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Council PCN - Isle Of Dogs again
John Bravo
post Thu, 8 Nov 2018 - 14:55
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Hi again Gentlemen,
I have a new gift from my local council



Prior to this I have done an informal challenge indicating that contravention did not occur, but maybe some rules have changed since my last ticket for the same contravention was ruled in my favour at the tribunal.

Best regards
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post Thu, 8 Nov 2018 - 14:55
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Incandescent
post Tue, 2 Apr 2019 - 12:01
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QUOTE (Mad Mick V @ Tue, 2 Apr 2019 - 11:50) *
Go for another Review. If Thorne states the reason for a dropped kerb is irrelevant he hasn't read the legislation which indicates the 3 "relevancies" of DK provision and thereby the corresponding enforcement protocol. He has misled himself.

The OP's grounds have been that the DK here does not fall within such enforcement protocols so relevancy is key and it has been ignored. This is unfair and prejudicial.

Mick

There has been more than one case where a dropped kerb PCN was issued for a dropped kerb for an entrance into a property. Yet the property had long gone, and there was now a wall not an entrance. In the case I remember, the OP won at PATAS (now London Tribunals). The adjudicator ruled that the dropped kerb no longer had its statutory purpose.
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PASTMYBEST
post Tue, 2 Apr 2019 - 12:23
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I agree with MMV but a second review request must be extremely short and to the point .

Both the initial and the reviewing adjudicator erred in law in finding that the reason for the DK is irrelevant . s 86 TMA2004 clearly sets out only three reasons, when the parking adjacent to the DK is a contravention. If the DK is provided for any reason other than these three then no contravention of s86 can occur

This post has been edited by PASTMYBEST: Tue, 2 Apr 2019 - 12:23


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Mr Meldrew
post Tue, 2 Apr 2019 - 15:53
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Adjudicator Mr Timothy Thorne’s rejection note confirms in paragraph 1 that findings of fact and law are generally final unless an adjudicator’s findings are not compatible with the evidence or the law. In paragraph 2, the note concludes that the original adjudicator Mr Sean Stanton Dunne “was entitled to reach the decision based on the evidence (my bold)”, but nowhere do I see any consideration of whether the original adjudicator’s findings were compatible with the law, or consideration of whether adjudicator Mr Sean Stanton Dunne reached the decision based on the law, and I think there may be reason to believe that adjudicator Mr Timothy Thorne did not consider all the evidence submitted and all matters raised in the Appeal representations.


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I do tend to have a bee in my bonnet re failing to consider and fairness
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PASTMYBEST
post Tue, 2 Apr 2019 - 15:55
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QUOTE (Mr Meldrew @ Tue, 2 Apr 2019 - 16:53) *
Adjudicator Mr Timothy Thorne’s rejection note confirms in paragraph 1 that findings of fact and law are generally final unless an adjudicator’s findings are not compatible with the evidence or the law. In paragraph 2, the note concludes that the original adjudicator Mr Sean Stanton Dunne “was entitled to reach the decision based on the evidence (my bold)”, but nowhere do I see any consideration of whether the original adjudicator’s findings were compatible with the law, or consideration of whether adjudicator Mr Sean Stanton Dunne reached the decision based on the law, and I think there may be reason to believe that adjudicator Mr Timothy Thorne did not consider all the evidence submitted and all matters raised in the Appeal representations.


the reason for my brevity.


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cp8759
post Tue, 2 Apr 2019 - 20:09
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Try this:
-------------------------
This is an application for a further review of the decision in case 2190058952.

Both the original adjudicator and the first reviewing adjudicator stated that the reason why the kerb had been lowered was "irrelevant". The law say this (my emphasis):

In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of


(a list of statutory purposes then follows).

I refer the tribunal to https://www.legislation.gov.uk/ukpga/2004/18/section/86

Where the law explicitly spells out that the purpose why the kerb has been lowered is a central element of the contravention, it is wrong to say that this is irrelevant. Indeed, such a finding of law is wrong, perverse, irrational and Wednesbury unreasonable. In light of the plain error of law of the previous adjudicators, the decision must be overturned.

This post has been edited by cp8759: Tue, 2 Apr 2019 - 20:10


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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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Mad Mick V
post Wed, 3 Apr 2019 - 07:46
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Looks good.

