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PCN Code 40 Parking in Disabled Space w/o Clock
RedDeath614
post Sun, 2 Sep 2018 - 18:15
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Hi all, we got a PCN yesterday for parking in a disabled space, without displaying the clock. Badge was displayed correctly. I came back to car (mum was still in shop) in the interim to find warden issuing a ticket. He then pointed to a sign which said there was a 3 hour time limit for disabled badges in the bay and without a clock, how would anyone know what time we had arrived? He also said I was not the badge owner so refused to discuss anything with me, which was weird. I said we came into town at 6.15pm, his ticket was issued around 6.45pm and we had driven home by 7pm. We have shop receipts to verify the times of our 2x purchases between 6.30-6.50pm but will this help or not? I was calling my mum but she's also hard of hearing so she didn't pick up and the guy had the cheek to allege I was misusing the badge as he could see no disabled person present. I did tell him we would not be paying the ticket and he dismissively said we could contest it.

I'm baffled to see a warden beyond 6pm in the city, however they must be wandering around until midnight.
I'd also say the majority of bays are no longer time limited for blue badge holders, so there is a habit where neither of us check this, but we will of course always use the clock now.

Is there any way to fight it? Can we say we displayed the clock but it had fallen off the dashboard?

Pics of ticket are attached, I can take and upload ones of the street and where we were parked if needed too.


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post Sun, 2 Sep 2018 - 18:15
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hcandersen
post Thu, 29 Nov 2018 - 22:03
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I'm confused.

PCN dated Sept;
Your penultimate post 20 Sept. before NTO issued, challenge submitted or council's position clarified;
Last post shows post-NTO NOR.

So, we've no idea whether you challenged or whether you received a reply or when the NTO arrived or what it said or what you said in reps or when these were submitted..apart from this we're fully up to speed.

And you want our advice!!
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RedDeath614
post Thu, 29 Nov 2018 - 22:37
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QUOTE (hcandersen @ Thu, 29 Nov 2018 - 22:03) *
I'm confused.

PCN dated Sept;
Your penultimate post 20 Sept. before NTO issued, challenge submitted or council's position clarified;
Last post shows post-NTO NOR.

So, we've no idea whether you challenged or whether you received a reply or when the NTO arrived or what it said or what you said in reps or when these were submitted..apart from this we're fully up to speed.

And you want our advice!!


I don't want YOUR advice actually, no.

Really no idea what your problem is. You seem to have a personal vendetta against me.

I've never been rude or patronising to you, yet this seems to be your perpetual stance against me.

Anyone with half a brain can read my last posts which said I would make a formal challenge and that I was using MM's reasons to challenge. Not sure why you're "confused" about this. Perhaps it's just way past your bedtime?

I'd like you not to post on my threads anymore. Thanks smile.gif

This post has been edited by RedDeath614: Thu, 29 Nov 2018 - 22:44
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PASTMYBEST
post Thu, 29 Nov 2018 - 23:04
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I think 8(4)(b) might well be in play or at least it will be interpreted as such

www.legislation.gov.uk/uksi/2000/683/regulation/8/made


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DancingDad
post Thu, 29 Nov 2018 - 23:19
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I'm as confused as HCA.
If for no other reason but I have no idea what you sent as a formal challenge.
And thus have no idea if the council considered fully, ignored what you sent or made it up as they went along.
What they certainly have done is tried to make you believe that S6 of TMA is somehow more pertinent then simply being an enabling act.

Post a copy of what you sent please.
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RedDeath614
post Fri, 30 Nov 2018 - 20:12
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Sure, thanks.

Here is what I sent before. I kept it very short and sweet - there was no space to do otherwise.

The blocked out black bit in the middle of the 'representations' box on pic 4 is exactly how I sent it in:




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cp8759
post Fri, 30 Nov 2018 - 20:52
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I wouldn't suggest you submit anything to the tribunal without getting it reviewed on here first, or you have no chance.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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RedDeath614
post Sun, 2 Dec 2018 - 12:07
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OK sure, thanks. Hope to hear some input soon.

