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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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RedDeath614
post Thu, 6 Dec 2018 - 09:25
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QUOTE (Mad Mick V @ Thu, 6 Dec 2018 - 09:19) *
OP --our posts have crossed--read post 58.

Mick


Yes, posting at the same time!

And yes you have posted that case before.

Thanks MM smile.gif
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hcandersen
post Thu, 6 Dec 2018 - 11:01
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Seems I'm the Devil's advocate here, but critically examining argument is what we do.

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.

Why should they? She wasn't driving, she's able enough to go shopping and how does this bear on whether a clock should be displayed?

A BB or disability is not a carte blanche or a magical get-out-of-jail card to excuse failures, even less so when the failure relates to the display of the badge itself!

By all means add your own points, but carefully. Back to my good old days, are you offering these as defence or mitigation? Be clear in your own mind which and make it clear in your reps.
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Steve_999
post Thu, 6 Dec 2018 - 12:17
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Bear in mind (assuming the OP was the driver, as that hasn't been clearly stated as far as I can see) that the holder of the BB in this instance has not been accused of any offence, nor issued with a PCN.

It is the driver's responsibility to ensure that the BB is displayed as required, and if there are disabilities relevant to the issue they would be those of the driver and not the BB holder.
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cp8759
post Thu, 6 Dec 2018 - 13:19
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QUOTE (DancingDad @ Wed, 5 Dec 2018 - 23:49) *
If it turns out there is a later one that we are unaware of, case falls...

I'm not sure I agree. The 2000 regulations are a statutory instrument enacted by Parliament, so knowledge of those regulations is imputed on all persons and you must display a parking disc on double yellows because Parliament has so decided. But there is no imputed knowledge for a local TRO, on the contrary LATOR reg 18 says the signage must convey the meaning of the TRO, so absent any requirement provided for in national legislation, any TRO requirement to display a clock must be signed or it is not enforceable.

This issue might not exist if the TSRGD said a parking disc must be displayed in such a bay, but I've had a look and the words "parking disc" do not appear anywhere at all in the TSRGD 2016.

QUOTE (RedDeath614 @ Thu, 6 Dec 2018 - 09:14) *
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.

I don't want to discourage you from making additional points but bear in mind the following: Points 1 & 2 go to the council's discretion, so the adjudicator cannot allow an appeal on that point no matter how much he agrees. Point 3 is irrelevant to the alleged contravention, even if the adjudicator makes a finding of fact that you were only parked for 40 minutes, he cannot allow the appeal on that basis.


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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 Sat, 8 Dec 2018 - 15:30
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Thanks again CP wink.gif

I've done as you advised and uploaded the explanation as a full document on the TPT Appeals website.

However the system requires a 500 word (max) explanation to proceed, so I added a briefly condensed version in that area to submit.
Just thought I'd let you know about it, in case you weren't aware.

I've taken your sage advice re the rest. If it comes to a Tribunal hearing I'm sure we can add anything we need to on that occasion.

I guess we'll see how the Authority responds from here on...

QUOTE (hcandersen @ Thu, 6 Dec 2018 - 11:01) *
A BB or disability is not a carte blanche or a magical get-out-of-jail card to excuse failures, even less so when the failure relates to the display of the badge itself!


Did I say it was? happy.gif

---------------------------

Once again, thanks so much to all who have helped with this appeal, esp CP and MMV.

In the words of good old Arnie, "I'll be back".

This post has been edited by RedDeath614: Sat, 8 Dec 2018 - 15:35
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cp8759
post Sat, 8 Dec 2018 - 15:46
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The council will post a case summary at least 3 days before a decision is due, post it once they upload it to the tribunal so we can see what they say.


--------------------
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 Sat, 8 Dec 2018 - 16:37
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QUOTE (cp8759 @ Thu, 6 Dec 2018 - 13:19) *
QUOTE (DancingDad @ Wed, 5 Dec 2018 - 23:49) *
If it turns out there is a later one that we are unaware of, case falls...