OP------I would still pay by the deadline whilst this 2nd Review is in play, with the hope of a refund.

Mick.
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Mr Meldrew
post Wed, 3 Apr 2019 - 11:25
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With much respect, I fully support the application for a further review and the core legal argument that the reason the footway was dropped was not “irrelevant” as parking adjacent to it is prohibited where one or more of the statutory purposes under s.86 TMA2004 applies. However, I feel the raw legal argument has been made twice and ignored twice and a third time might be probable without (and possibly despite) reinforcing the attack on the ‘reasonableness’ of adjudicator Thorne’s decision. In that respect, I ask for consideration of inclusion of any of the following.

The application for a review against the decision of the original adjudicator Mr Stanton-Dunne was stated to be on the clear ground, “there has been a serious error of law”. Faced with that ground, adjudicator Mr Thorne had a duty to take into account not just whether the previous findings were compatible with the evidence, but also with the law. Regardless of this, he proceeded to conclude that the original adjudicator was entitled to reach the decision “on the basis of the evidence submitted”. Just what Mr Thorne considered was the basis of the evidence was stated to be cogent evidence including observations of the applicant’s vehicle parked adjacent to a dropped footway. I cannot see any regard for the material matter of whether the original adjudicator was entitled to reach the decision on the basis of the law, but I can see conflict with s.86 TMA2004 in that the purpose of the dropped footway was considered irrelevant which, all considered, I believe confirms a Wednesbury unreasonable and perverse decision that cannot form the basis of a lawful decision, and it must be overturned.


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I do tend to have a bee in my bonnet re failing to consider and fairness
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cp8759
post Wed, 3 Apr 2019 - 13:13
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Mr Meldrew I think that's far too wordy, we are where we are and I think we need to be blunt and to the point. See PMB's point re: brevity.


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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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Mr Meldrew
post Wed, 3 Apr 2019 - 14:00
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QUOTE (Mr Meldrew @ Wed, 3 Apr 2019 - 11:25) *
The application for a review against the decision of the original adjudicator Mr Stanton-Dunne was stated to be on the clear ground, “there has been a serious error of law”. Faced with that ground, adjudicator Mr Thorne had a duty to take into account not just whether the previous findings were compatible with the evidence, but also with the law. Regardless of this, he proceeded to conclude that the original adjudicator was entitled to reach the decision “on the basis of the evidence submitted”. Just what Mr Thorne considered was the basis of the evidence was stated to be cogent evidence including observations of the applicant’s vehicle parked adjacent to a dropped footway. I cannot see any regard for the material matter of whether the original adjudicator was entitled to reach the decision on the basis of the law, but I can see conflict with s.86 TMA2004 in that the purpose of the dropped footway was considered irrelevant which, all considered, I believe confirms a Wednesbury unreasonable and perverse decision that cannot form the basis of a lawful decision, and it must be overturned.

QUOTE (cp8759 @ Wed, 3 Apr 2019 - 13:13) *
Mr Meldrew I think that's far too wordy, we are where we are and I think we need to be blunt and to the point. See PMB's point re: brevity.

Whether wordy or not, I think your proposed submission lacks addressing the unreasonableness/unfairness of the way the decision was reached.


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I do tend to have a bee in my bonnet re failing to consider and fairness
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PASTMYBEST
post Wed, 3 Apr 2019 - 14:53
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QUOTE (Mr Meldrew @ Wed, 3 Apr 2019 - 15:00) *
QUOTE (Mr Meldrew @ Wed, 3 Apr 2019 - 11:25) *
The application for a review against the decision of the original adjudicator Mr Stanton-Dunne was stated to be on the clear ground, “there has been a serious error of law”. Faced with that ground, adjudicator Mr Thorne had a duty to take into account not just whether the previous findings were compatible with the evidence, but also with the law. Regardless of this, he proceeded to conclude that the original adjudicator was entitled to reach the decision “on the basis of the evidence submitted”. Just what Mr Thorne considered was the basis of the evidence was stated to be cogent evidence including observations of the applicant’s vehicle parked adjacent to a dropped footway. I cannot see any regard for the material matter of whether the original adjudicator was entitled to reach the decision on the basis of the law, but I can see conflict with s.86 TMA2004 in that the purpose of the dropped footway was considered irrelevant which, all considered, I believe confirms a Wednesbury unreasonable and perverse decision that cannot form the basis of a lawful decision, and it must be overturned.