If not I will just go with the reasons listed before and LCC didn't answer anything about the TRO.

Also this is technically our 'first offence' of this nature.
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cp8759
post Sun, 2 Dec 2018 - 22:38
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Bump next week and I'll draft something


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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RedDeath614
post Mon, 3 Dec 2018 - 19:55
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Great, thanks very much CP smile.gif

Can I just clarify what the last date to file is? 15 December?
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John U.K.
post Mon, 3 Dec 2018 - 20:21
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QUOTE
Can I just clarify what the last date to file is? 15 December?


You should be able to register the appeal with the tribunal now and in the appropriate box write something like
Full submission to follow.
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cp8759
post Wed, 5 Dec 2018 - 10:23
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As always I suggest you put this in a pdf document called Grounds of Appeal and you upload it to the tribunal website, in order to preserve the formatting and hence readability.

The alleged contravention did not occur:

The PCN was issued for "Parked in a designated disabled person’s parking place without displaying a valid disabled person’s badge in the prescribed manner", but the council's own photos show a disabled badge was displayed on the dashboard.

The council contends that the disabled badge was not displayed correctly because there was no clock displayed (or a parking disc, to give it its proper statutory name). This contention is misconceived.

Where waiting is prohibited, for example on double yellow lines, the relevant Traffic Regulation Order would include the exemption provided for by regulation 8 of The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 which requires that "a parking disc is displayed in the relevant position on the vehicle marked to show the quarter hour period during which the period of exempted waiting began."

Regulation 8(5) goes on to define a parking disc as follows:

"(5) In this regulation “parking disc” means a device which–

(a) is 125 millimetres square and coloured blue, if issued on or after 1st April 2000 or orange, if issued before that date;
(b) has been issued by a local authority and has not ceased to be valid; and
(с) is capable of showing the quarter hour period during which a period of waiting has begun.
"

However the parking space where the PCN was issued is not subject to an order which "prohibits (except for the purposes of loading or unloading) the waiting of vehicles, or any class of vehicles, in a road at all times of day or during one or more specified periods of the day", therefore regulation 8 above does not apply at all.

Because no vehicles except vehicles displaying a disabled person's badge may wait in this particular parking bay, regulation 7 of the The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 doesn't apply either, it follows that The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 cannot be relied upon by the enforcement authority in this instance.

The provisions for this particular parking bay are instead found in The Leicester (CONSOLIDATION) Traffic Regulation Order 2006 which provides as follows on page 11:

"No Person shall cause or permit a vehicle to wait or to load and unload at any time in any road or length of road to which this restriction is applied except for vehicles displaying a disabled persons badge issued and displayed in accordance with the “Disabled Persons (Badges For Motor Vehicles) (England) Regulations 2000” and includes similar badges issued by other European Member States. Vehicles must be parked wholly within the parking bay marked on the carriageway. No vehicle may wait for more than 3 hours and may not return to the same length of parking bay restriction within
a further consecutive period of 3 hours.
"

The TRO requires that a disabled person's badge is displayed, but there is no provision requiring that a parking disc be displayed. It should be noted that the Disabled Persons (Badges For Motor Vehicles) (England) Regulations 2000 does not define or require a parking disc to be displayed. The authority might contend that this would cause enforcement difficulties, but such an argument would be flawed for two reasons:

1: If there has been no breach of the clear wording of a TRO, the fact that an enforcement authority might have enforcement difficulties is not an answer, and

2: There is nothing to stop the enforcement authority from enforcing a disabled person's parking bay in the same way as all other time-limited bays are enforced: A CEO can note the registration mark of a vehicle and the valve positions of the wheels, and if the vehicle is still present at the same location and in the same position more than three hours later, a PCN can be issued.

