelsea

"Issue" and "service" are two separate and distinct legal processes.

2170537351

This PCN was issued for the alleged contravention of being parked in a resident's or shared use parking bay in Kempstead Gardens at 9.09am on 5 May 2017 without displaying a valid permit or pay and display ticket.

I am allowing the appeal because there has been a procedural impropriety on the part of the Council. Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.

The notice of rejection served on Mr Brandt and dated 13 October 2017 stated that a charge certificate may be issued and not that a charge certificate may be served. The use of the wording is mandatory and not optional. This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety. "Issue" and "service" are two separate and distinct legal processes.
------------------------------------

Mick


Would be nice to see one of these by an adjudicator other than SSD

Posted by: Mad Mick V Sun, 14 Jan 2018 - 19:25
Post #1347065

Footway parking, the definition of road and what comprises public land

2170551476

Dr. Osment appeals against a penalty charge notice (PCN) issued in respect of an alleged contravention of the prohibition on parking a vehicle “in or on any urban road in Greater London … so that one or more of its wheels is resting on—

(a) any footway;

(b) any land (not being a footway) which is situated between two carriageways in any such road; or

© any grass verge, garden or space not falling within the foregoing paragraph (a) or (b)”, to quote from the relevant legislation, namely s.15(1) of the Greater London Council (General Powers) Act 1974.

The definition of a road is to be found in s.192 of the Road Traffic Act 1988. It is defined as a “highway and any other road to which the public has access”. Accordingly, whether a vehicle’s wheel or wheels are resting on any of the spaces in paragraphs (a) to © of s.15(1) only falls to be considered if the vehicle is parked “in or on” a road as defined in s.192 of the 1988 Act. Whether a given place is a road is a matter of fact, in accordance with the principles in Clark v. General Accident [1998] 1 WLR 1647.

Dr. Osment helpfully produced a skeleton argument. Although I rejected summarily most of the grounds, an argument raised at point 2 had real merit and warranted consideration. At point 2 he argued: “The photos clearly show that I was on a void space further on and well clear of the footway.” This was foreshadowed in his representations to the Enforcement Authority (EA), which included the following: “I was not on a footpath. I was on an area of hardstanding forming no other purpose, other than suitable for parking.” I am afraid I disagree with the second point raised there; the area on which, the photographs show, the vehicle was parked was plainly not designed, or suitable, for parking. Whether it forms part of a road, however, is a different matter. Dr. Osment argues he was not parked in or on a road at all. Rather, he says, his vehicle was parked wholly on an area of land that does not comprise part of the road. It is the EA’s case that the vehicle was parked (at least partially) on the footway of North Street and was thus in or on a road with one or more wheels on the footway.

I have not been provided with any map showing the parameters of North Street, or the road which is parallel to it. I have, however, studied the photographs in some detail. There is a footway, which I accept is part of North Street. There is a parallel road, which has parking spaces next to it. In between those two roads is a space which, to my mind, is a pleasant open space for people to enjoy, paved differently from the footway, containing trees and benches. Bearing in mind the reasoning in Clark v. General Accident [1998] 1 WLR 1647 I find that it is a place to which the public have access, but not a road. In particular, it is not an area of the road that is between two carriageways; the other road is separate and is not merely a carriageway of North Street.

I turn then to whether Dr. Osment’s vehicle was parked on the road, namely North Street, or the area that is not a road. I have looked at the photographic evidence provided. It is clear to me that no wheels of Dr. Osment’s vehicle were resting on the footway, which is paved distinctly. Rather, his vehicle was wholly within that area that I have deemed on the evidence to be public land but not a road.

It follows from that that I am not satisfied that the vehicle was parked on a road. Section 15(1) is not engaged and the contravention did not occur.

Dr. Osment was aggrieved that the EA’s rejection of his representations contained an allegation that he had caused an obstruction; perhaps it might have been better not to mention this given it is not a necessary element of the contravention (or offence, as it used to be). However, the allegation was not wholly unreasonable given that, as I find, Dr. Osment should not have parked on that area of public land. Although Dr. Osment applied, partly for that reason, for his costs, I am not satisfied that the EA has conducted this appeal is such a way as to warrant an order for costs.
----------------------------------------------------------

Mick

Posted by: Mad Mick V Tue, 23 Jan 2018 - 18:11
Post #1349860

Transfer of liability of a hire agreement

This case spells out what is required but also gives the Council leave to seek costs against the Appellant.

2170551523

On 19.01.18 I refused 5 of the Appellants’ appeals in cases similar to this one.

The Appellants seek to transfer liability for this PCN by virtue of a vehicle hire agreement. They refer me to decisions of other Adjudicators but the decision of one Adjudicator is not binding on another.

Liability for PCNs may be transferred where the contravention occurs at a time when the vehicle is the subject of a vehicle hire agreement of less than 6 months. However the document relied upon must satisfy The Road Traffic (Owner Liability) Regulations 2000, which require a statement of liability signed by the hirer and the inclusion of the following details:

'A. Particulars of person signing statement of liability*

1. Full Name.

2. Date of birth.

3. Permanent Address.

4. Address at time of hiring (if different from 3 above and stay is likely to be more than two months from date of hiring).

5. Details of driving licence:

(a) country where issued (if not UK),

(b) serial number or driver's number,

© date of expiry (which should be no later than date specified in B7 below).

* Where the statement of liability is in Part II of form H, the full name and address of the person by or on whose behalf the statement of liability was signed should be supplied together with the date on which it was signed. If the person taking possession of the vehicle is not the same as the person by or on whose behalf the statement was signed, the full name of that person should also be supplied (if known).

B. Particulars of hiring agreements

1. Registration mark of vehicle hired under the hiring agreement.

2. Make and model of vehicle hired under the hiring agreement.

3. Registration mark of any vehicle substituted for the above during the currency of the hiring agreement.

4. Make and model of any vehicle substituted for the above during the currency of the hiring agreement.

5. Time and date of any change of vehicle.

6. Time and date of commencement of original hiring period.

7. Expected time and date of expiry of original hiring period.

8. Time and date of commencement of authorised extension of hiring period.

9. Expected time and date of expiry of authorised extension of hiring period.

10. Actual time and date of return of vehicle (or when vehicle returned out of hours time and date on which vehicle-hire firm next opened for business).

This requirement applies only to the vehicle hire firm's copy of the hiring agreement.'

The Appellants may only transfer liability under the above provisions if they are a ‘vehicle hire firm’ which is defined as ‘any person engaged in hiring vehicles in the course of a business.’

Even if I were satisfied the vehicle hire agreement provided by the Appellants represented a genuine transaction it does not contain all the above requirements and is non-compliant in any event. However, I have further concerns about the document.

The vehicle hire agreement provided by the Appellants purports to show the hirer of the vehicle as ‘Surrey Car and Van Hire Ltd.’ which, despite the name, has an address in Edinburgh. The Enforcement Authority’s case is that this is not a genuine vehicle hire agreement, that the person signing the statement of liability is Mr. Clive Palmer who is Managing Director of the Appellants and that the Edinburgh address is an address of convenience, out of the jurisdiction and therefore presenting extra difficulty in enforcement.

The Enforcement Authority state that Companies House gives the Appellants’ business as ‘Taxi operation/Freight transport by road’.

By letter of 28.11.17 Mr. Palmer complained that the Enforcement Authority allegation of ‘fraudulent behaviour’ was unfair. He did not answer the charge.

The Appellants have not provided any evidence which might support the assertion that they are a ‘vehicle hire firm’ within the above definition and I am not satisfied that they are.

An allegation of fraud is a serious matter and I do not feel able on the evidence provided to make a finding of fraud against the Appellants. However, it is for the Appellants to establish that the vehicle was subject of a valid vehicle hire agreement. I am not satisfied that the Appellants are a ‘vehicle hire firm’ or that the vehicle hire agreement provided represents a genuine transaction. It follows that there is no proper basis for the transfer of liability in this case and I refuse the appeal.

In 2 of the cases decided on 19.01.18 the Appellants chose to go further than merely challenging enforcement and to apply for costs. Clearly there is no question of a costs order in their favour but I am minded to consider a costs order against the Appellants in the present case, on application by the Enforcement Authority which should set out all costs to which the Enforcement Authority have been put. Should an application for costs be submitted, the Appellants will have a further opportunity to make representations before I make any such order.
---------------------------------------

Mick

Posted by: Mad Mick V Tue, 27 Feb 2018 - 10:58
Post #1362242

Boxed in Vehicle-------Beyond the Driver's Control

2180029903

In this case Mr. Marriott appeals on the basis that he was prevented from moving his vehicle during permitted hours, so that it would not remain in situ during restricted hours, due to circumstances outside his control, namely that he was ‘boxed in’ by vehicles either side of him. It is regrettable that the enforcement authority (EA) has not seen fit to provide the traffic management order so that I can analyse the wording of its exceptions. Accordingly, I proceed on the basis that common sense would dictate that where a vehicle is prevented from moving by circumstances beyond the owner’s control then it would fall within an exception to the prohibition on parking on a restricted street during prescribed hours. Plainly it would be for the party seeking to rely on the exception to prove, on the balance of probabilities, that s/he fell within it.

Notably, two days before this alleged contravention, Mr. Marriott observed that his vehicle had been ‘boxed in’ after he had parked it there. He took photographs of the situation and informed the EA. He was thereafter given a penalty charge notice (PCN) on that occasion but has heard no more of it, so he assumed the EA has decided not to issue a notice to owner. This PCN was issued two days later, Mr. Marriott having kept the EA informed of his predicament in the meantime, and not, on his account, having been able to move the car. He took the view that it was impossible for him to move it. The credibility of Mr. Marriott’s account is enhanced, in my view, by the honesty he showed in having told the EA two days beforehand, and before having been issued with the first PCN, of his situation. Ultimately, however, although Mr. Marriott’s own view as to whether he was unable to move his car is significant, I must decide whether he was, objectively, correct.

The EA says that the photographic evidence of the vehicle in situ on the occasion of this alleged contravention shows that Mr. Marriott did, in fact, have enough room to manoeuvre his car before the period of restricted hours and, thus, he was not prevented from moving by circumstances beyond his control. It points, in particular, to a photograph of the rear of the vehicle which appears to show a gap between it and the adjacent car. In my view, having looked at the photographic evidence as a whole, that single photograph, taken from an angle, is somewhat deceptive as to the space actually available. Other photographs show the vehicle ‘boxed in’. It is my finding, on the evidence as a whole, and particularly the EA’s photographic evidence, that cars had parked next to Mr. Marriott’s vehicle in such close proximity that it was simply impossible for him to manoeuvre out of that space until at least one of them had gone. Those were circumstances beyond his control. I am satisfied, therefore, that an exception applies to this situation and the contravention is not proved.
------------------------------------------------------------

Mick

Posted by: Mad Mick V Sun, 4 Mar 2018 - 07:42
Post #1363670

Case won because Council (Harrow) fail to call off the Bailiffs


2180016639

I am satisfied that the contravention occurred and that the PCN was lawfully served. The Appellant then made a Ground 2 Witness Statement on the basis that he had not received the Notice to Owner. The County Court accepted the statement and made a revocation order was made.

The Authority re-issued a Notice to Owner. The Appellant submits that as the matter has been reverted to "the PCN stage" the reduced penalty is payable.

This is not correct. The discount is available for a period of 14 days from the service of the PCN. So while the matter is at the PCN stage, it has passed the first 14 days of the PCN stage. The discount is no longer available.

The Appellant's representations against the second Notice to owner were rejected on 13 December 2017 and he made an appeal to the Tribunal on 11 January 2018. The Authority was made aware of the appeal on the next day. The Appellant received a visit from Bailiffs on 30 January 2018. The proceedings have not reached the Charge Certificate stage and there was no evidence of a second Charge Certificate. One wonders if the problem was caused by a failure to cancel the Bailiffs after the revocation order was made. Irrespective of the cause, the Authority is not entitle to demand any payment until the appeal is heard and resolved in their favour.

I allow the appeal.
------------------------------------

Mick

Posted by: Barrel67 Sat, 17 Mar 2018 - 16:20
Post #1367743

[quote name='Hippocrates' date='Wed, 7 May 2014 - 23:01' post='958207']
I am offering this list of cases to help people find cases quickly in order to support their arguments. It also saves me time in cross-referring to my other browser!

http://www.patasregistersofappeals.org.uk/

Has the web address changed?

I can't seem to access these appeal cases.

Posted by: PASTMYBEST Sat, 17 Mar 2018 - 19:52
Post #1367790

Try this

https://www.londontribunals.gov.uk/

Posted by: Barrel67 Sat, 17 Mar 2018 - 20:01
Post #1367794

QUOTE (PASTMYBEST @ Sat, 17 Mar 2018 - 19:52) *
Try this

https://www.londontribunals.gov.uk/



Thank you.

Are all the case references still available?

Posted by: Mad Mick V Mon, 19 Mar 2018 - 17:53
Post #1368323

Newham Removal Procedurally Incorrect

2180062931 (Extract)

In the Notice of Rejection the local authority states that the car was removed at 10:15. I have not seen any evidence from any civil enforcement officer who authorised the removal or any photographs taken when the car was removed. I have seen no explanation of the reason for the removal.

I am not satisfied on the evidence that I have seen that the car was lawfully removed.

I allow the appeal against the removal of the car.
---------------------------
Newham in abuse of process regarding a missing permit

I don't think Mr Houghton likes Newham's unrestrained towing activities.

2180063548


The vehicle was parked without displaying a permit and was therefore on the face of it in contravention – which would give the Council to the legal power to issue a PCN and remove the vehicle.

However in the present case this is only the starting point. The Appellant’s evidence goes beyond mitigation. She has given a detailed account of the application for a permit and its rejection – an account which does not appear to be challenged by the Council and which I accept.

The position therefore was that the Appellant applied for a permit but her application was rejected on the basis that her the name on the insurance documentation did not match her own. The conditions for the issue to a residents permit as supplied in evidence by the Council merely require that the vehicle be insured under UK law and it seems to me that rejecting the application on this ground alone if the rest of the required documentation was in order was unnecessary. Be that as it may, the Appellant explained that she had married and that the insurance was in her maiden name, and offered to supply a copy of her marriage certificate. She was informed that this would not do. That seems to me to be quite inexplicable. The combination of the insurance documents in her maiden name and the marriage certificate evidencing the name change ought to have satisfied the Council, and in the absence of any explanation I regard the Council’s informing her that it could not accept these documents as wholly unreasonable.

The upshot is that in my judgement the absence of a permit is due largely to the Council’s own actions in in unreasonably refusing to issue one. On the particular facts of this unusual case it seems to me that allowing the Council then to demand a penalty and to remove a vehicle would amount to the equivalent of an abuse of process. In those circumstances no enforceable contravention can be said to have occurred – see the dicta of the Court of Appeal in Camden v The Parking Adjudicator and BHS t/a First for Food Service Ltd [2011] EWHC 295 Admin [2011]EWCA Civ 905.

The Appeal is therefore allowed.
---------------------------------------------

Mick

Posted by: cp8759 Thu, 29 Mar 2018 - 14:08
Post #1370774

Towing, Article 1 of Protocol 1 EHCR:

https://www.scribd.com/document/374695358/BS498-Towing-Article-1-First-Protocol-ECHR (It is for the council to establish the removal was proportionate)

https://www.scribd.com/document/374695480/Richard-Kembery-v-Bristol-City-Council (Caroline Sheppard endorsing the above case and confirming there is a principles of “fair balance” between the severity of the parking infringement and the citizen’s right to quiet enjoyment of their property)

Posted by: lashes1984 Thu, 5 Apr 2018 - 13:20
Post #1372075

2170596678

TFL not posting notices on the date in which it was issued.

As mentioned by one of the more experienced forum members, it’s important to go through the Enforcing Authority’s evidence pack as they often hand you a win without you even realising.

I only appealed after I was unable to pay the penalty online and it had increased to the Charge Certificate amount even though a Charge Certificate had not yet been issued.

Attended the first hearing and the Adjudicator adjourned to allow TfL to respond to the points I raised.

Anyhow...starting going through the Ticket History and noticed that TfL (like Islington) use a company called Liberty to send out notices and from previous experiences (with Islington) I know that Liberty don’t send out postal PCNs/NTOs on the date of issue but a few days later.

Looking at the Ticket History TfL provided this was indeed the case and I raised this with the Adjudicator as a PI.

The appeal was allowed.

If anyone receives a PCN from TfL (or Islington) be sure to check the Ticket History to confirm the dates of when the PCN/NTO was posted.

Posted by: Mad Mick V Mon, 16 Apr 2018 - 12:51
Post #1374769

An unusual "going for change" Decision.

2180084209

Mr Sweet states he parked and went to his sister's property to collect change, she did not have any so he got back in his vehicle and left.

It is right that drivers should have the correct change when parking. However drivers are also afforded a reasonable amount of time to check the restrictions in place and comply with them. Mr Sweet in attempting to obtain change in the space of a couple of minutes is no different to him attempting to pay by phone while the civil enforcement officer issues the ticket in the same manner.

I find on this occasion a reasonable amount of time was afforded to Mr Sweet to comply with the restrictions and therefore I am not satisfied the contravention has occurred.

I allow this appeal.
------------------------------

Mick

Posted by: PASTMYBEST Fri, 20 Apr 2018 - 20:34
Post #1376065

Date of service not date of notice in LLAA 2003 PCN + allow21 days not 14 for discount (well laid out reasoning)

2180111742

Mr. Gahir puts his appeal on the basis that the penalty charge in his case, in which a moving traffic contravention is alleged, exceeded the amount applicable. To my mind, the point he raises goes to the validity of the penalty charge notice (PCN) itself. Mr. Gahir points out that in two respects the information provided in the PCN by the enforcement authority differs from that required to be provided in the PCN by the relevant legislation, namely s.4(8)(a) of the London Local Authorities and Transport for London Act 2003 (“the 2003 Act”). He argues, in effect, that the departure from the mandatory statutory requirements is such that the PCN is invalid and, as such, unenforceable. The response of the EA is to say that, taken as a whole, the PCN is not misleading and would not prejudice its recipients. Accordingly, it is not invalid and remains enforceable.
The EA referred me to the case of R v. Parking Adjudicator & Lancashire County Council, ex parte Hackney Drivers' Association [2012] EWHC 3394 (Admin), a decision on the similarly worded provisions contained in the schedule to the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 as to the content of PCNs in respect of parking contraventions. That case post-dates the addition in 2007 of an express ground of appeal based on a procedural impropriety in respect of such contraventions. I have also had regard to the case of R v. Parking Adjudicator, ex parte London Borough of Barnet Council [2006] EWHC 2357 (Admin) and to Adjudicators’ decisions in the cases of Moulder v. London Borough of Sutton (3 Dec 1999, No. 1940113243) and Al's Bar & Restaurant Ltd v. London Borough of Wandsworth (2 July 2002, No. 2020106430). These three decisions concern parking contraventions but, because the statutory wording reflects that in the 2003 Act and they deal with validity of PCNs, they are highly relevant and persuasive given that validity is the issue here.
I turn then to the differences between the information provided on the PCN in Mr. Gahir’s case and the requirements of the 2003 Act. These differences are not in dispute. First, the PCN reads: “The penalty charge must be paid not later than the last day of the period of 28 days beginning with the date on which this penalty charge notice is served.” Second, it states: “If the penalty charge is paid not later than the last day of the period of 21 days beginning with the date on which this notice was served, the penalty charge will be reduced by 50%.”. The PCN also reads: “If after the last day of the period of 28 days beginning with the date on which this PCN is served no such representations have been made, and the penalty charge has not been paid, we may increase the penalty charge by 50% to E195.00 and may take steps to enforce payment of the increased charge.”
Section 4(8) of the 2003 Act states, as far as is relevant:
(8) A penalty charge notice under this section must
(a) state
… (iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(iv) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
In summary, therefore, the PCN wrongly states (for the purposes of sub-paragraphs (iii) and (v)) that the period of 28 days commences with the date of service, as opposed to the date of the PCN itself. It also wrongly extends the period during which the reduced amount is payable. Mr. Gahir states that the difference creates ‘an obvious prejudice’. I disagree. The variation is in his favour, provided the EA only commences the next step in the procedure in accordance with its own, incorrect, timetable as opposed to the timetable set down in the 2003 Act. That there is no prejudice to Mr. Gahir is relevant, but not conclusive.
The EA seeks to rely on the Lancashire County Council case on the basis that it is authority for the propositions that PCNs must be read as a whole and must not slavishly follow the statutory wording. The PCN must ‘convey what is required to be conveyed’ by - in that case - the 2007 Regulations. Those propositions are not in doubt. On the facts of that case, the PCN, read as a whole, did convey what was required by the Regulations. For that reason, that authority does not, in my judgment, assist the EA in this case. It is distinguishable on its facts. Here, the PCN did not ‘convey what needed to be conveyed' by the 2003 Act. Instead, it mis-stated two time limits, albeit in the recipient’s favour. It conveyed wrong information. It did not comply with the mandatory requirements of s.4(8)(a), in respect of sub-paragraphs (iii), (iv) and (v).
R v. Parking Adjudicator, ex parte LB Barnet, a decision of Jackson J (as he then was), was considered in Lancashire County Council. In the LB Barnet case the High Court upheld the decision of the Adjudicator that a PCN was invalid because it did not specify the date of issue. Jackson J’s reasoning is of more general application in respect of the effect of departures from statutory requirements for PCNs. The following passages are of particular note:
“41 Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.
42 In the present case, the two PCNs issued by Barnet on 31st March 2005 did not comply with section 66(3)©,(d) and (e) of the 1991 Act. Accordingly, the requirements of section 66 were not satisfied and no financial liability was triggered either by the PCN or by any subsequent stage in the process such as the notice to owner.”
It is right to say that Jackson J, having disposed of the case on the above ground, went on to comment, obiter, on a second ground which relied, as here, on time periods being extended in favour of the recipient of the PCN. He did not express a clear view on the issue.
The decisions of the Adjudicators on this topic are not strictly binding but are highly persuasive. In the Al’s Bar case, the Adjudicator drew a distinction, subsequently endorsed by Jackson J in the LB Barnet case, between literal and substantial compliance; it is the latter that is significant. The Adjudicator held that:
“I also take into account the fact that the PCN in this case was non-compliant in a considerable number of respects. This is not a case of a single, minor error. I am afraid that the Council has played rather fast and loose with the carefully drafted requirements of the Act, no doubt inadvertently, but it is none the less serious for that.
All these factors taken together in my view point strongly towards the interests of parking control being best served by my finding the PCN to be a nullity irrespective of whether the non-compliance caused prejudice in this case.”
Albeit there were more errors in that case, I am unable to distinguish this case from it in any significant respect. There are a number of errors here also. They are simple errors but important ones and there is really no excuse for the EA having failed to follow the clear wording of the 2003 Act in the respects I have identified. In my judgment, there has not been substantial compliance with the 2003 Act in those respects. Indeed, it appears the EA has now changed the PCN, having identified what it describes as the need for ‘slight changes’ to the wording. That is somewhat of an understatement. PCNs are, although not penal in effect, of some importance in financial terms to their recipients.
Notwithstanding the lack of prejudice in this case, and bearing in mind the principles as to the exercise of discretion in declaring a PCN a nullity as expressed in the Al’s Bar and Moulder cases, I am satisfied that the departures from the statutory requirements are such that I should declare the PCN a nullity in this case. As a result of its invalidity it is no longer enforceable. Put another way, given that the PCN is invalid, the amount payable is nil.
I allow this appeal.

Posted by: Mad Mick V Sat, 28 Apr 2018 - 07:29
Post #1378099

Permit sign needs to identify nature of Permit

Wow!!! I doubt if this one will be generally accepted by ETA but it does provide leverage when a higher Code 16 penalty is given in Newham.

2180119904

This PCN was issued for the alleged contravention of being parked for longer than permitted in Graham Road. The alleged contravention occurred at 11.32am on 21 December 2017.

I am allowing the appeal because the signage for the bay in which Mr Sumbul's car was parked is defective. The sign states that parking is for permit holders only during the controlled hours. The sign is defective because it fails to identify the nature of the permit required for parking. There must be a clear description of the nature of the permit required whether this is by words or letters. The time restriction for parking may be clear but this does not cure the defective omission.

-------------------

Mick


Posted by: Mad Mick V Sat, 28 Apr 2018 - 07:40
Post #1378100

Newham removal not justified if a lower penalty is given

2180122884

The Appellant accepts that he made a mistake in failing to complete the residents permit as he was new to the area and new to the system. However he objects to the fact that his car was removed which penalty he cannot afford and which he consider to be excessive in the circumstances.

Bearing in mind that this PCN has been issued for a code 19 contravention which is recognised to be a less serious contravention attracting a lower penalty, I fail to see the traffic management purpose in removing the vehicle in these circumstances and in the absence of any aggravating features.

I find the removal of the vehicle to be contradictory to the purpose of providing a lower differential penalty, and excessive and unnecessary in this context.

I therefore allow this appeal in relation to the removal charges

--------------------
Mick

Posted by: cp8759 Thu, 3 May 2018 - 15:49
Post #1379446

PDF version of TPT bus lane case CV06680 (will/may, motorist does not claim discount it is his as of right, council does not "offer" a discount): https://www.scribd.com/document/378106026/Adjudicator-Decision-CV06680-Will-may

Posted by: cp8759 Sat, 12 May 2018 - 12:02
Post #1381583

Blue badge holders allowed to park for 3 hours in loading bays:

https://www.scribd.com/document/379002087/Adjudicator-Decision-YD05198JSD

https://www.scribd.com/document/379002134/Adjudicator-Decision-KM05633F
https://www.scribd.com/document/379002206/Application-for-Review-Directions-KM05633F

Posted by: Steve_999 Sat, 12 May 2018 - 12:09
Post #1381585

QUOTE (cp8759 @ Sat, 12 May 2018 - 13:02) *
Blue badge holders allowed to park for 3 hours in disabled bays:

https://www.scribd.com/document/379002087/Adjudicator-Decision-YD05198JSD

https://www.scribd.com/document/379002134/Adjudicator-Decision-KM05633F
https://www.scribd.com/document/379002206/Application-for-Review-Directions-KM05633F


And, indeed, in loading bays!

Posted by: mashkiach Wed, 16 May 2018 - 08:14
Post #1382507

QUOTE (cp8759 @ Sat, 12 May 2018 - 13:02) *
Blue badge holders allowed to park for 3 hours in loading bays:

https://www.scribd.com/document/379002087/Adjudicator-Decision-YD05198JSD

https://www.scribd.com/document/379002134/Adjudicator-Decision-KM05633F
https://www.scribd.com/document/379002206/Application-for-Review-Directions-KM05633F

https://www.scribd.com/document/379387881/CP1A26

Posted by: Mad Mick V Fri, 25 May 2018 - 14:57
Post #1384978

PayPoint
This one gives going for change a completely new dimension. Might be useful in certain circumstances:-
https://www.paypoint.com/en-gb/consumers/service-directory#parking
Pay for Parking

You can pay for your parking in cash at specific PayPoint stores where PayByPhone is available.


How it works

Areas where cash parking payments are currently available:

London Borough of Lambeth
Wigan Council
London Borough of Haringey
London Borough of Barnet
Waltham Forest Council
Brighton and Hove City Council
London Borough of Southwark
__________________________
Mick

Posted by: PASTMYBEST Wed, 6 Jun 2018 - 18:47
Post #1388124

2180169731

Tfl publish that BL not enforced Xmas day. Council rightly say TfL do not set the Law but as transport authority the public do not know TfL not responsible for all bus lanes might help bikers

Posted by: cp8759 Mon, 11 Jun 2018 - 18:40
Post #1389564

Traffic Penalty Tribunal decision: Soiling oneself is not necessarily foreseeable even if there is a known, pre-existig medical condition.

https://dochub.com/cp8759-cp8759/Oj11YM/decision_aw00018-1804?dt=UVKGL1T1Ht51McxbFPTp

Posted by: Mr Mustard Wed, 13 Jun 2018 - 10:54
Post #1390103

Cornhill - 2180181464 - could be handy.

The appellant attended.
The local authority's case is that the appellant's vehicle passed the bus and cycle only signs at the Gracechurch Street end of Cornhill.
The on-line evidence does not show the vehicle pass the signs in question.
The appellant has consistently said that he entered Cornhill from the Threadneedle Street end.
He said he did so and picked up his passenger in Cornhill and did a U Turn and exited by Finch Lane.
He provided photographic evidence of the signage, stating, "Other traffic use Cornhill" and also a photograph on his mobile 'phone showing that a warning sign at the Threadneedle Street end is facing the carriageway and not on-coming traffic. I was unable to cause that to be scanned.
I was persuaded that the vehicle did not pass the signs, on which the local authority relies. In the absence of any evidence that the signage he provided was not accurate I will allow the appeal.

Posted by: PASTMYBEST Wed, 20 Jun 2018 - 16:45
Post #1392338

Good for Haughton. He disagrees with the obiter view expressed in the appeal court re suspended bays and elects not to follow it

2180194309

Adjudicator
Edward Houghton
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
The Appellant was represented by his wife, the driver of the vehicle.
At the time of the observation the vehicle was parked in a bay indicated as suspended and it is not surprising that a PCN was issued. The driver’s case, however, is that at the time of parking there was no suspension sign in place. The Council states that signs were erected on the 16th march and produces its records in support.
Having heard the driver at some length and in some detail I find her evidence very persuasive. This is a driver who was well aware of the various suspensions occurring in the area and indeed on this occasion moved her vehicle to this parking place having been displaced by other suspension signage. The suspension sign relied on is seen to be immediately adjacent to her vehicle; and it seems to me that compelling evidence is required to show that in these circumstances the driver failed to see what was as plain as the proverbial pikestaff. The driver on discovering the PCN spoke to various operatives of the water company who confirmed that there was on going difficulties with signs being removed or displaced and one of them confirmed that the sign was put in place after her vehicle had parked.
The Council’s evidence appears to show that 10 signs were erected in or near this road on the 16th. However there seems to me to be no clear evidence to show that the particular sign relied on was one of them , nor is there any evidence ( such as a photograph) to show the sign remained place shortly before the vehicle was parked. On balance I prefer the evidence of the Appellant and find that the sign was not in place at the time of parking.
The Appellant has understandably assumed that if this is so no contravention can occur and this appears to be accepted by the Council. Although I share this view I have to note that the law is perhaps not so clear cut. In a recent decision of the Court of Appeal (Camden LBC v Humphreys [2017] EWCA Civ 24) a similar issue fell to be decided in the case of a motorcyclist who left his motorcycle in an unsuspended bay which was subsequently suspended incurring a PCN. The motorist succeeded in a |Judicial review hearing in the High Court at which the Council unaccountably did not appear. The Council subsequently appealed to the Court of Appeal. They failed, but purely on the basis that they were too late and should have made their submissions to the High Court at the original hearing. The Court of Appeal, however did express a provisional view as to what the law was in this type of situation. The majority view was that the Council is only required to prove that the bay was suspended and that the vehicle was parked within it for a contravention to occur. The view of the remaining Lord Justice of Appeal was that some form of notice of the suspension would be required. The Court emphasised that the views expressed were only provisional pending the law being fully argued in some subsequent case; and therefore technically the views expressed are not binding on me. With great respect I agree with the minority view; it seems to me a principle of all parking law that the motorist should have some notice of a restriction or prohibition when deciding whether to park.
As I am not satisfied adequate notice of the suspension was given the Appeal is allowed.

Posted by: Mad Mick V Sat, 23 Jun 2018 - 10:24
Post #1393091

Coventry Parking Zone successes


The Traffic Penalty Tribunal has been reviewing Coventry City Council's Restricted Parking Zone Scheme (RPZ) to make sure it is fair after complaints it was confusing and there weren't enough signs.

The mile-wide zone - in place across the city centre - was brought in in 2012.

But Chief Adjudicator Caroline Sheppard OBE upheld appeals on six fines, ruling that they were "unenforceable" because signs were "confusing" and placed in "unusual locations".

Story here:-

https://www.coventrytelegraph.net/news/coventry-news/council-plan-challenge-tribunal-decision-14631215

Mick

Posted by: PASTMYBEST Sat, 23 Jun 2018 - 12:08
Post #1393120

QUOTE (Mad Mick V @ Sat, 23 Jun 2018 - 11:24) *
Coventry Parking Zone successes


The Traffic Penalty Tribunal has been reviewing Coventry City Council's Restricted Parking Zone Scheme (RPZ) to make sure it is fair after complaints it was confusing and there weren't enough signs.

The mile-wide zone - in place across the city centre - was brought in in 2012.

But Chief Adjudicator Caroline Sheppard OBE upheld appeals on six fines, ruling that they were "unenforceable" because signs were "confusing" and placed in "unusual locations".

Story here:-

https://www.coventrytelegraph.net/news/coventry-news/council-plan-challenge-tribunal-decision-14631215

Mick



Case here
https://www.trafficpenaltytribunal.gov.uk/docs/Coventry%20RPZ%20decision.pdf

Posted by: Mad Mick V Tue, 26 Jun 2018 - 20:50
Post #1394037

A robust response from the adjudicator as Lambeth tries it on for PCNs which are two years old.

2180001201

At this scheduled personal hearing the appellant attended in person but the Enforcement Authority did not attend and were not represented.

The Enforcement Authority have referred a Witness Statement which was made by Mr Shane Lowry on behalf of the Appellant Company in respect of this Penalty Charge Notice. Mr Lowry was effective keeper of the vehicle at all material times.

The Order of the County Court cancelled the Order for Recovery and the Charge Certificate but not the original Penalty Charge Notice.

In the Witness Statement Mr Lowry ticketed the box to indicate that the ground for making the Witness Statement was that he had made an appeal to the Environment and Traffic Adjudicators but received no decision (Ground 3).

I have had the opportunity of hearing the appellant personally and find him to be a credible and convincing witness. I accept that this was a genuine error and that he meant to make it on the ground that he had made original representations to the Enforcement Authority but received no Notice of Rejection (Ground 2).

This present Penalty Charge Notice is one of a number in respect of the same vehicle for the same contravention on divers dates at the same location. Mr Lowry had made original representations for all of them together, because the facts were the same. He believed that they would be dealt with together and he had already an appeal in respect of one.

The statutory process is as follows:

1. The Enforcement Authority serves a Penalty Charge Notice.

2. The Enforcement Authority then serves a Notice to Owner on the person it believes to be the owner or the hirer of the vehicle.

3. The recipient then has 28 days to make representations to the Enforcement Authority. The Enforcement Authority may disregard any representations not made within this time.

4. The Enforcement Authority must then serve a notice in response rejecting or accepting the representations.

5. If the Enforcement Authority serves a Notice of Rejection, the recipient of the notice then has 28 days to appeal to the Adjudicator.

I have seen a copy of the original representations to the Enforcement Authority. For the reasons set out I accept that there was genuine confusion on the part of Mr Lowry.

The matter was today listed for an appeal in respect of this one Penalty Charge Notice. The Enforcement Authority have failed to produce evidence to address the issues raised by Mr Lowry or indeed, other than a copy of the Penalty Charge Notice itself, evidence to show that a contravention did occur.

Considering all the evidence before me carefully I cannot find as a fact that, on this particular occasion, a contravention did occur. Accordingly this appeal must be allowed

The administrative staff of the Tribunal and made enquires of the Enforcement Authority and it appears that Penalty Charge Notices LJ06208124, LJ06204994, LJ06507142, and LJ06057299 are still with them and have not been referred for a year.

Penalty Charge Notice LJ06445094 is also currently with the Enforcement Authority although was originally assigned appeal number 217019578A, but could not be registered and thus has not been subject to any decision of the Adjudicator.

Penalty Charge Notice LJ06057040 is the subject of appeal 2180200988, listed for hearing on 23 June 2018. There is currently no Enforcement Authority evidence on the case file.

These Penalty Charge Notices all date back to around October 2016. The facts are disputed and would be hard to recall after so long a period. Without apportioning blame to any party, it cannot be in the interests of justice, even if all or any are in time, for these matters to be pursued any longer.

If the Enforcement Authority are not going to refer these outstanding Penalty Charge Notices, then they should inform Mr Lowry without delay that they are going to be cancelled. If the Enforcement Authority are still intending to refer them then they must do so without delay and will have to provide in person, a full and detailed explanation for the delay to the Adjudicator.

For the hearing on 23 June 2018 (appeal 2180200988), if still resisted, the Enforcement Authority must send a representative to the hearing who can fully and confidently deal with all issues. If it is no longer resisted then Mr Lowry and the Tribunal should be informed accordingly, and without delay.
______________________________

Mick

Posted by: Mad Mick V Tue, 26 Jun 2018 - 21:31
Post #1394055

Have to pass the traffic sign for the restriction to apply

This one might be useful in Connell Crescent cases where the signs are set back and the enforcement camera takes photos as soon as you enter the street.

2180203283

Contravention Failing to comply with a no entry sign

The Appellant performed a U-turn at the junction of Grove Hill Road and Peterborough Road. He said that he had not entered Grove Hill Road. I disagree. The vehicle had clearly passed the give way lines separating the two roads. However, I am not satisfied that Appellant passed either of the two no entry signs.

The allegation is that the Appellant failed to comply with a no entry restriction. The key issue in this case is where the no entry restriction commences. The Authority's case seems to be that entry into Grove Hill Road is a contravention. I do not agree.

A pair of no entry signs create a virtual line or gate. The restriction prevents vehicles from passing this line or gate. This is particularly the case where there is no Traffic Management Order so that the position of the signs defines the point at which the restriction begins. Paragraph 1 (2) in Part 5, Schedule 3 of the Traffic Signs Regulations and General Directions 2016 provides that: "When the sign is placed to indicate the point at which a restriction, requirement or prohibition begins or ends, it must be placed as near as practicable to that point."

