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PCN Help- parked between dropped kerbs (drives)
Benhil14
post Wed, 16 Jan 2019 - 22:24
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Hi all,

Thank you for taking the time to read this.

I got a PCN today (attached) for Code 27 - parked in a special enforcement area adjacent to a dropped footway.

I was parked in between 2 driveways both with dropped kerbs. The footway where I was parked was not dropped and I had double checked when I got out of my car that I had parked carefully between the drives as not to go over the dropped kerb.
There were also No yellow lines or parking restrictions. I park here frequently with no issues usually.

The PCN was tucked right down into the bonnet of my car and so drove off before noticing the PCN on my car meaning I didn’t get pictures.

I’ve chexked the PCN on Elmbridges website and the enforcement officer has not taken any photos as evidence.

Attached is also a photo from google street view; my car was parked where the blue vehicle is.

The contravention definitely didn’t take place.

What would be the best way to tackle this PCN? I don’t have photos, will I need them? I’ve never had a PCN so no idea where to start.

Thank you for help
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post Wed, 16 Jan 2019 - 22:24
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stamfordman
post Wed, 16 Jan 2019 - 22:27
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We need to see council pics. Also, we need the google street view location.


If you PM me details I'll double check pics are online.

Otherwise you'll need to ask council for them - they are vital to these cases.

This post has been edited by stamfordman: Wed, 16 Jan 2019 - 22:28
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Benhil14
post Wed, 16 Jan 2019 - 22:35
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QUOTE (stamfordman @ Wed, 16 Jan 2019 - 22:27) *
We need to see council pics and any pics you took. Also, we need the google street view location.

Put pics on https://imgbb.com or such like.

If you PM me details I'll see if pics are online.


Hiya,
The council haven’t taken any pictures.
I didn’t get any either as I had driven off before realising there was a PCN on my car

https://ibb.co/R4kyc4j
https://ibb.co/nj2RTJN
https://ibb.co/bR9xVvz
https://ibb.co/VMf3Cbb
https://ibb.co/t45bgQY
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Incandescent
post Wed, 16 Jan 2019 - 22:43
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In all likelihood, one of the residents living in the properties you were near to, has complained to the council who then send out a CEO. If the resident is present, the CEO will have issued a PCN to shut the resident up. If the photos show you are only adjacent to the sloping kerb stones you'll get the PCN cancelled, but only, normally, at adjudication as the council will always back-up their CEO. Indeed many councils are totally ignorant of the law on this, even though it is them selves that are enforcing it !!

There are loads of adjudications on this one, all favourable to the motorist, provided there is no intrusion into the dropped section.

Edit
Just to add that if you carry on parking there legally, but upset the residents, you'll probably get lots more PCNs for the same reason. Essentially they try to wear you down with PCN after PCN as most people don't want a load of hassle week after week, so maybe best to find somewhere else to park in future.

This post has been edited by Incandescent: Wed, 16 Jan 2019 - 22:46
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Benhil14
post Thu, 17 Jan 2019 - 00:07
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QUOTE (Incandescent @ Wed, 16 Jan 2019 - 22:43) *
In all likelihood, one of the residents living in the properties you were near to, has complained to the council who then send out a CEO. If the resident is present, the CEO will have issued a PCN to shut the resident up. If the photos show you are only adjacent to the sloping kerb stones you'll get the PCN cancelled, but only, normally, at adjudication as the council will always back-up their CEO. Indeed many councils are totally ignorant of the law on this, even though it is them selves that are enforcing it !!

There are loads of adjudications on this one, all favourable to the motorist, provided there is no intrusion into the dropped section.

Edit
Just to add that if you carry on parking there legally, but upset the residents, you'll probably get lots more PCNs for the same reason. Essentially they try to wear you down with PCN after PCN as most people don't want a load of hassle week after week, so maybe best to find somewhere else to park in future.


Thank you, I thought that would have been the case. I’ll definitely park elsewhere as not to upset the residents further. Do you think I would be best to appeal on the grounds that it did not happen? Or contact them and ask if photos were taken?
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Neil B
post Thu, 17 Jan 2019 - 00:43
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QUOTE (Benhil14 @ Wed, 16 Jan 2019 - 22:35) *
QUOTE (stamfordman @ Wed, 16 Jan 2019 - 22:27) *
We need to see council pics and any pics you took. Also, we need the google street view location.

Put pics on https://imgbb.com or such like.

If you PM me details I'll see if pics are online.


Hiya,
The council haven’t taken any pictures.

How do you know?
Stamf is offering to hejp.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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Steve_999
post Thu, 17 Jan 2019 - 14:06
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QUOTE (Benhil14 @ Wed, 16 Jan 2019 - 22:35) *
. . . .
The council haven’t taken any pictures.

. . . .