The requirement to display a parking disc in this particular bay is not provided for in any statutory provision or local order, therefore as a matter of law there is no such requirement, despite the contrary belief of the enforcement authority.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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DancingDad
post Wed, 5 Dec 2018 - 11:14
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I like that from CP
Must admit I would not have brought in the 2000 Act but on reading through, using it and discounting it will aid adjudicator in considering the ins and outs and neatly brings in TRO wording as the only contention.
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angryscot
post Wed, 5 Dec 2018 - 13:25
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A bit late now but could the logs of the CEO be requested? They could show he walked the street less than 3 hours earlier.
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DancingDad
post Wed, 5 Dec 2018 - 13:40
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QUOTE (angryscot @ Wed, 5 Dec 2018 - 13:25) *
A bit late now but could the logs of the CEO be requested? They could show he walked the street less than 3 hours earlier.


If they did would make no difference.
And even if logs showed that the vehicle overstayed makes no difference except to cement that the wrong contravention was used.
This turns on the wording of the TRO and as far as we have found, the wording does not allow enforcement on the timing disc not being displayed.
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hcandersen
post Wed, 5 Dec 2018 - 14:27
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And page 16 counts for nothing?

https://assets.publishing.service.gov.uk/go...nsibilities.pdf


‘On-street’ disabled parking bays (Signs have a blue wheelchair symbol)

You may park for free. Unless signs say otherwise, you may park without time limit.
You must display the Blue Badge (and the blue parking clock if the bay is time limited).


But it's not the law I hear some say. But it's been in print since 2007 and updated in 2017.

And the probability that the unqualified requirement is in some way an error which has not been noticed/examined/tested and is not an enforceable condition?

Putting the TRO and its forensic examination to one side for a moment, given that the OP was unaware of its provisions when they parked but is presumed to know the contents of the BB booklet does beg the question why did they not display a clock?

IMO, there are two issues at play here and they're being confused.
1. The requirement in the booklet to display a clock is predicated on a traffic authority importing the correct wording into their order is one thing,
2. But trying to argue that even if this has been imported correctly there is no such requirement anyway is, IMO, a step too far.

If cp is correct on the latter, then this would drive a coach and horses through the law as understood and necessitate an immediate rewrite of the BB leaflet.

This post has been edited by hcandersen: Wed, 5 Dec 2018 - 14:29
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cp8759
post Wed, 5 Dec 2018 - 18:25
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QUOTE (hcandersen @ Wed, 5 Dec 2018 - 14:27) *
And the probability that the unqualified requirement is in some way an error which has not been noticed/examined/tested and is not an enforceable condition?

It would hardly be the first time that a government publication misstates the law.

QUOTE (hcandersen @ Wed, 5 Dec 2018 - 14:27) *
If cp is correct on the latter, then this would drive a coach and horses through the law as understood and necessitate an immediate rewrite of the BB leaflet.

If we get a tribunal decision I will make a point of getting in touch with the Department for Transport.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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DancingDad
post Wed, 5 Dec 2018 - 23:49
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Can I be the one to point out that BB booklet is guidance, not the law ?
No authority, adjudicator or judge can uphold the PCN against guidance if the legal aspects are not correct, ie the TRO does not require a time clock.

Gnerally speaking, when I park with my daughter on her BB, I set time clock if there is a timed restriction, safer that way and accords with the booklet.
But does not mean I need to every time, that depends on the TRO, the assumption simply being that the TRO will require it. (or the 2000 act if a yellow line)
The TRO in this case does not seem to show the need.
If it turns out there is a later one that we are unaware of, case falls but given the gobblygook the council gave to the question on legislation that requires a time clock, I for one doubt it.
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Mad Mick V
post Thu, 6 Dec 2018 - 09:10
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Did I post this one?

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.

Mick
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RedDeath614
post Thu, 6 Dec 2018 - 09:14
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QUOTE (cp8759 @ Wed, 5 Dec 2018 - 10:23) *
As always I suggest you put this in a pdf document called Grounds of Appeal and you upload it to the tribunal website, in order to preserve the formatting and hence readability.