It is therefore reasonable for motorists to understand that a no entry contravention only occurs if a vehicle passes the no entry signs. The no entry signs in this case are not placed close to the junction. On of the signs is about two car lengths from the give way line. The other over four car lengths from the give way lines. It is therefore not unreasonable for the Appellant to believe that he could turn before the no entry signs.

The Authority stated in the Notice of Rejection that the Appellant passed the no entry sign. It then stated in the case summary that the Appellant's vehicle drove over the no entry road markings and made no reference to the upright signs. It seems to me that the Authority has by then recognised the problem with its case but I do not think that its submissions work.

First, the road markings do not indicate when the restriction begins nor are they enforceable signs. Secondly, the Authority's photographs of the road markings are not dated. The markings do not seem to be present in the CCTV recording, and they are not present in Google images in July 2017.

I find that the signage restricts or at least give the impression that its restricts, vehicular movement after the no entry signs. It does not indicates that one cannot enter Grove Hill Road. I allow the appeal.
___________

Mick

Posted by: PASTMYBEST Thu, 19 Jul 2018 - 14:46
Post #1400411

Dartford crossing, Keeping the crossing fee to apply to future crossings and no exercise of discretion whether to issue PCN or not

Decision:
Motorists who use the crossing have a legal obligation to pay the road user charge, and Dart Charge likewise have a duty to accept it. Where Dart Charge accepted payment, and the result was an unpaid crossing for which it was intended, they are not entitled to hold that on account of a future crossing. This is for two reasons. First of all the future crossing may never occur, and secondly they may only do so where there is an Advance Payment Agreement in place (see Regulation 6 of the A282 Trunk Road (Dartford-Thurrock Crossing Charging Scheme) Order 2013).
I am not aware there is any such Advance Payment Agreement in place between Dart Charge and ...... in the form of a properly opened account. As I have said, there is a very strong presumption that ,,,,,,,, intended the payment to be for his recent crossing, because he surely cannot have intended to receive a penalty by making the payment against a future crossing instead.
I therefore deem the payment to have been accepted by Dart Charge in relation to the unpaid crossing which is the subject of this PCN.
Can Dart Charge issue a penalty charge notice despite having been deemed to have accepted the slightly late payment of the road user charge? Theoretically, yes, although the penalty charge notice would have to be for the penalty amount of £70, and could not include the crossing fee. The amount they have demanded in this case therefore exceeds what they are entitled to demand.
There is a further difficulty. The purpose of the penalty scheme is to encourage compliance with the payment system. Where a motorist has paid slightly late, but, importantly, before Dart Charge have even issued a penalty, they can be no good reason for enforcing penalty. The window for payment contained in the Regulations is very short, and motorists can often have perfectly understandable reasons for paying late - often, as in this case, by using the crossing in order to embark on a longer journey, during which payment may be understandably difficult.
The power to issue a penalty charge notice is a discretionary one - the regulations state that the authority ‘may issue a penalty charge notice’ (my emphasis). In order for such a decision not be procedurally improper, there must be evidence that it has been taken in a discretionary way, not simply as the result of an effectively automated process. Where someone has paid a day or two late, and before Dart Charge have even begun to take action on the unpaid crossing by issuing a penalty charge notice, they can be few, if any, reasonable grounds for issuing a PCN, given that the purpose of the penalty system is to encourage compliance with the payment system.
I do recognise that ......... has a recent history of making another slightly late payment, but there is no evidence that Dart Charge took that into account when actually issuing this PCN. Furthermore it still does not counter the basic fact that he paid only slightly late, and before Dart Charge even realised that there had been an unpaid crossing, and therefore there is no reasonable justification for the PCN being issued.
I therefore find that the decision to issue PCN was not a properly exercised discretionary power as allowed for by the Regulations, and therefore procedural impropriety has occurred.

Posted by: cp8759 Sat, 21 Jul 2018 - 23:11
Post #1401177

The London Borough of Tower Hamlets parking policies in force as of 20 July 2018:

Policy - Cancellation of PCNs v5.1: https://www.scribd.com/document/384377453/Policy-Cancellation-of-PCNs-v5-1
Policy - Bay Marking Contraventions v1.0: https://www.scribd.com/document/384377449/Policy-Bay-Marking-Contraventions-v1-0
Policy - Bank Holiday Arrangements 2017-18 v1.0: https://www.scribd.com/document/384377451/Policy-Bank-Holiday-Arrangements-2017-18-v1-0
Policy - Car Club Vehicles v2.0: https://www.scribd.com/document/384377452/Policy-Car-Club-Vehicles-v2-0
Policy - Bailiff Complaints v1.0: https://www.scribd.com/document/384377450/Policy-Bailiff-Complaints-v1-0
Policy - CCTV Enforcement of Parking Contraventions v2.0 - https://www.scribd.com/document/384380114/Policy-CCTV-Enforcement-of-Parking-Contraventions-v2-0
Policy - CEO Conduct v1.0 - https://www.scribd.com/document/384380112/Policy-CEO-Conduct-v1-0
Policy - Complaints and Investigations v3.0 - https://www.scribd.com/document/384380109/Policy-Complaints-and-Investigations-v3-0
Policy - Conflict of Interest v2.1 - https://www.scribd.com/document/384380110/Policy-Conflict-of-Interest-v2-1
Policy - Controlled Parking Zones v1.0 - https://www.scribd.com/document/384380111/Policy-Controlled-Parking-Zones-v1-0
Policy - Correspondence Other Than Royal Mail v2.0 - https://www.scribd.com/document/384380113/Policy-Correspondence-Other-Than-Royal-Mail-v2-0
Policy - Correspondence Other Than Royal Mail v2.1 - https://www.scribd.com/document/384380117/Policy-Correspondence-Other-Than-Royal-Mail-v2-1
Policy - Data Protection and Retention v1.0 - https://www.scribd.com/document/384380116/Policy-Data-Protection-and-Retention-v1-0
Policy - Disabled Person's Parking v3.2 - https://www.scribd.com/document/384380119/Policy-Disabled-Person-s-Parking-v3-2
Policy - Disabled Person's Parking v4.0 - https://www.scribd.com/document/384380118/Policy-Disabled-Person-s-Parking-v4-0
Policy - Observing Criminal Offences Etc v1.0 - https://www.scribd.com/document/384380120/Policy-Observing-Criminal-Offences-Etc-v1-0
Policy - Permit Transfer Scheme v2.3 - https://www.scribd.com/document/384380121/Policy-Permit-Transfer-Scheme-v2-3
Policy - Permit Transfer Scheme v3.0 - https://www.scribd.com/document/384380124/Policy-Permit-Transfer-Scheme-v3-0
Policy - Public Viewing of CCTV Evidence v2.0 - https://www.scribd.com/document/384380123/Policy-Public-Viewing-of-CCTV-Evidence-v2-0
Policy - Residents' Visitor Scratchcards v2.0 - https://www.scribd.com/document/384380129/Policy-Residents-Visitor-Scratchcards-v2-0
Policy - Sole Traders & Contractors Permits v1.0 - https://www.scribd.com/document/384380125/Policy-Sole-Traders-Contractors-Permits-v1-0
Policy - Vehicle Removals & Relocations v4.3 - https://www.scribd.com/document/384380127/Policy-Vehicle-Removals-Relocations-v4-3
Policy - Warning Notices v1.0 - https://www.scribd.com/document/384380130/Policy-Warning-Notices-v1-0
Policy - Yellow Line Restrictions v2.0 - https://www.scribd.com/document/384380131/Policy-Yellow-Line-Restrictions-v2-0

Posted by: cp8759 Thu, 26 Jul 2018 - 16:53
Post #1402700

Footway parking resolution for Violet Avenue and Royal Lane, Hillington. I've obtained this resolution but can't track down the thread it relates to so I'm posting it here for future reference:

https://www.scribd.com/document/384771358/Violet-Avenue

Posted by: cp8759 Wed, 1 Aug 2018 - 21:44
Post #1404335

Elizabeth Kehinde v Royal Borough of Greenwich (case reference 2180261257) - very late response to informal representations is a procedural impropriety:

The Appellant, Miss E. Kehinde, attended a Personal Hearing before me on 31st July 2018 to explain his contention personally.

There is no dispute as to the whereabouts of vehicle HV10KCU, at the relevant time, on the material date; namely at a location subject to a restriction requiring the purchase of time to park and the display of paid-for time voucher and/or display of an applicable and valid permit.

The Enforcement Authority assert the absence of payment/permit display in respect of the said vehicle.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances/challenge as stated in her written representations, which she reiterated and comprehensively detailed at the Hearing.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, and contemporaneous notes attributable to the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ, the lack of appropriate permit/sight of a displayed payment voucher and the applicable signage notifying motorists of the restriction.

The Civil Enforcement Officer's evidential record suggests that the said vehicle was observed for a 5 minute period before the point of issue of the Penalty Charge Notice.

Whilst a motorist must be afforded sufficient time to comply with a parking regime [e.g. attendance at a voucher-dispensing machine/complete a telephone payment transaction] this does not extend to the seeking of requisite coinage.

The Appellant’s contention in this regard does not negate liability.

Evidentially I am satisfied that the contravention occurred.

I note that the Appellant's informal representation was lodged on 15th January 2018 by email, the receipt being virtually instantaneous as opposed to postal receipts.

Notwithstanding that, by legislative prescription, a Notice to Owner will issue 28 days after a Penalty Charge Notice remains unpaid or unchallenged, and an Enforcement Authority has a statutory obligation to respond to formal representations [those made in response to the Notice to Owner] within 56 days, the Enforcement Authority allowed 99 days to pass before responding to the Appellant's initial representation.

No acknowledgement of receipt was issued, nor an explanation, let alone apology, for such inordinate delay. I find this to be wholly unacceptable.

I acknowledge and endorse the Appellant's interpretation of such silence to be acceptance of those representations.

I note the Enforcement Authority's statement to the effect that the Appellant was not disadvantaged due to the re-offer of the discounted penalty, I do not find that to be appeasing particularly in light of the stringent time constraints set for those challenging Penalty Charge Notices and the consequences of their non-compliance.

I do not find that the Enforcement Authority has considered the Appellant's representation in a timely manner, and I consider that action to be tantamount to procedural impropriety.

Indeed I conclude that by not duly considering the Appellant's representation in a timely fashion the Enforcement Authority had not discharged its duty under the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 which I do find to be a procedural impropriety on the part of the Enforcement Authority.

Accordingly, I allow this Appeal.

Posted by: cp8759 Wed, 8 Aug 2018 - 15:43
Post #1406364

Manchester Oxford Road appeals (Nelson Street to Hathersage Road)

MC00752-1712 (29 January 2018): https://www.scribd.com/document/386135347/Decision-MC00752-1712
MC00816-1712 (30 January 2018): https://www.scribd.com/document/386135441/Decision-MC00816-1712
MC00729-1711 (31 January 2018): https://www.scribd.com/document/385753270/Manchester-Oxford-RoadDecision-MC00729-1711
MC00014-1801 (14 February 2018): https://www.scribd.com/document/385753271/Decision-MC00014-1801
MC00642-1805 (7 June 2018): https://www.scribd.com/document/386135239/Decision-MC00642-1805

Posted by: PASTMYBEST Wed, 8 Aug 2018 - 15:57
Post #1406369

QUOTE (cp8759 @ Wed, 8 Aug 2018 - 16:43) *
Manchester Oxford Road appeals (Nelson Street to Hathersage Road)

MC00014-1801: https://www.scribd.com/document/385753271/Decision-MC00014-1801
MC00729-1711: https://www.scribd.com/document/385753270/Manchester-Oxford-RoadDecision-MC00729-1711


Got this lot for oxford road, might be duplicated in part

Short and sweet - (MC00060-1801):

Mr XXX (senior) took part in the telephone hearing on behalf of his son, the Appellant. Mr YYY represented the Council.

Mr YYY told me that the Council had not changed the signage in this location since two previous decisions had made plain that the signage was inadequate. Mr YYY said the Council were urgently looking at the possible remedies but that this was not a matter with which he was personally involved. Mr YYY reiterated that in their view the signage was technically correct but conceded that its placement was not ideal.

Indeed it is fair to say that the signage in this location, technically correct or not, is hopeless. It gives the distinct impression of applying only to the adjacent cycle lane and not to that part of the carriageway which is intended to be restricted to buses (and other authorised vehicles) only. The signage fails to satisfy Regulation 18 of the Local Authority Traffic Orders (Procedure) Regulations 1996.

Mr XXX raised a further point: he asserted that the penalty charge notice (PCN) was served out of time. He described his calculations and, upon looking at the Regulations and a calendar, I agree with him. The PCN was only just out of time but it was, nevertheless, served too late to be enforceable.

The appeal is therefore allowed for two reasons: first, that no contravention occurred because the signage intended to warn motorists of the restriction was inadequate; and, second, because the PCN itself was served later than the Regulations permit.

Mr XXX asked for costs and will, if he wishes to pursue this, send to the Tribunal a breakdown of the time reasonably spent on this case together with the out of pocket expenses reasonably incurred. Mr XXX is aware that any costs awards, which are very rarely made by this Tribunal, will be modest. It will be necessary, as a primary point, for Mr XXX to demonstrate that the Council’s conduct of this case has been “wholly unreasonable”. Note that mere unreasonableness will not suffice, it must be “wholly” unreasonable.

MC8545971A

1. I have decided this appeal without a hearing. The parties did not ask for a hearing.
2. The Council have produced footage from an approved camera device which shows Mr A's vehicle driving southbound along Oxford Street after its junction with Nelson Street.
3. The whole of Oxford Street at that point in that direction of travel is a bus lane from 6am to 9pm. During those times buses, taxis and permit holders’ vehicles are the only motor vehicles permitted to proceed along Oxford Road beyond its junction with Nelson Street.
4. Mr A explains in his that he was planning to park on Denmark Road following a route down Grafton Street left on to Oxford Road and then right on to Denmark Road. In fact, this route took him on to Oxford Road before the start of the bus lane and then into the bus lane, the turn for Denmark Road being past the start of the bus lane
5. Mr A appeals on the basis the signage did not indicate he could not take that route and was unclear and confusing. He said, in particular, the signs at the beginning of the restriction are on either side of a wide road, with the near side sign located on the far side of a cycle lane, well away from the carriageway and separated from it by the cycle lane and nearside kerb. He argues the sign indicated to him that the restriction applies to the extended bus stop area on the nearside.
6. Mr A is right that there is a long bus stop on the left hand side of the road, indicated by a yellow dashed marking on a red-coloured road surface, immediately after the start of the bus lane. Although this is, in fact, only a bus stop rather than the bus lane, Mr A is not alone in misunderstanding the sign on the near side of the start of the bus lane as applying to simply the left hand side of the road, where there is a long bus stop, as opposed to the whole of the road. Nor is he alone in evidently not noticing the equivalent sign on the far side of the road, because the road is so wide that it is remote from the side of the carriageway to which it relates.
7. The decisions of other adjudicators in appeals concerning this bus lane have highlighted that other motorists have interpreted the signage in exactly the same way as Mr A, that is as identifying a bus lane as being what is, in fact, the bus stop on the left hand side of the road with an unrestricted lane next to it.
8. A number of adjudicators have considered the question of whether the signage for this bus lane is adequate, in the context of appeals from motorists, like Mr A, who appealed because they were simply unaware they had entered a bus lane at all. In three cases - MC00729-1711; MC00816-1712 and MC00752-1712, the adjudicators decided the signage was not adequate and allowed the appeal. In each case they gave detailed reasons for their decision. Indeed, Mr A has quoted from the reasons in a further decision with the same outcome – MC00014-1801.
9. I am not bound by any of those decisions but find them persuasive, particularly in the context of Mr A’s evidence that he misunderstood which part of the road the restriction on the sign at the start of the bus lane applied to. Consequently, I agree with the decisions of these adjudicators that the signage for this bus lane is unclear and inadequate, and adopt their reasons for so deciding.
10. Because the signage is not adequate, the restriction is not enforceable against Mr Ai. I allow his appeal on the ground the alleged contravention did not occur. He has nothing to pay.


https://imageshack.com/i/pmfWKu9pj
https://imageshack.com/i/pmEOkR3Sj
https://imageshack.com/i/pnGffGErj

https://imageshack.com/i/pnYM0vrHj
https://imageshack.com/i/poHixRI0j
https://imageshack.com/i/pnYM0vrHj

https://imageshack.com/i/po2c937Dj
https://imageshack.com/i/pnsl6UAWj
https://imageshack.com/i/pnVdQo5ej

https://imageshack.com/i/pmCPjycdj
https://imageshack.com/i/poQhQdplj
https://imageshack.com/i/pm96wOHEj

https://imageshack.com/i/pnMEhc41j
https://imageshack.com/i/pmJQ2cJ7j
https://imageshack.com/i/poU0O7rOj
https://imageshack.com/i/poHHKqg4j
http://imageshack.com/i/pnjoAfDxj






Posted by: cp8759 Thu, 9 Aug 2018 - 18:45
Post #1406734

I made this for myself for ease of reference but I might as well post it up, it includes all changes up to The Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2018:

Consolidated version of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007: https://www.scribd.com/document/385841898/The-Civil-Enforcement-of-Parking-Contraventions-England-General-Regulations-2007

Obviously this is in no way an authoritative document, only the legislation as enacted by Parliament has force of law and it prevails in the event of any discrepancies.

Posted by: Mad Mick V Wed, 5 Sep 2018 - 18:45
Post #1414166

Parking in a cycle lane-----problems with the contravention

2180259732

The Penalty Charge Notice was issued for the contravention of parking wholly or partly on a cycle track of lane.

Following an adjournment the local authority has referred me to the road markings and signs authorised by Schedule 9 of the Traffic Signs Regulations and General Directions 2016. I have also seen Department for Transport Circular 01/2016 version 2 issued in May 2016 soon after the 2016 Regulations were implemented. Paragraph 3.48 confirms that no traffic order is required for mandatory with flow cycle lane.

Part 7 of the Traffic Signs Regulations and General Directions 2016 refers to the significance of particular signs in Schedule 9.

Regulation 12(2) states that ‘the marking conveys the requirement that a vehicle, other than a pedal cycle must not be driven or ridden in the cycle lane during the cycle lane’s hours of operation ( which may be all the time) ‘

The Penalty Charge Notice was not issued for a moving traffic contravention of driving or riding in a cycle lane. It was issued for parking in a cycle lane. I am not satisfied that the contravention for which the Penalty Charge Notice was issued is prohibited by Regulation 12(2) of the Traffic Signs Regulations and General Directions 2016.

I allow this appeal.
____________________

Mick

Posted by: Mad Mick V Fri, 7 Sep 2018 - 15:40
Post #1414649

Dropped kerb contravention----where a vehicle access is fenced off

2180304699

The Appellant, whom I have heard in person in some detail parked in part adjacent to what was physically a lowered footway. The Council is, however, required to prove not only that the footway was lowered but that it was lowered for one of the three purposes set out in s 86 Traffic Management Act 1986. It seems clear that the purpose relied on by the Council in this case is that of facilitating vehicular access to adjoining premises. It seems improbable that such an extensive length of kern would be lowered simply as a pedestrian crossing point and there is no evidence of tactile paving. The Appellant, who is very familiar with the location states that the drop originally gave access to garages and the appearance of the location in the photographs suggests that this is so.

The Appellant, however states that these entrances have been fenced off for at least five years; and this seems consistent with the growth of ivy up the right – hand fence seen in the photographs. The Council submits, with no further argument, that the restriction exists as long as the drop kerb is in existence.

I do not agree that this is so. If that were the case motorists would be prohibited from parking when any traffic management purpose for doing so had long since evaporated, even if, for example, the premises in question had been demolished or re-built. In my view a purposive interpretation must be given to this legislation and in my judgment the statutory purpose must subsist at the time of parking. Certainly some mere temporary absence of use for the intended purpose would not suffice; it would not avail a motorist to say, for example, that the garage owner did not have a car, or that a driveway had not been used for some time. Some degree of permanence would be required, normally in the form of some major physical alteration to the premises and their access. Questions of fact and degree might arise; but on the facts of the present case, substantial fencing of five years standing, I have no hesitation in finding that the statutory purpose had long since ceased to subsist and that therefore no contravention occurred. As it transpires the PCN was incorrectly issued.
-------------------------------------------

Mick

Posted by: Mad Mick V Wed, 19 Sep 2018 - 18:19
Post #1418136

Vandalised Ticket Machines---Council has difficulty in contending pay by phone.


2180323219

The Council's case is that the Appellant's vehicle was parked in a shared use parking place in Mallinson Road without clearly displaying a valid permit or pay-and-display ticket on 7 April 2018. A penalty charge notice was issued at 1303.

 
The Appellant states that she parked adjacent to a pay-and-display machine which gave three options for payment – by cash, card or phone. She attempted to pay by card that the machine did not appear to work and so she attempted to other machines and they also did not work. She then walked down the road to find the nearest cashpoint returned with cash, again tried all three machines but none worked. She saw a civil enforcement officer and asked if she could pay him but was told that many of the machines had been vandalised and that she could use a machine further away. He states that she could not reach this machine and displayed within five minutes of arriving at the location as the Council indicated was required in their correspondence.

 
The Council maintained that "there are several options available to a motorist of the machine is unable to produce a pay-and-display ticket. In such circumstances the motorist should either use the cash the service or move the vehicle out of the bay." On this occasion the Council contends the Appellant ought to have called park mobile on the telephone number on the pay-and-display machine to activate parking rights.

 
I have no hesitation in accepting the Appellant's account as true. Further I note that the Council accepts in their correspondence that the number of the pay-and-display machines had been vandalised and that the Council were looking to replace these machines "with an option to pay by cash to longer available" (sic). The Council assert that if a machine is not accepting payment by coins motorist must use the cashless parking facility or find an alternative place to park. The Council has not however produced any evidence of what is stated on the pay-and-display machines at and the location and what the motorist should do in the circumstances. I am satisfied that on this occasion the motorist undertook reasonable attempts to effect payment. It is a requirement of a pay for parking scheme that the Council provide the means by which the motorist may effect payment. I am not persuaded on the facts of this case that the Council have discharged this requirement by simply asserting that the cashless parking facility should be used.

Accordingly, the Council may not enforce this penalty and the appeal is allowed.
-----------------------------------

Mick


Posted by: cp8759 Sat, 29 Sep 2018 - 11:19
Post #1420744

PCN flaw databse: https://docs.google.com/spreadsheets/d/1pVrE76_RYY6bNmEpYGbsZkxtpfIeud_BT3SKfg7TzQM/edit?usp=sharing

Literally just started this, but it makes sense to have a quick lookup guide so you can quickly check if a PCN has certain known issues. I'll give write access to any long-standing members who ask.

Posted by: PASTMYBEST Sat, 29 Sep 2018 - 11:29
Post #1420750

QUOTE (cp8759 @ Sat, 29 Sep 2018 - 12:19) *
PCN flaw databse: https://docs.google.com/spreadsheets/d/1pVrE76_RYY6bNmEpYGbsZkxtpfIeud_BT3SKfg7TzQM/edit?usp=sharing

Literally just started this, but it makes sense to have a quick lookup guide so you can quickly check if a PCN has certain known issues. I'll give write access to any long-standing members who ask.



That's a very useful document CP, Wonder if it might be an idea to ask fredd to create its own sticky, so it doesn't get lost in the middle of a thread over time

Posted by: Mad Mick V Tue, 16 Oct 2018 - 07:28
Post #1425647

White Disabled Badge Issued by Council Doesn't fully substitute for Blue Badge

(In another case the appellant states she has a BB but they get stolen in Lambeth! that's why the Council issues the white one)

2180318660

I have heard the appellant in person. The Authority did not appear and was not represented.

The Enforcement Authority’s case is that the vehicle was parked on double yellow lines.

The appellant states that she was not aware that the vehicle was parked on double yellow lines. She states she was displaying her white disabled badge.

I find as fact that the vehicle was parked on double yellow lines. I accept the evidence of the Enforcement Authority in the form of the civil enforcement officer’s notes and photographs. Double yellow lines mean that parking is not permitted at any time. The restriction is 24 hours a day, 7 days a week. There is no requirement for signage to accompany double yellow lines. There is an exemption to park for up to 3 hours if a disabled badge and clock are displayed. I find that the appellant was displaying neither a blue badge nor clock.

I am satisfied that the contravention occurred and that there is no available exemption. I refuse the appeal.
-------------------------------
Mick

Posted by: PASTMYBEST Fri, 19 Oct 2018 - 16:57
Post #1426707

https://londontribunals.org.uk/naslivepws/pwslive/f?p=14952:70::INITIALISE:NO:70%3a%5070_CAS_REFNO,P70_PCN_REFNO,P70_RETURN_PAGE,P70_AST_CODE:1335153,2650499,60,APPEAL&cs=3ycsOgGDjCJmZ3H1d60xzII_DvIBzuql1ztze5T8HU-m3a4p9JApe8mDle1aGV5VCSkBtKIzbqQpV4wxYSwkvig




TFL TMO incorrect allege NRT but TMO a prohibition on vehicles

Posted by: Mr Mustard Fri, 19 Oct 2018 - 17:37
Post #1426719

The link does not work. A case number would suffice, thanks

Posted by: PASTMYBEST Fri, 19 Oct 2018 - 17:40
Post #1426720

QUOTE (Mr Mustard @ Fri, 19 Oct 2018 - 18:37) *
The link does not work. A case number would suffice, thanks


link worked fine for me but here you go

2180363199

Posted by: Mad Mick V Sat, 27 Oct 2018 - 15:56
Post #1428996

Scottish Traffic Orders

Similar to the TPT Library (don't be fooled by the link wording, it covers parking places etc)

https://tro.appealparkingorbuslanefine.gov.scot

There appears to be a Parking and Bus Lane Tribunal for Scotland which centralises appeals to adjudicators:-

https://www.mygov.scot/organisations/parking-tribunal-scotland/

How this works is a mystery to me since each Enforcement Authority had legislation appointing its own adjudicators. Ergo can you mix and match?

Mick

Posted by: Mad Mick V Sun, 25 Nov 2018 - 12:15
Post #1436882

Lambeth----Ticket Machine "would not accept the currency of the realm"

2180377943

This PCN was issued for the alleged contravention of being parked in a resident's or shared use parking bay in Iveley Road at 10.44am on 14 May 2018 without displaying a valid permit or pay and display ticket.

I have looked at the CEO's photographs and these show that Mr King's car was parked in a bay which was clearly signed as being for parking by permit holders only or for pay and display parking during the restricted hours of 8.30am to 6.30pm Mondays to Fridays. It is not in dispute that there was no valid permit or pay and display ticket on display in the windscreen of the vehicle.

I am, however, allowing the appeal. The signage instructed motorists to pay at the machine. Mr King attempted to pay for parking at the machine by inserting pound coins which he carries in the car. The machine would not accept the coins because it had not been adapted to accept the new £1 coins. The Council does not dispute that the machine accepted only the old £1 coins. Mr King was, therefore, prevented from making payment for parking because the machine would not accept the currency of the realm and I find for that reason that the alleged contravention did not occur.
________________________________________________

Mick

Posted by: Mad Mick V Sun, 25 Nov 2018 - 12:39
Post #1436888

City of London ---Cornhill---Wrong Contravention

2180414890

This PCN was issued for the alleged contravention of failing to comply with a prohibition on motor vehicles in Cornhill at 9.05am on 20 August 2018.

A prohibition on motor vehicles is required to be signed by a no entry to motor vehicles sign. I have seen no evidence of any such signage in place in Cornhill. The images from the Council show the signage of a route restricted to buses and cycles only during the hours of 7am to 7pm Mondays to Fridays. The PCN was issued for the wrong alleged contravention and I allow the appeal for that reason.
_____________________________

I like the reasoning but any appeal needs to be of the longer variety (See other Bank Junction cases)

Mick

Posted by: Mad Mick V Sun, 25 Nov 2018 - 12:52
Post #1436893

CEO Taking Photographs Is Not Prima Facie Evidence Of Beginning Of The Preparation Of The PCN

This is a "drive away" case:-

2180416229 (Extract)

Mr. Praou’s account, which has been consistent throughout and I accept, was that he never saw a CEO. He did not see a PCN either. He denies that the CEO had begun to prepare the PCN when he drove off and that he in any way prevented its service.

The terms of the postal PCN refer to both Regulation 10 (1)(b) and ©. The EA’s case now, according to its notice of rejection and case summary, relies on sub-paragraph © only, namely that the CEO had begun to prepare the PCN but that the vehicle had been driven off before it was completed and/or served. It is hard to conceive of circumstances in which such a sequence of events could occur without the CEO seeing the driver return and drive off after he had begun to prepare the PCN. It would mean that the CEO had turned or walked away at the crucial moments and had missed events occurring in respect of the very car upon which he had begun to prepare – and was about to serve - a PCN. That is inherently unlikely.

The EA asserts that the CEO had begun to prepare the PCN when Mr. Praou returned and drove off without any evidence to support that assertion. Without any evidence as to how, if at all, the CEO’s camera and hand-held device interact, I am not prepared to find that the taking of photographs is something that occurs after the beginning of the preparation of the PCN. Rather, it appears to me to be part of the observation of the suspected contravention, within the meaning of Regulation 10(2). The very sparse contemporaneous notes made by the CEO make no mention of the sequence of events now relied upon by the EA; I would have expected the CEO to note that he had begun to prepare the PCN when the driver returned and drove off if that is what occurred. In fact, the CEO’s notes are consistent with Mr. Praou’s account. In answer to the question ‘Driver seen/conversation’ the answer given is ‘no’. I find, therefore, that the CEO did not see the driver, and vice-versa. For the reasons given above, it is very unlikely that the sequence of events asserted and relied upon by the EA occurred without the CEO seeing the driver. I reject the assertion made by the EA. Indeed, it is not an assertion that should have been made on the evidence available.

Accordingly, Regulation 10(1)© is not satisfied and the EA was not entitled to serve a PCN by post. There was a procedural impropriety and I allow the appeal on that basis also.
------------------------------------------------------

Mick

Posted by: Mad Mick V Sun, 25 Nov 2018 - 13:07
Post #1436896

Box Junction Contravention-----Interesting Interpretation of "True Copy" of PCN

Barking and Dagenham

2180424227

Upon the appellant appearing before me today I was not persuaded that any of the submissions he made raised an exemption to this alleged contravention.

Upon his raising the point however.

The appellant provided a copy of the PCN he had received.

This differed from the copy PCN provided by the council to the tribunal.

The PCN received by the appellant displayed two images whereas the PCN supplied to the tribunal did not.

I was satisfied that the PCN provided by the council to the tribunal was not as required a true copy of the PCN issued in these proceedings that omission amounting I found to a breach of the Regulations.

Enforcement may not accordingly be pursued.

------------------------------------------------

Mick

Posted by: Mad Mick V Fri, 7 Dec 2018 - 10:07
Post #1440248

Not Owner----- even if Appellant is the Registered Keeper

2180399480 (Extract)

Mr Okpuru is appealing that he was not the owner of the vehicle at the time of the contravention. Section 66(2) of the Road Traffic Act 1991 imposes liability on the owner of the vehicle.
Section 82(2) of the 1991 Act states that the keeper of the vehicle at that time will be taken to be the owner and Section 82(3) of the 1991 Act states that the registered keeper of the vehicle at the time of the contravention is presumed to be the owner of the vehicle.
As stated, the Parking legislation imposes liability upon a vehicle's owner and not the driver.
I have to make a decision based on the evidence before me and that decision must be based on a balance of probabilities.
In the Court of Appeal Case R v Parking Adjudicator, ex p. Wandsworth it was held that the starting point for ownership is will be the registered keeper. There are three ways that the presumption of ownership can be rebutted:
Although the appellant is recorded as the registered keeper he/she never owned the vehicle-there was some error involved in registration;
That he/she ceased to be the owner before the date of contravention-there must have been a disposition of the vehicle to another person, who should be and in due course will be the registered owner;
That he/she became the owner after the date of the contravention-there must have been an acquisition of the vehicle from another after the date of contravention. By the time the local authority checks the registered keeper details the recipient is the registered keeper but at the time of the contravention the person from whom the recipient acquired the vehicle was the owner of the vehicle.
The evidence shows that at the time of the contravention the appellant was recorded as the registered keeper of the vehicle.
Ownership, for the purpose of these proceedings, can be transferred from a vehicle hire firm to a hirer if at the time of contravention a valid hire agreement were in place.
According to Section 66 of the Road Traffic Offenders Act 1988 in order for liability to be transferred from the owner hire company to the hirer, a Hiring Agreement must be for less than six months and the hirer must have signed a statement of liability for any penalty charges incurred during the currency of the Hiring Agreement. The Agreement must also be constructed in accordance with the Road Traffic (Owner Liability) Regulations 2000: the particulars of the person signing the statement of liability-their full name, date of birth and permanent address and their driving licence details: the country where issued (if not UK); serial number or driver’s number; date of expiry and also specific details of the Agreement such as the registration mark, make and model of the car; the time and date of commencement and expected expiry of the Agreement and of any extensions and the time and date that the vehicle was returned.
Alternatively the hire agreement should be for such a period to be a sufficient disposition to bestow a degree of permanence of control or possession upon the hirers so that the hirers are deemed to be the owners of the vehicle.
the evidence received from the appellant at the Tribunal on 23rd October 2018 persuades me that the appellant was not the owner of the vehicle on the relevant date.
I will therefore allow the appeal.
-------------------------------------------------------

Mick

Posted by: Mad Mick V Fri, 7 Dec 2018 - 10:20
Post #1440251

Camden CEOs and Suspension Signs ----over zealous

We have had several cases where this has occurred and they ignore the 10 minute exemption.

218042379A (Extract)

The Enforcement Authority assert that the facility to park had been temporarily removed, and that the said vehicle was so parked during the operative period of the suspension.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances/challenge as stated in his written representations, supported by photographic capture, which he reiterated and comprehensively detailed at the Hearing.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, and (contemporaneous) notes attributable to the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ, unoccupied and unattended, and the applicable signage notifying motorists of the restriction.

The Civil Enforcement Officer's evidential record was entered subsequently, not made contemporaneously; the Penalty Charge Notice records an observation of one minute at 8.31 a.m. yet the photographic evidence establishes that it is already printed, bagged, and affixed to the said vehicle and 5 photographs taken of the same at 8.31 a.m.

The Appellant stated that he left his nearby home premises in sufficient time to arrive at the said vehicle by 8.30 a.m. to drive it away; upon attendance at what he perceived to be 8.30 a.m. the Penalty Charge Notice was already attached to the windscreen and the Civil Enforcement Officer was taking photographs.

Indeed the Appellant is visible in one of the Enforcement Authority's own images.

The Appellant described the sequence of events, including his verbal challenge of the Civil Enforcement Officer's pre-emptive action, and during this conversation the Appellant noticed another Civil Enforcement Officer sticking a notice over the suspension sign; the Appellant immediately took an image and submitted it to the Enforcement Authority.

I had the benefit of assessing and questioning the Appellant at the Hearing; I found the Appellant's oral evidence to be cogent and credible and I accepted it in its entirety.

I accept that the Civil Enforcement Officer's action was pre-emptive and over zealous in commencing the Penalty Charge Notice issuing process at the same time as the signs indicating that the suspension was redundant were being applied.

The Civil Enforcement Officer issued the Penalty Charge Notice prematurely in this instance; I import the principle of de minimis and it may well be that in light of the circumstances The Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 applies, prescribing that no Penalty Charge Notice is payable for a contravention where a vehicle has been left for a period not exceeding 10 minutes beyond the permitted parking period.

A permitted parking period is defined as either a period of parking that has been paid for as duly authorised (by a Traffic Management Order), OR a period of parking for which no charge is payable as duly authorised (by a Traffic Management Order), in the present instance the said vehicle was permitted to be so parked until 8.30 a.m.

Evidentially I am not satisfied that the contravention occurred, accordingly I allow this Appeal.
--------------------------------------

Mick

Posted by: cp8759 Fri, 7 Dec 2018 - 11:28
Post #1440273

Traffic Penalty Tribunal decision on will / may; plus failure to understand representations, pdf link: https://www.scribd.com/document/395140820/Anthony-Hall-v-Kent-County-Council-with-Tunbridge-Wells-BC

Anthony Hall v Kent County Council (with Tunbridge Wells BC) (case reference JU-00042-1810)

1. This appeal relates to a penalty charge notice (PCN) issued to Mr Hall for a bus lane
contravention alleged to have occurred on 14 October 2018.

2. Mr Hall has submitted his appeal on the ground that the penalty demanded exceeds the
amount payable. This is not on the usual basis that the penalty charge is excessive or
exceeds the sum the council are authorised to charge, but that the council have failed to
follow that statutory scheme for enforcement of the PCN so the only penalty which may be
demanded is zero. He puts forward 2 reasons which I summarise as follows: -

1. That the penalty charge notice was not worded in accordance with Regulation 8(5)
of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement)
(England) Regulations 2005 and

2. That the council did not properly consider the representations he put forward in
response to the PCN.

3. The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England)
Regulations 2005 (the regulations) set out the procedure to be adopted in the
enforcement of PCNs issued for alleged bus lane contraventions.