I doubt that is the case. Have you checked with them?
If they genuinely have no photographs it comes down to you being seen by an adjudicator (as the council will refuse any appeal I am sure) as a credible and believable person stating that you checked when parking that you were not adjacent to a fully dropped kerb and can only think that the CEO mistakenly believed that either the sloping kerb counted or that the white line (if present) on the road indicated the prohibited area.
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DancingDad
post Thu, 17 Jan 2019 - 14:45
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QUOTE (Steve_999 @ Thu, 17 Jan 2019 - 14:06) *
QUOTE (Benhil14 @ Wed, 16 Jan 2019 - 22:35) *
. . . .
The council haven’t taken any pictures.

. . . .


I doubt that is the case. Have you checked with them?
If they genuinely have no photographs it comes down to you being seen by an adjudicator (as the council will refuse any appeal I am sure) as a credible and believable person stating that you checked when parking that you were not adjacent to a fully dropped kerb and can only think that the CEO mistakenly believed that either the sloping kerb counted or that the white line (if present) on the road indicated the prohibited area.


Photos are not required as evidence but a council these days will really be on the back foot if none were taken.
Especially on a case of this nature
Many council do take a day or two to get them online but if no sign or if council does not host online photos, contact them and ask for them.
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cp8759
post Thu, 17 Jan 2019 - 23:28
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The PCN flaws database says there's a known flaw on the rear of Elmbridge Borough Council PCNs. So upload the rear in full so we can check. If it's still there, this is an almost certain win on appeal.


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Benhil14
post Wed, 23 Jan 2019 - 23:16
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Hi all, thank you for your replies. I have spoken to Elmbridge and they have now added these
Photos online.

https://ibb.co/kHGNhNB
https://ibb.co/XZCvgJq
https://ibb.co/Mhf3y4y
https://ibb.co/sbqgs9n
https://ibb.co/ZHnGdCd

I parked a little further back than I had realised and am parked on the white line (I’ve been led to believe this is not illegal.. please correct me if I am wrong) however my back wheel is parked adjacent to the sloping stone.

I’d really appreciate your input.
Thank you

QUOTE (cp8759 @ Thu, 17 Jan 2019 - 23:28) *
The PCN flaws database says there's a known flaw on the rear of Elmbridge Borough Council PCNs. So upload the rear in full so we can check. If it's still there, this is an almost certain win on appeal.


Oh really, that’d be great if that is the case. I can’t seem to get a clear picture of the back so have taken the pictures in 2 halves here:
https://ibb.co/nLhyF6N
https://ibb.co/pdptphz

Thank you
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stamfordman
post Wed, 23 Jan 2019 - 23:26
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Yes, I'd say this is just about a de minimis (trivial) contravention - just a tad over the fully dropped part it seems, but adjudicator may see it as more than that. The white line is irrelevant.




This post has been edited by stamfordman: Wed, 23 Jan 2019 - 23:27
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Benhil14
post Wed, 23 Jan 2019 - 23:29
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QUOTE (stamfordman @ Wed, 23 Jan 2019 - 23:26) *
Yes, I'd say this is just about a de minimis (trivial) contravention - just a tad over the fully dropped part it seems, but adjudicator may see it as more than that. The white line is irrelevant.




The fully dropped part is behind my wheel though, it is above the date stamp bottom right of the photo. I think it’s didficult to see from the angles the photos have been taken
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stamfordman
post Wed, 23 Jan 2019 - 23:33
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It's not the wheel - the rear of the car counts too.
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Benhil14
post Wed, 23 Jan 2019 - 23:36
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QUOTE (stamfordman @ Wed, 23 Jan 2019 - 23:33) *
It's not the wheel - the rear of the car counts too.

Oh really, I didn’t realise that. I’d always (wrongly) assumes it was the wheels. Can I appeal on deminimus?
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PASTMYBEST
post Thu, 24 Jan 2019 - 11:24
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See this case. It is very similar to yours

2160311942

This appeal was set down for a personal hearing at 10:00 am on 17 August 2016. Neither party attended.
The Authority says that the contravention occurred because the vehicle parked past the point where the kerb starts to slope. This is an incorrect understanding of the law.
Section 86 (1) of the Traffic Management Act 2004 provides that (In a special enforcement area) a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where the footway, cycle track or verge has been lowered to meet the level of the carriageway for one of the purposes stated in the section.
This means that the dropped kerb is the part of the kerb which meets the level of the carriageway and does not include the sloping kerbs on either side.
In misdirecting itself on the key and fundamental point of law when considering the Appellant's representations, there is a procedural impropriety on the part of the Authority.
I should say that by applying the correct test, I am satisfied that the Appellant's vehicle was just over the proper dropped kerb but it was so marginal that I find it to be de minimus.
I allow the appeal.


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cp8759
post Fri, 25 Jan 2019 - 14:27
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I would appeal on the de-minimis as suggested above.

I would also challenge the PCN based on the will/may flaw on the PCN. The regulations only allow the council to say a Notice to Owner may be issued, they cannot say a Notice to Owner will be issued. The tribunal has ruled on countless occasions that this difference is substantive and not a matter of semantics. See the decision in Anthony Hall v Kent County Council (with Tunbridge Wells BC) (case reference JU-00042-1810) http://bit.ly/2RY5w9C


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