I'm not sure I agree. The 2000 regulations are a statutory instrument enacted by Parliament, so knowledge of those regulations is imputed on all persons and you must display a parking disc on double yellows because Parliament has so decided. But there is no imputed knowledge for a local TRO, on the contrary LATOR reg 18 says the signage must convey the meaning of the TRO, so absent any requirement provided for in national legislation, any TRO requirement to display a clock must be signed or it is not enforceable.

………….


I can live with that argument and would recommend that OP keeps a copy of it to use should it come to a hearing and it turns out there is a TRO that requires clock.
Else I can see the BB booklet guidance being used as the "warning" and hence inherent knowledge that clock display may be included within TROs and that signs are clear enough.

TBH I cannot see it getting to a hearing unless a TRO can be included in evidence that shows clock required, council would be letting themselves wide open to costs if they did.
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cp8759
post Sat, 8 Dec 2018 - 16:55
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QUOTE (DancingDad @ Sat, 8 Dec 2018 - 16:37) *
Else I can see the BB booklet guidance being used as the "warning" and hence inherent knowledge that clock display may be included within TROs and that signs are clear enough.

That's basically saying that, at common law, there is a requirement for the parking disc to be displayed. I think the council might struggle with that, if nothing else because I doubt they could put a coherent argument together.


--------------------
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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hcandersen
post Sat, 8 Dec 2018 - 16:57
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Did I say it was?


To me your reference to 'what consideration have the Council given to my mum's disabilities in opting to uphold/enforce this PCN? Absolutely zero, imo.' means the same. This is about parking, not disabilities, and she wasn't driving, and it's nothing to do with her returning late to the car, which can be a consideration. Nothing that's been raised so far bears at all on your mother's disabilities and vice-versa, so what do you expect of the authority?

Anyway, you've registered your appeal and we'll see what happens.

The appeals process is nothing if not unpredictable. The authority might cave in for an easy life or they might not.
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DancingDad
post Sat, 8 Dec 2018 - 21:31
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QUOTE (cp8759 @ Sat, 8 Dec 2018 - 16:55) *
QUOTE (DancingDad @ Sat, 8 Dec 2018 - 16:37) *
Else I can see the BB booklet guidance being used as the "warning" and hence inherent knowledge that clock display may be included within TROs and that signs are clear enough.

That's basically saying that, at common law, there is a requirement for the parking disc to be displayed. I think the council might struggle with that, if nothing else because I doubt they could put a coherent argument together.


I'm rarely worried about councils putting coherent arguments together unless they have to at a JR and get their legal eagles involved.
But have seen adjudicators pull arguments out of the hat, both for and against the appeal.
They are certainly capable of saying that as BB booklet says time clock should be shown the signs do not need to.
Your argument counters that.


This post has been edited by DancingDad: Sat, 8 Dec 2018 - 21:34
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RedDeath614
post Fri, 11 Jan 2019 - 09:43
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Hi all and a happy new year!

Council took their sweet time filing any evidence, I had to chase it up.

Here's their summary on the TPT system:

Case Submission: On 01/09/2018 a silver Peugeot registration number [OMITTED] was parked on Clarence Street where Civil Enforcement Officer (CEO) LE244 observed that the vehicle was parked in a designated disabled persons parking place without displaying a valid disabled persons badge in the prescribed manner. The signs and lines were clearly in place for the disabled parking bay and it is the responsibility of the driver to check the parking restrictions in place before parking the vehicle. Please see photographic evidence to show the vehicle parked in contravention. The photographs clearly show the bay markings and the sign plate advising disabled badge holders only, 3 hours no return within 3 hours. As no days or times are specified on the sign plate, it is valid at all times. A patrolling officer observed the vehicle to be parked in the disabled bay and although a Blue Badge was displayed, the accompanying clock which is required to be displayed where a time restriction applies was not and a Penalty Charge Notice (PCN) was correctly issued at 18:44. The appellant has advised that they were shopping at the time and has provided a receipt which is acknowledged; however, when parking in a disabled bay that has a time restriction, a clock showing the time of arrival must also be displayed with the Blue badge which is clearly advised in the Blue Badge Booklet on page 10. (See The Blue Badge Scheme Booklet). In view of the above it remains the responsibility of the driver to ensure that the sign plate for the parking bay is checked and understood before parking. If the driver is unsure then it is advised that reference is made to The Highway Code which explains signage and also the blue badge booklet which advises on how it should be used. It is evident that the vehicle was parked in breach of a parking contravention and the PCN correctly issued as the blue badge clock was not displayed at the time of parking. However, taking into consideration the appellants concerns, as a reasonable authority payment will be accepted at the discounted rate of £35.00.