4. Regulation 8(5) states:
(5) A penalty charge notice must state—
(k) that if at the end of the 28 day period—
(i) no representations have been made; and
(ii) the penalty charge has not been paid, the authority may increase the penalty
charge by a half and take steps to enforce payment of the charge as so
increased;


5. Regulation 10 states:
10.—(1) Where representations are duly made to an authority under regulation 9
and they are made within the 28 day period, it shall be the duty of the authority—
(a) to consider them and any supporting evidence provided;
(b) in relation to each ground on which representations are made, to serve on
the person by whom the representations are made notice of their decision as
to whether or not they accept that the ground has been established.


6. The PCN

a) The PCN served by the council includes the following wording: -
If full payment has not been received or you have not made representations to the
Council, then after the last day of the period of 28 days beginning with the date on
which the Penalty Charge Notice was served the charge will be increased by 50% to
£90 and a Charge Certificate may be sent to you.


b) Mr Hall contends that this wording is not compliant with Regulation 8(5)(k) quoted
above because it says that the charge will be increased rather than may be increased
as specified in the regulation. He submits that this wording means that the increase is
a foregone conclusion and that the council’s discretion has effectively been fettered.

c) Mr Hall relies on various previous tribunal decisions and a decision of the High Court.
The decisions all relate to alleged parking contraventions, but the issues dealt with in
each case are relevant to the issues raised by Mr Hall. The tribunal decisions are not
binding on me, but they are persuasive.

d) In response the council submitted that the previous decisions were different to the
current case because in each of the cases referred to the council had said in their
documentation that a charge certificate would be sent, in addition to the charge being
increased, whereas their PCN clearly said that a charge certificate ‘may’ be sent. They
went on to submit that this meant that they were not fettering their discretionary power
and that the PCN, when read as a whole, conveyed the meaning intended.

e) The council went on to say that, in practice, their IT system works by applying a
‘progression’ at specific points. The relevant progression here would be ‘Charge
Certificate Produced’ which would result in the production of the charge certificate and
increase in the sum payable at the same time.

f) The wording of regulation 8 is that the PCN ‘must state that’ and I take this to mean
that the precise words are not mandatory, but that the wording used in the PCN must
accurately convey the information set out in the regulation.

g) The wording of the regulation makes it clear that the word ‘may’ applies both to the
increase in the penalty charge and to the taking of further steps in enforcement,
however, the PCN sent by the council does not reflect this and I therefore find that the
wording used does not correctly convey the meaning of the regulation.

h) I note that the council system means that the charge does not in fact increase until
the point when the charge certificate is issued, but, whilst this may mean that no
prejudice results, it does not alter the fact that the recipients of the notice are likely to
understand that the increase is automatic once the 28 days have passed.

i)Mr Justice Jackson, in the case of R (on the application of the London Borough of
Barnet Council) v The Parking Adjudicator [2006] EWHC 2357 (Admin), made it clear
that this is not relevant at paragraph 41:
Mr Lewis submits that even if there was non -compliance in this respect,
nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I
do not accept this submission. Prejudice is irrelevant and does not need to be
established. The 1991 Act creates a scheme for the civil enforcement of parking
control. Under this scheme, motorists become liable to pay financial penalties
when certain specified statutory conditions are met. If the statutory conditions
are not met, then the financial liability does not arise.

That case dealt with the law under the 1991 Road Traffic Act, but the principles are
the same and my view is that prejudice is irrelevant in this case.

j)In the same case, at paragraph 38, Mr Justice Jackson said:
The statutory requirements are simple and clear. Compliance is not difficult.
My view is that the regulations set out in similar, simple terms what the council are
required to say in their PCN’s, and I reach the same conclusion, there is no excuse
for a failure to comply.

k)As mentioned above, the cases referred to by Mr Hall all refer to parking
contraventions and the tribunal cases were dealt with under the parking
contravention regulations which give procedural impropriety, ie a failure to comply
with the regulations, as a ground of appeal. Such a ground does not exist under the
bus lane enforcement regulations. However, the Barnet case pre-dates those
regulations and the appeal was allowed by the Tribunal on the basis that the PCN
was not valid and could not be enforced. That decision was upheld by the High Court.

l) For the reasons given, I find that the PCN issued by the council in this case was
invalid.

7. The notice of rejection

a) In his representations to the council, Mr Hall set out the issue he raises in his appeal
with regard to the wording of the PCN and submitted that, as a result the amount
which the council could demand was nil. He set this out clearly and briefly, referring to
the wording in the notice and to one of the tribunal decisions he referred to in his
appeal.

b) In reply, the council said:
You have stated that the amount charged by the council exceeds the amount that we
are allowed to charge.
The penalty amount has been set at £60 and is reduced to £30 if paid in 14 days
from the date that the PCN was served. These charges have been set and published in
line with the requirements of the Bus Lane Contraventions (Penalty Charges,
Adjudication and Enforcement) (England) Regulations 2005 and approved by the
Secretary of State.
If you would like to refer to the previous correspondence we sent you posted
18/10/2018, it clearly states “A reduced charge ( discounted by 50% ) of £30.00 is
payable if it is received not later than the last day of the period of 14 days beginning
with the date on which this notice was served. This Notice will be taken to have been
served on the second working day after the date of posting.”


This clearly demonstrates that the writer did not understand the issue raised by Mr
Hall. I appreciate that the members of the council staff who deal with representations
are unlikely to be legally trained and that the point raised by Mr Hall is of a technical
nature. However, my view is that the essence of the issue should have been
understood if the representations had been considered with any care. If the writer was
unable to understand and respond to them, he should have sought advice from a
more experienced officer.

c) As the council did not deal with the issue which was actually raised, I find that they did
not comply with the requirements of Regulation 10 set out above. As already stated,
there is no ground of procedural impropriety, but the council have a public duty to act
fairly in the exercise of their statutory powers. See R v Secretary of State for the Home
Department ex parte Doody [1994] 1 AC 531 Lord Mustill, ‘Where an Act of
Parliament confers an administrative power there is a presumption that it will be
exercised in a manner which is fair in all the circumstances
’. In my view the Council’s
failure to properly consider Mr Hall’s representations and to explain why they were
rejected, was a breach of this common law duty to act fairly.

8. For the reasons given, I allow the appeal, which means that there is nothing for Mr Hall to
pay in respect of this PCN.

Posted by: Mad Mick V Sun, 9 Dec 2018 - 22:09
Post #1440907

City of London attempts to enforce a two year old PCN

"the appellant has been prejudiced by the extraordinary and unexplained delay in this case"


2180437750

The appellant contacted the tribunal to indicate that she could not attend but was content for the matter to proceed in her absence. The Enforcement Authority did not attend.

The appellant’s notice of appeal indicated that she was not the driver of the vehicle at the material time but acknowledged that she was liable. She stated that she had received the Penalty Charge Notice two years after it was issued and could not afford to pay the full amount of the Penalty Charge Notice in one payment. The appellant detailed her personal and financial circumstances.

The Enforcement Authority resisted the appeal and provided a detailed chronology of events. The Penalty Charge Notice was issued on 15/03/2016; a Notice to Owner was issued on 14/04/2016; a Charge Certificate was issued on 23/05/2016 and a reminder was sent on 22/06/2016. The matter then lay dormant until 30/08/2018 when the Enforcement Authority registered the matter as a debt, and on 31/08/2018 an order to recover the unpaid penalty was issued. Thereafter the appellant successfully lodged a witness statement (stating that she had not received the Penalty Charge Notice or NTO) and a new notice to owner was issued. Representations were made and rejected and the matter is now before me.

The appellant made express reference to the delay in her notice of appeal yet the Enforcement Authority have failed to explain what caused the inordinate delay of over 2 years between June 2016 and August 2018.

A balance has to be struck between administrative practically and fairness. The regulations expect that matters are dealt with timeously. For example, representations must be responded to within 56 days, charge certificates are usually issued after 28 days and appeals must be lodged within 28 days. All of these time limits are designed to ensure that matters are concluded swiftly.

The appellant states she was not the driver and has lost the opportunity to gather evidence as to what the prevailing circumstances may have been at the material time. The Traffic Enforcement Centre accepted her declaration that she had not received the Penalty Charge Notice or Notice to Owner. Had the Enforcement Authority acted promptly the appellant may well have been better placed to challenge this matter. It is unlikely a motorist will be able recall what happened in March 2016.

Undoubtedly the appellant has been prejudiced by the extraordinary and unexplained delay in this case.

I am satisfied that fairness and the unique factual circumstances of this case demand that this appeal be allowed.
----------------------------

Mick

Council revokes a permit but does not inform the holder

An abuse of process.

2180435584


The PCN was issued in this case, and the vehicle removed, on the basis that the Appellant had no permit. The reason she had no permit on the date of the observation was that the permit which she had been granted by the Council, and on which she had relied on to park for virtually a whole year without difficulty, had been revoked by the Council without her knowledge. This seems on the face of it a very unsatisfactory state of affairs.

The Council revoked the permit on the 21st August. The reason for doing so was that the Appellant had not provided a copy of the V5 registration document. It submits that the Appellant was on notice from the conditions in the terms and conditions for parking permits that the permit could be revoked if this was not produced and that in addition notice of the revocation was sent by e-mail on the 6th August, as shown in its records provided in evidence.

In my judgement the Council having issued a motorist with a permit cannot revoke it and then penalise her for not having one unless it has given clear notice that it has done so (and thereby giving the motorist a fair opportunity to re-apply or to move the vehicle elsewhere).

The essential question in this case is therefore whether that proper notice was given. The Council’s “terms and conditions for parking permits” as follows: - “It is the responsibility of the applicant/account holder to upload the documents requested during the Camden Account application process. There is a 12- week period to provide this documentation after which a permit will be cancelled without refund”. The Council states that the V5 is one of these documents. However the Appellant submits that the web portal does not make this sufficiently clear. There is no copy of the relevant text in evidence before me and in its absence I am not be able to be satisfied that the requirement was clearly made , and hence that there was a risk of any permit that was issued being revoked if it were not provided.

Even if the requirement was made clear, and the Appellant thereby put on notice that the V5 had to be uploaded within 12 weeks, it seems to me the inordinate and unexplained delay in subsequently acting on the indication, and revoking the permit, would operate to entitle the Appellant to take it that the Council was satisfied with the documentation already provided. For the avoidance of doubt the mere fact that the Council went ahead and issued a permit without sight of the V5 would not of itself avail the Appellant. The clear indication in the terms and conditions relates to the possibility of the revocation of a permit - which of course necessitates the existence of an issued permit in existence to be revoked. However the permit having been issued on the 25th September the Council did not revoke it until the 21st August, something in the region of 8 months after the expiry of the 12 week deadline. At this stage the Appellant was entitled to assume that all was in order and very clear notice of any cancellation was required.

The Council states that a “permit validity check reminder” was sent to the Appellant by e-mail on the 6th August. However no copy of that e-mail is in evidence, and on the face of it this appears to be no more than a “reminder” to provide documents, not a notice of impending revocation. Nor is it clear that the Appellant’s e-mail address is one of those on the “subscribers of 12 week permit reminder e-mails”. The fact that the "parkmobile permit history" is headed as showing the permit valid “25/9/18 -21/08/18 does not give one much confidence in the accuracy of these records. Be that as it may it seems to me that even if some sort of notice was sent and arrived somewhere in the Appellant’s email its effect would be entirely countermanded by the issue of the renewal reminder only a few days later. This starts “We are writing to you as our records show that your resident parking permit is soon to expire” This plainly suggests that the permit is still in force, and gives no hint of a pending revocation.

I am therefore not satisfied either that the requirement to produce a V5 was made clear or that if it was, adequate notice was given of the revocation of the permit for failing to comply with such a requirement. This is therefore a case where the absence of a valid permit was caused purely by the actions of the enforcement authority itself. Allowing the Council to enforce a penalty in these unusual circumstances would amount to the equivalent of an abuse of process, and in such a case no enforceable contravention can be said to have occurred (see the dicta in Camden v The Parking Adjudicator and BHS t/a First for Food Service Ltd [2011] EWHC 295 Admin [2011]EWCA Civ 905). The Appeal is therefore allowed.
____________________

Mick

Posted by: Mad Mick V Sun, 9 Dec 2018 - 22:19
Post #1440913

A prohibited turn contravention must state the direction on the PCN

2180443028 (Extract)

The PCN is in my judgement compliant on that basis save in one fatal respect. The Appellant points out that the PCN does not specify what sort of prohibited turn is relied on. It seems to me that this information is essential in order for the PCN to comply with the requirement that it set out the grounds on which a penalty is demanded. Certainly one has to take into account the photographs, if any, on the PCN but I do not regard the single photograph on the PCN in the present case as so obviously showing a right turn as to relieve the Council of the simple task of using words to that effect as most Councils do.

On that basis alone the PCN is defective. It follows that no penalty may be demanded on the basis of it and the Appeal is allowed.
------------------

Mick

Posted by: John U.K. Fri, 4 Jan 2019 - 16:38
Post #1447565

Successful [Council DNC] appeal against Mare Street Left Turn (LB Hackney)

see
http://forums.pepipoo.com/index.php?showtopic=125104

Posted by: Mad Mick V Sun, 6 Jan 2019 - 15:53
Post #1448115

Yellow Box Contravention with exit space to accommodate a vehicle

2180461449

Mr Mills did not attend for his appeal hearing listed today. I decide the appeal on the written evidence of both parties and the CCTV footage.

Mr Mills denies the contravention.

The contravention occurs if a person causes a vehicle to enter the box junction so that all or part of the vehicle has to stop within the box junction due to the presence of stationary vehicles. The Enforcement Authority does not have to prove that the vehicle caused any obstruction to other road users.

The CCTV footage shows the appellant’s car drive into the box junction and stop with the front part of the car in the box. The footage shows that there is a gap between the far edge of the box and the back of the car stopped a short distance beyond the box. I find that it is unclear from the footage that this gap is insufficient to accommodate the appellant’s vehicle. I am not satisfied that the appellant’s car had to stop in the box junction due to the presence of stationary vehicles.

I allow this appeal.
___________________
+ 2180467106
Mick

Posted by: Mad Mick V Sun, 6 Jan 2019 - 16:15
Post #1448120

Phoenix Way---now Norwood Road ergo the TMO is suspect.

2180474156

Mr Hothi attended. He raises a number of issues in relation to this Penalty Charge Notice. The appellant has made detailed submissions and provided a number of photographs and other documents.

One of the issued raised is that the Traffic Management Order does not create the contravention alleged.

The Penalty Charge Notice was issued for the contravention of failing to comply with a prohibition on certain types of vehicles. The Penalty Charge Notice alleges that the vehicle was seen in Phoenix Way Services.

The local authority provides a copy of Traffic Management Order 53 of 2015. Article 4 (9) of that Traffic Management Order states that:

No person shall cause any motor vehicle to proceed in any length of road specified in column 2 of schedule 9 …unless otherwise stated in column 3 of the schedule.

Traffic Management Order 38 of 2018 which came into operation on 5th May 2018 adds item 12 to schedule 9 of the 2015 Traffic Management Order. Column 2 refers to Phoenix Way Honslow at its junction with Norwood Road. The Traffic Management Order as an explanatory note states that it introduces prohibitions in Phoenix Way at its junction with Norwood Road.

There is a typographical error in the Traffic Management Order as it states Honslow and not Hounslow. The contravention created is to prohibit vehicles proceeding in Phoenix Way.

The CCTV footage shows the appellant’s car in Phoenix Way driving past the traffic signs into a road that is next to the M4 services.

The local authority provides an image from google maps. It shows Phoenix Way as a road turning off Cranford Lane and curving to the left. The map is annotated to show where the no motor vehicles signs are situated. The google map shows that Phoenix Way continues beyond the signs. This map does not show Norwood Road.

The local authority also provides a map that is referred to as a Highways Register map of Phoenix Way. This map has been marked to show the junction with Norwood Road at the point of restriction. This map does not show where Norwood Road is situated. Phoenix Way is marked.

Mr Hothi ( Annex 5) provides a map he obtained from the local authority’s website. It refers to the plan for restricted access. This plan does not show Norwood Road. Mr Hothi also provides a plan of the proposed location of traffic signs. (Annex 10) This was also obtained from the local authority website. This is the only map on which Norwood Road is marked. It shows that the part of Phoenix way that on the google map continues adjacent to the service station is renamed Norwood Road.

The Traffic Management Order prohibits vehicles proceeding in Phoenix Way at its junction with Norwood Road. It does not prohibit vehicles proceeding in Norwood Road at its junction with Phoenix Way.

I have seen no evidence that the service road has been renamed Norwood Road notwithstanding that the Traffic Management Order refers to Norwood Road. However as the Traffic Management Order refers to Norwood Road it would appear that part of Phoenix way has been renamed.

I allow this appeal because I find the Traffic Management Order creates a contravention in Phoenix Way but the footage shows the vehicle drive from Phoenix Way into a road which on the local authority’s evidence is now called Norwood Road.

As I allow the appeal on that basis I do not need to consider the other points raised.
-------------------------------

Mick

Posted by: Mad Mick V Sun, 6 Jan 2019 - 16:45
Post #1448133

Another "double jeopardy" rebuttal of the Sect 36 sign v TMO ground of appeal

This one will affect cases in Oldchurch Rise, Blackwall Way and Rye Lane and I strongly disagree.

2180362323

A contravention can occur if a vehicle is driven so as to use a route restricted to certain vehicles.

There appears to be no dispute that the vehicle was in Blackwall Way, London E14, as shown in the closed circuit television (cctv) images produced by the Enforcement Authority.

The vehicle is seen to pass the sign which clearly indicates that the route is restricted to buses and pedal cycles only.

Mrs Rosshandler’s case is that the wording of the Penalty Charge Notice is incorrect and that the signage is confusing.

Section 4 (5) of the London Local Authorities and Transport for London Act 2003 and the Road Traffic Act 1988 provides that [. . .] for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle (a) acts in contravention of a prescribed order; or (b) fails to comply with an indication given by a scheduled section 36 traffic sign.

This is subject to subsection 6 which provides that no penalty charge shall be payable under subsection (5)(a) above where the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.

The purpose of this provision is simply to prevent the possibility the motorist being in double jeopardy of paying a penalty for two aspects of the same contravention. A motorist contravening a sign cannot also be required to pay penalty for contravening the Traffic Management Order.

The vehicle in the present case was in breach both of the order and the sign indicating its effect. Only a single Penalty Charge Notice was issued demanding penalty charge. If the Enforcement Authority was demanding payment of the penalty charge for the breach of the Order then it is indeed difficult to see how it could lawfully do so in view of the plain wording of Section 4(6). However, the Penalty Charge Notice in this present case makes no reference to breach of the Traffic Management Order and simply states on its face that the ground on which it is believed a penalty is payable as ‘using a route restricted to certain vehicles (local buses and cycles only)’.

I find that the wording of this Penalty Charge Notice does not commit itself firmly to demanding a penalty purely on the basis of a breach of the Order and therefore does not breach Section 4(6). The remaining question is therefore whether the wording used is adequate to indicate to the motorist that there is a traffic sign that has been contravened. It seems to me that it does.

It does remain the responsibility of the motorist to check carefully at all times whilst driving their vehicle, so as to ensure that they do so only as permitted and that this will remain the position for as long as the vehicle will be there. This includes making sure that they comply with all restrictions and prohibitions indicated by the signs.

The sign itself appears to comply with the prescription of Diagram 953 at Item 33 in Part 2 of Schedule 3 to the Traffic Signs Regulations and General Directions 2016, being a permitted variant therefor and indicating a route for use by buses and pedal cycles only.

One sign is placed on each side of the carriageway and each is clear an unobstructed. Further there is a legend on the surface of the carriageway indicating that the route is for buses and cycles only.

Considering all the evidence before me carefully I must find as a fact that, on this particular occasion, a contravention did occur and that the Penalty Charge Notice was valid and properly issued.

Accordingly this appeal must be refused.
---------------------------------------------------
Mick

Posted by: Mad Mick V Sun, 13 Jan 2019 - 21:16
Post #1450980

"Fraudulent" use of a Blue Badge is not within the purview of the Adjudicator

2180470133


This is an appeal against a penalty charge notice for parking in a disabled bay without displaying a valid disabled badge.

In short, the Respondent says that the disabled badge was not valid due to the fact that it was not being used by a disabled person but was in fact being used by his Brother in a manner which was incorrect.

The Appellant says that the badge was being used in a correct manner and he was present with his brother.

In short, the Respondent has launched a targeted investigation into blue badge fraud in their area and determined that on this occasion the badge was being used fraudulently.

This places the Tribunal in an unusual position. The Respondent is alleging, effectively, criminality on the part of the Appellant. They say, as a result of that criminality that the blue badge (which was displayed perfectly properly from the perspective of badge and clock), was invalid because the Appellant's brother was not present and it is to him whom the blue badge relates.

The Respondent has provided some evidence to support their position in this regard and I am able to understand why they issued the PCN. However, there is no finding to a criminal standard (by a competent Court) that this is proved.

It follows there are evidential and legal difficulties with their approach. Firstly, the Respondent is bound to prove on the balance of probabilities that the blue badge was being used incorrectly. On the evidence before me, I am not so satisfied. I had witness evidence which had no declaration of truth attached to it and involved hearsay.

Also, I was obliged to (and did) warn the Appellant as to his right against self-incrimination. I take the view that it is not appropriate for me, in this Tribunal to make findings of fact as to the validity of the blue badge which would necessarily involve findings which may amount to criminality.

I have therefore looked at the circumstances in the round and determined as follows: the badge was displayed correctly in the sense that it was face up and the clock was showing. I decline to make any further findings as to the allegation that it was being misused at the material time, I do so as I am of the view that I do not have the statutory authority to do so. My authority is strictly limited by statute and I am acutely aware of the fact that the Appellant is a lay person who may be unaware of his common law and statutory rights.

I therefore allow the appeal as I am not satisfied to the civil standard that the contravention occurred. I decline to make any findings as to the allegation that the Blue Badge was being used fraudulently.

----------------------------

Mick

Posted by: Mad Mick V Sun, 13 Jan 2019 - 21:42
Post #1450992

A good exposition of "Abuse of Process"

One CEO says it's OK to park a second CEO issues a PCN-----not a procedural impropriety.

2180486406

Mr. Yousaf appeals against this penalty charge notice (PCN) on the basis of a procedural impropriety. The impropriety alleged is that the enforcement authority (EA) has issued and sought to enforce the PCN in circumstances where it is fundamentally unfair to do so.

The case is based on the factual circumstances described by Mr. Yousaf in his detailed notice of appeal, its appendices and his representations to the EA. He says that on the day in question he (he says ‘we’ but it is plain he was present at the time) parked the vehicle and went to a ticket machine where he inserted £2 into it, sufficient to pay for an hour’s parking. It did not produce a ticket. He spoke to a civil enforcement officer (CEO) who apologised and issued a note to be displayed in the windscreen so the vehicle did not receive a ‘ticket’ (in this context meaning PCN). The note was written on a blank PCN from the CEO’s machine and permitted the vehicle to remain until 6pm. The CEO said they would not get a PCN. Mr. Yousaf has provided a copy of the note in question. Mr. Yousaf has also provided a letter from a Miss Day who was present at the scene and corroborates Mr. Yousaf’s account. I do attach some, limited weight to the letter, which is signed.

The best corroboration for Mr. Yousaf’s account comes, however, from the photographs taken by the CEO who noted the alleged contravention at 16.58 and issued the PCN. One of the photographs shows a close-up image of a note in the windscreen. It is the original of the copy provided to this tribunal by Mr. Yousaf. The note is handwritten on a blank PCN and bears the logo of the EA. It reads, ‘Picked 2.00 pounds by machine. End time 18.00pm’. The visible presence of the note at the time of the alleged contravention is consistent with Mr. Yousaf’s account. The word ’picked’ on the note does not particularly make sense but the intended meaning of ‘end time’ shows that the note amounts to a permission for the vehicle to remain until 6pm that day.

The EA points out, correctly, that no pay-and-display ticket was displayed and that parking had not been paid for on the telephone payment system. The EA also points out, correctly, that the CEO who issued the PCN says he did not see the driver. But that is not what Mr. Yousef alleges. His case is that it was a different CEO who provided the note. The EA does not appear to have spoken to all CEOs who were on duty in that area at the relevant time to ascertain what, if anything, they know about the provision of this note to Mr. Yousaf. There is no evidence, therefore, that all the CEOs were spoken to and denied providing it. The EA has not engaged with the issue of the provenance of the blank PCN at all. The EA does not allege that it is a forgery or that it might have come from a stolen batch. On the face of it, this is a genuine blank PCN of a type that is kept in the possession of, and issued by, CEOs employed by the EA pursuant to s.76 of the Traffic Management Act 2004 (“the TMA”).

On the basis of the evidence of Mr. Yousaf, Miss Day and the photographic evidence of the blank PCN I am satisfied on the balance of probabilities that this document is genuine. The EA provides no alternative explanation for how Mr. Yousaf could have obtained the document. I therefore also find that it was provided by a CEO (albeit not the CEO who later issued the PCN) in the circumstances described by Mr. Yousaf and Miss Day. That is to say, a CEO employed by the EA pursuant to s.76 of the TMA and acting with its actual or ostensible authority, provided it in acknowledgement of the payment of £2 and permitting, or purporting to permit, the vehicle to remain there without penalty until 6pm. Although there is no express evidence on the point, I infer that, if he had not been provided with this assurance and the accompanying note, Mr. Yousaf would not have left his car in the car park with all the risk that it would have – quite rightly – received a PCN. I find that when he left the vehicle he was satisfied he would not receive a PCN.

Nonetheless a different CEO came along, ignored the note and issued a PCN.

What are the legal consequences of these findings of fact for the enforceability of the PCN that was issued?

The parameters of the concept of a ‘procedural impropriety’ within the meaning of the TMA and the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 were considered by Mr. Justice Burnett (as he then was) in London Borough of Camden v. The Parking Adjudicator (BFS Group 03568 t/a First for Food Service, Lee Sugden, Aidan Brady intervening) [2011] EWHC 295 (Admin). In that case Burnett J held that a procedural impropriety was confined to the definition in Regulation 4(5) of the 2007 Appeals Regulations. That sub-paragraph confines a procedural impropriety that renders a PCN unenforceable to a failure by the EA to observe a procedural requirement imposed by the TMA or either set of the 2007 Regulations. In this case, no such procedural impropriety is alleged or, indeed, present. The procedural requirements of the TMA and the two sets of 2007 Regulations have been complied with. In reality, Mr. Yousaf’s case is not that there has been a procedural failing within the meaning of Regulation 4(5) but that the decision to issue and to seek to enforce the PCN in the circumstances is more generally fundamentally unfair, or a breach of natural justice.

A challenge of such a type was referred, before the coming into force of the TMA and the 2007 Regulations, as a ‘collateral challenge’. There was ample authority that a traffic adjudicator could, in certain circumstances, order that a PCN should be cancelled on the grounds of some fundamental unfairness or procedural failing (see R v. Parking Adjudicator Ex parte Bexley LBC [1998] RTR 128 ). The judgment of Burnett J in London Borough of Camden at [46] makes clear that a ‘collateral challenge’ to a PCN issued pursuant to the TMA and 2007 Appeals Regulations must now be framed within the parameters of those Regulations; there is now no longer a general power to order the cancellation of the PCN on the basis of a collateral challenge as such. I turn then to consider the grounds of appeal within the parameters of the 2007 Appeals Regulations.

As I have said, there is no procedural impropriety here, nor is the traffic management order invalid. The 2007 Regulations also provide that a traffic adjudicator may make a recommendation to an EA in certain circumstances that a PCN should be cancelled, a possibility considered by Burnett J at [48]. That would not be an appropriate remedy in this case because there would remain a possibility that the EA could decline my recommendation. If that occurred the unfairness would not be cured.

At [53] of the London Borough of Camden case, Burnett J spoke of a further type of a ‘collateral challenge’ that did not sit comfortably in the above categories. It is based on the fact that parking contraventions typically used to be criminal offences. Parliament cannot have intended, in changing the status to that of a civil contravention, to have removed a defence that a motorist might have had before the criminal court. In certain, limited circumstances, it is open to a defendant in a criminal case to have the proceedings stayed on the grounds they are an abuse of the court’s process. The jurisdiction arises in two sets of circumstances (R v. Beckford [1995] R.T.R. 251 at 258) “(a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried.” It is collateral challenge of the second type in Beckford that arises for consideration here. Burnet J said; “… conduct on the part of the enforcing authority prior to the alleged contravention which would have made it an abuse to prosecute would be covered by this ground”. Expressed within the parameters of the 2007 Appeals Regulations, conduct that, if proved, would amount to an abuse of the process of a criminal court would mean that the alleged contravention would not be proved.

This type of parking contravention used to be a criminal offence contrary to s.35A of the Road Traffic Regulation Act 1984. Its status was changed in London to that of a civil contravention by s.65 of the Road Traffic Act 1991.

I turn then to consider whether the issuing and enforcement of the PCN in this case would amount to an abuse of process in the criminal court. There is no doubt that it is only in exceptional circumstances that a court would find that an abuse had occurred. The appropriate test for whether a prosecution amounts to an abuse of process in circumstances such as these is to be found in the case of R v. Abu Hamza [2006] EWCA Crim 2918 at [54]. After a review of various authorities, the then Lord Chief Justice said:

“These authorities suggest that that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment.”

I have found that there was a clear and unequivocal representation by the first CEO that Mr. Yousaf encountered that no PCN would be issued. A CEO is a person appointed under the TMA with conduct of investigations into parking contraventions. The only apparent condition to the representation was that the note was displayed. That condition was fulfilled because the note, written on a blank PCN was displayed in the car. Mr. Yousaf was satisfied, and entitled to be satisfied, that he would not receive a PCN, based on what the CEO had told him and what the CEO had done in providing the note.

Mr. Yousaf acted on that assurance to his potential – and actual – detriment. Had he not received the assurance he would not have left his car and would not have been exposed to the possibility – and the reality – of proceedings for the enforcement of the PCN. He could have – but did not - recover the £2 he paid. The reliance on the assurance has transpired to be entirely detrimental, save that the note written by the CEO permitted perhaps a few minutes more parking time than would normally be purchased for £2. I consider that irrelevant.

If this matter were prosecuted as it would have been prior to 1991 in a criminal court Mr. Yousaf would, in my view, have succeeded in an application to stay the proceedings as an abuse of the court’s process. The facts of this case are exceptional. It is, on the basis of my findings of fact, fundamentally unfair to enforce the PCN. In those circumstances, and applying the principle identified in [53] of the London Borough of Camden case, I do not find the alleged contravention proved.

Although reference to costs was made by the appellant no expenses have been identified. In any event, I do not consider this a suitable case for costs. There were good arguments on both sides.
----------------------------------

Mick


Posted by: PASTMYBEST Mon, 14 Jan 2019 - 13:57
Post #1451221

Box junction contravention not strict liability offence,

2180478543

he main question to be considered is whether the authority has sufficiently complied with its duty to consider the representations and any supporting evidence from Mr Nelson, in particular whether Mr Nelson was at fault for the action that he took.
Mr Nelson has stated in the representations that: "Upon the green light filter, I could see a space into which I could move. It was only on proceeding into said space I realised the space may not have been entirely sufficient for my vehicle, but I was comfortable I was not affecting the passage of any other vehicle... ."
In its response the authority stated: ".... The purpose of box junctions is to keep busy junctions clear and free-flowing. If you are going straight across a box junction, you need to make sure you can cross it without stopping. If you are turning right and your exit road is clear, you may stop on a box junction while you wait for oncoming traffic to pass. We have looked again at the camera evidence, as well as considering your points in your letter, ... ."
I find as fact that: it was after Mr Nelson had already entered the box junction that he was able to acquire the knowledge that there was insufficient space on the left hand side for him to enter; Mr Nelson was not at fault for the action that he took.
The contravention is not one of strict or no fault liability
I am unable to be satisfied that the authority has complied with its duty to consider Mr Nelson's representations because it has not taken into sufficient consideration the requirement that Mr Nelson needed to have prior knowledge of the unlawfulness of the fact that he stopped in the box junction.

Posted by: Mad Mick V Sun, 27 Jan 2019 - 11:18
Post #1455911

Free parking plus the 10 minute rule

Waltham Forest

2180505690

This appeal is against a penalty charge notice (PCN) issued in respect of an alleged contravention of the prohibition on waiting beyond the permitted parking period in High Road, The Waltham Forest (Charged-For Parking Places) Order 2016 (“the Order”). The Order designates parking places, and creates condition of their use, within the meaning of s.45 of the Road Traffic Regulation Act 1984. Therefore, penalties for alleged contraventions of it are included in paragraph 2 of schedule 7 to the Traffic Management Act 2004. In relation to the designated parking places on High Road, the Order permits free parking for a maximum period of 15 minutes.

Mr. Mahmood’s case is that there is insufficient evidence that his vehicle was parked for a period in excess of the 15 minutes during which parking at the location in question is free. After 15 minutes, parking must be paid for. I do not accept Mr. Mahmood’s case, put as it is. It is right to say that the photographs themselves do not prove the vehicle was there in excess of 15 minutes. However, the EA has provided a screenshot from its computer records showing the notes entered contemporaneously by the civil enforcement officer (CEO). There is no reason to believe those records are not accurate and I accept the truth of the matters stated by the entries in the records. The records show that the vehicle was first observed in the location at 12.04. The penalty charge notice was issued at 12.27 and, as shown by the CEO’s photographs, had been served by 12.28. The evidence is to the effect that the vehicle was at the location for 23 minutes before the PCN was issued, and 24 minutes before it was served. Therein lies the flaw in the EA’s case.

Article 4 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (“the 2007 Regulations”) reads as far as is relevant, as follows:

“4. Imposition of penalty charges

(1) Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle

(a) a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London);

(2) Paragraph (3) applies in relation to a contravention mentioned in subparagraph (a) … of paragraph (1) where a vehicle is stationary in a designated parking place and the vehicle has been left beyond the permitted parking period.

(3) No penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes.

(4) In this regulation

(a) “designated parking place” means a parking place established by virtue of an order made under… section 45 of the Road Traffic Regulation Act 1984 2;

(b) “permitted parking period” means

… (ii) a period of parking for which no charge is payable as authorised by or under any order made relating to the designated parking place.”

Sub-paragraph 3 applies to a contravention of this nature where it is alleged that a vehicle has been left beyond the permitted parking period, which includes a period of parking for which no charge is payable. The effect of sub-paragraph 3 is that a PCN cannot be issued until 10 minutes past the permitted parking period has elapsed. In this case, there is no evidence that the vehicle had parked in the designated parking place before 12.04. The earliest a PCN could be issued, therefore, was 12.29. In this case, the PCN was issued prematurely. Only 8 and not 10 minutes had elapsed before the PCN was issued. Accordingly, the PCN is unenforceable on the basis the issuing of the PCN amounts to a procedural impropriety because there has been a failure to comply with the mandatory requirements of the 2007 Regulations. I therefore allow the appeal on that basis.
--------------------------------

Mick

Posted by: Neil B Fri, 1 Feb 2019 - 20:33
Post #1458055

UNREASONABLE DELAY 78 DAYS.

217042413A

Mr Aguilar appeals as he states that there was a delay by the local authority in responding to his representations. This meant that he was away on holiday at the time that the Notice of Rejection was issued and therefore lost the opportunity to settle the Penalty Charge Notice at the discounted rate.

Two Penalty Charge Notices were issued on 4th May 2017. They were for the alleged contraventions at the same location on 20th and 22nd April. Mr Aguilar representations were received by the local authority on 15th May 2017. The Notice of Rejections were issued on 31st July 2017. The Notice of Rejection offered the appellant the opportunity to settle the Penalty Charge Notices at the discounted rate out of time. The local authority is not obliged to re-offer the discounted penalty but it is usual for it to do so.

In its case summary the local authority does not explain why it took 78 days to respond to the representations. The Notice of Rejection does not refer to the delay or apologise for the delay. Mr Aguilar has provided evidence that he was abroad at the time that the Notice of Rejection was issued. The local authority does not refer to this in the case summary which states that the local authority is not prepared to re-offer the discounted penalty.

There is no statutory time limit by which a local authority must issue a Notice of Rejection for a Penalty Charge Notice issued for a moving traffic contravention. Had the Penalty Charge Notice been issued for a parking contravention and the local authority had failed to issue a Notice of Rejection within 56 days the representations would have been deemed to be accepted.

There was a delay issuing the Notice of Rejection for which the local authority offers no explanation.

I have considered the case of Davis and The Royal Borough on Kensington and Chelsea PAS Case 1970198981. The case considered the issue of delay. The adjudicator stated that the local authority is under a duty to act fairly and this includes taking steps to enforce the penalty within a reasonable time. The decision does not lay down rigid time limits but suggests that in a case without extraordinary features the authority should then respond to a notice to owner within 2 to 3 months.

The local authority did not respond to Mr Aguilar’s representations for 2 ½ months. I find that this is an unreasonable delay. I consider that the delay has means that the local authority has not complied with its duty to consider representations and and its obligation to act in a timely manner. I am not satisfied that the local authority has acted fairly.

I find that the local authority cannot now pursue any penalty against the appellant and so I allow the appeal.

Posted by: Mad Mick V Thu, 7 Feb 2019 - 19:24
Post #1459843

Free parking period and RingGo


2190001456 (Extract)

Further, the image of the sign notifying motorists of the restriction advises that a motorist 'must be registered with RingGo' to qualify for the initial free 30 minute period; nowhere on the sign does it inform motorists that contact must be made with RingGo to activate that free period.

Whilst it is incumbent upon a motorist to consult signage and comply with restrictions, it is incumbent upon an enforcement authority to ensure the signage implementing the terms of a Traffic Management Order is adequate to communicate the nature and extent of the restriction to motorists.I do not find that to be the case in this instance.