QUOTE (cp8759 @ Wed, 3 Apr 2019 - 13:13) *
Mr Meldrew I think that's far too wordy, we are where we are and I think we need to be blunt and to the point. See PMB's point re: brevity.

Whether wordy or not, I think your proposed submission lacks addressing the unreasonableness/unfairness of the way the decision was reached.


There is one single legal point that is in error. The reasonableness of the reviewing adjudicator, is a subjective view, and we are seeing that where we add explanation to the argument it is taken as further argument or re hashing the original argument. That is why I proport that brevity is the way forward. Personally I would have said less (the adjudicators don't need to have the regulation pointed out to them) but have no issue with the draft of CP


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cp8759
post Wed, 3 Apr 2019 - 16:18
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QUOTE (PASTMYBEST @ Wed, 3 Apr 2019 - 15:53) *
(the adjudicators don't need to have the regulation pointed out to them)...

After what we've seen in this case, I'm not so sure about that any more...


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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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Mr Meldrew
post Wed, 3 Apr 2019 - 16:51
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QUOTE (PASTMYBEST @ Wed, 3 Apr 2019 - 14:53) *
QUOTE (Mr Meldrew @ Wed, 3 Apr 2019 - 15:00) *
QUOTE (Mr Meldrew @ Wed, 3 Apr 2019 - 11:25) *
The application for a review against the decision of the original adjudicator Mr Stanton-Dunne was stated to be on the clear ground, “there has been a serious error of law”. Faced with that ground, adjudicator Mr Thorne had a duty to take into account not just whether the previous findings were compatible with the evidence, but also with the law. Regardless of this, he proceeded to conclude that the original adjudicator was entitled to reach the decision “on the basis of the evidence submitted”. Just what Mr Thorne considered was the basis of the evidence was stated to be cogent evidence including observations of the applicant’s vehicle parked adjacent to a dropped footway. I cannot see any regard for the material matter of whether the original adjudicator was entitled to reach the decision on the basis of the law, but I can see conflict with s.86 TMA2004 in that the purpose of the dropped footway was considered irrelevant which, all considered, I believe confirms a Wednesbury unreasonable and perverse decision that cannot form the basis of a lawful decision, and it must be overturned.

QUOTE (cp8759 @ Wed, 3 Apr 2019 - 13:13) *
Mr Meldrew I think that's far too wordy, we are where we are and I think we need to be blunt and to the point. See PMB's point re: brevity.

Whether wordy or not, I think your proposed submission lacks addressing the unreasonableness/unfairness of the way the decision was reached.

There is one single legal point that is in error. The reasonableness of the reviewing adjudicator, is a subjective view, and we are seeing that where we add explanation to the argument it is taken as further argument or re hashing the original argument. That is why I proport that brevity is the way forward. Personally I would have said less (the adjudicators don't need to have the regulation pointed out to them) but have no issue with the draft of CP

Appreciated. I hate injustice due to flawed decision-making as do you, and normally I would agree and support the single-point, non-diluting approach, but as regards any further submission being considered by the reviewing adjudicator as “no more than repetition”, I remind you that this has already happened on the single point of the error of law. What could not be considered by any reviewing adjudicator as “repetition” (because it has not yet been made) is the potential Wednesbury unreasonableness of the way adjudicator Thorne appears to confirm having reached his decision on the basis of cogent evidence, including observations of the applicant’s vehicle, but not as far I can see on the material basis of the underlying law. With best intentions, I merely aimed to suggest how I felt the point could be made more prominent, precisely to prevent potential rejection due to “repetition”, but shall now drop the point.


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I do tend to have a bee in my bonnet re failing to consider and fairness
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John Bravo
post Tue, 23 Apr 2019 - 14:35
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QUOTE (cp8759 @ Tue, 2 Apr 2019 - 20:09) *
Try this:
-------------------------
This is an application for a further review of the decision in case 2190058952.