So, they are still ignoring the argument concerning the TRO. They have uploaded it in the evidence pile - and yes it is the one/s we have had on here which make no reference to a time clock being displayed.

I've been given the option of a telephone hearing or allowing the adjudicator to decide the case. They give you 7 days and I have about 5 days left to decide.

Should I opt for the telephone hearing? Not sure why they don't offer face to face hearings now.

Thanks to all for your help.

PS - Interestingly they have uploaded the Warden's logbook as evidence but only upto the time he saw the car, should I ask them to upload the logbook evidence 3 hours after?

This post has been edited by RedDeath614: Fri, 11 Jan 2019 - 09:46
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Mad Mick V
post Fri, 11 Jan 2019 - 10:05
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OP------don't ask for the CEO's notes re. the 3 hours.

Remember what the TRO states:-

"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."

Mick

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DancingDad
post Fri, 11 Jan 2019 - 10:26
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Telephone hearing.
Gives you chance to politely but firmly refer adjudicator to TRO and lack of requirement for a time disc.
Have the relevant page/section highlighted so you can easily point adjudicator towards it.

IMO it is worth a quick note to TPT now.

Dear Sirs
Rf PCN/hearing numbers ????
I have received and checked the evidence pack supplied by the council.
May I comment on and bring to the attention of the adjudicator the following.
Council rely on guidance within the Blue Badge booklet to enforce the need for a time clock to be displayed.
They have not offered any supporting legislation.
Council TRO, Page??? Section ??? does not reflect this stance and specifically only requires the Blue Badge to be displayed.
Without the requirement for a time clock to be displayed within the TRO, there can be no contravention.
Given this, I ask that the adjudicator agrees that I displayed all that was needed and as such was parked lawfully.
Hugs and Kisses
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hcandersen
post Fri, 11 Jan 2019 - 12:22
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OP, as you know I don't think you have a leg to stand on with the TRO and/or the sign not specifying that a clock should be displayed argument, but as cases have been won, and some lost which could have been won, on the basis that the council's evidence was not up to scratch, then post the key elements from their evidence, not what they might have supplied to you previously:

Their copy of the PCN;
The schedule or plan within the TRO which designates this bay;
Their NOR;
The case summary in its entirety, unless this is as per your previous post.

And on this point: have the authority written to you regarding the discount since you registered your appeal?

An appeal is against the full penalty, not discount re: However, taking into consideration the appellants concerns, as a reasonable authority payment will be accepted at the discounted rate of £35.00.

I am confused. On the one hand you risk costs being awarded against you on application by the authority as follows:
Costs

13.—(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to subparagraph (2) make such an order—

(a)against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously


and on the other they say they are still offering the discount.
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cp8759
post Sat, 12 Jan 2019 - 08:14
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QUOTE (DancingDad @ Fri, 11 Jan 2019 - 10:26) *
Telephone hearing.
Gives you chance to politely but firmly refer adjudicator to TRO and lack of requirement for a time disc.
Have the relevant page/section highlighted so you can easily point adjudicator towards it.

IMO it is worth a quick note to TPT now.

Dear Sirs
Rf PCN/hearing numbers ????
I have received and checked the evidence pack supplied by the council.
May I comment on and bring to the attention of the adjudicator the following.
Council rely on guidance within the Blue Badge booklet to enforce the need for a time clock to be displayed.
They have not offered any supporting legislation.
Council TRO, Page??? Section ??? does not reflect this stance and specifically only requires the Blue Badge to be displayed.
Without the requirement for a time clock to be displayed within the TRO, there can be no contravention.
Given this, I ask that the adjudicator agrees that I displayed all that was needed and as such was parked lawfully.
Hugs and Kisses

+1, at the end of the day the Blue Badge booklet does not have force of law and a requirement to display a parking disc cannot be imposed either by the BB booklet, or by the council's received wisdom.