Evidentially I am not satisfied that the contravention occurred, accordingly I allow this Appeal.

________________________

Mick

Posted by: PASTMYBEST Tue, 12 Feb 2019 - 15:05
Post #1461438

Manchester Oxford rd bus gates consolidated decisions


https://1drv.ms/b/s!AtBHPhdJdppVqkNx3g8q3GPKWApV

Posted by: PASTMYBEST Tue, 19 Feb 2019 - 18:25
Post #1463342

Grace period does not apply to a setting down/picking up bay RR


2180462270

Mr Saunders attended today.
Mr Saunders appeals as he argues that a Penalty Charge Notice could not be issued for an alleged contravention at 18:47 on 12th September because the provisions of the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 apply.
The CCTV footage shows the appellant’s car stop in a red route bay at 18:41:43. The car is still stationary when the footage ends at 18:47:07. Mr Saunders states that his wife was driving his car. He was arriving by a delayed train at West Dulwich station. The bay is situated close to the station. The sign indicates that there is a red route. The lower part of the timeplate has the symbol P for parking and states 2 minutes pick up or set down only. I accept the appellant’s evidence that his wife was waiting in the bay for his train to arrive so they could drive home.
The Regulations referred to above amend The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 .
The amendment applies to a contravention where a vehicle is stationary in a designated parking place and the vehicle has been left beyond the permitted parking period. The amendment states that no penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes.
A designated parking place is a parking place established by an order under the Road Traffic Regulation Act 1984.
A permitted parking period means (i) a period of parking that has been paid for as authorised by or under any order made relating to the designated parking place or (ii) a period of parking for which no charge is payable as authorised by or under any order made relating to the designated parking place.
The Traffic Management Order was made pursuant to the powers in section 6 of the Road Traffic Regulation Act 1984.
Article 4 of the Traffic Management Order deals with exemptions for parking set out in Schedule 2B. Schedule 2B sets out the lengths of red route on which there are exemption for parking and disabled person’s vehicles. Item 30 of the Schedule creates the bay in Thurlow Park Road and states that the maximum period of parking is 2 minutes pick up or set down only.
I am satisfied that the bay in Thurlow Park Road is a designated parking place as defined by the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 .
In the case summary Transport for London states that it has applied the 10 minute ‘grace’ period created by the 2015 Regulations to Penalty Charge Notices issued when vehicles are parked in red route bays where free parking is allowed usually for up to thirty minutes. The local authority states that a Penalty Charge Notice will not be issued until the vehicle has been observed for 40 minutes.
Transport for London argues that the vehicle needs to be parked in a bay adhering to all the restrictions in place in order to apply the grace period. Transport for London refers to the bay in Thurlow Park Road as a special purpose bay and not a parking bay. Transport for London argues that as no picking up or setting down happened within 2 minutes the vehicle was not complying with the terms and conditions of use of the bay.
During the period of observation of the appellant’s car no picking up or setting down took place. The Traffic Management Order authorises parking for no more than 2 minutes for the purposes of picking up and setting down. I find that Article 2(2)(b) (4)(b) (ii) does not apply in this case because the car was not parked as authorised by the Traffic Management Order.
I am satisfied that Transport for London was entitled to issue a Penalty Charge Notice following an observation of less than twelve minutes.
Mr Saunders also argues that the sign at the location is unclear and does not comply with the Traffic Signs Regulations and General Directions 2016. The sign states red route but does not have a red route sign on the timeplate. The sign does not state no stopping.
Schedule 6 Part 1 Item 2 of the 2016 Regulations states that the sign must consist of, at least, the top and middle panels of the sign shown in the diagram at the beginning of this part. The top panel has the no stopping symbol. The middle panel states no stopping.
I am not satisfied that the sign in Thurlow Park Road complies with the Traffic Signs Regulations and General Directions 2016. For that reason I allow this appeal.

Authority Response


Decision Date
18 Feb 2019
Adjudicator
Carl Teper
Previous decision
Appeal allowed
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
This is an application by the Authority for a review of the decision in this case on the grounds that the Appeal Adjudicator was wrong to decide that the red route sign plate was not compliant with the regulations. No complaint is made in relation to all other findings made in the original decision.
The Appellant has not attended because he was given incorrect information in relation to the nature of the hearing today. He contacted the Tribunal and explained, in a telephone conversation to the Tribunal that has been recorded in the notes, that he would not be able to attend this hearing but would like to attend any hearing that may be scheduled after this one.
The Appellant should have been told that once a matter is listed as an application for review the Adjudicator may grant the application and move straight to a decision in the case.
I have decided that this review application is to be refused for the following reasons:
First, there have been a number of errors and delays in this case, these include Adjudicator error, Tribunal staff providing misinformation and a delay in the authorisations being received at the Tribunal from the Authority.
Secondly, the Appellant is undoubtedly unaware of the status of todays hearing.
Third, I find that it is not in the interests of justice to adjourn this case to enable the Appellant to attend again.
Fourth, the Appellant attended at the original hearing.
Fifth, I find that the interests of justice, which include finality and proportionality, are not served by delaying this appeal further.
I also note that at the original hearing the penalty amount was recorded as £130.00 whereas it is stated in the case summary that the penalty was £65.00.
The current authorisation of traffic signs and road markings for red route controls on GLA roads and GLA side roads was only received, in its entirety, at the Tribunal this morning when I had commenced hearing this review application. It is dated 17 September 2013 and is under reference number GT50/139/0110.
This particular authorisation, GT50/139/0110, replaced the authorisation dated 26 October 2011 under reference GT50/139/0035, which was revoked.
There was also an authorisation dated 25 April 2013 under reference GT50/190/003, which was in addition to two previous authorisations. The first of these was dated 9 May 2012 under reference GT50/190/001, and a second, dated 29 June 2012, under reference GT50/190/002.
There does appear to have been a number of authorisations, which, as delegated legislation, will not be contained within the Traffic Signs Regulations and General Directions 2016.
At the original appeal hearing the Appellant had argued that the sign plate was not compliant with the regulations. Having considered the current authorisation I find that the Appeal Adjudicator did fall into error in stating that the red route sign plate, at the location where the Appellant was stopped, was not compliant with the current authorised signs.
However, I find that in a situation where a red route sign plate is materially different from all other red route sign plates, in this case there is no rondel with its distinctive red cross, there should be a reference to this in the Notice of Rejection or in the case summary.
Accordingly, I find that the Adjudicator was entitled to reach the decision she did on the basis of the evidence before her.
The application for a review is refused.

Posted by: PASTMYBEST Fri, 15 Mar 2019 - 12:16
Post #1471138

Right turn exemption can ally at tee junction

2190062519

Adjudicator
Michael Lawrence
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons
The Appellant attended this hearing.
The contravention is that the Appellant "caused[d] a vehicle to enter the box junction so that [it] has to stop within the box junction due to the presence stationary vehicles”. The exemption for turning right applies to “any person who causes a vehicle to enter the box junction (other than a box junction at a roundabout) for the purpose of turning right; and stops it within the box junction for so long as it is prevented from completing the right turn by oncoming vehicles or other vehicles which are stationary whilst waiting to complete a right turn”- Law TSRGD regs 10(1) & 29(2), schedule 19 pt II clause 7.
The Highway code puts it clearly in this way:150: Box junctions. These have criss-cross yellow lines painted on the road (see Other road markings section). You MUST NOT enter the box until your exit road or lane is clear. However, you may enter the box and wait when you want to turn right, and are only stopped from doing so by oncoming traffic, or by other vehicles waiting to turn right. At signalled roundabouts you MUST NOT enter the box unless you can cross over it completely without stopping.Law TSRGD regs 10(1) & 29(2).
The cctv footage shows the Appellant’s vehicle making a right turn at a tee junction following another vehicle that was doing the same and that other vehicle stops just outside the box junction leaving insufficient room for the Appellant to clear the box junction and she is trapped in it.
The Appellant claims the turning right exemption, that she was only stopped from completing her turn as she entered the box ( at a tee junction ) by other vehicles which are stationary whilst waiting to complete a right turn. The counter argument is that when she stopped in the box the vehicle ahead had completed the right turn and was not waiting to do so and it is a that point you judge whether the exemption applies not when the vehicle ( that has allegedly contarvened) first entered the box junction. I am aware of different opinions amonst adjuducators ( there has been no court determination of the point) and that some would rule that the exemption applies in these circumstances.
The Appellant had obatined face book dicussions with the Enforcement Authority in which they have specifally advised a motorist in relation to this t junction that you may enter a yellow box junction when waiting to turn right and this is exactly what the Appellant did. The logic of the situation supports the Authorities’ face book advice. From freedom of information replies they have stated that the box junction was placed there for the specific purpose of facilating right turns from Lower Sunbury Road and to do this must entail a vehicle waiting in the box junction to complete their right turn manouvre. Moreover, the FoI revealed that contary to the guidelines in the Signs Manual the Enforcement Authority did not consult the police before creating this box junction.
Where an Enforcement Authority publiclly declare an enforcement policy or particular interepation of a traffic regulaion/restriction they are bound by that even if it contradicts a different and possibly correct interpretitation of the restriction it or attempted enforcement.
As the Appellant acted in accordance with the Enforcement Authority public advice her appeal must be allowed. If I am wrong about that, then I would rule that in any event the right turn exemption applies.

Posted by: Mad Mick V Fri, 22 Mar 2019 - 14:11
Post #1473016

The practice of using Witness Statements to delay payment--Councils now seeking costs

2180070951

Contravention Parked resident/shared use without clearly display
Direction Date 08 May 2018
Adjudicator By Order of the Chief Adjudicator
Direction Full penalty charge notice amount stated to be paid within 28 days.
Reasons The adjudicator required you to produce evidence to support your witness statement/declaration.
You have not responded and /or the penalty has not been paid.
-----------------------------------------------------------

Decision date 20 Mar 2019
Adjudicator Anthony Chan
Decision Cost award allowed
Direction -
Reasons
The Appellant made a Witness Statement in January 2018 to the effect that he made representations to the Authority but had not received a reply. The County Court made a Revoking Order and the matter was referred to the Adjudicator. The Adjudicator directed the Appellant to pay the penalty.

In August 2018 and January 2019, the Appellant made two further Witness Statements to the effect that he appealed to the Adjudicator but had not received a response. It is not clear how the Appellant was able to make an appeal if, as he had previously declared, he did not receive a Notice of Rejection. The Adjudicator found that the Appellant’s Witness Statements had no merit and made orders for payment of the penalty. The Appellant was directed to pay the penalty.

I am asked to consider the Authority’s application for costs against the Appellant. Neither party attended the hearing today. The Appellant was informed that the Authority has applied for their costs. The Appellant has made no submissions in relation to the application.

The Witness Statement procedure is designed to assist when, for example an appellant has genuinely not received a notice and then lost the right to appeal within the prescribed time limits or that when the Appellant had not received a response from the Tribunal having made an appeal. It is the prescribed process and the fact that it has been used does not of itself mean that the party doing so has acted frivolously or vexatiously or that such conduct was wholly unreasonable. On the other hand, the process is not designed to be used as a way to indefinitely postpone payment of a penalty charge due

I am satisfied that costs should be awarded in this matter. The amount awarded includes the referral costs and administration costs.
________________

Mick

Posted by: Mad Mick V Fri, 22 Mar 2019 - 14:23
Post #1473025

Redbridge Car Parks ----Prevented from Paying

We know that Redbridge have let their ticket machines decay and become unusable but this one relates to their Pay By Phone scam.

2180509840

The Appellant is appealing a Penalty Charge Notice issued in respect of parking in a car park without clearly displaying a valid ticket at the above location.

The matter is listed for personal hearing and the Appellant has attended and given evidence.

The Enforcement Authority relies upon the contemporaneous evidence of the Civil Enforcement Officer, a copy of the relevant Traffic Management Order and a copy of the PCN.

The Appellant contends that he was willing and able to pay for his parking but was prevented from doing so by the system operated by the Council.

I have carefully considered all the evidence in this matter, including the oral evidence of the Appellant which I found to be credible and thoughtful.

TheAppellant parked his vehicle in the car park in question, before boarding his train to work. The car park, which is effectively a commuter car park, is one of two car parks near to Woodford station. When he arrived, at around 8.45 am, the car park was open and already more than half full of vehicles. He attempted to pay for parking - firstly via the RingGo app, and then via another phone system. Neither system would accept payment for parking prior to 9am, presumably because parking was free until then. The Appellant then boarded his underground train and paid for his parking as soon as he was able - which was at 9.52 -by which time a PCN had been issued.

I am of the view that it is wholly unreasonable and unworkable to expect drivers, especially in a car park such as this one which is open and usable early in the morning, and before parking charges are incurred, and is evidently is frequented to a high degree by commuters, to wait for parking payment to be accepted. The Appellant was effectively prevented from paying for his parking despite being able and willing to pay upon his arrival at the car park. (I note and I accept the Appellant's assertion that dozens of cars had been similarly issued with PCNs).

I find that no contravention occurred and this Appeal is allowed.
-------------------------------------

Mick

Posted by: PASTMYBEST Mon, 15 Apr 2019 - 19:55
Post #1478434

Pheonix way TMO defective

2190096099

Mrs Patel indicated shortly after this hearing was scheduled that she did not wish to attend personally and therefore I have dealt with it, as requested, as a postal hearing.
This is an appeal against four penalty charge notices (PCNs) issued in respect of alleged contraventions of a prohibition on certain types of vehicles, namely motor vehicles, on Phoenix Way, Hounslow. The prohibition is created by The London Borough of Hounslow (Prescribed Routes) (No.1) Order 2015, as amended by The London Borough of Hounslow (Prescribed Routes) (2015, No.1) (Amendment No.1) Order 2018.
The precise nature of the contravention created by the 2018 amendment to the 2015 Order, which I shall hereafter refer to simply as “the Order”, is in dispute. Suffice to say at this stage, there is no dispute between the parties that Mrs Patel’s vehicle, which is a motor car, drove on both Phoenix Way and Norwood Road. The undisputed evidence is, and I find, that it drove northbound on Phoenix Way, followed the natural left-hand turn in Phoenix Way and then, at the point where Phoenix Way becomes Norwood Road, continued to travel westbound on Norwood Road.
I would to pay tribute at the outset to Mrs Patel’s diligent researches and very thorough and persuasive submissions; they were most impressive. Although I would not have upheld all the grounds of appeal, all were arguable.
I shall deal first of all with what I consider to be the strongest ground of appeal and, indeed, the ground upon which I have allowed this appeal. Because the other grounds of appeal fall away I can deal with them far more briefly.
The first ground of appeal (although Mrs Patel’s Ground 3) relates to the nature of the contravention created by the Order. I have already set out the terms of the Order. It is Mrs Patel’s case that she did not contravene the terms of the Order or, in the alternative, that, if she did, there was no sign in the appropriate location conveying to road users the terms of the restriction beyond it. In either event, if Mrs Patel is right, the contravention could not be proved.
According to the schedule to the 2018 amendment, which adds an item (12) to schedule 9 to the Order, the road subject to the restriction is said to be ‘Phoenix Way, Honslow [sic], at its junction with Norwood Road’. The explanatory note to the schedule to the 2018 amendment, to which I attach some weight in respect of the proper interpretation of the amended Order, states:
“This Order amends the Order of 2015 by introducing prohibitions in Phoenix Way at its junction with Norwood Road.”
The PCNs themselves read that the location of the alleged contraventions is ‘Phoenix Way (Services)’.
As I hope is apparent from all the foregoing, it is clear, and I find, that the Order creates a restriction on Phoenix Way.
I have had regard to all the evidence submitted by both parties and, in particular, to the map extracts from the Highways Register provided by the enforcement authority (EA). I have dealt with a number of appeals concerning this particular restriction but I have not previously seen these map extracts. Upon these map extracts the EA has helpfully marked the point it considers the restriction created by the Order to take effect. I have also had regard to the photographic evidence of the signage that purports to indicate to users of the road the beginning of the restriction, as understood by the EA. Its placement is consistent with the point on the map where the EA considers the restriction to take effect. The signage is visible from the perspective of a motorist travelling, as Mrs Patel was, in a sweeping left turn from Phoenix Way northbound to Norwood Road westbound. There are two signs, either side of the carriageway. The signage complies with the Traffic Signs Regulations and General Directions 2016 and, in particular, with Diagram 619, which is item 12 in the Part 2 sign table within Schedule 3 to those Regulations. That is to say, the signs indicate that motor vehicles (cars and motorbikes) may not pass that point ‘except permit holders’. It is not suggested that Mrs Patel is a permit holder.
Paragraph 1 of Part 5 of the Schedule 3 General Directions states:
“1(1) The sign must only be placed to indicate the effect of an Act, order, regulation, bylaw, resolution or notice which prohibits or restricts the use of the road by traffic.
(2) When the sign is placed to indicate the point at which a restriction, requirement or prohibition begins or ends, it must be placed as near as practicable to that point.”
It is the EA’s case that the signage to which I have referred complies with both limbs of the above paragraph because it is sited at the point where the restriction created by the Order begins, and was placed to indicate the effect of the Order. In its case summary it says:
“… As the contravention occurs at the point of the junction where Phoenix Way and Norwood Road are located, evidenced by the enclosed maps in Folder H [the map extracts to which I have referred], the Council has sought to provide the most accurate description of the location [in the Order] in line with where the signs are located.”
It is the EA’s own evidence, however, taken from the marked map extracts and corroborated by the location of the signage itself, that the restriction begins at the very point where Phoenix Way becomes Norwood Road. I find, based on the EA’s own evidence, that the sign is placed precisely at the end of Phoenix Way and, by the same measure, at the very beginning of Norwood Road. The signs reasonably indicate to motorists travelling, as Mrs Patel did, towards them, that motor vehicles are not permitted to travel on Norwood Road, which is the road immediately beyond the signs. It would not be a reasonable interpretation of the signs that they related to the stretch of road upon which the motorist was already driving, and had already driven, i.e. Phoenix Way.
The effect of the Order is to create a restriction not on Norwood Road, but on Phoenix Way. Accordingly, I find that there has been a breach of the mandatory requirement of paragraph 1(1) because the sign does not indicate the effect of the Order to which the EA says it relates. Rather, it purports to indicate that motor vehicles are prohibited on Norwood Road whereas there is no such prohibition created by a traffic management order. I am fortified in this conclusion by the finding to the same effect of Adjudicator Teresa Brennan in Hothi v. LB Hounslow, decided on 5 January 2019 (2180474156), in which the appeal was allowed for the same reason contended for by Mrs Patel in her Ground 3. Although I am not strictly bound by the decisions of other adjudicators, the decision in Hothi is thorough and well-reasoned and was clearly decided on similar evidence. Indeed, the evidence that the road beyond the two signs is Norwood Road and not Phoenix Way is stronger in this case than in Hothi. I find the reasoning in Hothi persuasive.
Conversely, given that the Order creates a restriction on Phoenix Way, there is no evidence of any mandatory signage in accordance with Diagram 619 in the 2016 Regulations that Mrs Patel would have passed upon entering Phoenix Way from Cranford Lane. The advance warning signs at that point are ineffective for that purpose. It follows that the restriction that is in fact created by the Order is inadequately signed for a motorist entering Phoenix Way from Cranford Lane. There is one respect in which the restriction created by the Order is properly signed. That is, for a motorist travelling east-bound on Norwood Road towards Phoenix Way, the signs on the reverse of the signs that Mrs Patel past are apt to indicate to such a motorist that motor vehicles are prohibited on Phoenix Way, at its junction with Norwood Road. That is, in fact, the restriction created by the Order.
I do not find that there has been a contravention of the Order. I allow the appeal on that basis.
I hope that the EA will amend the wording of the Order so that it creates, as it intended, a prohibition on motor vehicles on Norwood Road.
In respect of Mrs Patel’s other grounds of appeal, I would have been minded to find that Norwood Road is a road to which the public have access, within the meaning of the Road Traffic Regulation Act 1984, in reliance on the principles contained in DPP v. Vivier [1991] R.T.R. 205, supported by Andrew Barsby, Private Roads: The Legal Framework (5th ed.), 2013, para 1-21 and Halsbury's Laws of England - Highways, Streets and Bridges, Volume 55, 2012, para 1. With respect, the case of Dawood, R (on the application of) v The Parking Adjudicator & Anor [2009J EWCA Civ 1411, which was a renewed application for permission to appeal at which the respondent was not represented, is not a ‘leading authority’ and, in any event, did not support the ultimate proposition put forward by Mrs Patel. The very nature of Norwood Road leading, as it does, to a service station open to the public, indicates that it is a road to which the public have access. Even on the EA’s interpretation of the Order, pedestrians and cyclists would have been able to use the road for their own purposes and as members of the public, not as bare licensees of the occupiers of the land at the other end of the road. That the road may or may not be privately owned is not inconsistent with it being a road to which the public have access. The fact that Mrs Patel herself used the road four times (and did not assert that she did so as a bare licensee of the occupiers of the land) rather suggests that she did so as a member of the public.
The PCN adequately described the nature of the alleged contravention; Mrs Patel was, to her knowledge, driving a motor car and so it was a clear inference that it was alleged that the prohibition in question related to such vehicles.
As to the decision to enforce all four penalties I would observe that the alleged contraventions did not occur on consecutive days (by contrast to the case relied upon) and it was a matter of discretion for the EA as to whether to enforce them.
Authority Response

Posted by: Mad Mick V Sat, 27 Apr 2019 - 10:50
Post #1480914

Permit renewal problems and the amount of the penalty.
Code 12 or Code 19?
2190123464
The Appellant made the point that as his permit had expired by less than two weeks, the Authority should have used a Code 19 PCN. He submits that it is common practice to allow a lapse of several weeks.

The Authority points out that it allows a window of two weeks for a Code 19 and the Appellant's permit had in fact expired by over two weeks.

It is common ground that Code 12 and Code 19 overlap to some extent. At one stage, these were used to indicate "differential penalties". Code 19 bears a lower penalty and covers genuine forgetfulness to renew a permit.

Differential penalties are no longer used but the essence of the choice between the two Codes remain, and not really disputed.

What is disputed is the "grace period". While the Authority accuses the Appellant of using his own interpretation of the grace period, it has not escaped the Appellant's or my notice that the Authority failed to state this period in its Notice of Rejection. Furthermore, while it now states that the period is two weeks, it has offered no evidence to confirm this. It has not referred to any published document or guidance from which the information can be ascertained.

The responsibility for renewing a permit falls on the permit holder. I am satisfied that there was a contravention. That said, where the same situation can give rise to more than one contravention, the Authority is obliged to proceed on the one involving the smallest penalty. I must therefore consider whether the Authority has acted fairly in preferring the appropriate PCN code. I find that it has not done so. I allow the appeal.

Mick




Posted by: Mad Mick V Sat, 27 Apr 2019 - 11:52
Post #1480931

Motorcycles in contravention on cycle stands on the footway.


Some excellent Chan logic implies motorcycles are not in contravention of footway parking.

2190123635
The Appellant attended the hearing in person.

I am allowing the appeal and I shall give my reasons below. I would note that the Authority seemed not to be engaged in the process at all. It failed to address the Appellant's points in any meaningful way if at all. It said in the case summary that the PCN was attached to the windscreen when it was on the handlebar of the scooter. It is not for me to supervise the Authority's approach to appeals. This lack of attention does however have significant bearing on the issues raised by the Appellant.

The Appellant submits that his motor scooter was not on a pavement. This is debateable but not determinant of the issue. A contravention occurs when a vehicle is parked with one or more wheel on a part of the road other than the carriageway. The Appellant's vehicle was undoubtedly on a part of the road other than the carriageway.

That said, the vehicle was in an area which had a different surface to the rest of the pavement and it had stanchions which appear to be provided by the Authority for pedal cycles to be secured. The Appellant's case is that this is clearly an area for parking and there is no sign to say that it is just for bicycles

I have on doubt that the Authority had intended to create a parking space for pedal cycles only. I am not satisfied that it given adequate considerations to the legal implications.

The so called pavement parking prohibition applies to "vehicles". A vehicle is not defined in the legislation but case law would suggest that it includes pedal cycles. The fact that some road traffic legislation refer to motor vehicles or mechanically propelled vehicles would also suggest that a "vehicle" can include those which are not mechanically propelled.

An Authority can by resolution permit pavement parking by vehicles but the legislation does not seem to allow Authorities to make allowance for certain types of vehicles only.

It follows that either the Appellant's motor scooter and the pedal cycles in the parking place are all in contravention, or there was no contravention at all.

I would think that the Authority can resolve the problem by deciding as a matter of policy that pedal cycles parking at the location will not be penalised. This will mean that there should be a sign indicating cycles only to avoid any confusion.

I allow the appeal.


--------------------------------------




Mick







Posted by: Mad Mick V Sun, 5 May 2019 - 17:55
Post #1482805

Hornchurch car park " honeypot" space is a dedicated parking bay
We've had a few of these around the country where the Council tries to contend that a vehicle is parked beyond the bay markings.
2190022864
I admire Mr. Reeves’ energy and industry in preparing and presenting his case; he told me he had taken 1,000 photographs of the “space” (to put it neutrally) that is the subject matter of this dispute and produced a number of them in evidence. The sheer number of photographs is in itself relevant, because one of the points Mr. Reeves seeks to make with them is that a very large number of other motorists have made precisely the same mistake (if a mistake it is) that his daughter made in parking his car in a place that the enforcement authority (EA) says is not a parking place. Rather, the EA says, Mr. Reeves’ vehicle was parked in an area of the car park that is outwith the marked parking places.

Mr. Reeves has obtained some historical images from Google Earth. These show that, some years ago, the space was indeed a marked parking place. It is – and remains - on the corner of a central block of parking places within a car park. The images also show that there are rows of parking places on the outside edge of the car park. Between those rows on the outside and the central block is an asphalt carriageway that, Mr. Reeves tells me and I have no reason to doubt, is a consistent 18 feet and 2¾ inches in width.

The photographs taken by Mr. Reeves show remnants of a white line that, originally, indicated the outer edge of the space and, as such, clearly indicated that it was a parking place. That white line has very significantly, but not completely, abraded. On the opposite side of the space from, and parallel to, that abraded white line is a clear white line. On the EA’s case, that line marks the edge of the row of parking places in that central block. On Mr. Reeves’ case, that white line simply demarcates the boundary between the space and the parking place adjacent to it. The photographs taken by both Mr. Reeves and the civil enforcement officer also show that immediately adjacent to that abraded white line the asphalt changes, forming a natural boundary. The asphalt on the far side of the line from the space forms the carriageway. Further, those photographs show that one of the sides of the space comprises guttering that extends along the whole row of parking places in the central block.

In short, notwithstanding the abrasion of what used to be a white line that formed one of the boundaries of the space, the space does appear to have natural boundaries around an area that is, undoubtedly, sufficient to contain a car and, indeed, is of the same dimensions as the adjacent parking places. The space falls outside the clear parameters of the carriageway.

Clearly, as Mr. Reeves’ photographs demonstrate, very many people seem to believe that the space is indeed a parking place. That is not conclusive evidence that the space reasonably appears to be a parking place but it is evidence that would tend to suggest that the space does, reasonably, have that appearance. Mr. Reeves makes the point that if the EA wishes to inform motorists that an area of a car park that is not the carriageway, that has boundaries forming the right shape and size to contain a car and is the same shape and size as other parking places, then it should take positive steps to inform motorists that it is not a parking place. Mr. Reeves suggests chevrons.

I agree with Mr. Reeves’ case and uphold his appeal. Put simply, the space has almost every appearance of being a parking place and could reasonably be seen as such. Whilst some motorists might recognise that it lies outwith the set of parking places, that it is far from obvious. In those circumstances, the markings (or lack of them) are inadequate and I do not find the contravention proved.

---------------------------------




Mick




Posted by: Mad Mick V Sun, 5 May 2019 - 18:08
Post #1482812

Traffic Signs Manual now updated (March 2019) to incorporate TSRGD 2016 regulatory changes
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=2ahUKEwjz_7Cg_YTiAhUfTRUIHec9AkAQFjABegQIARAB&url=https%3A%2F%2Ftsrgd.co.uk%2Fdocuments%2Ftraffic-signs-manual&usg=AOvVaw22I7_trdvsOKy9ilJhlM4p
Mick

Posted by: Mad Mick V Sun, 5 May 2019 - 18:23
Post #1482818

Council must prove that the original PCN to a hire company has been cancelled before issuing a new PCN to the hirer



2190142549

This is one of three cases before me where the Appellant’s vehicle is seen on the CCTV to execute a U-turn in breach of the prohibition indicated by three very clear “No U-turn “signs. The Appellant, however raises the issue of the delay in issuing the PCNs which on their face are outside the statutory 28 day time limit. The onus is on the Council to prove that the PCNs were served within those time limits. The Council states that the delay occurred as the PCNs were originally served on the registered keeper of the vehicle which transpired to be a hire company. So far as that goes I see no reason to doubt that this was so. However the Council is required to prove that that PCN was cancelled as a result of representations made and that the PCNs in the present case were served within 28 days of the date of that cancellation. In the absence of the correspondence /representations relating to the initial PCN there is no clear evidence as to the date of the cancellation and I am therefore unable to be satisfied the PCNs were served with in the statutory time limit. No penalty may therefore be demanded on the basis of them.
____________________________
Mick

Posted by: Mad Mick V Sun, 2 Jun 2019 - 11:17
Post #1489351

Council failure to supply the Schedules to the Traffic Order at Adjudication

2190099042

The appellant appeared before me today represented by Mr Pack.

The council was represented by Mr Leask.

Upon Mr Pack submitting that the council had failed to prove the contravention given it had not provided to the appellant or the tribunal the Schedules to the Traffic Management Order (TMO) in which the restriction that applied to this bay was set out that being accepted by Mr Leask.

I reserved my decision to consider the submission that was made.

A TMO is delegated legislation. There is a duty on the authority bringing proceedings under delegated legislation to adduce all supporting documentation in order to prove its case. There is no duty on the party against whom proceeding are issued to request the same.

Mr Leask did not have the Schedules with him.

I am not satisfied as to the merit of the other submissions made by Mr Pack on the appellant's behalf but I have concluded that his argument on this issue has force.

Given the complete TMO including schedules was not served by the council on the appellant or provided to the tribunal I am not satisfied that it has proved this contravention.

The appeal must accordingly be allowed.

--------------------------------------------------




Mick



Posted by: Mad Mick V Mon, 3 Jun 2019 - 17:33
Post #1489664

Bus lane CCTV evidence, if requested, needs to be received 7 days before a Tribunal hearing.


This is a Review of a Brent case:-

2190095074

This is an application by the Appellant for a review of a decision of the Adjudicator who refused his appeal on 3 April 2019. The Appellant had attended the appeal hearing, but has not attended the application today.

The main thrust of the Appellant's argument before the original Adjudicator was that he received the CCTV recording a few days before the hearing and it was unfair for the Authority not to provide access to the CCTV recording at the representation stages.

The Authority submitted a six page submissions. They essentially repeated the Appellant's submissions of roughly the same length but did not say why the Appellant's submissions were not sustainable.

The original Adjudicator found, and I agree, that the law does not require the disclosure of any evidence at the representations stage. The Adjudicator has not made an error of law in this regard.

However, while there is no legal obligation to offer a view of the CCTV recording at the representation stages, the same cannot be said after an appeal is made. The legislation has provided for admissibility rules with regards to bus lane contraventions. These are contained in Schedule 1 to the London Local Authorities Act 1996 (as amended). Paragraph 7 (1)(6) of the Schedule provides:

"Nothing in sub-paragraph (1) or (4) above makes a document admissible as evidence in proceedings under paragraph 6 above unless a copy of it has not less than 7 days before the hearing, been served on the appellant; and nothing in those paragraphs makes a document admissible as evidence of anything other than the matters shown on a record produced by a prescribed device if that person, not less than three days before the hearing or within such further time as the traffic adjudicator may in special circumstances allow, serves a notice on the council enforcing authority requiring attendance at the hearing or trial of the person who signed the document."

The focus by both parties on disclosure at the representation stage has meant that compliance with the admissibility rule n paragraph 7 has not come to the fore. There is no apparent finding as to when the Appellant received the DVD containing the recording. There is nothing to contradict his claim that it was 29 March. The Tribunal received the evidence on 28 March. Even if the evidence was served on the Appellant on 28 March, it would have been served it was served just short of 7 days before the hearing.

Furthermore, Paragraph 7(1) of Schedule 1 also provides that " Evidence of a fact relevant to proceedings under paragraph 6 above may be given by the production of a record produced by a prescribed device; and (in the same or another document) a certificate as to the circumstances in which the record was produced signed by an authorised officer of the enforcing authority.

The certificate in this case was in the form of a statement signed by Durga Pokurec. The statement produces "4 photographs from a video recorder". There was no reference to the video recording so it cannot be said that the video recording itself had been produced by a certifcate.

The failure to allow for the 7 days and the failure properly to certify the production of the evidence means that the video recording cannot be admitted as evidence. As the Adjudicator has made clear that his finding of the contravention is premised on his view of the moving images, I must allow the appeal.




Mick

Posted by: Mad Mick V Wed, 5 Jun 2019 - 10:58
Post #1490060

TfL PCNs to individuals but addressed to the Company Secretary are invalid.

2190181937

The Appellant disputes the PCN stating that it was incorrectly addressed to "The company Secretary" and that it is not possible to determine by the use of the camera the weight or contents of the goods being carried as to whether they required the use of the vehicle to transport them.In addition the appellant states that he wanted to collect something which was not ready.

The video evidence does show the driver exiting the vehicle with a large carrier bag and returning a few minutes later without it. The appellant's evidence is vague as to the contents of the bag and what he claims he was intending to collect. The onus is on the motorist to prove that they fall within the loading/unloading exemption.

However with regard to the PCN, the local authority say that the words "Company Secretary" were inserted into the PCN in error but that this should not invalidate the PCN.

I do not agree.

The PCN is a legal document and should be accurate as to its contents and to whom it is addressed, and which should accord with the registered keepers details at the DVLA. As the addressee is incorrect I find the PCN to be defective and allow this appeal.





Mick



Posted by: Mad Mick V Sat, 22 Jun 2019 - 11:26
Post #1494367

Rotherhithe Tunnel and its Approach Roads

This puts paid to a lot of our appeal grounds.


2190149923
This is one of a large number of cases listed before me many of which raise issues relating to the weight restriction in force in the Rotherhithe Tunnel and to the clarity or otherwise of the signage indicating that restriction. In the cases involving personal Appellants the enforcement authority, TfL, attended the hearing (and its adjournment) represented by its officer Mr. Garrett. Although each individual case must be decided on its own merits some of the same points are raised time and time and again, either separately or in combination. In summary these may be stated as the inadequacy of the indication that the limit is only two tonnes, the absence of any indication that the 2 tonnes means the weight the vehicle is capable of carrying as opposed to the actual weight, and the impression given by the sign that the restriction applies only to lorries. In addition some Appeals raise issues as to what the vehicles gross weight actually is. and whether or not the vehicle falls within the definition of a goods vehicle at all.

In the cases where a personal hearing took place TfL has made detailed written submissions dealing with these and other potential points relating to enforcement. At the conclusion of the hearing I reserved my decision to give the matter the detailed consideration it requires. Having done so it seems to me appropriate to include in this and nearly all the cases identical paragraphs setting out my decision on the relevant issues, and then to deal as may be necessary with any remaining issues raised in individual cases.

The Appellant will therefore appreciate that not everything in the extensive paragraphs that follow will necessarily apply to his/her particular case.

THE RESTRICTION AND TRAFIFC MANAGEMENT ORDER

By virtue of a Traffic Management Order coming into force on the 21st September 2018 a weight restriction for goods vehicles with a “maximum gross weight exceeding 2 tonnes” was imposed on defined sections of roads immediately leading to the Rotherhithe Tunnel (Branch Road and Brunel Road). The Order was subsequently amended with effect from the 1st May 2019 to include definitions of “Goods vehicle” and “maximum Gross weight” and to amend a previous consolidation Order to change the prohibition on vehicles actually entering the tunnel from 17 tonnes maximum to bring that prohibition, rather late in the day, in line with the 2018 Order.

DEFINITION OF A GOODS VEHICLE

At the date of the alleged contravention the definition of a goods vehicle in the Order of the 18th April (and which is lifted from the definition in the Traffic Signs Regulations and General Directions 2016) i.e. a motor vehicle or trailer constructed or adapted for use for the carriage or haulage of goods or burden of any description”) was not in force. However it seems to me that considering the meaning of the words as a matter of ordinary use of the English language a similar conclusion is arrived at. Whether a vehicle is a goods vehicle depends on what it is, what it is designed for, not what it is being used for. A saloon car does not become a goods vehicle as soon as goods are put in it, and a van does not cease to be a goods vehicle because it happens to be empty.

Whether or not a vehicle is a goods vehicle is essentially a question of fact. TfL relies heavily on the category allocated to it by the DVLA, which is based on its type approval (category N for goods vehicles). It submits, in simple terms, that if the manufacturer tells the authorities that it considers its vehicle to be a goods vehicle then it should be treated as such on the basis that the manufacturer must be taken to know what the vehicle is constructed to do. Whilst I would not regard the DVA record as unchallengeable I would agree that this is extremely persuasive evidence and that in the absence of any evidence of some error on the part of the DVLA when registering the vehicle very strong evidence would be required to refute that of the DVLA registration.

The majority of the present cases involve vans of some description - which are self-evidently goods vehicles on any view.