Both the original adjudicator and the first reviewing adjudicator stated that the reason why the kerb had been lowered was "irrelevant". The law say this (my emphasis):

In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of


(a list of statutory purposes then follows).

I refer the tribunal to https://www.legislation.gov.uk/ukpga/2004/18/section/86

Where the law explicitly spells out that the purpose why the kerb has been lowered is a central element of the contravention, it is wrong to say that this is irrelevant. Indeed, such a finding of law is wrong, perverse, irrational and Wednesbury unreasonable. In light of the plain error of law of the previous adjudicators, the decision must be overturned.


Thank you cp8759
I have posted this some time ago same way as the previous one.
I will let you know as soon as I get the response I don't know via post or via email?
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cp8759
post Wed, 24 Apr 2019 - 19:14
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QUOTE (John Bravo @ Tue, 23 Apr 2019 - 15:35) *
Thank you cp8759
I have posted this some time ago same way as the previous one.
I will let you know as soon as I get the response I don't know via post or via email?

When did you send this? I don't know if they'll email you or send a letter in the post, what did they do last time?


--------------------
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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John Bravo
post Wed, 8 May 2019 - 11:43
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QUOTE (cp8759 @ Wed, 24 Apr 2019 - 19:14) *
QUOTE (John Bravo @ Tue, 23 Apr 2019 - 15:35) *
Thank you cp8759
I have posted this some time ago same way as the previous one.
I will let you know as soon as I get the response I don't know via post or via email?

When did you send this? I don't know if they'll email you or send a letter in the post, what did they do last time?


Hi again,
I just got their final final decision by post.


It looks like they don't change their minds these days.
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cp8759
post Wed, 8 May 2019 - 21:10
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I would take this further, as their response is tosh. The law lists neither refuse collection nor fire access as statutory reasons for the purposes of the prohibition. I'd be more than happy to write a judicial review pre-action protocol letter if you want, it's only the cost of a stamp to send it and it might make them see sense.


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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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Mr Meldrew
post Thu, 9 May 2019 - 13:29
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QUOTE (cp8759 @ Wed, 8 May 2019 - 22:10) *
I would take this further, as their response is tosh. The law lists neither refuse collection nor fire access as statutory reasons for the purposes of the prohibition. I'd be more than happy to write a judicial review pre-action protocol letter if you want, it's only the cost of a stamp to send it and it might make them see sense.

Their response is tosh, and I have successfully used the judicial review pre-action protocol letter, intended to help resolve a dispute, to obtain a considered response and sometimes a full review without having to consider whether to proceed beyond the letter.


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I do tend to have a bee in my bonnet re failing to consider and fairness
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PASTMYBEST
post Thu, 9 May 2019 - 13:53
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The reasoning or at least the explanation of all three adjudicators is rubbish. but I fear at JR a Purposive view may be taken, in that the bin men are pedestrians and are helped into the road. Not what the regs state ( assisting in crossing the road)

A JR here could end the same way as Herron


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cp8759
post Thu, 9 May 2019 - 18:05
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QUOTE (PASTMYBEST @ Thu, 9 May 2019 - 14:53) *
The reasoning or at least the explanation of all three adjudicators is rubbish. but I fear at JR a Purposive view may be taken, in that the bin men are pedestrians and are helped into the road. Not what the regs state ( assisting in crossing the road)

A JR here could end the same way as Herron

But sending a pre-action letter doesn't commit John Bravo to taking it any further, if they reject again he can just leave it at that and he's lost nothing. IMO it's worth a try.


--------------------
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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PASTMYBEST
post Thu, 9 May 2019 - 18:38
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QUOTE (cp8759 @ Thu, 9 May 2019 - 19:05) *
QUOTE (PASTMYBEST @ Thu, 9 May 2019 - 14:53) *
The reasoning or at least the explanation of all three adjudicators is rubbish. but I fear at JR a Purposive view may be taken, in that the bin men are pedestrians and are helped into the road. Not what the regs state ( assisting in crossing the road)

A JR here could end the same way as Herron

But sending a pre-action letter doesn't commit John Bravo to taking it any further, if they reject again he can just leave it at that and he's lost nothing. IMO it's worth a try.


fair enough


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