The alleged contravention did not occur:

The PCN was issued for "Parked in a designated disabled person’s parking place without displaying a valid disabled person’s badge in the prescribed manner", but the council's own photos show a disabled badge was displayed on the dashboard.

The council contends that the disabled badge was not displayed correctly because there was no clock displayed (or a parking disc, to give it its proper statutory name). This contention is misconceived.

Where waiting is prohibited, for example on double yellow lines, the relevant Traffic Regulation Order would include the exemption provided for by regulation 8 of The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 which requires that "a parking disc is displayed in the relevant position on the vehicle marked to show the quarter hour period during which the period of exempted waiting began."

Regulation 8(5) goes on to define a parking disc as follows:

"(5) In this regulation “parking disc” means a device which–

(a) is 125 millimetres square and coloured blue, if issued on or after 1st April 2000 or orange, if issued before that date;
(b) has been issued by a local authority and has not ceased to be valid; and
(с) is capable of showing the quarter hour period during which a period of waiting has begun.
"

However the parking space where the PCN was issued is not subject to an order which "prohibits (except for the purposes of loading or unloading) the waiting of vehicles, or any class of vehicles, in a road at all times of day or during one or more specified periods of the day", therefore regulation 8 above does not apply at all.

Because no vehicles except vehicles displaying a disabled person's badge may wait in this particular parking bay, regulation 7 of the The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 doesn't apply either, it follows that The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 cannot be relied upon by the enforcement authority in this instance.

The provisions for this particular parking bay are instead found in The Leicester (CONSOLIDATION) Traffic Regulation Order 2006 which provides as follows on page 11:

"No Person shall cause or permit a vehicle to wait or to load and unload at any time in any road or length of road to which this restriction is applied except for vehicles displaying a disabled persons badge issued and displayed in accordance with the “Disabled Persons (Badges For Motor Vehicles) (England) Regulations 2000” and includes similar badges issued by other European Member States. Vehicles must be parked wholly within the parking bay marked on the carriageway. No vehicle may wait for more than 3 hours and may not return to the same length of parking bay restriction within
a further consecutive period of 3 hours.
"

The TRO requires that a disabled person's badge is displayed, but there is no provision requiring that a parking disc be displayed. It should be noted that the Disabled Persons (Badges For Motor Vehicles) (England) Regulations 2000 does not define or require a parking disc to be displayed. The authority might contend that this would cause enforcement difficulties, but such an argument would be flawed for two reasons:

1: If there has been no breach of the clear wording of a TRO, the fact that an enforcement authority might have enforcement difficulties is not an answer, and

2: There is nothing to stop the enforcement authority from enforcing a disabled person's parking bay in the same way as all other time-limited bays are enforced: A CEO can note the registration mark of a vehicle and the valve positions of the wheels, and if the vehicle is still present at the same location and in the same position more than three hours later, a PCN can be issued.

The requirement to display a parking disc in this particular bay is not provided for in any statutory provision or local order, therefore as a matter of law there is no such requirement, despite the contrary belief of the enforcement authority.


Huge and sincere thanks to you, CP. I'm humbled at how much effort you have put in. Revives one's faith in humanity again laugh.gif

I think I will put a few more bits in separately to your piece of wonderment, namely:

1. This is a first contravention for us, so why not cancel anyway?

2. As MM raised in another thread before and which is significant here esp in relation to why the clock was not displayed, what consideration have the Council given to my mum's disabilities in opting to uphold/enforce this PCN? Absolutely zero, imo.

3. I will re-emphasise that we were only parked for 40-45 mins max, which is true and if they refer to the warden's log, they should see that.

Thankyou once more. I'm sure the Council will flounder on at least one of these points at the Tribunal.

I'l get onto posting everything this weekend.

This post has been edited by RedDeath614: Thu, 6 Dec 2018 - 09:15
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Mad Mick V
post Thu, 6 Dec 2018 - 09:19
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OP --our posts have crossed--read post 58.

Mick
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