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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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hcandersen
post Sat, 12 Jan 2019 - 08:57
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@cp, we disagree on this point.

IMO it lies with an adjudicator taking all facts into account to find that a purposive interpretation of the order taken as a whole is that a disc is required.

We'll soon find out.

edit
In any event, OP can we see their evidence please.

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DancingDad
post Sat, 12 Jan 2019 - 09:57
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What purposive interpretation pls HCA ???
OP you need to keep track of these arguments and have a summary available along with copies of relevant acts should the adjudicator seem to be going along with HCA.
And be prepared to open your mouth and politely but firmly point them out.

Relevant part of the order says:----
"DISABLED PARKING BAY 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. "
Nothing about a time clock !

The Disabled Persons (Badges for Motor Vehicles)(England) Regulations 2000 do not even detail or mention a Time Clock so there is no requirement for display of one from there.
Only that the BB is displayed on dashboard or facia, face up.
https://www.legislation.gov.uk/uksi/2000/68...ulation/12/made
The TRO also allows similar badges from other EU states. Do they all have time clocks? Not strictly a member state but no time clocks issued in Scotland.
Is being Scottish and not having a Clock allowable but not if you are English?

The TRO does not require a time clock to be displayed, legislation does not require a time clock to be displayed, the council evidence pack relies on BB guidance, not legislation.
The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 section 7 applies to parking bays and does not require a time clock (compare with section 8 re yellow lines and the specifics on time clocks within that.
http://www.legislation.gov.uk/uksi/2000/68...gulation/7/made
It is also discriminatory, to infer a requirement and enforce against that inference when normal time limited bays do not require any sort of time clock is discriminatory. This would be acceptable had the TRO required a time clock given what the BB booklet says but I reckon even that could be argued.

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hcandersen
post Sat, 12 Jan 2019 - 10:51
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The TRO also allows similar badges from other EU states. Do they all have time clocks? Not strictly a member state but no time clocks issued in Scotland.

Exactly. Display is as per the prevailing conditions of issue of the badge, which is my worry in this case.

You can quote at length, but it would not stop the adj if they had a mind to(and if they were to see the strident tone of the OP's reps, they just might) from finding that taken as a whole there is an implicit requirement to display. A motorist who complied with the conditions of use would not be disadvanted by such a finding, only those who didn't would.

But of the OP wants to run with this one-trick pony alone...
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DancingDad
post Sat, 12 Jan 2019 - 11:30
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QUOTE (hcandersen @ Sat, 12 Jan 2019 - 10:51) *
The TRO also allows similar badges from other EU states. Do they all have time clocks? Not strictly a member state but no time clocks issued in Scotland.

Exactly. Display is as per the prevailing conditions of issue of the badge, which is my worry in this case. ………...


I think you mean conditions of display of the badge.
If so, as far as I can find, Denmark, England and Wales are the only EU countries that require a time clock in some circumstances.
(But not in these circumstances despite what council allege.)
So unless they are Danish, indigenous people are treated worse then any other EU citizen?
"Oh, you are displaying a German BB, fine, no time clock needed"
Plainly ridiculous but that is what your interpretation means.


Fully agree about not upsetting the adjudicator BTW but it would be perverse IMO for an adjudicator to ascribe legal conditions where none exist.
BB booklet is simply not law, it is guidance. It isn't even terms and conditions, they are the legal acts that control issue and use of a BB.
Tradition and good practice of setting a time clock within a time limited disabled bay cannot be used to uphold flawed enforcement.
To me this is akin to the Crawley "cannot park within 10 metres cos the highway code says so"
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cp8759
post Sat, 12 Jan 2019 - 21:57
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QUOTE (hcandersen @ Sat, 12 Jan 2019 - 10:51) *
You can quote at length, but it would not stop the adj if they had a mind to(and if they were to see the strident tone of the OP's reps, they just might) from finding that taken as a whole there is an implicit requirement to display.

Well you're right, there's nothing to stop the adjudicator making up laws that don't exist, but we act on the reasonable assumption that by and large adjudicators will apply the law as it has been written.


--------------------
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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