MAXIMUM GROSS WEIGHT

The TMO prohibition applies to vehicles of a maximum gross weight. This is not the actual weight of the vehicle at the time but its maximum weight fully loaded to its maximum design capacity. It is the case that, no doubt as a result of hasty drafting, no definition of the expression “maximum gross weight” appears in the TMO as it was in force at the time. Nevertheless this is a long standing expression in Road Traffic law and is defined in the Road Traffic Act 1988 s 108 as “the weight of the vehicle laden with the heaviest load which it is constructed or adapted to carry”. It is a term used and defined in the TSRGD (see below). Other terms are also in use, The DVLA website states that -

Maximum authorised mass (MAM) means the weight of a vehicle or trailer including the maximum load that can be carried safely when it’s being used on the road This is also known as gross vehicle weight (GVW) or permissible maximum weight It will be listed in the owner’s manual and is normally shown on a plate or sticker fitted to the vehicle This weight is also the “revenue weight” of the vehicle (s60A vehicle Excise and Registration Act 1994 In proving that a given vehicle had a maximum weight in excess of 2 tonnes TfL has relied on the information held by the DVLA and which appears on the registration document showing that weight. This is as I accept, derived from information provided by the manufacturer, and I would regard this as all but conclusive in the absence of some very persuasive evidence from an Appellant that some error had occurred in the DVLA’s records. The manufacturer must be taken to know the weight the vehicle is designed to carry.

Some Appellants submitted that they cannot be expected to know this weight. I reject that submission. It seems to me that a driver of any goods vehicle should be familiar with the maximum load it is designed to carry which can be ascertained from the vehicle’s handbook or its registration document.

THE STATUTORY SIGNAGE

The sign showing the outline of a lorry with a figure on it , in this case 2t, is the sign prescribed by the Traffic Signs Regulations and General Directions 2016 ( “the TSRGD”) to show the maximum weight. Diagram 622.1A is stated (at Schedule 3 Part 2 item 13) to indicate “Goods vehicles exceeding the maximum gross weight indicated prohibited” Maximum gross weight is defined in Schedule 1 TSRGD as the “maximum laden weight”, which is in turn defined as “” the weight which the vehicle is designed or adapted not to exceed when in normal use and travelling on a road laden”. It appears that many of the drivers in these cases did not appreciate that the weight shown means the maximum weight the vehicle is designed to carry, not the actual weight the vehicle happened to be at the time.

In addition some Appellants have submitted that the use of a lorry image is incorrect or confusing; however this is simply the symbol prescribed by Regulations to indicate merely a goods vehicle (not necessarily a heavy goods vehicle or lorry). There is no separate symbol prescribed by the Regulations for light goods vehicles. The lorry symbol is used for this general purpose to cover goods vehicles of all sizes, in this and previous Regulations, on many types of sign; and many a small van driver has correctly relied on it for exemption when it appears on a sign indicating , for example, an exemption to entering a Pedestrian Zone in order to load/unload.

The sign is the correct sign for the restriction specified in the TMO, and is indeed the only sign TfL could lawfully use, at the entry point to the tunnel, to indicate the presence of the restriction. Any other sign of some design other than that prescribed the TSRGD would be open to challenge on the basis that it was not the legally prescribed sign. The sign is shown in the Highway Code, with which all motorists should be familiar, and is correctly described there as indicating a prohibition on a goods vehicle over the maximum gross weight shown.

As a result of the positioning of the cameras the sign is not visible in the photographs showing the various vehicles. However TfL has produced site photographs showing the signs in position; and although these are dated the 23rd May I accept TfL’s evidence that, as one would expect, the signs were erected prior to the coming into force of the Order and were regularly checked. In the absence of any compelling evidence to suggest that these signs were not there at the material time it seems to me the balance of probabilities lies strongly in of their being in place as shown.

ADVANCE WARNING SIGNS

I would accept in principle that a single sign at the very entrance to the tunnel ( though legally required in the prescribed form) would not necessarily be sufficient on its own to give adequate information as to the prohibition relied on ( which is what the signage is required to do). Various passages in the Traffic Signs Manual, official guidance on siting of signage, 2019 Chapter 3 support this position

5 1.2 “it is important to address the directional signing changes needed when a regulatory measure prevents some or all traffic from following the previously signed route

5.1.3 Advance warning of certain restrictions may be given by incorporating the prohibitory sign into directions signs. These are not a substitute for the terminal signs at the start of the restriction.

5.17 only one sign is required but care should be taken to ensure that a single sign is clearly visible to all road users and does not give rise to issues of enforcement or road safety…

In the present case by the time motorists sees the single statutory is sign there is a risk that they do so too late to take another “escape” route. In my judgement some sort of warning is required, and indeed it appears to be accepted by TfL that the warning is at least desirable. It duly points to the presence of the warning signs shown on its plan. I accept that the signs are in the positions shown. Photographs produced by some appellants appear to show the previous signage

The signs are of a large rectangular design containing four roundels, including one showing the 2t weight restriction, headed with the warning “ROTHERHITHE TUNNEL RESTRICTIONS SHEAD” and in the case of the signs positioned further away from the tunnel entrance , an indication of the route to be followed by restricted traffic. I accept TfL’s evidence that a motorist could not arrive at either the entrance without passing one of these signs. Some motorists refer to the possibility of these signs being temporarily obscured from certain angles by passing traffic. However given the number and size of these it seems to me improbable that a motorist could arrive at the mouth of the tunnel without having seen any warning sign. Indeed the majority of the motorists in these cases do appear to have noted the presence of the signs, but misinterpreted their meaning.

These signs do not comply with any signage in the TSRGD but they are not required to do so, falling to be treated as a freestyle warning sign. The only issue is whether they are effective to provide clear warning. It seems to me that they are adequate. They tell the motorist that there are “restrictions” at the tunnel and that the restrictions are those shown on the four roundels. Those roundels are copies of the signs prescribed by law to indicate the restrictions in force and are in my view a reasonable; method of giving advance information of the restrictions and the signage later to be encountered. There is a sign available in the TSRGD for giving advance warning of a weight restriction (Diagram 818.4). However this sign also similarly gives the warning by means of a copy of the same rondel (on a blue background with the wording Weight restriction). I am not persuaded that this sign (sited together in a group of the three others that would then be necessary for the other restrictions) would be any more visible or its meaning any clearer to motorists clearer to motorists that the one in use.

CONCLUSION

It seems to me that in those cases where the issues of signage are raised that the Appellants fell foul of the weight restriction not because of a failure of signage but as a result of a failure of understanding. It is in my view impossible to say that the rondels indicating the weight restriction were not reasonably visible, even as one of a group of four, and they are the entirely correct and prescribed signage to indicate that restriction. Naturally the number of PCNs issued (obtained in one case by a Freedom of Information request) and the fact that initially personnel were placed at the tunnel entrance to turn van drivers away might suggest the level of misunderstanding to be fairly widespread On the other hand one has to approach this kind of evidence with some caution in that for every driver who misunderstood the sign there may be many others who did not, and took care not to enter the tunnel.

The Appellant submits that he should have the right to pay at the discounted rate if having made representations those representations are rejected. This is not so. The penalty prescribed by law is £130. A motorist has the statutory right to settle the penalty at a 50% discount if payment is made within14 days. If payment is not made within that period any further opportunity to do so is entirely at the discretion of the enforcement authority. The discount period is not automatically extended by making representations or appealing. The discount is Parliament’s reward for prompt payment, not for prompt challenge.

----------------------------------------




Mick



Posted by: Mad Mick V Sun, 23 Jun 2019 - 10:51
Post #1494481

NTO has a number of entries showing the correct start of the 28 day period but the one entry that doesn't counts as a procedural impropriety

This is Barnet where they incorrectly state the 28 day period starts with the date of the NTO not its service.

2190177587 (Extract)

Mr Levy complains about the contents of the Notice to Owner. The Notice to Owner does convey to its recipient that he or she can make representations to the Authority. I am satisfied that no reasonable person would interpret this as saying that one would have to pay within 28 days even when one makes representations. Furthermore, the Notice goes on to say that "On receipt of the Notice of Rejection you must either pay the penalty charge....." Why would the Notice say this if it can be inferred that payment was expected irrespective of whether representations are made?

The submission that the Notice must indicate that the Adjudicator may extend the period in which an appeal can be made was successful in previous cases which have been overruled on review.

Lastly. Mr Levy submits that the Notice to Owner is not compliant with the Civil Enforcement of Parking Contraventions (England) General Regulations 2007" in that it states that if the Penalty charge is not paid before the end of the 28 days period beginning with the date of this Notice".

The Regulations provided that this period, known as the payment period, is the period of 28 days beginning with the date on which the notice is served.

The Authority’s response as follows:

“It is considered that when a customer receives a Notice to Owner, that they would read this as a whole and not one sentence in isolation. It should also be noted that, in the previous sentence to that which the Adjudicator has referenced, it is advised that ‘the period of 28 days beginning with the date on which this Notice to Owner was served’ can be found repeated within the remainder of the served notice.”

The Authority has not cited any legal authority to support their proposition. I suspect the Authority had in mind one of my previous decisions. That previous appeal concerns a moving traffic PCN and the issue was whether the description of the 28 day period after which a charge certificate may be issued (in accordance with the relevant legislation) gives a confusing message as to when the payment period starts. The PCN was held to be compliant when read as a whole because there was elsewhere in the PCN a clear and unambiguous reference to when the payment period starts.

In this case, there are three references to the 28 day period. Two of these references are in regard to the period in which representations must be made and the correct wording was used. There is only one reference to the period for payment and the incorrect start date is used. It is not clear to me how the recipients of the notice, most of whom do not have an in depth knowledge of the Regulations, would understand that the period for payment is also period in which representations must be made, and that they both start from the date of service.

The fact that the Appellant not made payment but made representations (on time or otherwise) and the fact that the Authority allows as a matter of practice extra days to pay is irrelevant.

The issue is whether the Notice to Owner conveys at least substantially the information which it is required to convey. If it does not, it is a procedural impropriety. I am satisfied that the Notice to Owner is non-compliant and not even substantially compliant. I allow the appeal.

------------------------------




Mick





Posted by: Mad Mick V Sun, 4 Aug 2019 - 08:49
Post #1505073

Barnet Footway Parking---Failure to provide Resolution.
Parked o/s a marked bay.


2190183921

The Authority's case is that the Appellant's vehicle was parked with one or more wheels on or over a footpath or any part of a road other than a carriageway when in Old Rectory Gardens on 3 February 2019 at 15.26.

The Appellant denies the contravention, and also argues procedural impropriety by the Authority.

I have considered the evidence in this case and I find that this PCN cannot be upheld for the following reasons:

First, part of Old Rectory Gardens has marked bays to indicate where footway parking is permitted.

Second, the Appellant has not denied parking as seen in the CEO's photo shots outside those marked bays.

Third, however, the Appellant's principal point is that the Authority has not produced copies of the resolution that is required under section 15(4) of the Greater London Council (General Powers) Act 1974 (as amended) to authorise the statutory exemption in Old Rectory Gardens.

Fourth, an Appellant is not usually able to discover the existence of such resolution and a request to the Authority is properly made in formal representations.

Fifth, the Authority should be aware that footway parking is prohibited unless the location has been exempted by a council resolution or a form of a TMO specifically for the purpose of exempting certain bays.

Sixth, the Authority never produced the evidence that confirmed that the statutory exemption applied to those parts of Old Rectory Road that had painted marked bays; signage is also required.

Seventh, to put this another way; it is not the signs and lines that create the exemption from the prohibition to park on the footway, it is either a Council resolution or a TMO for that specific purpose.

Eighth, an Authority is not entitled without such resolution to place marked bays in a road to provide parking places for footway parking.

Ninth, the Appellant's point being 'How do I know that the marked bays have been correctly marked ?' and 'How do I know that the location where I was parked was not exempted by the resolution'. These are legitimate questions that the Authority has not responded to as required by the regulations; this is a procedural impropriety.

Accordingly, taking these matters together I find that this PCN is not proved because the Authority has failed in its duty to respond to the representations made by the Appellant, and, secondly has not produced evidence of where the resolution states that footway parking is permitted in Old Rectory Gardens.

The appeal is allowed.

-----------------------




Mick






Posted by: Mad Mick V Sun, 11 Aug 2019 - 08:26
Post #1506818

Waltham Forest--- Bus Lane Contraventions
How wrong can they be?


2190278212
The Authority did not supply a copy of a Traffic Management Order (TMO). It submits that there is no requirement for a TMO. It is therefore reasonable for me to infer that there is no TMO for this bus lane when, contrary to the Authority's submission, there is a legal requirement for a TMO.

The Authority did not provide any evidence of signage.

The Authority provided a statement to say that the recording device was approved under Article 2 of the Civil Enforcement of Parking and Traffic Contraventions (approved Devices)(England) Order 2007. There is no such order. There is a the Civil Enforcement of Parking Contraventions (approved Devices)(England) Order 2007. The addition of the words "and Traffic" would suggest that the Authority is aware that the Order does not quite fit. the Authority would be right. The Order has no relevance. It applies to parking contraventions only.

Bus lane contraventions are pursued under the London Local Authorities Act 1996 (as amended). The Act contains requirements for recording devices, and admissibility of the recorded material.

Bus lane cameras are those cameras which are prescribed under section 20(9) of the Road Traffic Offenders Act 1988 or a device of a description specified in regulations made for the purposes of this section by the Secretary of State. There is no evidence that the camera used in this case meet those requirements.

The legislation requires a statement setting out the legitimacy of the use of the camera, and for a copy of the statement to be served on the Appellant not less than 7 days before the hearing. The Appellant can choose whether to issue a notice requiring the attendance of the maker of the statement. The statement was sent to the Appellant on or about, certainly not earlier than, 2 August which was a Friday It is deemed to have been served on 6 August, the Tuesday after the weekend. The service does not meet the 7 day requirement.

The Authority transferred liability from the registered keeper to the Appellant because of a hire agreement. Liability cannot be transferred for bus lane penalties.

For any and all the above reasons, I allow the appeal.-------------
Mick

Posted by: Mad Mick V Sun, 18 Aug 2019 - 07:31
Post #1508711

Rotherhithe Tunnel Restrictions

Worth checking the ticket history to ensure they have complied with statutory time scales. They must be overworked raking in the cash!

The diversionary route issue wasn't picked up by the Adjudicator Edward Houghton when he visted the site.



2190287508



The Appellant has pointed out that PCN GT78638979 is in fact dated the 26th May and yet the ticket history shows that it was posted on the 27th May and the information only inputted into the system on the 31st May.

The local authority have not offered any explanation for the discrepancy in light of which I am not satisfied that this PCN was correctly issued .

The Appellant also disputes the contravention stating that the signage was not clearly visible and there were no diversion routes signposted in breach of the local authority's own TMO.

The TMO presented in this case appears to have expired.

Paragraph 3 of LGLA2018 No0451 coming into force on 21st September 2018 states that the order will take effect from "12:01pm on 21st September 2018 until 11:59pm on 30th April 2019 or when the danger have passed , whichever is the sooner " (my emphasis).

Furthermore paragraph 5 of the same order provides "At such times as the prohibitions are in force alternative routes will be indicated by traffic Signs."

The subsequent TMO GLA 2019 no 0047 does not appear to extend the time period or amend or delete the requirement for there to be traffic signs to indicate the alternative routes

The dates of the alleged contraventions are the 23rd and 27th May 2019 which are outside the period covered by the TMO and the local authority themselves accept that there were no alternative routes signposted as they say in their case summary

"It is not a requirement for signs indicating a prohibition to offer a diversionary route" but which contradicts their own TMO

Based on the evidence presented I am not satisfied that a contravention, did occur and allow this appeal.




Mick



Posted by: PASTMYBEST Sun, 18 Aug 2019 - 15:57
Post #1508781

Havering representations to be made by date of notice

2190290058

One issue raised by the appellant is that the Penalty Charge Notice does not comply with the London Local Authorities and Transport for London Act 2003.
Article 1 (3) of Schedule 1 of the London Local Authorities and Transport for London Act 2003 states that an enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the penalty charge notice in question was served.
The Penalty Charge Notice sent to Mr Sheikh states how a representation can be made. The Penalty Charge Notice states that ‘We may disregard any representations received after the period beginning with the date of this Penalty Charge Notice. ‘
I find that the Penalty Charge Notice is inaccurate. The local authority may disregard representations made after the end of the period of 28 days beginning with the date on which the penalty charge notice in question was served. The local authority is not permitted to disregard representations received after the period beginning with the date of the Penalty Charge Notice. The Penalty Charge Notice inaccurately informs the recipient that unless the representation is made within 28 days of the date of the Penalty Charge Notice it may be disregarded.
I allow this appeal.

Posted by: Mad Mick V Mon, 19 Aug 2019 - 14:25
Post #1508966

PCN not properly "Affixed"

2190288340 (Extract)



Mr. Ogunyemi told me today that when he returned to the vehicle there was no PCN on it. In his representations against the PCN he also said that he did not see the PCN on the date ‘because it was not properly hung in’. I accept Mr. Ogunyemi’s evidence on this point and find that when he returned to the vehicle the PCN was not present. He suggests that it might have been blown away by the wind although of course he cannot know this.

The issue is not whether the PCN was there when Mr. Ogunyemi returned to the vehicle – although that matter is relevant - but whether the PCN was served in accordance with Regulation 9 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007. If a PCN is not so served then no Notice to Owner may be served in accordance with Regulation 19 of those Regulations; that is to say, it would be a procedural impropriety to do so. One of the ways in which a PCN may be served in accordance with Regulation 9 is by fixing it to the vehicle. Usually that means sticking it to the windscreen with a form of adhesive or putting it under the windscreen wiper.

The Enforcement Authority (EA)’s case is that a PCN was served by being fixed to the windscreen of the vehicle in question. The EA has provided the electronic notes from the civil enforcement officer (CEO) which contain the abbreviation ‘atw’, which I infer means ‘attached to windscreen’. I accept that it must be the usual practice of CEOs to fix PCNs to windscreens of stationary vehicles. The EA has also provided some photographs showing the appellant’s vehicle in situ at the relevant time. I have looked very closely at the PCN, in relation to the vehicle to which it is said to have been ‘fixed’.

The PCN appears to have been placed between the arm of the windscreen wiper and the wiper itself, so that its corner is under the arm. I find that the PCN was not placed between the wiper and the windscreen. It is evident from the shadow on the windscreen beneath the PCN that it was not placed directly onto the windscreen, where an adhesive might keep it there. Bearing in mind I have found that the PCN was not there when Mr. Ogunyemi returned to the vehicle, and might have blown away, I find on the balance of probabilities that there was not the necessary degree of adhesion or attachment between the PCN and the vehicle to amount to fixing it to the vehicle.

I am satisfied, therefore, that the PCN was not served in accordance with Regulation 9. Accordingly it was not open to the EA to serve a Notice to Owner and it amounted to a procedural impropriety to do so.

I allow the appeal on that basis only.

--------------------------------------------




Mick



Posted by: Mad Mick V Sun, 1 Sep 2019 - 08:37
Post #1511784

Phoenix Way : Hounslow : Consolidated Decision 30/08/19

2190285397

Phoenix Way Consolidated DecisionI am considering a number of appeals and reviews together in respect of Penalty Charge Notices issued for the same contravention at the same location.

At this hearing Mr Thind and Mr Deakis represented the Enforcement Authority but none of the appellants attended in person at this particular hearing, although all had previously made submissions either in person or in their notice of appeal.

Each case will always turn on its own facts but there were a number of common issues raised by Appellants and it is appropriate to explore these in some detail first. Mr Thind and Mr Deakis helpfully addressed these submissions in the one hearing.

I have been referred by parties to various previous appeals before learned colleagues arising out of Penalty Charge Notices at this location. In particular, two appeal decisions of Adjudicator Ms Brennan: Hothi -v- London Borough of Hounslow (2180474156), which was allowed; and, subsequently, Nawaz -v- London Borough of Hounslow (219021383A) which was refused on the basis of fuller evidence. I was also referred three appeal decisions of Adjudicator Mr Stanton-Dunne, Nasreen -v- London Borough of Hounslow (2190100582) which were all allowed; one appeal decision of Adjudicator Mr Walsh, Patel -v- London Borough of Hounslow (2190096099), which was allowed; and one appeal decision of Adjudicator Mr Brownhill, Groves -v- London Borough of Hounslow (2190082764), which was allowed.

All were in respect of contraventions within the last year. It is worth recording at this stage that, obviously, no two appeals are identical and the Adjudicator is only able to decide the appeal before him or her by making findings of fact on the basis of the evidence actually produced by the parties at the time and applying relevant law.

Contravention

The contravention stated on each Penalty Charge Notice is ‘Failing to comply with a prohibition on certain types of vehicle’. The codes and suffixes that may appear on Penalty Charge Notices are to some extent historical from the days when police constables and traffic wardens used a code which could be referenced to a list on an attached sheet, rather than the issuer having to write out the full wording. It is now conveniently used in computerised systems but what the Adjudicator considers is the wording of the alleged contravention, which might colloquially be thought of as the “charge”. Whether a code, or code and suffix, also appear does not affect this.

Location

The location stated on each Penalty Charge Notice is ‘Phoenix Way (Services)’. The Enforcement Authority’s case is that the contravention occurs when the vehicle leaves Phoenix Way and passes a sign indicating a prohibition on all motor vehicles. I will deal with the sign below but issue has been raised as to the status of the road beyond the sign. The Enforcement Authority refer it as ‘Norwood Road’. It has been submitted that this road does not appear on some road atlases or Google Street View and that it is not an adopted road, that is, a road that is maintained at public expense.

It appears that the restriction was originally created by London Borough of Hounslow (Prescribed Routes) (2015, No. 1) (Amendment No. 1) Order 2018 (‘the first 2018 Order’). This was revoked by the London Borough of Hounslow (Prescribed Routes) (No. 2) Order 2018 (‘the second 2018 Order’), which came into operation on 15 December 2019 and consolidated a number of similar Traffic Management Orders. The London Borough of Hounslow (Prescribed Routes) (2018, No. 2) (Amendment No. 3) Order 2019 (‘the 2019 Order’) came into force on 8 July 2019, and thus after the date of the alleged contraventions I am considering. It varied the second 2018 Order and according the statement of reasons, “the intention of the amendment to the existing Phoenix Way restricted access is to make the restriction and the terminology and wording for the authorised vehicular access clearer in the Order”.

It has been submitted that the adjoining road has never been named. The Enforcement Authority have produced a Highways Register map, which Mr Deakis, explains is based on the Ordinance Survey map, showing the location and the continuation of Phoenix Way marked as ‘Norwood Road’.

Whether Norwood Road is adopted or private land, the Enforcement Authority submit that the contravention occurs in Phoenix Way. It is the leaving of Phoenix Way via Norwood Road that is prohibited.

The Enforcement Authority have produced various photographs, plans and annoted images of the signs to show their exact position in relation to the end of Phoenix Way and the start of Norwood Road.

The surfaces of each adjoining road appear to have the same surface but the Enforcement Authority have point out and also annoted some images to highlight a line of cobbles, which they submit marks the exact boundary of each road. The Enforcement Authority also contend that the images clear show that the signs are on the Phoenix Way side, although one Appellant submitted only just and that it depended on the angle at which the image was taken.

In most if not all case summaries the Enforcement Authority state the following or similar:
“The vehicle passes a sign which is placed on Phoenix Way and therefore strictly in contravention at that point, due to the overlay of the two roads the vehicle crosses onto Norwood Road so it is included in the length of road description provided in Schedule 9, Column 2 of the Traffic Management Order. The point of contravention does not occur on Norwood Road, rather continues onto it so the description would not read logically correct if such was listed as the first item in Column 2.”

As has been pointed out by some Appellants, in the Schedule to the first 2018 Order, at the new Item 12, the location is stated to be ‘Phoenix Way, Honslow [sic] … ’. This is obviously a misprint for Hounslow and could be cured under the slip rule as it clearly does not go to a matter of substance. The Enforcement Authority explained that the 2019 Order has rectified this.

I shall refer to the new Order later but am considering the position at the time of the events for which these Penalty Charge Notice was issued.

Exemptions

Exemptions under the original Order were:
- Highways England Traffic Officer Vehicles.
- Highways England operational and maintenance vehicles.
- Drivers whose vehicle registration numbers are on the Authorised Vehicle List.


Currently they are:
- Highways England Traffic Officer Vehicles.
- Highways England operational and maintenance vehicles.
- A Permit holder.


I find that there is no effective relevant difference in these.

The permits are virtual and effectively a white list system is used. It appears that in previous years this route may have been used as a short cut to the M4 westbound motorway service station generally known as ‘Heston Services’. The service station is apparently run by Moto Hospitality Limited and there is also a motel or similar owned by Travelodge Limited on the same site. Some Appellants have submitted that they were staying there and used this route to get to it. Mr Thind added at this stage that Travelodge guests can use this route only if on the authorised list and not every guest authorised and, further, that Travelodge actually advise guests not use it to enter but rather to use the M4. Indeed, the Travelodge website, under that heading ‘How to get to your hotel’ currently states:

“Please be aware that the use of Phoenix Way is strictly prohibited. Guests are strongly advised to use the M4 route when entering and exiting this hotel. From London, exit the M4 between junctions 2 and 3 onto a slip road for Heston Westbound Services. Alternatively, please contact reception who will be happy to direct you.’ Further, there is also a highlighted box stating ‘Important information: Please be aware that the use of Phoenix Way is strictly prohibited. Please see the directions tab for more details. Alternatively, please contact the hotel reception team who will be happy to advise you further.”

The Enforcement Authority explained that a recovery company, Automania Group Ltd, is also permitted but any other recovery service would need specific authorisation through Moto. The site to the side of the junction always appears to have a number of vehicles present but whilst it might have arisen in other appeals, no appellant has submitted that, due to the sharp angle of the turn, they could not see the signs when exiting the site.

Signage

The signs themselves appear to comply with the prescription of Diagram 619 at Item 12 in Part 2 of Schedule 3 to the Traffic Signs Regulations and General Directions 2016 as indicating motor vehicles prohibited, with an associated plate, permitted under Item 15(1)(d) of Part 3 of Schedule 3, with the legend ‘Except permit holders’. The two posts containing the signs are the same signs on both sides, although each of the cases I am considering relate only to vehicles leaving Phoenix Way and not to any travelling in the opposite direction. The Enforcement Authority indicated at the hearing that they do not currently enforce in respect of vehicles travelling in the other direction. Further, the Enforcement Authority accept that at the time each of the present events occurred, these were the only Diagram 619 signs in Phoenix Way, that is signs back to back on each side of the two posts but nowhere else in Phoenix Way.

There were general information signs on Cranford Way in each direction on the approach to the junction with Phoenix Way. They were certainly erected at some time between March 2018 and June 2019. The Enforcement Authority say that they were there during the period when these present events occurred. The signs advise motorists of the new restriction. However, they are not signs which can be relied upon to prove the contravention.

Evidence produced by the Enforcement Authority shows that by 13 June 2019, new Diagram 619 signs had been erected at the junction of Cranford Way and Phoenix Way with the addition of a plate stating ‘340 yards’. These make clear to motorists first entering Phoenix Way that there is a prohibition ahead which can be, and in fact it, in Phoenix Way. It is accepted by the Enforcement Authority that they were not present at the date of the events I am currently considering.

Article 4 in Part 4 of Schedule 3 to the Traffic Signs Regulations and General Directions 2016 applies to this sign and provides:

(1) Subject to sub-paragraphs (2) to (5), [which do not apply in this case] where the sign is placed on a road subject to a speed limit greater than 20 mph, and is within 50 metres of any lamp which forms part of a system of street-lighting, the illumination requirements for the sign are
(a) where that system of street-lighting is illuminated throughout the hours of darkness, the sign must be illuminated by internal or external lighting for so long as that system is illuminated and may also be reflectorised; or

(b) where that system of street-lighting is not illuminated throughout the hours of darkness

(i) the sign must be illuminated by internal or external lighting for so long as that system is illuminated and must also be reflectorised; or

(ii) the sign must be illuminated throughout the hours of darkness by internal or external lighting and may also be reflectorised.

The signs are not illuminated but Mr Deakis on behalf of the Enforcement Authority confirmed that they were reflectorised. It was also stated that Phoenix Way is subject to a maximum speed limit of 20 miles per hour.

There are other signs at this location. There is a large blue motorway type sign with the legend:

“M4 No Entrance to Motorway Offenders will be Prosecuted”

The Enforcement Authority submitted that it was thought that leaving it in situ would be an extra warning to motorists but accept it may have caused confusion and that it has now been, or will shortly be, removed. It may be arguable that a very large number of signs close together may make it impossible for a motorist to comprehend whilst driving, which is not the case here.

There were some other signs which I understand were removed when the prohibition signs were erected but whish have been submitted in evidence. These are roundels with a bed symbol, a figure ‘10’, a humped surface symbol and a large left pointing arrow. The ‘10’ and the arrow have blue borders and clearly neither are a prescribed road traffic sign. Whilst the arrow might have caused some confusion, I accept that none of these signs were present at the date of any of the contraventions I am considering.

Position of Signs

A Diagram 619 sign is subject to Item 1 in Part 5 of Schedule 3, being the Schedule 3 General Directions. This provides:

(1) The sign must only be placed to indicate the effect of an Act, order, regulation, bylaw, resolution or notice which prohibits or restricts the use of the road by traffic.

(2) When the sign is placed to indicate the point at which a restriction, requirement or prohibition begins or ends, it must be placed as near as practicable to that point.

(3) Sub-paragraphs (1) and (2) do not apply to—

(a) a sign provided for at item 1 of the Part 2 sign table, when placed on the central island of a roundabout or in combination with a plate displaying the legend “Dual carriageway”; and

(b) a sign provided for at item 2 of the Part 2 sign table (either without an associated plate or with a plate with the legend “Dual carriageway”), when placed on a road approaching its junction with a dual carriageway road.

The Enforcement Authority have produced a number of annotated images to indicate the exact position of the signs.

In one typical case summary I am considering the Enforcement Authority state:

“The contravention does in fact occur on Phoenix Way, due to the placement of the ‘no motor vehicle’ sign being very clearly before the separation between Phoenix Way and Norwood Road which is defined by a cobblestone line and as per the Councils Highway register. The vehicle passes a sign which is placed on Phoenix Way and therefore strictly in contravention at that point, due to the overlay of the two roads the vehicle crosses onto Norwood Road so it is included in the length of road description provided in Schedule 9, Column 2 of the Traffic Management Order.

“The point of contravention does not occur on Norwood Road, rather continues onto it so the description would not read logically correct if such was listed as the first item in Column 2.”

When referencing the above provision, the case summary continues:

“When the description of the Traffic Management Order is taken contextually with the definition including two roads which meet at the point of the junction to which is being restricted, the signs have been placed as near as practicable with one on Phoenix Way and one directly in line to the junction with Norwood Road.

As Phoenix Way is part of the London Borough of Hounslow's publicly adopted highway … it therefore falls within the classification of a “road” under the London Local Authorities and Transport for London Act 2003, due to the public having access.”

Conclusion

If the restriction is on Phoenix Way, then that is where a contravention occurs but the position of the signs convey the meaning, or purports to, that motor vehicles are prohibited in Norwood Road. However, the Traffic Management Order does not create such a prohibition and probably could not in any event.

As already mentioned, the Enforcement Authority have indicated that they do not currently enforce in respect of vehicles travelling in the other direction past the identical signs on the reverse and into Phoenix Way. Such vehicles may well be in contravention of the prohibition created by the Traffic Management Order.

As referred to above, Article 3 of the 2019 Order amends the second 2018 Order by

(1) adding a definition of ‘permit holder’ as meaning “any driver whose vehicle is listed on the list of authorised road user vehicle registration numbers held by the London Borough of Hounslow. The vehicle registration numbers being supplied to the London Borough of Hounslow by Moto”; and

(2) adding a new paragraph j) to Article 4: “No person shall cause any motor vehicle to enter or leave any road specified in column 2 of Schedule 10 at the location specified in column 3 unless otherwise stated in column 4 of the said Schedule.”

This latter provision and the placing of Diagram 619 signs at the junction of Cranford Way with Phoenix Way may substantially alter the position now, although that will be for determination in the future.

Considering carefully all the evidence before me I cannot find as a fact that at the date when these present events occurred, there could have been contravention of the prohibition in the Traffic Management Order as it then provided.

Accordingly, each of the present appeals I am considering will be allowed or upheld, as the case may be.







Posted by: Mad Mick V Sun, 1 Sep 2019 - 08:55
Post #1511790

Vehicle Access Crossing ----footway or road?

This was a footway parking contravention.


2190295608 (Extract)



The photographic evidence shows clearly enough the location where the vehicle was parked. The “road” in question, Lansdowne Way, extends to the very clearly defined building line of concrete buildings, leaving a wide footway between the buildings and the carriageway. The vehicle is parked on an extended length of that footway which has been clearly lowered to facilitate vehicular access to the adjoining premises, the large metal gates. However lowering a footway for that purpose does not turn it into a part of the carriageway (as no public vehicular right of passage is thereby created). A dropped footway remains a footway, and vehicles may not park there irrespective of any question of obstruction. Vehicles parked in front of the gates are therefore parked other than on the carriageway of the road, which is, by statute, in the absence of some legal exemption, a contravention throughout London. It is not surprising that a PCN was issued.
---------------
Mick

Posted by: Mad Mick V Mon, 7 Oct 2019 - 15:21
Post #1520752

Newham----Non operational parking meters, the TRO indicates the Council has a responsibility to maintain.

2190367414
In broad terms the appellant’s case was that: i) the meters at the location have not been operational for a significant period of time and the Enforcement Authority has a duty to maintain its meters (article 14); ii) the appellant did not have the means to pay by phone; iii) the appellant left a note on his windscreen to explain his quandary; iv) pay by phone charges a levy which is unlawful; v) the Traffic Management Order required the Enforcement Authority to maintain its meters (article 14) and if a meter was not available vehicles are exempt (article 18); vi) the Enforcement Authority’s case has been inconsistent in that they initially stated that the meters had been vandalised but before the tribunal they asserted that cash payments are not accepted at all.

The Enforcement Authority resisted the appeal. They submitted that the pay and display machines in question ‘no longer work’ and all motorists must pay by phone (see paragraph 5 of the case summary).

The civil enforcement officer took photographs of the meter and signage both of which indicate that payment can be made at the meter. The meter itself offers the option to pay by phone and has a facility to pay by cash but this was not operational on the day in question as can be seen from the photographs the civil enforcement officer took at the time.

The starting point is that a motorist must pay to park. The fact that the appellant did not have the means to pay by phone did not absolve him of the obligation to pay. A motorist must pay by one of the means of payment offered. The fact that appellant forgot his phone amounts to mitigation and did not entitle him to park without paying.

However, article 14 provides that the Enforcement Authority must maintain their meters. The TMO before me states that cash payments are still permissible (article 16 (a)). The 2015 order amended the 2010 order but article 14 still imposes an active duty on the Enforcement Authority to maintain its meters (see article 4 of the 2015 order).

The evidence before me is that the Enforcement Authority are not complying with their duty pursuant to article 14 of the 2010 order (see paragraph 5 of the Enforcement Authority’s case summary). The Enforcement Authority have produced no evidence that the TMO has been amended or that the signage at the location has changed to advise motorists that cash payments are no longer accepted.

The appellant raised these points but the Enforcement Authority failed to deal with them. On this basis, on the evidence available in this case, I allow this appeal.




------------------------------




Mick








Barnet's e-mail on their moving traffic PCN is compromised

Decision Date 05 Oct 2019

2190370055 (Extract)
The Appellant, however has emphasised that the email address for the making of representations set out on the Council’s website is in fact incorrect, which accounts for his representations going astray. He as informed of this in a telephone call to the Council, and I find his evidence of that conversation persuasive. The Council does not appear to have dealt with point in its extensive case summary, and if the Appellant was simply wrong on this point one would have expected it to have said so and given some explanation as to the two different e-mail addresses in question. On the evidence I am unable to be satisfied the e-mail address on the PCN was correct. It is self-evidently essential that the address for making representations set out on the PCN is correct, and this means all addresses given. It follows that the PCNs in question in this case were defective and no penalty may lawfully be demanded on the basis of them. These appeals are therefore allowed.
---------
Mick





Posted by: PASTMYBEST Thu, 10 Oct 2019 - 15:19
Post #1521472

This case looks at PCN and NoR flaws with Havering MTC in some depth

2190374806

Posted by: PASTMYBEST Sun, 10 Nov 2019 - 20:08
Post #1529003

QUOTE (PASTMYBEST @ Thu, 10 Oct 2019 - 15:19) *
This case looks at PCN and NoR flaws with Havering MTC in some depth

2190374806


Camrose Ave case found on section 36 sign argument


219043298A

Posted by: Mad Mick V Fri, 14 Feb 2020 - 12:35
Post #1550305

Vehicle converted to Campervan-- Rotherhithe Tunnel


We had no luck with this one:-


http://forums.pepipoo.com/index.php?showtopic=127470&view=findpost&p=1480676


However this one, with a Review via TfL, takes a more pragmatic view:-

2190292381
Mr Hodges attended today. He appeals as he argues that his motor vehicle is not a goods vehicle and therefore it is not prohibited from using the Rotherhithe Tunnel.

The Traffic Management Order prohibits goods vehicles with a maximum gross weight exceeding 2 tonnes proceeding either north or south bound in the Rotherhithe Tunnel.

A goods vehicle is defined in the Traffic Management Order as a motor vehicle or trailer constructed or adapted for the use for the carriage or haulage of goods or burden of any description.

Transport for London argues that the appellant’s vehicle is a goods vehicle because its category in the DVLA document is N1 which is the category for all goods vehicles.

Mr Hodges provided a copy of his V5C document. It states that the vehicle is a motor caravan taxed as a light goods vehicle. Mr Hodges purchased the vehicle new having had it fitted and customised to his specifications as a camper van. It has a shower and cooker in the van and beds.

I find that the vehicle is not a goods vehicle. It has not been adapted for the use for the carriage or haulage of goods or burden of any description. It has been adapted to be used by passengers as a camper van.

I allow this appeal.


The Review


This is an application by the Authority for a review of the decision that was sent to the parties in this appeal.

I have considered the Authority's application for a review, I have read the original Adjudicator's decision and the evidence.

I have also considered the decision by Adjudicator Mr E Houghton in the review cases of 2190330072, 2190322096 and 2190285251, and I adopt and agree with his reasoning.

The Adjudicator made the following finding in relation to the Appellant's case:

" A goods vehicle is defined in the Traffic Management Order as a motor vehicle or trailer constructed or adapted for the use for the carriage or haulage of goods or burden of any description. Transport for London argues that the appellant's vehicle is a goods vehicle because its category in the DVLA document is N1 which is the category for all goods vehicles. Mr Hodges provided a copy of his V5C document. It states that the vehicle is a motor caravan taxed as a light goods vehicle. Mr Hodges purchased the vehicle new having had it fitted and customised to his specifications as a camper van. It has a shower and cooker in the van and beds. I find that the vehicle is not a goods vehicle. It has not been adapted for the use for the carriage or haulage of goods or burden of any description. It has been adapted to be used by passengers as a camper van."

I find that the Adjudicator was entitled to reach the decision she did on the basis of the evidence before her and that it discloses no error of law. She has clearly given consideration to the vehicle's VCA category, and has taken into account the physical configuration of the vehicle and what vehicles of this kind are normally used for.

Further, the Adjudicator has given brief but clear reasons why she finds that the Appellant's vehicle is not a goods vehicle.

That the Authority disagrees or is unhappy with the decision, or that it believes another Adjudicator might have reached a different conclusion, does not provide a ground for review.

There is no ground under the Regulations on which that decision may be disturbed.


--------------------


Mick

Posted by: PASTMYBEST Fri, 21 Feb 2020 - 19:46
Post #1552100

Interesting interpretation and appellant directed to apply for costs

2200018539

The main point to be considered is whether the 'length of time' that the appellant was stopped is relevant to his appeal.
There is also the point as to consider as to whether the enforcement authority's decision was wholly unreasonable.
The appellant's case is that he missed seeing the sign just as he went past it and then, upon realising his error, he immediately stopped and reversed out of the zone.
The authority's case is that the error made by the appellant constitutes mitigation and the fact that he stopped just as he passed the sign and then immediately reversed out of the zone is of no relevance. It has also stated that: "The appellant ... should be conversant and observant of the signs that pertain to the movement of their vehicle."
I find as fact that: there was no fault on the part of the appellant; the appellant did not see the sign showing the restriction in sufficient time to enable him to stop from entering the zone; he had only just passed the sign when he realised that he was entering the zone; he immediately stopped and immediately reversed out of the zone; the appellant did not at any time willfully shut his eyes to the signage; the appellant did not deliberately choose to ignore the signage
I am satisfied that the 'length of time' that the appellant was stopped is relevant to his appeal. The relevant wording in article 4 of the relevant Traffic Management Order reads, in part, that "No person shall cause any vehicle ...". If an appellant has to 'cause' the contravention, then fault on the part of the appellant is required. The word 'cause' means that knowledge of the unlawfullness of the entry to the zone is required. The knowledge required of the appellant can only either be actual knowledge or constructive knowledge. However, if the knowledge is constructive, then this must be due to the appellant having willfully shut his eyes to the signage or deliberately choosing to ignore the signage.
The appellant has also made the point that advance warning should be made available to motorists. The authority states that there is no requirement for advance warning.

The authority must not only comply with the letter of the relevant regulations, but is also under a duty to act fairly in all of the circumstances.
The authority could consider the need for the installation of signage which is better able to accord with the concept of fairness so that motorists could be better informed of the relevant traffic restriction. It could be possible for signage to operate in such a way as to provide reasonable information concerning what might be required in order to comply with the restrictions of the zone.
I consider that the disputed decision of the authority was wholly unreasonable. I direct that Mr Damian Makowicz, the appellant, should make an application for the costs that he has incurred. I direct that Mr Damian Makowicz should make his application for costs to the Tribunal Clerk within 14 days of the date of this decision.
I am unable to be satisfied that the contravention occurred because I accept the evidence of the appellant.

Posted by: Mad Mick V Mon, 9 Mar 2020 - 09:51
Post #1555838

"Reason to Believe" and the evidence to prove a non-display of ticket contravention.



2190434544 (Extract)

The PCN was issued for the following contravention (from the London Councils list of approved PCN codes):


“Contravention: 06p (parked without clearly displaying a valid pay & display ticket or voucher - pay & display)”

The evidence shows, and I find, that the appellant company’s vehicle was parked in Beauchamp Place at 12.25 on 2 August 2019, which was a Friday.

One minute after issuing the PCN the civil enforcement officer (CEO) took a photograph of a sign, which the EA would no doubt assert was proximate to, and referred to, the place in which the vehicle was parked. No other signage is relied upon by the EA and no evidence of other signage has been provided. The sign states that between 8.30am and 6.30 pm on Monday to Saturday parking must be paid for by phone. A telephone number and location reference are stated on the sign. Just beneath the main panel, details of a ‘pay by phone’ app are provided. No doubt users of that app would be able to pay for parking in that location. The inclusion on the sign by the EA of details relating to the app must mean that payment by that app is acceptable. The sign does not make any reference whatsoever to a requirement to obtain a ‘pay and display’ ticket or voucher, or to a ‘pay and display’ ticket machine. There is no evidence from the CEO that such a machine was proximate to the place in which the vehicle was parked. The only inference from the sign relied upon is that payment for parking in that place must be made by phone or on the app. Certainly that is how it would appear to a motorist.

It has never been asserted by the appellant company that parking had been paid for. The EA says that its researches have identified no record of payment for parking for the vehicle. The EA is wrong, however, to say that the CEO’s notes show that no ‘pay by phone’ session was found for the vehicle. The notes make no reference to any researches done by the CEO. I proceed on the basis that parking had not been paid for by telephone or the app but I am unable to find that the CEO had established that was the case when issuing the PCN.

There is, of course, a contravention in the London Councils list of standard PCN codes ’11 – parked without payment of the parking charge’. That might, if the CEO had indeed identified that parking had not been paid for by phone or app, have been the appropriate contravention to allege. But that is not the contravention that is alleged in this case. The CEO took the decision to issue the PCN for the contravention identified above.

It is right to say that there is no evidence that a parking ticket or voucher was displayed in the vehicle. Although the CEO does not expressly state in the notes that no such ticket or voucher was displayed, it is implicit that that was the CEO’s conclusion, given the type of contravention alleged in the PCN. S/he was entitled to reach that conclusion.

Whether the contravention is proved

On the face of it, it is a necessary element of the contravention alleged that the person in charge of the vehicle was subject to a requirement, when causing or permitting it to wait in the parking place in question, to obtain and display in the vehicle a valid pay and display ticket or voucher. The terms of some enforcement authorities’ traffic management orders (TMOs) deem payment for parking by phone or an app to be equivalent to paying for parking and displaying a voucher. The EA has not provided the TMO applicable to this case and I am not prepared to speculate on its terms. There is, therefore, no basis to conclude that there was a requirement to display a valid pay and display ticket or voucher in a vehicle waiting in this particular parking place. On the contrary, the sign does not inform motorists of any such requirement, but a requirement to purchase parking using the telephone or an app.

The contravention alleged, namely 06p (parked without clearly displaying a valid pay & display ticket or voucher - pay & display) is not proved because the EA has failed to prove that there was a requirement to display such a ticket or voucher. Further, the signage in place at the location is inadequate in that it fails to inform motorists of any such requirement.

Whether the CEO was entitled to issue the PCN in the terms it was issued

The EA’s power to issue and serve PCNs in the manner that occurred in this case is provided by Regulation 9 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, which are regulations made pursuant to the Traffic Management Act 2004. Regulation 9 provided as follows (as far as is relevant):

“9. Where a civil enforcement officer has reason to believe that a penalty charge is payable with respect to a vehicle which is stationary in a civil enforcement area, he may serve a penalty charge notice”

Paragraph 1(b) of the Schedule to those Regulations provides that the PCN must state:

“the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable;”

As I have indicated, the CEO was entitled to come to the conclusion that no pay and display ticket or voucher was displayed. Was the CEO entitled, however, to conclude that there was a requirement for vehicles parked in the place in question to display such a valid pay and display ticket? For the reasons stated, both of those matters are elements of the contravention alleged. In terms of Regulation 9, the CEO was only entitled to issue the PCN if s/he had reason to believe that a penalty charge is payable. The grounds upon which the CEO in this case believed the PCN was payable were that no pay and display ticket or voucher was displayed in the vehicle in circumstances in which one was required to be displayed.

Whether a person had reason to believe a thing is a question of fact. How that fact is to be determined has been the subject of argument in the Court of Appeal and High Court, by the decisions of which I am bound. In LA Gear Inc v. Hi-Tec Sports Plc [1992] F.S.R. 121 the Court of Appeal endorsed (see p.138) the trial judge’s interpretation of the concept of ‘reason to believe’ in the context of section 23 of the Copyright, Designs and Patents Act 1988. The matter was put by the trial judge, Morritt J, in this way (at p.129 of the report):

“Nevertheless, it seems to me that "reason to believe" must involve the concept of knowledge of facts from which a reasonable man would arrive at the relevant belief. Facts from which a reasonable man might suspect the relevant conclusion cannot be enough.”

The concept has been addressed similarly in the context of s.151 of the Road Traffic Act 1988, dealing with insurers’ liability to passengers who are carried in stolen or unlawfully taken vehicles. Mr. Justice Keith held in McMinn v. McMinn [2006] RTR 33 (at [17]) that:

“…What has to be proved is that the injured passenger had the information-or what Mr Adrian Palmer Q.C. for the insurers called "the building blocks"-which would have afforded him good reasons for believing that the vehicle had been stolen or unlawfully taken had he applied his mind to the topic.”

I conclude, therefore, that ‘reason to believe’ in the context of the CEO’s power to issue a PCN under Regulation 9 for any given contravention means that before issuing the PCN for that contravention the CEO must have knowledge of the facts or information that would permit a reasonable CEO to believe that a PCN was payable for that contravention.

The CEO in this case had one of the necessary ‘building blocks’ of information because s/he did not see on display in the vehicle a valid ticket or voucher. That, of course, is insufficient to form the belief that a PCN was payable for the contravention alleged in this case. The PCN is only payable if there is a requirement to display such a ticket or voucher.

There is no evidence that the CEO had knowledge of such a requirement. There was no signage indicating that a pay and display ticket or voucher must be purchased and displayed in a vehicle waiting in the parking place in question. On the contrary, whether s/he saw it before issuing the PCN or not, the sign indicated that the requirement was different. I find, therefore, that the CEO did not have reason to believe that a PCN was payable for the contravention alleged and s/he was therefore not entitled to issue the PCN. To do so amounted to a procedural impropriety and the PCN is therefore quashed on that ground.

In the event that the TMO does require payment to be made by phone or app, I am not satisfied that the CEO did ascertain that payment had not been made by either of those means and so s/he would not have been entitled to issue the PCN on that basis either.

----------------------------------------------




Mick




Posted by: Mad Mick V Sun, 22 Mar 2020 - 15:33
Post #1558607

Contravention of not displaying valid P&D ticket is suspect if the machine is out of order.

This one's Newham but it has wider application; an Edward Houghton Decision.

2190494295

As a person of similar age to the Appellant I have a degree of sympathy with the complexities of making payment by phone at the roadside, particularly if the phone is not of the latest type - although my sympathy in the present case is somewhat reduced by the Council’s evidence that the registration number has been incorrectly registered and used on previous occasions. . Nevertheless if this is the method required to validate parking a motorist must simply cope with it or park the vehicle elsewhere.

In the present case, however, the PCN was issued for the contravention of failing to display a P&D ticket (which is what the Traffic Management Order requires), not for failing to make payment. I accept the Appellant’s evidence (not challenged by the Council) that there were no working P&D machines available; and it seems to me a motorist cannot be required to pay a penalty for failing to display something which the Council has prevented him from displaying. The Appeal is allowed on the basis that the contravention alleged on the PCN did not occur.



Mick

Posted by: Mad Mick V Fri, 1 May 2020 - 10:40
Post #1565466

Parking at Country Parks and their definition as public land

This is a LA Ombudsman case relating to Kent County Council.


The Ombudsman’s investigation found that because the car park was on public land, the council should have used a Traffic Regulation Order, under the Traffic Management Act 2004 to issue the charge. Instead the council wrongly thought it could make the charge under the Protection of Freedoms Act 2012, designed for private land, because the charge was being enforced by a private contractor.

Here's the case:-
https://www.lgo.org.uk/assets/attach/4521/REPORT-17004169-KENT-CC.pdf

Mick

Posted by: PASTMYBEST Fri, 1 May 2020 - 10:50
Post #1565468

QUOTE (Mad Mick V @ Fri, 1 May 2020 - 11:40) *
Parking at Country Parks and their definition as public land

This is a LA Ombudsman case relating to Kent County Council.


The Ombudsman’s investigation found that because the car park was on public land, the council should have used a Traffic Regulation Order, under the Traffic Management Act 2004 to issue the charge. Instead the council wrongly thought it could make the charge under the Protection of Freedoms Act 2012, designed for private land, because the charge was being enforced by a private contractor.

Here's the case:-
https://www.lgo.org.uk/assets/attach/4521/REPORT-17004169-KENT-CC.pdf

Mick


That's interesting Mick, perhaps relevant to the private parking forum also

Posted by: Mad Mick V Sun, 10 May 2020 - 13:23
Post #1566570

This is what could happen with an Excess Charge Notice
Ombudsman case re:- Huntingdonshire District Council
The complainant, who I will call Mr B, says the Council wrongly told him he had a right of appeal in the Magistrates’ Court to challenge an Excess Charge Notice. The Council did not make clear that it would be a court prosecution and did not explain the associated costs. Mr B says the Council’s errors resulted in a financial loss of £251 and he would like the Council to pay back this cost. Mr B says the court case was heard in a court 100 miles from where he lives.
Decision

  1. The Road Traffic Regulation Act 1984 allows Councils to designate paying parking places on highways and to provide off-street parking places. If you fail to pay the right charge, or comply with the parking rules, it is a criminal offence. The Council can issue an Excess Charge Notice (ECN), if the person does not pay the Council can take the matter to court.
  2. There is no right of appeal to an ECN in law, however the Council chooses to allow an appeal to ensure it has not made an error or there are no mitigating circumstances before it goes to court.
  3. Mr B parked in a car park and failed to display the relevant parking ticket. The Council issued an ECN; Mr B appealed because he had forgotten to display his parking permit. The Council dismissed the appeal as Mr B was responsible to display the proper ticket, and the Council did not feel forgetting to do so was a good reason to waive the charge. Mr B still had time to pay the reduced charge of £40, after which it went up to £60. The letter said, “unless new evidence or information is being provided, there is no further appeal against this excess charge except in the Magistrates Court.” Mr B did not pay.
  4. The Council passed the matter to its legal department who took Mr B to Court for failing to pay the ECN. Mr B pleaded guilty and says he paid costs and fines totalling £251.

Was there fault causing injustice?
  1. Mr B argues the Council is at fault for saying there was a right of appeal in the Magistrates’ Court, and for not giving information about the potential costs.
  2. The Council says the term ‘appeal’ is used to indicate that should Mr B disagree with the parking charge; he could make a request to the Magistrates’ Court to overturn the decision of the Council. This would be done by way of a trial, with Mr B pleading not guilty.
  3. The letter says, “unless new evidence or information is being provided, there is no further appeal against this excess charge except in the Magistrates Court.”
  4. Technically the Council’s letter is correct to say there is no further right of appeal except giving your appeal in court. But I find the wording of the Council’s letter misleads the reader into thinking they can appeal to the Magistrates’ Court. It is not clear the Council will prosecute you. Mr B is right the letter makes no mention of added costs. It is unlikely at this stage the Council would be able to give specific information on added costs, but it could say that it would likely claim back its costs of pursuing to court. Individuals can then make an informed decision on whether to pay at that stage.
  5. After the letter in question the Council’s legal department sent further correspondence to Mr B. The first letter was a ‘letter before action’ which confirmed the Council would commence legal proceedings, but they could be avoided if Mr B paid the £60 fine. I note this letter also did not refer to added costs. Mr B did not pay, nor ask what the legal proceedings would involve. The Council then issued Mr B with a legal pack, which explained it would be applying for costs of £150 as well as the £60 parking fine.
  6. Mr B had the right to plead not guilty and put forward any mitigating factors, the court would then decide whether to award the parking fine and the Council’s costs. Mr B chose to plead guilty and was therefore liable for the costs of the prosecution.
  7. I note that it is not until the Council started legal proceedings that it made Mr B aware there would be added costs. Mr B did not have all the information to make a fully informed decision at an earlier stage as to whether to pay the fine. However, in this case I find on the balance of probabilities it is unlikely to have altered Mr B’s actions. Mr B accepted the contravention, he admitted he did not display the required parking ticket and he pleaded guilty in court. Mr B therefore accepted the fine was due but made no effort to pay it. Mr B had an opportunity to pay a lower fine of £40 but did not pay it. Following the Council’s first letter Mr B did not pay, nor try to seek any appeal to the Magistrates’ Court, nor ask the Council for clarity on the next actions or options available to him. Mr B could have mitigated any injustice he claims by doing any of these things.
  8. The Council acted in accordance with the law in pursuing an ECN. In fact, the Council allows more opportunities than required in law to allow the person an opportunity to pay the fine and avoid going to court.
  9. However, as the Council chooses to allow these extra opportunities, they are part of its service and the Ombudsman can consider whether there is fault in its actions. I find the Council is at fault that its letter was misleading about the individual’s right of appeal, and that it does not provide information about the likelihood of added costs until after it has issued court proceedings.
  10. I do not find the Council’s actions caused Mr B’s claimed injustice of £251 for the parking fine and court costs. The Council was not at fault for pursuing the case to court in accordance with the law. The costs Mr B incurred are because of his parking contravention and were awarded by the court. I cannot comment on a court’s decision.
  11. The Council acknowledges it can learn from this complaint and the wording of the letter can be improved upon. The Council has now amended the wording within the appeal rejection letter. If the Council’s amendment has not included mention of potential added costs, then I suggest it includes this to ensure people can make an informed decision about whether to pay or contest a fine. It is also in the Council’s interests for valid fines to be paid sooner rather than later, instead of having the cost and resource of enforcing them.
---------------------------------------------------------------------------
An innocent abroad!
Mick

Posted by: Mad Mick V Sun, 24 May 2020 - 17:12
Post #1568372

Salter's Hill---The Give Way Area.

This is not a precedent but Gerald Styles indicates the priority area is between the two chichane signs and NOT at the turn into the road.

2190557850
When the appellant attended on 3 February I watched with him the cctv clip. I accepted the area over which he was required to yield precedence and give priority was that between the line associated with the priority sign facing him before he travelled under the railway bridge and the point beyond that bridge where the 811A pattern sign was positioned.

After careful scrutiny of the images I accepted the appellant argument that the evidence did not establish the alleged contravention occurred. I accepted that the oncoming vehicle did not have to change its speed before it entered the actual length of road lying between the two stated signs and accordingly I have not been persuaded the appellant failed to comply with the priority required by the sign requiring him to yield precedence to oncoming vehicles.


Mick

Posted by: Mad Mick V Sat, 6 Jun 2020 - 10:01
Post #1569850

Parking on a mandatory cycle lane can now be enforced if there are yellow road markings

From 22 June 2020 if a vehicle is stationary in a mandatory cycle lane and there are waiting and/or loading restrictions in place enforcement can take place.


The Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2020

http://www.legislation.gov.uk/uksi/2020/548/regulation/1/made

This should be read in conjuntion with #post 257.

http://forums.pepipoo.com/index.php?showtopic=90145&view=findpost&p=1414166

Mick

Posted by: cp8759 Sat, 6 Jun 2020 - 13:33
Post #1569878

QUOTE (Mad Mick V @ Sat, 6 Jun 2020 - 11:01) *
Parking on a mandatory cycle lane can now be enforced if there are yellow road markings[b]

Mick what it actually says it that enforcement can now be carried out via CCTV / postal PCN.

Posted by: Mad Mick V Sat, 6 Jun 2020 - 16:16
Post #1569895

Correct, but there must be a traffic order for the yellow lines and associated signs alongside mandatory cycle lanes otherwise Councils will be in difficulty.


The other case I posted indicated that a cycle lane on its own, even if marked as such, could only attract the offence of driving in a cycle lane. This amendment changes things and I would expect that when cameras are operational being in a cycle lane will be added to the contravention list as a moving traffic violation (probably aimed at motorbikes first up).


Mick

Posted by: PASTMYBEST Sun, 9 Aug 2020 - 12:07
Post #1579347

This case should serve as a warning. I have recently seen two others where the council have applied for cost when evidence is withheld til adjudication

2200277118

The Council has in its case summary indicated I believe that any agreement to extend the initial lease of a year should not be treated as qualifying for transfer of liability.

The initial lease as submitted had expired by the date of the alleged contravention.

I have viewed the document as signed and witnessed on 28 and 29 January 2020 as a contractual extension of the earlier long-term lease.

In my judgment it suffices for requiring the Council to cancel the notice to owner served on the appellant.

I consider I am obliged to remark that the appellant failure to send in that document as signed on 28 and 29 January 2020 when making representations is highly regrettable as I see it as resulting in a waste of public resource that is to say Council time and expense. If the appellant is unable to manage representations made to councils more efficiently in future it may find itself at risk of having to pay the Council's Tribunal and other costs even where an appeal is eventually successful at the appeal stage.



APPEAL ALLOWED

Posted by: Mad Mick V Sun, 25 Oct 2020 - 07:36
Post #1594451

New Traffic Management (Covid) Powers For Councils

The Traffic Orders Procedure (Coronavirus) (Amendment) (England) Regulations 2020


https://www.legislation.gov.uk/uksi/2020/536/contents/made


EXPLANATORY MEMORANDUM

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwj1ooD89s_sAhWOURUIHbMKDsAQFjABegQIBhAC&url=https%3A%2F%2Fwww.legislation.gov.uk%2Fuksi%2F2020%2F536%2Fmemorandum%2Fcontents&usg=AOvVaw1hE1mLgzL9UF3y1N8qV2-v


Mick


Posted by: Mad Mick V Sun, 3 Jan 2021 - 11:27
Post #1608740

PCN---- Not Containing A Postal Address for Payment
This ground may have been stymied by the following Decision from Anju Kaler (14th December 2020):-


2200475698 (Extract)
I find no merit in the point raised about the Penalty Charge Notice not being valid because it does not state a postal address for payment; section 4(8)(vii) of the London Local Authorities Act 2003 requires the Penalty Charge Notice to state “the address to which payment of the penalty charge must be sent”. That Act was drafted before the days of widespread payment by phone or electronic means. The address required is capable of being an electronic address.


Mick

Posted by: Mad Mick V Thu, 11 Feb 2021 - 09:07
Post #1617263

Statutory Guidance Traffic Management Act 2004: network management in response to COVID-19
https://www.gov.uk/government/publications/reallocating-road-space-in-response-to-covid-19-statutory-guidance-for-local-authorities/traffic-management-act-2004-network-management-in-response-to-covid-19

Mick

Posted by: Mad Mick V Sat, 15 May 2021 - 06:50
Post #1636564

A Newham case on undue delay causing unfairness and being an abuse of process

2210108070
Mr. Simukulwa appeals against this penalty charge notice (PCN) on the basis of a procedural impropriety. The impropriety alleged is that the enforcement authority (EA) has acted unreasonably and indeed unfairly in now seeking to enforce a PCN in respect of a contravention alleged to have occurred as long ago as November 2017.

THE SUBSTANTIVE DEFENCE

Mr. Simukulwa also argued that the contravention did not occur; he says his vehicle had suffered a breakdown and he was therefore unable to move it from the place in question due to circumstances beyond his control. I would not have allowed the appeal on that basis. The evidence of a breakdown was very thin. That, however, illustrates one of the points that Mr. Simukulwa sought to make about the effect of the delay; the witnesses who might have been able to provide evidence or documentation have long since become untraceable and so his case has been prejudiced. I accept that there is some prejudice to that extent.

DELAY

The main phase of delay relied upon by Mr. Simukulwa is that between the issuing of the charge certificate on 29 March 2018 and the service on 16 July 2020 of the County Court order registering the outstanding charge as a debt. This period of delay, somewhat blithely acknowledged in the EA’s case summary at paragraph 3, is extraordinary and entirely unexplained. The EA was entitled to request the charge be registered a mere 14 days after the service of the charge certificate. The delay cannot be explained, other than in small part, by the effects of the pandemic, since it occurred for the most part in 2018 and 2019. There is therefore an inexplicable delay of over two years in the process of enforcement. The EA argues that notwithstanding the delay the PCN remains enforceable and it is entitled to enforce it.

What are the legal consequences of this delay for the enforceability of the PCN that was issued?

WHETHER THERE HAS BEEN A PROCEDURAL IMPROPRIETY

The parameters of the concept of a ‘procedural impropriety’ within the meaning of the Traffic Management Act 2004 (TMA) and the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (both of which apply to this case) were considered by Mr. Justice Burnett (as he then was) in London Borough of Camden v. The Parking Adjudicator (BFS Group 03568 t/a First for Food Service, Lee Sugden, Aidan Brady intervening) [2011] EWHC 295 (Admin). In that case Burnett J held that a procedural impropriety was confined to the definition in Regulation 4(5) of the 2007 Appeals Regulations. That sub-paragraph confines a procedural impropriety that renders a PCN unenforceable to a failure by the EA to observe a procedural requirement imposed by the TMA or either set of the 2007 Regulations.

In this case, no such procedural impropriety is alleged or, indeed, present. The procedural requirements of the TMA and the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 have been complied with, since more than 14 days elapsed from the service of the charge certificate to the request to the County Court under Regulation 22 of those Regulations. I also add that there has not been a breach of CPR Part 75 and, in particular r.75.3 which governs EAs’ requests for penalty charges to be registered with the County Court. Neither the two sets of 2007 Regulations nor the CPR impose an upper time limit on such a request to the County Court.

In reality, Mr. Simukulwa’s case is not that there has been a procedural failing within the meaning of Regulation 4(5) but that the decision to continue to enforce the PCN in the circumstances is more generally fundamentally unfair, or a breach of natural justice.

CAN A COLLATERAL CHALLENGE BE UPHELD IN A TMA CASE?

A challenge on broad public law grounds was referred, before the coming into force of the TMA and the two sets of 2007 Regulations, as a ‘collateral challenge’. There was ample authority that a traffic adjudicator could, in certain circumstances, order that a PCN should be cancelled on the grounds of some fundamental unfairness or procedural failing (see R v. Parking Adjudicator Ex parte Bexley LBC [1998] RTR 128 ).

Mr. Simukulwa understandably relied upon the decision of adjudicator Mr. Hickinbottom (as he then was) in Davis v. The Royal Borough of Kensington & Chelsea (PAS Case No. 1970198981). That case, which analysed the effect of delay at various stages of the imposition and enforcement of PCNs under the Road Traffic Act 1991, is undoubtedly a very important authority. Mr. Hickinbottom held that EAs are under a duty to act expeditiously and within a reasonable time in the enforcement of PCNs. Part of the reason for that is that delay can cause prejudice to an appellant’s case. What is a reasonable time and whether there has been a breach of the reasonable time requirement will depend on all the circumstances, including the complexity of the issues and the conduct of the parties.

The facts of Mr. Davis’ case were that the EA did not seek to register the penalty charge with the County Court for 12 months after the purported service of the charge certificate. Mr. Hickinbottom held (at p.49):

“There seems to me to be no good reason for an authority to take any great length of time in deciding to proceed to serve, register and enforce a charge certificate. A vehicle owner is just as entitled to know where he stands with regard to enforcement at this stage, as at any other.”

There was a rather weak explanation for the delay. The PCN in Mr. Davis’ case was nonetheless rendered unenforceable as a result of the delay. Davis is a ‘collateral challenge’ case.

The judgment of Burnett J in London Borough of Camden at [46] makes clear, however, that a ‘collateral challenge’ to a PCN issued pursuant to the TMA and 2007 Appeals Regulations must now be framed within the parameters of those Regulations; there is now no longer a general power to order the cancellation of the PCN on the basis of a collateral challenge as such. The case of Davis is therefore no longer directly applicable to a TMA case. I turn then to consider the grounds of appeal within the parameters of the 2007 Appeals Regulations.

As I have said, there is no procedural impropriety here. The 2007 Appeals Regulations also provide that a traffic adjudicator may make a recommendation to an EA in certain circumstances that a PCN should be cancelled, a possibility considered by Burnett J at [48]. That would not be an appropriate remedy in this case because there would remain a possibility that the EA could decline my recommendation. If that occurred any unfairness would not be cured.

ABUSE OF PROCESS

At [53] of the London Borough of Camden case, Burnett J spoke of a further type of a ‘collateral challenge’ that did not sit comfortably in the category that is now defined as a procedural impropriety in the 2007 Appeals Regulations. It is based on the fact that parking contraventions typically used to be criminal offences. Parliament cannot have intended, in changing the status to that of a civil contravention, to have removed a defence that a motorist might have had before the criminal court. In certain, limited circumstances, it is open to a defendant in a criminal case to have the proceedings stayed on the grounds they are an abuse of the court’s process. The jurisdiction arises in two sets of circumstances (R v. Beckford [1995] R.T.R. 251 at 258) “(a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried.” It is collateral challenge of the second type in Beckford that arises for consideration here. Burnet J said; “… conduct on the part of the enforcing authority prior to the alleged contravention which would have made it an abuse to prosecute would be covered by this ground”. Expressed within the parameters of the 2007 Appeals Regulations, conduct that, if proved, would amount to an abuse of the process of a criminal court would mean that the alleged contravention would not be proved.

This type of parking contravention used to be a criminal offence contrary to s.35A(1) of the Road Traffic Regulation Act 1984. Its status was changed in London to that of a civil contravention by s.65 of the Road Traffic Act 1991.

I turn then to consider whether the continued enforcement of the PCN in this case would amount to an abuse of process in the criminal court. In R (on the Application of Lloyd) v. Bow Street Magistrates’ Court [2003] EWHC 2294 (Admin) the High Court Divisional Court decided that the right to have a criminal charge determined within a reasonable time extended to the enforcement proceedings in respect of part of the penalty, in that case a confiscation order. The enforcement proceedings were part of the entire criminal proceedings. There was a significant delay in that in case in commencing the enforcement proceedings and Mr. Lloyd applied for them to be stayed. It is of note that the Divisional Court observed at paragraph [22]:

“It is no answer to such an application for the prosecuting authorities to say that they are under no obligation to prosecute a particular person for an alleged crime and that there is no statutory limitation period within which such a prosecution may be brought. The point is that, even though there is no statutory time limit for prosecutions and no obligation to prosecute individual alleged criminals, the law will protect defendants from facing prosecutions after undue delay has occurred.”

The Court also noted (paragraph [26]) that whether there has been a breach of the reasonable time requirement will depend on all the circumstances, including the complexity of the case and the conduct of the parties. In that regard I would observe that there is no evidence of any complexity, or of any conduct by Mr. Simukulwa that would justify the delay of over 2 years from the service of the charge certificate to the service of the order registering the penalty charge as a debt.

The above case was applied in Flaherty v. City of Westminster Magistrates Court & Crown Prosecution Service [2008] EWHC 2589 (Admin). In Flaherty, an unexplained and culpable delay of two years before commencing enforcement proceedings rendered those proceedings an abuse of process. Mr. Flaherty had suffered no prejudice because of the delay but that was held to be immaterial; the bringing of proceedings after such a period of time was oppressive. This is an abuse of process of the second type identified in Beckford. The High Court in Flaherty said, at [21]:

“… it is plain as a matter of principle that enforcement proceedings must be brought within a reasonable time (see paragraph 23 of the judgment of Dyson LJ in Lloyd ). Since part of the purpose of the proceedings is, as I have said, to maintain the integrity of the system for collection of confiscation orders made by the Crown Court, and thus vindicate part of the system of criminal punishment and penalties imposed by the Crown Court, all the more important it is that the Enforcement Agency should pursue that purpose with vigour and within a reasonable period. In the instant case, in my judgment, the period which elapsed between 2004 and 2006 was inexcusable and runs counter to the whole purpose for which such an order was sought. It reveals an insouciant attitude by the Enforcement Agency to that which they were required to pursue, for which no proper explanation has ever been given.”

I conclude therefore that if this matter were prosecuted as it would have been prior to 1991 in a criminal court Mr. Simukulwa would probably have succeeded in an application to stay the proceedings as an abuse of the court’s process. Or, more accurately, if enforcement proceedings for some element of the penalty had been subject to a delay as occurred in this case, they would more likely than not have been stayed. The delay in this case is exceptional and warrants the invocation of the abuse of process doctrine, whether there has been prejudice or not.

CONCLUSION

It is, I find, now fundamentally unfair to enforce the PCN. In those circumstances, and applying the principle identified in [53] of the London Borough of Camden case, I do not find the alleged contravention proved.

This is entirely consistent with the end result had the principle in Davis been applied, if the matter had been a non-TMA case. If I had applied Davis, I would have found that there had been a significant and unexplained breach of the reasonable time requirement, that there was no complexity to the case or fault on the part of Mr. Simukulwa and that the delay had caused a degree of prejudice to him. I would have upheld a collateral challenge.

In any event, the appeal is allowed.







Mick



Posted by: Incandescent Sat, 15 May 2021 - 10:07
Post #1636582

Well found !!

Posted by: Mad Mick V Fri, 2 Jul 2021 - 14:40
Post #1646813

Lambeth Low Traffic Neighbourhood Scheme (Oval Triangle) Found Illegal by High Court

https://apple.news/AOPRpHyprSUuOwh1DPOhVLg

Looks like the restriction is now in force because the Judge indicated the Oval Triangle LTN is now law. However prior to the Council getting to that stage, penalty charges were improperly imposed.

A quick scan of this LTN suggests the restrictions were placed:-


Might be more!!!!

Mick

Posted by: Schofeldt Fri, 29 Apr 2022 - 13:26
Post #1709230

Waltham Forest and Barnet Bus Lane cameras i.e. non prescribed or approved: 2210767543; 2210847074; 2220026347.

Excellent work.

Posted by: Kooky Cick Thu, 9 Jun 2022 - 07:50
Post #1716162

@Hippocrates

for the benefit of newbies like myself, would you please explain how to view the cases from the case number please? googling hasn't helped me

many thanksfor this comprehensive resource


http://www.patasregistersofappeals.org.uk/. this hyperlink is either broken or hijacked: be careful! ( 9th June 2022 )

Posted by: Neil B Thu, 9 Jun 2022 - 19:26
Post #1716375

QUOTE (Kooky Cick @ Thu, 9 Jun 2022 - 08:50) *
@Hippocrates

for the benefit of newbies like myself, would you please explain how to view the cases from the case number please? googling hasn't helped me

many thanksfor this comprehensive resource

https://londontribunals.org.uk/
> Statutory Registers > E&TA search

Posted by: Schofeldt Tue, 2 Aug 2022 - 11:10
Post #1727134

Further London Bus Lane camera decisions: 2210250967 and, more importantly, 2210860888 as costs were awarded against Lambeth. And they lost a review application before that unusual decision to award costs. Further thanks to cp8759.

https://londontribunals.org.uk/

And, thanks to Mr Mustard: 2160470243.

Posted by: astralite Fri, 19 Aug 2022 - 16:05
Post #1730807

Stopped on a restricted bus stop or stand

221062105A
Victoria Road
Kingston upon Thames
24 Nov 2021
Andrew Harman
Appeal allowed
This vehicle on the council's case stopped on a bus stop. On the driver's case she stopped whilst seeking to access a parking bay [visible in the council's images provided at 'H'] beyond the bus stop that was ready to receive her vehicle she having to stop prior to entering the bay because a vehicle in front of her stopped. Notwithstanding that the driver used the bus stop to access the bay I am satisfied on her case that she stopped on it during the course of a driving manoeuvre and not in contravention of the prohibition on doing so and I accordingly allow the appeal.

Posted by: astralite Mon, 22 Aug 2022 - 11:59
Post #1731290

QUOTE (astralite @ Fri, 17 Oct 2014 - 14:41) *
Event day signage. Parked in a restricted street. Controlled Zone. 2140405442
Richmond Upon Thames

…. even if the hours on the Zone sign were adequate to override the time plate there is … a dearth of evidence to prove that the Appellant must have passed
such a sign …No plan of the Zone showing the location of the signs has been provided nor is there any evidence that all the signs had been correctly set to show
the dates of the event days. (There is also no evidence of the Secretary of State's authorisation for the sign, although I suspect on the basis of other cases that
this has in fact been granted). … I am unable to be satisfied the restriction relied on was adequately drawn to the Appellant's attention.


Event Day signage: Event Zone
2220400330
London Borough of Wandsworth
Garratt Lane
30 Jun 2022
No evidence that signage was present on the route the motorist took into the zone.

London Tribunals ETA Register of Appeals
https://londontribunals.org.uk/

Posted by: astralite Wed, 31 Aug 2022 - 08:16
Post #1732898

QUOTE (PASTMYBEST @ Fri, 14 Oct 2016 - 11:05) *
A simple case really but the council get a bollocking


2160383400

Miss Bashir appeared before me today for the personal hearing of her appeal. She gave evidence in the same terms as her earlier representations to the Enforcement Authority and her Notice of Appeal, adding further details to her account.

The Civil Enforcement Officer (CEO) noted all the details of Miss Bashir’s car and recorded that this Penalty Charge Notice (PCN) was issued because the vehicle was said to have been parked for longer than permitted. The CEO recorded what was said to have been on the relevant timeplate, showing that parking was permitted from Monday to Saturday between 8 am and 6.30 pm for a maximum of 2 hours, with no return being permitted within 1 hour. Photographs were taken, one of which showed a timeplate bearing that information.

Miss Bashir’s case is that where she parked the timeplate showed that parking was permitted from Monday to Saturday between 8 am and 6.30 pm, but did not show any limitation on the amount of time vehicles could park within those hours. She produced a photograph of the timeplate, which she said that she took on the day the PCN was issued, which appears to show that the lower part of the legend has been obliterated by spray paint. She explained at the hearing that this had been the case for months, and that consequently she and other car owners in the street routinely parked at this location, and had not been issued with PCNs until now.

The Authority’ position is that the restrictions were clearly signed, and that as the street was one-way, Miss Bashir would have passed at least one timeplate before parking her vehicle.

In light of Miss Bashir’s claims, we looked together at the location on Google Street View (GSV). I accept that her car was parked nearly outside Paddy Power, close to a post bearing a timeplate, which at the time the images were captured (June 2015) showed the full terms of the restrictions. However I am satisfied that it was also the timeplate that Miss Bashir photographed at the time the PCN was issued, and that at that time it was indeed partly obscured, so as not to show any time limit on parking.

What is of considerable concern is that it can be clearly seen from the GSV images that the timeplate photographed by the CEO in support of the issue of this PCN is in fact located on the opposite side of the road. Enforcement Authorities correctly insist in other cases that motorists cannot rely on signs on the opposite side of a street to where they park, but must always look for signs on the same side. I therefore consider it reprehensible for the CEO, and in turn the Authority, to rely on this sign as showing that the restrictions were properly signed.

I have had the advantage over the Authority of hearing from Miss Bashir in person, and found her a convincing and credible witness. In light of the above, I am not satisfied that at the particular location where Miss Bashir parked her car the restrictions relied on by the Authority were properly signed. They may not therefore enforce this penalty charge. I trust that they will also admonish this particular CEO, and make clear to all their CEOs that they should not resort to such devices to prove signing when it is not actually in place.

The appeal is therefore allowed.

Re photographic evidence. Note penultimate paragraphs.


Posted by: Schofeldt Wed, 31 Aug 2022 - 21:23
Post #1733017

Mr Adjudicator Cooper should have invited Miss Bashir, a lay appellant in person, to apply for costs. Out******geous behaviour from a Council employee. 2160383400

Posted by: MMV Redux Sat, 3 Sep 2022 - 07:55
Post #1733482

Updated Secretary of State's Statutory Guidance on Parking :-

https://www.gov.uk/government/publications/civil-enforcement-of-parking-contraventions/guidance-for-local-authorities-on-enforcing-parking-restrictions

Mick

Posted by: Schofeldt Sun, 4 Sep 2022 - 10:46
Post #1733718

This case well illustrates the powers of an adjudicator (from The Chief Adjudicator, indeed) and the balancing act necessary to be performed in the delivery of even-handed justice:

https://bit.ly/3PImseO

Posted by: astralite Sat, 10 Sep 2022 - 12:07
Post #1734906

QUOTE (astralite @ Tue, 29 Jul 2014 - 12:28) *
Location: Yellow Box Junction - two or more possible locations, and not at location stated

2060381000 Inadequate information on PCN
210056419A
2120507905
2130069145
2140187691

2140111099 No YBJ at location stated on PCN (or on photos)
2140200836

Not sure whether any of the above are already in other posts - but maybe useful together.

Box junction not at location stated on the PCN
2220509635
2220512403
Both of these cases relate to Barking Road / Oak Crescent.

Posted by: MMV Redux Sun, 11 Sep 2022 - 14:55
Post #1735072

Invalid Purchase of a Visitors Permit by Text

Jack Molloy vs The London Borough of Camden (222053312A)


It is the Authority’s case that the Appellant’s vehicle was parked in a resident/shared use bay without a valid permit on 22 March 2022. They rely in evidence on the CEO’s report and their photographs.

The Appellant does not dispute the fact that the vehicle was parked as alleged. It is his case that he believed he had purchased a visitor’s permit by text. His father was unaware that this facility had been withdrawn by the Authority as he had not received any notification to this effect. The Appellant accepts that no confirmatory text was received, but he points out that the receipt of these texts had been very unreliable in the past. Sometimes they would arrive straightaway, sometimes after a few minutes, but on other occasions they would arrive well into the parking session or after the end of the parking session.

The Authority state in their Case Summary “… we advise that our website explains “there is no longer an option to activate by text/SMS”. This was communicated to all permit account holders when their permit accounts were migrated to our new system in January 2022.” The Authority do not say when the website was changed, nor do they say how the matter was communicated to all permit account holders. I would have expected them to confirm exactly how the matter was communicated and to provide the text of the communication. Whilst I accept that the said message on the website may have been in place at the relevant time, it is not reasonable to expect an account holder to check the website each time they apply for a permit. I take the view that the Authority did not effectively communicate the fact that permits could no longer be purchased via SMS/text. In any event, I would have expected the Appellant to have received a text in response to his attempt to pay via text, informing him that this service was no longer active. In all those circumstances, I take the view that the Appellant had a legitimate expectation that the text/SMS service was still active at the time. In those circumstances, I allow the appeal.

Mick

Posted by: MMV Redux Sun, 11 Sep 2022 - 15:47
Post #1735084

Parked in a gap within double yellow lines

"The law in relation to where an ambiguity exists it (sic) cannot be enforced against the party it disadvantages"


Nikkita De Cesare vs London Borough of Haringey (222055978A)


The Appellant has attended her appeal. I find her to be an honest, convincing and consistent witness I believe what she tells me.

The Authority's case is that the Appellant's vehicle was parked in a restricted street during prescribed hours when in Fairfax Road on 30 May 2022 at 9.52am.

The Appellant's denies the contravention and has explained that she had parked at this location in excess of 700 days, and had not been issued with a PCN, the present one is her first.

The Appellant states that the location appears to indicate that the double yellow lines had ended and there was a gap before they recommenced; she has produced numerous photographs to illustrate and support her case. She also stated that since this incident, double yellow lines have now been painted; she had previously considered the location to be unrestricted; otherwise she would not have parked there 700 times.

I have considered the evidence and I find the Appellant’s evidence to be credible and realistic, and stronger than that of the Authority's..

I find, on a balance of probabilities, the Appellant's vehicle was parked in an area in Fairfax Road that had unclear, confusing and ambiguous road markings. This is supported, not just by the photographic evidence, but by the 700 previous days of parking without enforcement.

The law in relation to where an ambiguity exists is cannot be enforced against the party it disadvantages.

The Appellant must understand that if she was to park at this location again a PCN could lawfully be issued.

The appeal is allowed.

Posted by: astralite Mon, 12 Sep 2022 - 09:25
Post #1735206

Salters Hill priority Appeal allowed after Review 2220532160

'… there is sufficient reason for a Review Hearing; I indicated to the Appellant that a Review Hearing is in effect a hearing of the Appeal matter de novo.
Since no new issues arose requiring a response from the Enforcement Authority, I proceeded with the Review Hearing immediately.

With the benefit of the 'pause' and 'freeze frame' facilities, the scenario at the point at which the said vehicle reaches the give way carriageway markings, alongside which the sign is positioned, can be viewed.
At such point I note the lack of visibility of another vehicle travelling toward the said vehicle due to the nature and position of the vehicle ahead; the vehicle does not come into view until the said vehicle has passed the sign.
I also note, and register concern at, the fact that the camera's angle does not reflect the sightline of motorists in the relevant lane, and is not therefore a true representation of the situation regarding those vehicles; for that reason the contemporaneous capture is viewed with caution.
I do not consider that the vehicle approaching from the opposite direction was of sufficient proximity to justify being classed as 'oncoming' for the said vehicle's purpose at that stage.
It is accepted that split-second judgement calls are necessitated by driving conditions; I do not consider that the vehicle simultaneously travelling from the opposite direction was of sufficient proximity to justify being classed as 'oncoming' at the juncture at which the said vehicle passed the sign.
Evidentially I am not satisfied that the contravention occurred, accordingly I overturn the Decision of John Hamilton and allow the Appeal.'

Posted by: Schofeldt Wed, 14 Sep 2022 - 08:35
Post #1735590

Collateral challenge, description of the contravention and total failure to consider representations: 2190374806Case Details
Case reference 2190374806
Appellant Adam Jones
Authority London Borough of Havering
VRM KW13 HVL
PCN Details
PCN HG47067577
Contravention date 01 Jul 2019
Contravention time 20:05:00
Contravention location Tangent Link, Harold Hill
Penalty amount GBP 130.00
Contravention Performing a prohibited turn
Referral date
Decision Date 09 Oct 2019
Adjudicator Jack Walsh
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice.
Reasons
Mr. Jones appeals by way of collateral challenge against this penalty charge notice (PCN) which is pursued in respect of an allegation of performing a prohibited turn. This is a moving traffic contravention, the enforcement of which is governed by the London Local Authorities and Transport for London Act 2003 (“the 2003 Act”). Mr. Jones argues that there has not been compliance with the requirements of the 2003 Act in respect of the content of the PCN and in respect of the enforcement authority (EA)’s consideration of his representations made against it. He argues that these failures render the PCN unenforceable.


The EA’s response to the appeal is terse. In response to Mr. Jones’ very detailed notice of appeal, references to the 2003 Act and to cases decided by the High Court and by other Adjudica

Posted by: astralite Fri, 16 Sep 2022 - 11:40
Post #1736094

Insufficient notice of suspension of parking: 2220249895
London Borough of Newham
Parked wholly/partly in a suspended bay or space
21 Jun 2022
Carl Teper
I have considered the evidence in this case and I find, that the notice given to this Appellant in relation to the suspension of parking in Browning Road, was insufficient to warn a motorist of the suspension.
The Authority has not provided any evidence of the purpose of the suspension, when the suspension was requested, who by, and what notice they are required to give to a motorist as set out in any terms and conditions when a resident permit is granted.
Further, I find that 1 or 2 days notice of a temporary traffic order is insufficient notice to a motorist of an impending suspension. Whilst the Authority state that, 'Every effort is made to bring temporary traffic orders to the attention of residents/businesses in the area displaying a sign showing the proposed dated 1 or 2 days before the restrictions occur.' There is no evidence of what the Authority did to bring the suspension to the attention of this Appellant. The appeal is allowed.

Posted by: astralite Sun, 18 Sep 2022 - 08:52
Post #1736302

Further London bus lane camera case decision: 2220492907
Ealing. Appeal allowed following an Application for Review.

Posted by: Schofeldt Wed, 21 Sep 2022 - 09:27
Post #1736856

Premature issue of a Charge Certificate. Lambeth yet again! 2220609130

Posted by: DancingDad Thu, 22 Sep 2022 - 11:35
Post #1737137

Electric Charging Bays
Posted the whole text as could be useful

Case Details
Case reference 2210311085
Appellant Mark Webb
Authority London Borough of Wandsworth
VRM YB68GJO
PCN Details
PCN WA84120528
Contravention date 26 Jan 2021
Contravention time 16:46:00
Contravention location Coverton Road
Penalty amount GBP 110.00
Contravention Parked electric car charging place not charging
Referral date
Decision Date 15 Jul 2021
Adjudicator Jack Walsh
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
Paragraph 2 of Schedule 7 to the Traffic Management Act 2004 (TMA) provides (as far as is relevant):

“2 Contraventions relating to parking places in Greater London

(1) In Greater London there is a parking contravention in relation to a vehicle if the vehicle is stationary in a parking place and:

(a) the vehicle has been left:

(i) otherwise than as authorised by or under any order relating to the parking place, or

…© there has been, with respect to the vehicle, a contravention of any provision made by or under any order relating to the parking place.

(2) In sub-paragraph (1) “parking place” means:

(a) a parking place designated by an order made under section 6, 9 or 45 of the Road Traffic Regulation Act 1984 (c. 27), or…”

In this case the allegation is that Dr. Webb’s vehicle was left otherwise than as authorised by or under, or in contravention of a provision made by or under, an order in respect of a parking place made under sections 6 and 45 of the Road Traffic Regulation Act 1984. The order in question is the Wandsworth (Electric Vehicle) (Parking Places) (No.1) Order 2019 (“the Order”).

I find, and it is not disputed, that Dr. Webb’s vehicle was left stationary in a place that was designated by the Order for the leaving at all times of electric vehicles, and only electric vehicles, by virtue of being described in the Schedule to the Order. I further find, and it is again not disputed, that the vehicle in question was an electric vehicle within the meaning of the Order.

The enforcement authority (EA) nonetheless alleges that there has been a parking contravention within the meaning of sub-paragraphs 2(1)(a)(i) and/or © to Schedule 7 to the TMA. That is because it argues that the Order requires that an electric vehicle in the parking place in question must be in the process of being charged, or “actively charging”. That is to say, on the EA’s construction of the Order, it would not suffice that it was an electric vehicle, as opposed to some other vehicle, that was parked in the parking place. Nor would it suffice where, as here, the electric vehicle was merely plugged into the re-charging post on the footway adjacent to the parking place.

On the basis of all the evidence, namely the notes and the photographs provided by the civil enforcement officer and the screenshot from the ‘Source London’ website, I find on the balance of probabilities that Dr. Webb’s vehicle was plugged into the re-charging post with a cable, but that the vehicle was not actively charging. The light status was not blue but green. Nothing that Dr. Webb has said expressly denies that, or positively asserts that the vehicle was actively charging. That may be, although I do not know and do not need to decide, because it had already been charged to capacity.

One can see the common sense in the EA’s construction of the Order. An electric vehicle parking place is designated as such so that electric vehicles may re-charge, by plugging in to the adjacent re-charging post. It is not designated as a parking place for a vehicle merely because it happens to be an electric vehicle. The intention, no doubt, of the EA, is that the parking place in question may be used for as long as is necessary for the vehicle to re-charge, but once the vehicle is charged then it must move on and may no longer be left there. Certainly the explanatory note considers that to be the effect of the Order. An explanatory note may be an aid to the construction of legislation, a statutory instrument or indeed the Order. It does not, however, enable a court or tribunal to reach a conclusion as to construction that is not supported by, and consistent with, the natural and ordinary meaning of the text itself.

Whether there has been a parking contravention within the meaning of sub-paragraphs 2(1)(a)(i) and/or © to Schedule 7 to the TMA requires, as those sub-paragraphs would indeed suggest, an examination of the relevant provisions of the Order, properly construed.

Article 4 of the Order reads as follows:

“Vehicles for which parking places are designated.

4. Each parking place described in the Schedule to this Order may be used, subject to the provisions of this Order, for the leaving during the permitted hours of an electric vehicle, providing that at all times during which an electric vehicle is left in a parking place during the permitted hours that vehicle is plugged-in via the re-charging cable.”

Article 5(1) reads:

“Contravention at parking place

5. (1) If a vehicle that is not an electric vehicle [which provisions does not apply] is parked within a parking place during the permitted hours, or in contravention of any other provision of this Order, a penalty charge shall be payable.”

In the ‘Interpretation’ section in Article 2(1):

“"re-charging" means an electric vehicle connected by means of a re-charging cable to a device designed for the re-charging of such vehicles

"re-charging post" means a device designed for the re-charging of electric vehicles;”

The requirements of Article 4, a contravention of which is a contravention of Article 5(1), are that at all times the electric vehicle in question is left in the parking place in question, the vehicle must be plugged in via the re-charging cable to the re-charging post. Contrary to the submissions of the EA, Article 4 does not require that any additional ‘terms and conditions’ stated upon the re-charging post are complied with.

The re-charging post is, according to Article 2(1), a device that is designed for the re-charging of electric vehicles. A re-charging post does not lose its status as such simply because it is not, at the time in question, in the process of re-charging a vehicle.

There is no definition of a “re-charging cable” but the definitions of “re-charging” and “re-charging post” must mean that it is a cable by means of which an electric vehicle is connected to a re-charging post. Similarly, a re-charging cable cannot lose its status as such simply because the re-charging post to which it happens to be connected is not actively charging a vehicle.

There is no definition of being “plugged in” but the natural and ordinary meaning is that the cable in question is connected to the re-charging post by means of a plug. In the case of a domestic appliance, for example, one can imagine many instances in which a device is plugged in, but no electrical charge goes through it because the power is switched off, either on the device itself or at the plug socket. In the present context, I would reject that a proposition that a vehicle that is “plugged in” whilst the vehicle is in the process of being charged and the light is blue then ceases to be “plugged in” when the vehicle becomes charged to capacity and the light goes green. A cable is no less “plugged in” because at the time no charge happens to be going through the plug that connects it to the socket or post; it is either “plugged in” or it is not.

Even taking a purposive approach, the construction of the Order relied upon by the EA is simply not one which the clear wording of the Order, and the natural and ordinary meaning of its text, can bear. Put another way, in my view the clear wording of the Order does not fully give effect to the intention of the EA as to the purpose of electric vehicle parking places. Needless to say, it follows that in my view the wording of the Order requires some amendment.

On the basis of the construction of the Order as I find it to be, I find that Dr. Webb’s vehicle complied, at the time it was left in the electric vehicle parking place, with the requirements of Article 4 in respect of such parking places. It was plugged in via the re-charging cable to a re-charging post.

Accordingly, the EA has failed to prove a contravention of the requirements of Article 4 and, thus, a contravention of Article 5(1) of the Order. Accordingly, it has not proved a parking contravention within the meaning of sub-paragraphs 2(1)(a)(i) and/or © to Schedule 7 to the TMA.

The appeal is allowed on that basis.

Posted by: astralite Sun, 25 Sep 2022 - 13:54
Post #1737703

Fail comply prohibition on certain types of vehicle. Proof.
221025048A
City of London
Lombard Street
01 Sep 2021
Andrew Harman
Appeal allowed
… the appellant's attendance at the hearing being achieved via telephone.
The contravention alleged in these proceedings was that this vehicle failed to comply with a prohibition on certain types of vehicle.
The appellant put the council to proof that his vehicle had driven through its signage images of which it provided at 'H'.
On the council's video footage of the incident the vehicle was not shown passing signage.
I concluded that I could not be satisfied in the absence of such evidence that this contravention had occurred and I allowed the appeal.

Posted by: astralite Thu, 29 Sep 2022 - 14:58
Post #1738490

CEO Uniform 2110006200 (noted by Bogsy (2013) )

An old case and the reference to a hat as part of the uniform unlikely now to be applicable but it asserts the principle that CEO must wear a uniform, and by inference it must be visible.

Posted by: astralite Tue, 4 Oct 2022 - 12:43
Post #1739214

Box junction. Time on PCN. Could have reversed out of box.
2220539159
Allowed on Application for Review.

YBJ TFL : Upper Richmond Road West / Clifford Avenue
3 Oct 2022

‘The Penalty Charge Notice alleges a contravention at 15:43.
The CCTV footage shows the appellant’s car turn left into the box junction a short distance behind another vehicle. The car stops with part of the car across the corner of the box. The footage shows a space behind the appellant’s car. [The appellant] states that he could have reversed out of the box but was unable to do so because some children crossed the road behind his car. The footage then shows the vehicle behind pull up behind the appellant’s car but this occurs at 15:44.
I find that at 15:43 the car was not stopped due to the presence of stationary vehicles because the appellant could have reversed out of the box.’

Posted by: MMV Redux Sun, 27 Nov 2022 - 16:11
Post #1749550

Acceptance of Foreign Blue Badges (La carte mobilité inclusion)

Or how a shameless Council (Hammersmith and Fulham) acts on behalf of its electors.

2220550730

The Appellant is appealing a Penalty Charge Notice issued in respect of parking in a residents/shared use bay at the above location.

The Enforcement Authority relies upon the contemporaneous evidence of the Civil Enforcement Officer, a copy of the PCN and a copy of the relevant Traffic Management Order.
The Appellant contends that he was entitled to so park by virtue of displaying a French Carte Mobilite D'Inclusion at the relevant time.
I have carefully considered all the evidence in this matter, and I have twice adjourned this case in order for the parties to fully set out their respective positions.

The Facts
The vehicle was observed to be parked at the location, which was a shared use bay.
The Appellant had displayed his partner's mother's French Carte Mobilite d'Inclusion in the vehicle as he had been assisting her with shopping on the day in question. When they returned to the vehicle, he found that a PCN had been issued.
It appears not to be in dispute that Blue Badge holders may park in a shared use bay such as this one, as long as the badge is properly displayed.

The EA's Case
In its initial Case Summary, the EA contended that, "certain European countries including France have not continued to accept the UK European Blue Badge to be used in certain European countries. The UK has therefore taken [the] decision only to accept disabled badges from Europe, where there is a reciprocal arrangement with those European Countries accepting UK European Blue badges". The Case Summary goes on to say that, "there are currently ongoing negotiations for the use of disabled badges from the UK and France, but [until these] negotiations are completed, the French disabled badges are not accepted for use in our Borough".
The EA then submitted further representations, pursuant to a direction I made on 14th September 2022. Within these representations, the EA's position effectively changed substantially. It now contends that post Brexit, the UK Government has unilaterally continued to allow EU-model Blue Badges ("EU parking card") to remain in use throughout the UK.
However, it further contends that that the Blue Badge displayed by the Appellant was not a standardised European Community disabled person's parking permit but rather, an internal French government card ("Carte Mobilite d'Inclusion"). The EA contends that this card entitles the bearer to a number of rights, but only in France. The EA contends that this "local card" was therefore not valid in the UK and is not a French EU blue badge.
The EA accepted, within these representations, that, "if the Appellant had been displaying a French EU blue badge, then we would have accepted it".

The Law
The Local Authorities' Traffic Orders (Exemptions for Disabled Persons)(England) Regulations 2000, regulation 3(1) defines a disabled person's badge as follows: a "disabled person's badge" means a badge which was:
(a) issued, or has effect as if issued, to a disabled person or an institution under the Badges Regulations or under regulations having effect in Scotland or Wales under section 21 of the Chronically Sick and Disabled Persons Act 1970; and
(b) has not ceased to be in force.
The Badges Regulations (Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000) describe the badge as follows:
"disabled person's badge" means a badge in the form prescribed by regulation 11 issued by a local authority for display on a motor vehicle driven by a disabled person, or used for the carriage of a disabled person, and includes a replacement badge issued in accordance with regulation 7".
The regulations specify the design that "EU" badges must have in order to be valid by way of exhibiting the front and the reverse of the badge. The front of the badge shows a "wheelchair logo", and a box exhibiting the EU stars positioned around the relevant country's initials eg "UK". It bears spaces for date of expiry, issuing authority details and a serial number.
The reverse requires a photograph, name and signature.
Comparing this with the badge displayed by the Appellant, the front of the badge bears the requisite Wheelchair logo, the relevant country's abbreviation ("F") surrounded by the EU stars, the expiry (and commencement) date of the card, a serial number and the details of the isuing authority - in this particular case, "Conseil Departemental 75" - which is the departement number of Paris. It is in all material respects the same as the badge specified by the above regulations.
In respect of the back of the Appellant's card, it bears a photograph of the holder, and the name and date of birth of the holder, although there appears to be no requirement for a signature.
I also note the following - on the reverse of the Blue Badge relied upon by the EA, the following is written: "This card entitles the holder to the special local parking facilities available in the Member State concerned.
When in use, the card is to be displayed at the front of the vehicle in such a way that the front of the card is clearly visible for checking purposes".
It appears that on the reverse of the card displayed in the vehicle, the equivalent indication is given in French.
I therefore find that in all material aspects, the French card which was on display in the Appellant's vehicle, was the equivalent of a UK Blue Badge and therefore should be considered as an "EU Blue Badge" as defined by the EA. I reject the EA's contention that this was a "local" internal French badge.
I note that the mutual recognition of EU badges was a non-statutory scheme, first implemented in 1998, and subsequently amended in 2008. A House of Commons Research Briefing of August 2018 stated that it is "unlikely that Brexit would necessitate changing the Blue Badge format...and the UK would continue to recognise the Badges of other countries in turn". The government's own website refers to the issue as "undecided" in respect of France. I have no evidence of any change to the mutual recognition scheme, and the badge displayed appears to be substantially in the format required.
I am therefore not satisfied to the requisite standard that a contravention took place and accordingly this appeal is allowed.
---------------------------

Mad Mick V



Posted by: MMV Redux Sun, 27 Nov 2022 - 17:45
Post #1749571

Cloned Vehicle----The Burden of Proof

2220717836

Mr. Sawyers attended the adjourned hearing along with his daughter. In the meantime, as I had directed, he had uploaded in good time some further evidence in support of his case. The evidence comprised photographs of his vehicle and an e-mail from the Metropolitan Police concerning Mr. Sawyers' complaint that the registration mark of his vehicle had been copied and applied to registration plates on a different vehicle. That is to say, his registration plate had been 'cloned'. The enforcement authority (EA) had not provided any response to this evidence.


Mr. Sawyers argues that the vehicle involved in the contravention was not his but was, instead, the vehicle with the 'cloned' registration plate. A person who wishes to 'clone' a registration plate will almost invariably apply that registration plate to a vehicle that is almost identical. That is because the purpose of the cloning is primarily to pass liability for civil road traffic contraventions like this, and possibly road traffic offences, onto the genuine holder of the registration mark for a different vehicle. That objective is much less easily achieved if the 'cloning' is easy to detect because the vehicles are obviously different. For the 'cloning' strategy to be harder to detect and frustrate, the vehicles must appear identical. Indeed, as the evidence shows, the type and colour of Mr. Sawyers' vehicle is the same as the vehicle involved in the contravention.

Mr. Sawyers has shown, however, with his photographs, that there are positive dissimilarities between his vehicle and the contravening vehicle. The contravening vehicle has inbuilt roof-rack retainers that his vehicle does not. The lower grilles of the two vehicles are different colours. The offside rear wheels have different types of wheel trim. Mr. Sawyers has complained to the Police about 'cloning' and he has received other PCNs for which he says he is not liable, including one in Oxfordshire.

For the reasons I gave in the case of Khader v. LB Tower Hamlets (2180375573, 27 October 2018), in my view there is no reverse burden of proof placed on an appellant in a case in which the issue is the identity of a vehicle rather than the identify of its owner. Rather, the burden is on an appellant merely to raise the issue of the identity of the vehicle. The outcome of this case would, however, have been the same no matter who bore the burden of proof.

The EA has failed to prove that the two vehicles are probably the same. Indeed, I find the contravening vehicle is probably not the same as Mr. Sawyers' vehicle.

I note the response of the Metropolitan Police in the e-mail of 1 July 2022. The complaint "was not recorded as a crime". If the Police take the view that no crime has been committed, or that it is of no consequence, they are completely wrong on both points. Forgery or fraudulent use of a registration mark is a criminal offence contrary to section 44 of the Vehicle Excise and Registration Act 1994. It can have significant impact on the victim, who may find themselves wrongly held liable for civil road traffic contraventions and may find themselves wrongly investigated for road traffic offences committed in the vehicle with the 'cloned' registration plate. The Police should, in my view, have investigated this matter.
---------------

Mad Mick V

Posted by: Schofeldt Sun, 4 Dec 2022 - 05:30
Post #1750927

Substantive decision in London Bus Lane cases: http://bit.ly/3VaEYPt

Well done that man.

Posted by: MMV Redux Sun, 4 Dec 2022 - 16:13
Post #1751005

Inputting Incorrect VRM or Missing a letter/Number

Always worth checking the Parking Places Order.

2220748498 (Mas vs London Borough of Hounslow)

The Enforcement Authority's case is that the Appellant's vehicle was parked without payment of the parking charge when in Chiswick Common Road on 23 July 2022 at 12.32.

The Appellant's case is that he paid to park but there was typo in the registration mark (vrm) BKK66CAV when it should have been BK66CAV.

I have considered the evidence and I find that this PCN is not proved because I find that the Appellant's vehicle was parked at this location and payment had been made.

I find that there is no breach of the Traffic Mangement Order (TMO), the Appellant has complied with Article 7 (2) (a), 9 (1), and paid to park his vehicle.

Article 18 creates a presumption that if there is no indication on the CEO's handheld device that payment has been made for that vehicle, then no such payment has been made. It is an evidential provision. I find on the basis of all the evidence before me that, notwithstanding the information on the handheld device, the parking charge had been paid in respect of that vehicle.

I can find nothing in the 39-page TMO (and 12 Schedules) that actually requires a particular vrm to be recorded.

This appeal is allowed because I find that payment was made to park the Appellant's vehicle, and that the TMO has not been breached.

That said I am surprised that the Authoity decided to prosecute this particular PCN. It is difficult to imagine what parking management purpose was served or achieved, and what sort of case would ever be deserving of the Authority's discretion to cancel.

The appeal is allowed.
---------

Mad Mick V

Posted by: mickR Sun, 4 Dec 2022 - 16:44
Post #1751010

QUOTE (MMV Redux @ Sun, 4 Dec 2022 - 17:13) *
The Appellant's case is that he paid to park but there was typo in the registration mark (vrm) BKK66CAV when it should have been BK66CAV.


my initial thoughts were... how on earth does a vrm recognition device accept a vrm with that many characters in the first instance.

Posted by: cp8759 Sun, 4 Dec 2022 - 18:51
Post #1751038

QUOTE (mickR @ Sun, 4 Dec 2022 - 16:44) *
my initial thoughts were... how on earth does a vrm recognition device accept a vrm with that many characters in the first instance.

To allow for foreign VRMs that might be longer?

Posted by: Schofeldt Sun, 4 Dec 2022 - 20:22
Post #1751047

Ask the Greek Doctor as he is an expert on Koan number plates.

Posted by: Gerfc1 Sun, 4 Dec 2022 - 21:36
Post #1751059

QUOTE (cp8759 @ Sun, 4 Dec 2022 - 18:51) *
QUOTE (mickR @ Sun, 4 Dec 2022 - 16:44) *
my initial thoughts were... how on earth does a vrm recognition device accept a vrm with that many characters in the first instance.

To allow for foreign VRMs that might be longer?


Northern Ireland registration plate standard is 3 letters followed by a space then 4 numberal digits

Posted by: Schofeldt Tue, 6 Dec 2022 - 06:44
Post #1751285

Camera authorisation: Kingston Bus Lane decision: 2220812407. Application for costs to follow forthwith. "Cloned" signatures.

Posted by: Schofeldt Fri, 9 Dec 2022 - 08:09
Post #1752041

Camera authorisation: Hammersmith and Fulham: http://bit.ly/3FAwWdo

Well done both.

Posted by: MMV Redux Sat, 7 Jan 2023 - 09:33
Post #1756601

Transposing letters for numbers (or the reverse) in inputting a vehicle registration may be acceptable

Alan John Warren v London Borough of Redbridge

2220810525

The contravention alleged in these proceedings is that this vehicle was parked without payment of the parking charge. There is a requirement that a parking charge be paid against the registration mark of the vehicle that is parked. The registration mark of this vehicle as shown on its plates is T10AJW. On the council's case although the appellant made payment via RingGo he did not, as required, do so in respect of this vehicle's registration mark he entering T1OAJW he thus using the letter 'O' rather than the number '0'. I acknowledge what is said but in Regulation 15 of, and Schedule 4 to, The Road Vehicles (Display of Registration Marks) Regulations 2001 the prescribed font provides that the letter ‘O’ and the digit ‘0’ are identical, (as are the letter ‘I’ and the digit ‘1’).

That being so I am not satisfied that this vehicle was parked without payment of the parking charge and I accordingly find that the contravention did not occur.
--------------------------

Mick


Posted by: mickR Sat, 7 Jan 2023 - 10:52
Post #1756606

very handy 👌

Posted by: astralite Wed, 8 Feb 2023 - 13:32
Post #1763086

QUOTE (MMV Redux @ Sat, 7 Jan 2023 - 09:33) *
Transposing letters for numbers (or the reverse) in inputting a vehicle registration may be acceptable

Alan John Warren v London Borough of Redbridge

2220810525

The contravention alleged in these proceedings is that this vehicle was parked without payment of the parking charge. There is a requirement that a parking charge be paid against the registration mark of the vehicle that is parked. The registration mark of this vehicle as shown on its plates is T10AJW. On the council's case although the appellant made payment via RingGo he did not, as required, do so in respect of this vehicle's registration mark he entering T1OAJW he thus using the letter 'O' rather than the number '0'. I acknowledge what is said but in Regulation 15 of, and Schedule 4 to, The Road Vehicles (Display of Registration Marks) Regulations 2001 the prescribed font provides that the letter ‘O’ and the digit ‘0’ are identical, (as are the letter ‘I’ and the digit ‘1’).

That being so I am not satisfied that this vehicle was parked without payment of the parking charge and I accordingly find that the contravention did not occur.
--------------------------

Mick

and

2220935032
The Authority are referred to Regulation 15 of, and Schedule 4 to, the Road Vehicles (Display of Registration Marks) Regulations 2001 where it is clear that letter “O” and number “0” are the same as are number “1” and letter “I”.
In light of this I find that this Penalty Charge Notice cannot be upheld.

Case spotted by PASTMYBEST



Posted by: MMV Redux Sun, 19 Feb 2023 - 09:47
Post #1765083

Redbridge Taking Advantage Of A Printing Fault In Their Ticket Machines

This is NOT, by any means, an isolated incident:-

Nathan Beckles v London Borough of Redbridge (2230032324)

The appellant appeared before me today.

His vehicle on the council's case was parked on Ilford High Road without a valid pay and display ticket that on display in his vehicle not, as required, bearing the vehicle's full registration number. Only an 'F' was shown on it.
The appellant said that he had been attending a funeral he when inputting details into the machine providing his vehicle's full registration number it not printing it out the machine being faulty.
The council did not adduce any evidence as to whether this machine was in good working order.
The appellant said that 7 other vehicles parked at the location for the funeral had been ticketed there being a pay and display a ticket on display in each.
I did not consider that to be a coincidence.
I was not satified that this machine was working correctly the appellant being disadvantaged thereby and I was also not satisfied that he was under a duty to check with reference to his ticket that it was.
I was not satisfied against this background that the contravention had been proved.
The appeal was accordingly allowed.
----------------------------------------------------------------------
I have sent a note to the Ilford Recorder

Mick

Posted by: Schofeldt Sat, 25 Feb 2023 - 08:55
Post #1766219

Total failure to consider by Lambeth: Bus Lane camera issue. 2230075597

Adjudicators in this tribunal frequently and correctly comment that notices of rejection need not cover each and every point made in representations. What is required is something showing that at least major representations amongst what a motorist has written have been duly considered. Length in dealing with major aspects of representations may not be required. Sufficiency in this context is generally viewed by Adjudicators as a matter of fact and degree.

The notice of rejection in this case is in my decision so incomplete a response to readily identified major issues raised that it does not illustrate or correspond in a demonstrable way with the Council's legal duty to consider representations received.


Actually, the representative raised the issue. But, who cares? Es no importante.

Posted by: MMV Redux Sat, 25 Feb 2023 - 19:21
Post #1766272

A Continuous Contravention Case Where The Wrong PCN Has "Justifed" A Tow

2230004395

Joshua Afun v London Borough of Waltham Forest

The Council's case is that the Appellant's vehicle was parked in Royston Avenue – a restricted street – during prescribed hours on 12 November 2022. A penalty charge notice was issued 08 23.

The Appellant states that he received two penalty charge notices for the same location with the second being issued about 10 hours after the first. His vehicle was then removed. The first penalty charge notice was issued at 2221 on 11/11 2022 and the second at 08 23 and 12/11 2022. He complains this did not now him enough time to move his vehicle from the restricted area as he was asleep at both times. He states that the Council confirmed that the removal of the vehicle should not have occurred and seeks a refund of the removal fee.

The Council rely upon the evidence of its civil enforcement officer. This includes a series of photographs of the vehicle at the location. Although the painted double yellow lines are not in the best condition, I am satisfied they are sufficient to indicate the restriction. Parking on double yellow lines is prohibited 24-hour day seven days a week. The are Council assert in their penalty charge notice that as a gesture of goodwill they cancelled the first penalty charge notice "even though both PCNs were correctly issued".

The Council are incorrect in law. The double yellow line contravention is a continuing contravention. Therefore the first penalty charge notice was correctly issued. The second penalty charge notice was incorrectly issued and a nullity. However, the Council has cancelled the first penalty charge notice. Further, it has sought to remove the Appellant's vehicle on the basis of the second penalty charge notice. As this was wrongly issued, it cannot remove the vehicle on that notice.

Accordingly, the appeal is allowed and the penalty charge notice cancelled and all monies paid by the Appellant must be remitted to him.
-------------------------

Mick

Posted by: MMV Redux Fri, 24 Mar 2023 - 08:37
Post #1770835

London Bus Lanes: Failure by authorised officer to attend Tribunal wins case

Well done Ivan.


2230129142 (Mohammed Abdul-Razzak v London Borough of Harrow)

At this scheduled personal hearing the Appellant was represented by Mr J Murray-Smith, who attended by telephone.

The Enforcement Authority did not attend and were not represented, either by telephone or in person.

A contravention can occur if a vehicle is in a bus lane during operational hours, other than as permitted or exempted.

There appears to be no dispute that the vehicle was at this location, as shown in the closed-circuit television (cctv) images produced by the Enforcement Authority.

However, Paragraph 7 in Schedule 1 to the London Local Authorities Act 1996 provides:

(1) Evidence of a fact relevant to proceedings under paragraph 6 above may be given by the production of (a) a record produced by a prescribed device; and (b) (in the same or another document) a certificate as to the circumstances in which the record was produced signed by an authorised officer of the council of the borough in which the breach of the order or regulations described in subsection (2) of section 4 (Penalty charge notices under Part II) of this Act is alleged to have taken place.

(2) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings under paragraph 6 above [adjudication by Traffic Adjudicator] unless

(a) the device is of a type approved by the Secretary of State; and

(b) any conditions subject to which the approval was given are satisfied.

Further, Paragraph 7(6) provides that nothing in sub-paragraph (1) or (4) above makes a document admissible as evidence in proceedings under paragraph 6 above unless a copy of it has not less than 7 days before the hearing, been served on the appellant; and nothing in those paragraphs makes a document admissible as evidence of anything other than the matters shown on a record produced by a prescribed device if that person, not less than three days before the hearing or within such further time as the traffic adjudicator may in special circumstances allow, serves a notice on the council requiring attendance at the hearing or trial of the person who signed the document.

In the case the Appellant’s representative served such notice on the Enforcement Authority and produced evidence that this was done within the prescribed time.

The Enforcement Authority has failed to comply by attendance in person or otherwise of the individuals cited or to address such failure.

Such evidence is therefore not admissible and Adjudicator is only able to decide an appeal by making findings of fact on the basis of the admissible evidence actually produced by the parties and applying relevant law.

Accordingly, this appeal must be allowed.
------------------

Mick

Posted by: MMV Redux Fri, 24 Mar 2023 - 08:55
Post #1770836

Clapham Park Road Bus Lane: Inadequate Lines and Signs

2230093602 (Alistair Tyler v London Borough of Lambeth)

The Appellant’s case, which I heard from him at some length and in some detail is essentially that the signage at this junction is very confusing for a number of reasons, the most significant of which I touch on below. He also relies on a decision of my learned colleague Mr. Harman in the case of Newell 2220495654 where Mr Harman said:-

“Upon the appellant appearing before me today at the hearing centre the council being represented by Mr Neil via telephone both parties to the proceedings making submissions in accordance with those set out in writing supported by the evidence, they provided I reserved my decision to allow for full consideration of the papers. The contravention alleged in these proceedings is that this vehicle at Clapham Park Road was in a bus lane. I note the council's evidence of this bus lane's markings and signage but the road layout at this junction is very unusual it not in my view being a straightforward one to negotiate when turning left (as the appellant intended to do) and I agree with the appellant that there should be an additional sign posted at the junction warning motorists that they should not use this section of bus lane to turn left. In the absence thereof I find signage to be inadequate and I am accordingly satisfied that the contravention has not been proved.£

The configuration of this junction is shown clearly enough in the photographs. There is a correctly signed bus lane approaching a point where the road divides at a traffic island one lane going round to the left on the inside of the island bounded on its right by railings ( which I shall refer to as “the island lane”) and two lanes going ahead one on the inside for vehicles turning left at the lights a short distance ahead, and one for vehicles proceeding ahead at that point.

The white line indicating the boundary of the bus lane runs up to the point of the traffic island and any motorist deciding to proceed in the left hand lane round the inside of this lane has to cross it. . However just before the point of the traffic island there is an arrow on the carriageway on the inside of the two lanes indicating that vehicles in that lane should turn left.

As one goes round into the island lane there is a pair of traffic lights which appear to show a green arrow pointing left); and mounted on the lights are a pair of round blue signs apparently to Diagram 953 Traffic Signs Regulations and General directions 2016 (“TSRGD”). Immediately before the island lane the bus lane carries Bus Stop markings but no repeater signs.

The Appellant submits that taken as a whole the presence of the carriageway arrow, the green light on the traffic lights the absence of a white line in the island lane and the absence of a keep right sigh on the point of the island act as contrary cues to the approaching motorist suggesting that the island lane is an available route. There is no doubt, in my view ,that the that the configuration of the bus lane at this junction is unusual

Having considered the matter carefully I find myself in agreement with view taken by Mr Harman. The location and the signage is unusual confusing and easily misleading.

However it seems to me that it goes beyond that. The signage is substantially incorrect; and the island lane is either not a bus lane at all or, if it is, it is incorrectly signed. A Bus Lane is defined in the TSRGD as “a traffic lane reserved for buses”; and a traffic lane is defined as “a part of the carriageway intended for use by vehicles travelling in a particular direction or reserved for use by vehicles of a particular type and separated from other parts of the carriageway by road markings” (italics added) . The island lane does not fall within this definition as it is separated from other parts of the carriageway by a kerb and the traffic island, not by any road markings Or, if the “carriageway “ at this location is simply the island lane alone, the lane is the entire carriageway, not a part of it.

What we have, or should have, here, is not a bus lane but a bus-only route or Bus Gate. It would appear that something of the difficulty may have crossed the mind of TfL (who erected them) as evidenced by the round Bus-only Route signs on the traffic signals. However these signs do not indicate a bus lane; and, more fundamentally, there is no provision for them to be mounted on traffic lights. The minimum size for these signs is 450mm (unlike the 250mm for, for example no right turn signs and ahead only signs) and Schedule 14 does not include them among those listed for this type of mounting.

It therefore seems to me the signage at this location is neither clear nor correct and the Appeal is therefore allowed. The Council is of course perfectly entitled to restrict the island lane to buses; and for what it is worth it seem that both difficulties could be addressed by signing the island lane for what it is, a bus only route or bus gate, with a pair of large blue signs at the start to diagram 953 together with the prescribed carriageway legend BUS GATE ( amending / replacing the TMO as necessary, and possibly including advance warning signage to diagram 877) . Motorists would then have little or no excuse for passing the signs.

Mick

p.s. I have always thought the zig zags for the zebra crossing in the L/H lane preclude the existence of a bus lane as per 2170474513.
Therefore crossing the broad white line to access this "non-bus lane" is a valid exemption to that restriction.

Mick

Posted by: MMV Redux Thu, 30 Mar 2023 - 15:07
Post #1771906

Redbridge-- Road Traffic Contraventions-- Procedural Impropriety-- Camera Evidence Section on PCN.

2230137639 (Solomon Papa v London Borough of Redbridge)

As I explained to Mr. Papa in the course of the hearing, he only needs to succeed on one ground of appeal. As he has succeeded on one ground of appeal I do not have to come to a concluded view about the other grounds of appeal because they are not determinative.

The ground on which I allow the appeal is ground 3. I quote this ground of appeal:
“Authority failure to comply with the Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions (England) Regulation 2022: namely, a breach of sub regulation 10(5)(b)(ii) which require all Redbridge PCNs to include the information set out in regulation (3(2)) of the The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022. The Redbridge PCN fails to comply with this section, particularly and notably with respect to regulation (3)(2)(g) of the Appeals regulations which requires information to be included in the PCN which gives effect to paragraphs (3) and (4) of that regulation. (Redbridge's offer to the recipient to view a recording online only without setting out other options, does not substantially comply; and prejudiced the appeal).”

As indeed the PCN states on its face, the PCN was issued, albeit for an alleged parking contravention, namely a contravention of the requirements of a bus stop clearway, on the basis of a record produced by an approved device. It was, therefore, issued pursuant to Regulations 10(2)(a)(i) and (3)(b) and 11(1)(b) of Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022.

The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 provide, as far as is relevant:
“2(1)….
"enforcement notice" means-

(b) a regulation 10 penalty charge notice;

3(2) An enforcement notice must include the following information-

(2)….
(g) where the enforcement notice is a regulation 10 penalty charge notice served under regulation 10(2)(a) of the 2022 General Regulations (an "approved device notice"), the effect of paragraphs (3) and (4).
(3) The recipient ("R") of an approved device notice may, by notice in writing, request that the enforcement authority-
(a) makes available, at one of its offices specified by R, free of charge and at a time during normal office hours so specified, for viewing by R or R's representative the record of the alleged relevant road traffic contravention produced by the approved device pursuant to which the penalty charge was imposed, or
(b) provides R, free of charge, with such still images from that record as, in the authority's opinion, establish the alleged relevant road traffic contravention.
(4) The enforcement authority must comply with any request under paragraph (3) within a reasonable time.”

The PCN in this case simply did not provide that information. Instead, it said, “colour images and the recording of the alleged contravention are available online at [website provided]”

As it happened, the recording was not available on the website.

Even if it had been available, the information provided on the PCN falls a very long way short of the information required to be provided. A procedural impropriety is very clearly proved. This ground of appeal, which was also raised in the representations, is simply unanswerable. Indeed, it was not answered, either in the notice of rejection, or the case summary.

The appeal is allowed on that basis.

Mick

Posted by: MMV Redux Thu, 11 May 2023 - 19:20
Post #1778358

Council Delay in Issuing Parking Permit

Georgia Gannon v London Borough of Redbridge (2230148894)

The Appellant’s case, set out clearly in her correspondence and appeal is that although she had applied for a permit it took many months to reach her; and that therefore, in effect, the absence of a permit was due to the Councils unreasonable delay in supplying her with one. I therefore adjourned the case to obtain details from the Council as to when the application was made and when the permit was issued. The Council has provided evidence relating to the issue of a permit in 2023. As the contravention is alleged to have occurred in April 2022 this is of no assistance or relevance. If it is the Council’s case that there had been no previous permit applications one would expect it to say so.

If the Appellant’s evidence as to the delay is incorrect one would have thought it would be an easy matter for the Council to refute it by providing details from its records as to then the application for the 2022 permit was made and when it was sent out. On balance I accept the Appellant’s evidence on this issue and am satisfied that there was some unreasonable delay on the Council’s part. The Council cannot enforce a penalty for something which arises from its own default and I therefore allow the Appeal.
------------------

Mick

Posted by: MMV Redux Thu, 11 May 2023 - 19:54
Post #1778366

Newham Towing Times Taken to Task

This was a parking suspension sign contravention

2230167877 (Extract)

Mehjabin Amodi v London Borough of Newham

Removal
The PCN was issued at 10.27 and it appears that the vehicle had been removed by 10.51, the removal equipment being present adjacent to the vehicle at 10.49. The Appellant contends that this was a procedural impropriety by the EA as the vehicle was removed before 30 minutes from the time of issue of the PCN had expired.
The Removal and Disposal of Vehicles (Amendment)(England) Regulations 2007 sets out the circumstances in which vehicles may be removed. Paragraph 4 inserts paragraph 5C, which sets out in subparagraphs (3) and (4) that a vehicle may not be removed until the appropriate period has elapsed since the giving of that penalty charge notice in respect of the contravention. Sub-paragraph (4) states:

"(4) In this regulation-“the appropriate period” means-

(a)in the case of a vehicle as respects which there are 3 or more penalty charges outstanding, 15 minutes;

(b)in any other case 30 minutes;"

The removal of the Appellant's vehicle took place less than 30 minutes after the issue of the PCN. There is no evidence that there were 3 or more penalty charges in respect of this vehicle. The EA in its Case Summary states, "Any vehicle that has been issued with a PCN can be removed after 30 minutes. For more serious contraventions removals can be instantaneous". No definition of "serious contravention" is given and I note that the vehicle was removed 24 minutes after the PCN was issued, which does not tend to suggest that immediate removal was considered necessary.
I therefore find that there has been behaviour tantamount to procedural impropriety on the part of the EA and I allow this appeal.
-----------------

Mick

Posted by: cp8759 Thu, 11 May 2023 - 22:17
Post #1778388

QUOTE (MMV Redux @ Thu, 11 May 2023 - 20:54) *
Newham Towing Times Taken to Task

This was a parking suspension sign contravention

2230167877 (Extract)

Mehjabin Amodi v London Borough of Newham

It's an interesting case but the adjudicator is wrong, https://www.legislation.gov.uk/uksi/2022/686/article/6/made has introduced a single, standard time of 15 minutes. That's what you call a per incuriam decision.

Posted by: MMV Redux Sun, 14 May 2023 - 16:40
Post #1778769

Yes, he got it wrong, but I don't think there is a 15 min standard time across the board.

Reading the legislation, the "new" Paragraph 3 only allows a hiatus of 15 minutes for failure to :-

(a)to pay a parking charge with respect to the vehicle;

(b)properly to display a ticket or parking device; or

©to remove the vehicle from the parking place by the end of the period for which the appropriate charge was paid,

Since the appropriate period is deleted from Paragraph 4 it follows that a suspension sign contravention can be an instant tow.

https://www.legislation.gov.uk/uksi/2022/686/article/6/made

https://www.legislation.gov.uk/uksi/2007/3484/regulation/4/made


Mick

Posted by: meaty Thu, 18 May 2023 - 21:35
Post #1779469

I have collated around 130 successful yellow box junction cases on my website https://www.yellowboxes.co.uk/For ease of referencing they are divided into categories, links on the home page. Enjoy. Please let me know if anyone wants any more added.

Posted by: MMV Redux Thu, 22 Jun 2023 - 08:25
Post #1784035

Bank Junction: City of London: New Traffic Order: June 2023

https://www.cityoflondon.gov.uk/assets/Services-Environment/bank-junction-traffic-management-order-2023-6.pdf

Mick

Posted by: astralite Mon, 26 Jun 2023 - 08:23
Post #1784483

Red Route parking bays.


www.londontribunals.gov.uk/sites/default/files/keycases/Red%20Route%20Panel%20Decision.pdf

London Tribunals panel decision that the regulations do not allow TfL to enforce contraventions of red route parking bays by sending a PCN based on a record produced by an approved device/CCTV. Such contraventions can only be enforced ‘on the ground’ by CEO’s. If the CEO is unable to effect service of the PCN, for example the motorist drives away, the PCN may be sent by post.

Posted by: MMV Redux Sat, 29 Jul 2023 - 07:33
Post #1788638

TWOC case proved against garage improperly using vehicle in for repair ---- fitted with tracking device

2230281180 Sadiq Abubakar v London Borough of Ealing

They got him a PCN and they pinched his chewing gum!

Mick

Posted by: meaty Wed, 4 Oct 2023 - 15:11
Post #1795168

A potentially significant yellow box junction case won on the issue of full width boxes at T junctions - they are still not valid

2230236641 Mary Treacher v London Borough of Redbridge

Posted by: MMV Redux Wed, 4 Oct 2023 - 18:36
Post #1795193

Yes, that's a good Yellow box decision.

https://www.google.com/maps/@51.5968717,0.0392745,3a,15y,25.35h,86.07t/data=!3m7!1e1!3m5!1s1iSoYrZLy7R2I320sRs6Hw!2e0!6shttps:%2F%2Fstreetviewpixels-pa.googleapis.com%2Fv1%2Fthumbnail%3Fpanoid%3D1iSoYrZLy7R2I320sRs6Hw%26cb_client%3Dmaps_sv.tactile.gps%26w%3D203%26h%3D100%26yaw%3D119.1521%26pitch%3D0%26thumbfov%3D100!7i16384!8i8192?entry=ttu

This is a reserved decision following the reconvened hearing on 6 September 2023. Mr Clive Treacher attended that hearing in person as the authorised representative of Mrs Mary Treacher and as the driver of the vehicle at the time of the alleged contravention. Mr Treacher also attended the previous hearings on 31 May and 26 July 2023. Mr Treacher has 31 years of experience as a Traffic Officer with the Met, having been assigned to the NE London Traffic Management Unit and then Central Operations.

This PCN was issued for the alleged contravention of entering and stopping in a box junction when prohibited. The box junction is located in Chigwell Road at the junction with Maybank Road.

Paragraph 11(1) of Part 7 of Schedule 9 to the Traffic Signs Regulations and General Directions 2016 states that a person must not cause a vehicle to enter the box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles. It is an offence to enter the box without a clear exit and to then stop in the box due to stationary vehicles in front.

The CCTV footage shows that Mrs Treacher's car made a right turn out of the minor road and then stopped in the box behind another vehicle which was still partially in the box and stationary in a line of traffic. It is not in dispute that there was no clear exit for Mrs Treacher's car at the point of entry into the box or that the car was caused to stop in the box due to stationary traffic.

Mr Treacher appeals because he says that the box is unlawful. He says that The Traffic Signs Manual, Chapter 5, paragraph 8.3.2. (Road Markings 2018) makes it clear that only half-boxes are appropriate for use at T-junctions and other junctions where the traffic blocks back from one direction only. Paragraph 8.3.2. reads as below.

“Half‑boxes, in which only half the area of the junction is marked are appropriate at T‑junctions and other junctions where the traffic blocks back from one direction only. Half‑boxes should be used only on the minor road side of the main carriageway to allow emerging traffic to turn right where the queue of traffic in the major road is to the left. A half‑box on the side of the road opposite a T‑junction generally serves no useful purpose. Even though it will create a gap in a queue of traffic, drivers turning right from the minor road will not be able to enter the box as the exit will be obstructed.”

Mr Treacher contended at the hearing on 31 May that the full box at the junction is not the required half-box and that authorisation in writing from the DfT was required for the variation.

I adjourned the hearing on 31 May to provide the Council with an opportunity to respond to Mr Treacher's submissions.

The Council submitted a response on 8 June 2023 in which they stated that a full box was installed at this junction because queueing back did not happen only in one direction on the minor road side of Chigwell Road. The Council also said in this response that they sought advice from the DfT who advised that TSRGD 2016 provides full flexibility for a full box marking to be used here and that no authorisation was required from the DfT. The Council provided a copy of their e-mail enquiry of 7 July 2022 but did not include a copy of the DfT's response to that e-mail.

Mr Treacher's evidence on 26 July was that the traffic no longer blocks back in both directions. He said that there was a block back on the minor road side after the Maybank Road junction due to the left turn into Broad Mead Road but that this ceased with the installation of the ahead only route at the junction with Broad Mead Road. He said that the only block back now is southbound with the lights on the roundabout after the Maybank Road junction. Mr Treacher said that, in any event, only half boxes are to be used at T-junctions regardless of whether there is a block back in both directions.

I further adjourned the hearing on 26 July to give the Council an opportunity to respond to Mr Treacher's evidence and submissions. The Council was also requested to provide a complete copy of the correspondence with the DfT about the use of a full box at this location.

Mr Treacher also provided on 26 July a copy of Sam Wright's review of Councils' plans to enforce yellow box junctions and a copy of the RAC report following that review. The review includes a detailed consideration of boxes covering the far side of T-junctions which I said that I would consider in reviewing the evidence and submissions. I invited the Council to make any further submissions that it wished to concerning the review, the report and any other matter which it considered relevant.

The Council provided further evidence and submissions on 9 August 2023. The Council stated its view that TSRGD 2016 provides full flexibility for a full box marking at this location and that paragraph 8.3.2 of Chapter 5 of the Traffic Signs Manual does not preclude the use of a full box at a T-junction. The further evidence included an e-mail from the DfT dated 8 July 2022 in reply to the Council’s enquiry of 7 July. This e-mail confirmed that TSRGD 2016 provided full flexibility for a full box marking, although making it clear that the issue of whether the box in place was compliant was a matter which could only be decided by the courts.

The Council’s further evidence does not address Mr Treacher’s evidence that the block back on the minor road side after the Maybank Road junction due to the left turn into Broad Mead Road ceased with the installation of the ahead only route at the junction with Broad Mead Road.

Mr Treacher’s position at the adjourned hearing on 6 September was that the Council had failed to justify the use of a full box at this location.

Sam Wright’s report provides a very useful commentary on boxes that cover the far side of T-junctions. Under the old TSRGD, boxes that covered the far side of a T-junction were not permitted and required DfT approval. The report refers to FOI requests revealing that, in 2007, the DfT stopped authorising these kinds of boxes, stating: “We were no longer prepared to authorise full box junctions at a T-junction when Transport for London reviewed their box junctions in 2007. Our reasoning was that we saw no traffic management benefit in the use of full box junctions at this type of junction.”

In spite of this clear statement of the DfT’s position in 2007, there is no doubt that the position has been relaxed by TSRGD 2016. I do not, however, agree that TSRGD 2016 provides full flexibility for a full box marking at T-junctions. The change is that DfT approval is no longer required for a full box marking. That does not, however, give Councils carte blanche to introduce full boxes as they wish. If it did, then the statutory guidance in paragraph 8.3.2 would be rendered meaningless. It is abundantly clear from the guidance that a half-box on the side of the road opposite a T-junction generally serves no useful purpose and will cause an unnecessary obstacle for drivers turning right from the minor road. In my judgement, the guidance is clear that the only box marking that will normally be appropriate at a T-junction is a half box on the minor side of the road in a situation where the traffic blocks back from one direction only.

Clearly, there is no longer a requirement for DfT approval for the use of a full box marking at a T-junction but, in my judgement, paragraph 8.3.2 requires that the use of such a marking is justified, especially given the clear impediment resulting for drivers attempting to make the right turn out of the minor road.

If the Council seeks to enforce PCNs against such drivers, then it needs to produce evidence showing the reasons for which it has both introduced and retained the use of the full box marking and, in this case, it has failed to do so. The Council has not addressed Mr Treacher’s evidence that the traffic no longer blocks back in both directions. I allow the appeal for this reason.

Mick

Also see------ Nojrul Askaari v London Borough of Redbridge (2230304887)

Posted by: Schofeldt Wed, 29 Nov 2023 - 16:13
Post #1800080

Costs v Havering:

https://drive.google.com/uc?id=13xqeZ23037Nbq451v-7z-F3YN6utZc63

http://forums.pepipoo.com/index.php?showtopic=145245&view=getlastpost

Posted by: astralite Tue, 19 Dec 2023 - 14:00
Post #1802118

QUOTE (astralite @ Mon, 26 Jun 2023 - 08:23) *
Red Route parking bays.


www.londontribunals.gov.uk/sites/default/files/keycases/Red%20Route%20Panel%20Decision.pdf

London Tribunals panel decision that the regulations do not allow TfL to enforce contraventions of red route parking bays by sending a PCN based on a record produced by an approved device/CCTV. Such contraventions can only be enforced ‘on the ground’ by CEO’s. If the CEO is unable to effect service of the PCN, for example the motorist drives away, the PCN may be sent by post.


At Judicial Review the High Court decided the Panel decision was wrong and that TfL can serve PCNs by post based on a record produced by an approved device/CCTV.
See London Tribunal Key Cases
R(Transport for London) v Environment and Traffic Adjudicators
17 November 2023
Case no:2023 EWHC 2889 (Admin)
Subject:Power to Review; Red Route Bays

https://www.londontribunals.gov.uk/sites/default/files/keycases/R%28Transport%20for%20London%29%20v.%20Environment%20and%20Traffic%20Adjudicators%202023%20EWHC%202889%20%28Admin%29.pdf

Posted by: Schofeldt Sun, 21 Jan 2024 - 12:46
Post #1805597

Greenwich TMO bolleaux:

ETA Register of Appeals
Register kept under Regulation 20 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993, as amended and Regulation 17 of the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022.
Case Details
Case reference 2230408907
Appellant Wale Omiyale
Authority Royal Borough of Greenwich
VRM YP18KEK
PCN Details
PCN GR12156705
Contravention date 13 Mar 2023
Contravention time 15:36:00
Contravention location Kemsing Road
Penalty amount GBP 80.00
Contravention Parked for longer than permitted
Referral date
Decision Date 18 Jan 2024
Adjudicator Jack Walsh
Appeal decision Appeal allowed
Direction
cancel the Penalty Charge Notice and the Notice to Owner.

Reasons
The effect of paragraph 2 of Schedule 7 to the Traffic Management Act 2004 is that, other than in the following two sets of circumstances, a PCN can only be issued in respect of a contravention relating to a parking place where that contravention is of a traffic management order (TMO). The first set of circumstances is that the vehicle has been left beyond the period of parking that has been paid for. Those circumstances do not apply here because no period of parking was paid for. The second set of circumstances arise when a parking charge is payable and yet no parking charge has been paid. It is hard to imagine a parking charge being payable other than as required by a TMO but, in any event, those circumstances also do not arise because it is not suggested that any parking charge was payable in respect of the parking place in which the vehicle was parked. The sign adjacent to the parking place would suggest that, during the hours stated, the parking place was designated for holders of 'W' zone permits or, alternatively, vehicles may park there (without charge or a permit) for up to two hours provided the vehicle, once it has left, does not return within 3 hours.

The sign in question is not a sign specified by section 36 of the Road Traffic Act 1988 and so a motorist cannot park in contravention of the sign, as such. Rather, for a PCN to be payable under the 2004 Act, the enforcement authority (EA) must prove, on the balance of probabilities, that the vehicle was parked in contravention of the terms of a TMO.

The TMO that has been provided in this case is one of the lengthiest and most convoluted TMOs I have ever seen. It is virtually impossible to comprehend and amounts, in effect, to a mass of logical conundrums or puzzles. Perhaps mercifully, only 41 of its 86 pages have been provided. I note that the EA has adopted the practice, instead of stating the locations that are subject to the terms of the TMO on a schedule containing identifiable streets and stretches or streets, of using 'map tiles' and 'map based schedules'. This practice can make it very difficult to identify precisely the restrictions that apply to a particular location, and is prone to error as I observed in Aggarwal v. LB Tower Hamlets (2220558051). Indeed the 'designation of parking places' in this TMO, by virtue of Articles 4(1) and 5 and the definition of "map based schedule" in Article 3(1) is highly unsatisfactory and, ultimately, virtually incomprehensible.

I have concluded that the TMO that has been provided is probably the incorrect TMO for the parking place in question and that that it is a different TMO that applies to it. In any event, the EA has failed to identify, let alone prove, which of the provisions of the TMO that it has provided has been breached.

I conclude that the TMO is probably the wrong TMO for two reasons. First, the 'map tile', AX25, which is within Schedule 2 to the TMO, seems to suggest that the parking places which it designates are within 'Zone CT'. I conclude that on the basis of the text box that is very unhelpfully placed on the 'map tile' above 203-207 Woolwich Road. That text would appear (although it is far from clear) to all the parking places within the map shown on the document, which might possibly include number 26 Kemsing Road, where the vehicle was parked. However, the sign that is near that address instead refers to 'W' permit holders. There is no reference to 'W' permit holders on 'map tile' AX25. Most significantly, the TMO defines 'parking places' in Article 3(1) in a limited way and confines the definition to metered parking places, a pay and display parking place, a shared use parking place,a permit holder parking place, a doctor parking place or a car club parking place. The only types of parking place that might possibly apply, based on the restrictions indicted on the sign, are a 'permit holder parking place' and a 'shared use parking place'. Whether the place is a 'permit holder parking place' in turn depends on whether it is in a certain 'controlled parking zone'. The 'controlled parking zones' are specified in Schedule 3 to the TMO, which has not been provided. I observe that the restrictions that would appear to apply to 'Charlton C' and 'East Greenwich EG' controlled parking zones match those that appear on the sign, but there is no evidence that the location in question is within either of those zones and, indeed, the sign refers not to 'C' or 'EG' zones but to 'W'. A shared use parking place refers again to the (undefined) controlled parking zones and to parking places in respect of which payment must be made, so I am unable to find that the location is a 'shared use' parking place for the same reason that I am unable to find that the location is a 'permit holder parking place' that is subject to restrictions imposed by the TMO.

The PCN was issued for 'parking for longer than permitted'. It is incumbent on an EA when seeking to prove a contravention of a TMO to identify the restrictions or prohibitions applying, by virtue of the TMO, to the location in which the vehicle was parked. The EA has failed to do that in this case. In particular, it has failed to prove that a TMO has created a restriction in the particular parking place in which the appellant's vehicle was parked to the effect that it may only park for a specified period of time.

In any event, this TMO either needs very substantial amendment so as to make it comprensible to a lawyer, let alone a member of the public OR the case summary must guide the reader expressly through the terms of the TMO that are said to have been breached and why.

Posted by: Schofeldt Sun, 21 Jan 2024 - 13:28
Post #1805599

Service to the wrong address and collateral challenge in terms of procedural impropriety, courtesy of cp 8759:



ETA Register of Appeals
Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph
21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as
applicable
Case Details
Case
reference
2190347315
Appellant Natalia Skorosz
Authority London Borough of Barking and Dagenham
VRM GV03OCY
PCN Details
PCN BU90539622
Contravention
date
21 Jun 2019
Contravention
time
12:51:00
Contravention
location
Ripple Road
Penalty
amount
GBP 130.00
Contravention Fail comply restriction vehicles entering ped zone
Referral date
Decision Date 12 Oct 2019
Adjudicator Jack Walsh
Appeal
decision
Appeal allowed
Direction cancel the Penalty Charge Notice.
Reasons Miss Skorosz appeals against a penalty charge notice (PCN) in relation to an alleged moving traffic contravention.
There is no dispute that the alleged contravention occurred. Indeed, Miss Skorosz does not dispute liability. In her
ground of appeal Miss Skorosz complained that she was unable to take up the enforcement authority (EA)’s offer,
made in its Notice of Rejection, to accept the reduced penalty amount, notwithstanding its rejection of her
representations, because the EA sent it to an old address.
WHETHER TO ADJOURN FURTHER
I have adjourned this case twice to allow the EA to consider its position. In the first adjournment notice I wrote:
“It is clear from the Notice of Rejection that the enforcement authority intended to extend, in an exercise of discretion,
the period during which the reduced amount was payable. Whereas the PCN itself was sent to the appellant's old
address, in her representations the appellant clearly provided her updated address to the EA. The Notice of rejection
was then, inexplicably, sent to the old address. For that reason the EA was unable to give effect to its intention that
the reduced amount was still acceptable because the appellant did not receive the NoR until well after the period
had elapsed.”
There was no response to that adjournment notice and I adjourned again, this time suggesting that I might require
the attendance of the EA’s appeals officer. I further stated:
“I am keen to understand the statutory basis for the EA's apparent policy of not sending notices of rejection to
updated addresses in the absence of evidence of the address change from the DVLA.”
There has, again, been no response from the EA. There is no reason to think it did not receive the adjournment
notices.
The adjudicator’s power under paragraph 10(3) of Schedule 1 to the London Local Authorities and Transport for
London Act 2003 and Regulation 19 of the Bus Lane Contraventions (Penalty Charges, Adjudication and
Enforcement) (England) Regulations 2005 to require the attendance of witnesses is akin to the power to summons a
witness to Court. It is designed to procure the attendance of witnesses and/or the provision of documents in their
control. In reality, the EA’s appeals officer is not a witness. I am not sure that the power to require the attendance of
witnesses extends to the power to require the attendance of officers of the EA so that they can explain the decisions
of the EA. Further, I am not satisfied it would be proportionate to adjourn the case again. I propose to deal with it
today. The EA has had ample opportunity to set out its position; I have invited its representations on the point.
Paragraph 5 of The Road Traffic (Parking Adjudicators) (London) Regulations 1993 reads, as far as is relevant:
“(2) The adjudicator may invite a party to deliver to the proper officer representations dealing with any matter relating
to an appeal within such time and in such a manner as may be specified.
(3) Where a party fails to respond to an invitation under paragraph (2), the adjudicator may (without prejudice to any
other powers he may have) draw such inferences as appear to him proper.”
It is a proper inference to draw – and I do draw the inference – that the EA does not have an adequate explanation
that will withhold scrutiny for its decision (apparently based on a policy) not to send formal notices to addresses
provided by recipients of PCNs in the absence of documentary evidence from the DVLA to corroborate the change
of address.
THE RELEVANT LEGISLATION
Sections 2(2) and (3) of the London Local Authorities and Transport for London Act 2003 reads:
“(2) Subject to paragraph 1(8) of Schedule 1 to this Act [not relevant], the owner of a vehicle for the purposes of this
Act, shall be taken to be the person by whom the vehicle is kept.
(3) Subject to the said paragraph 1(8), in determining, for the purposes of this Act, who was the owner of a vehicle at
any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered
under the Vehicle Excise and Registration Act 1994 (c. 22).”
Section 4 reads (as far as is relevant):
“(2) … the relevant borough council may serve a penalty charge notice
(a)in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be
the owner of the vehicle; …”
Paragraph 1(7) of Schedule 1 specifies:
“(7) It shall be the duty of the enforcing authority to whom representations are duly made under this paragraph
(a) to consider them and any supporting evidence which the person making them provides; and
(b) to serve on that person notice of their decision as to whether they accept that the ground in question has been
established.”
Paragraph 9 of Schedule 1 to the 2003 Act provides:
“9 Service by post
Any charge certificate, or notice under section 4 (Penalty charges for road traffic contraventions) of this Act or this
Schedule–
(a) may be served by post;”
THE CHRONOLOGY
Miss Skorosz accepts she received the PCN albeit she had missed the 14 day period for payment of the reduced
amount. That was in part because it had been sent to her at her old address, which was the address at which the
vehicle was registered in her name.
Miss Skorosz made representations against the PCN in accordance with Section 4(8)(a)(vii) and (b) of, and
paragraph 1 of Schedule 1 to, the London Local Authorities and Transport for London Act 2003. She did so at
11.00.35 on 21 July 2019. These were received because the EA exhibited the e-mail in its evidential bundle for this
hearing. The representations said:
“The Penalty Charge exceeds the relevant amount
To whom it may concern,
I agree that the contravention occurred and I have no problem with paying it, however I am new to the borough and
the notification of penalty charge has arrived to my old address 74 Mintern Close N13 5SY ,when I have been living
under new address Flat 19 Brook Court ,510 Ripple Road IG11 9JU for a week.
Also I have been on holidays during the 2 week period and I have missed the deadline for the penalty to be reduced
by 50% to £65.
Therefore for those reasons I appeal for the fine to be lowered to £65.”
The EA replied to the above representations the following day. In its letter it said:
“As a goodwill gesture, we are willing to reoffer this £65.00 discount until the end of the period of 14 days beginning
with the date of service of this letter. If payment is not received within this period then the full amount of £130.00 will
be due.”
This gesture is to be commended. Inexplicably, however, the EA did not send the Notice of Rejection to the address
it had been provided the day before, but to the address it had been told was an old address.
Miss Skorosz received the Notice of Rejection but, again, missed the 14 day period because it had gone to the
wrong address.
THE EA’S POSITION
In its case summary the EA says:
“The Enforcement Authority finds that DVLA have provided the appellants details as being the DVLA registered
keepers address. The Enforcement Authority finds the appellant has not provided any documentary evidence to
support their claim, therefore the address could not be changed. The Enforcement Authority also finds that the
discount was offered when the Rejection letter was served to the appellant.”
As I have indicated, I invited the EA to provide a justification for its stance that it will not recognise a change of
address without corroboration from the DVLA. It has not done so and I have drawn the inference to which I have
referred.
THE EFFECT OF THE DECISION TO SEND THE NOR TO THE WRONG ADDRESS
Miss Skorosz can have no complaints that the PCN was sent to her old address. The EA complied with the statutory
scheme in that respect because the person appearing to be the owner was the person the DVLA informed the EA.
The DVLA also informed the EA of the address of the appellant, as it understood it to be. The best evidence the EA
had of the appellant’s address at that point was that provided by the DVLA.
Thereafter, the EA received from the vehicle’s registered keeper and owner yet better evidence of her address. She
told the EA directly what her address was.
Sub-paragraph (7)(b) of paragraph 1 of Schedule 1 to the 2003 Act requires the notice to be served on the ‘the
person’ who made the representations. In this case it was the vehicle’s owner. Nowhere in the statute is the EA
required or indeed permitted to send an NOR to an address provided by the DVLA. The address of ‘the person’ had
been provided by ‘the person’. The EA appears to have decided, without justification, to ignore it. The 2003 Act
envisages that notices are sent to ‘the person’ at the best known address for 'the person'.
In the event, the decision to send the NOR to the wrong address did not prevent it ultimately being received and,
thus, formally served. That is because the appellant obtained it from the new residents of her old address. But that
was despite, and not because, of the decision of the EA to send it to the wrong address. It had no reason to believe
that Miss Skorosz would ultimately receive the NOR, although in the event she did. The almost inevitable
consequence was that the 14 day period had lapsed.
I take the view the EA’s failure to serve an NOR to what it knew to be the appellant’s address and, conversely, to
send it to what it knew to be an old address, amounts to a procedural impropriety, within the meaning of Council of
Civil Service Unions v. Minister for the Civil Service [1985] AC 374. It was quite deliberate, unjustified, and could
well have precluded effective service of the NOR altogether.
An allegation of a procedural impropriety is, in effect, a collateral challenge to the enforceability of the penalty, i.e. a
challenge that does not fall within the parameters of paragraph 1(4) of Schedule 1 to the 2003 Act. The decision of
Mr. Gary Hickinbottom (as he was then) in Davis v. Royal Borough of Kensington and Chelsea (case 1970198981)
at page 51, is authority that an adjudicator does have a residual power to allow an appeal on the basis of a collateral
challenge. In terms of expressing the reason for allowing any appeal, that must be done in the terms of paragraph
1(4). The best way of expressing the position in those terms is to say, if the collateral challenge is made out, that the
penalty exceeds the amount applicable. That is because, in effect, the adjudicator has found that the EA, by virtue of
the procedural impropriety, is not entitled to collect the penalty at all.
I do find that the procedural impropriety in this case, as described above, renders the penalty unenforceable. That is
to say, the recoverable amount in respect of that PCN is nil. The appeal is allowed.

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