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Help fighting PCN 27 (adjacent to dropped kerb)
SpelthorneReside...
post Wed, 19 Jan 2022 - 23:41
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Hi PPP People,

We have had new next door neighbours for about a year, and earlier this month they had a dropped kerb put in front of their house, which crosses the boundary of their property in front of ours. My car has been parked mostly in front of our house, but slightly in front of theirs for the entire time they have been living there, and I made more space for them to access their front lawn to use it as a parking space when they tore down their front wall, which they have been using without any apparent issue (with the exception that they reverse out onto the main road, which ought to be illegal).

I mistakenly thought that the highway code covered the rules for parking, that only dropped kerbs for mobility access were prohibited, and otherwise I would have to be blocking access to get a fine. So I continued to park where I have always parked without issue previously. I park my car where it is because space immediately to the right of the car port isn't needed when turning onto the far side of the road (at least it would if our neighbours parked the safe way around) and there is only just enough space between our access points to fit a relatively small car like mine without being in the way otherwise.

Now our neighbours are using their newly dropped kerb as a basis for forcing me to move by asking the council to issue PCNs, in what seems to be a land-grab for more parking spaces for themselves, since they're allowed to block their own dropped kerb. They parked their own larger car in my usual space in the time between the kerb being dropped and me returning to it, and later mentioned while trying to intimidate us that they had done it deliberately, since it makes it difficult for us to use our drive without having to pull out across the other side of the road to avoid their car when turning left, which is hazardous.

It just so happened that I tested positive for COVID the day after the first of 3 notices was placed (although I wasn't aware of this until later) and because I am legally forced to remain in my home they remain uncollected and the car unmoved.

I have provided evidence to our Parking Administrator that I have COVID, so thankfully the latter 2 notices are cancelled, but the first one remains. It seems to be against the spirit which the rules were designed to be used, and I'm hoping I can get help finding a basis for voiding it.

So far, I have pointed out that it would have been irresponsible fo me to leave the house when I knew I had COVID despite not having a positive test yet (I wasn't the first in my household, and I got symptoms the day before the first notice, but the LFT can't detect it right away) and that our neighbours have been able to come and go, so my car is not blocking access, but these common sense justifications have had no traction.

The Administrator has on request pointed me towards the TMA 2004 (which I had no idea about) to explain the legal basis for the PCN, and so far I am just asking how I could possibly know that my road is part of a 'Special Enforcement Area' and that the Highway code doesn't match up with the laws on parking. This is my first time dealing with any aspect of the TMA, so it's all new to me, and it seems unfair that you should get a fine without a warning first considering it's not common knowledge.

The only thing I've noticed in the wording of TMA 2004 86(3) is:
QUOTE
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.

Since my car is parked primarily outside my own premises, in theory I should be able to give myself permission to park there. It makes no distinction that the premises and occupant must be those serviced by the dropped kerb.

I haven't mentioned this to the Administrator yet since I'm hoping they will acknowledge my actions were in good faith and that our neighbours are being unreasonable, but it's seemingly becoming less likely to work, and my observation should apply if the letter of the law is followed exactly.

I'd massively appreciate any assistance you could provide me,
Thanks

This post has been edited by SpelthorneResident01: Wed, 19 Jan 2022 - 23:43
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post Wed, 19 Jan 2022 - 23:41
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stamfordman
post Thu, 20 Jan 2022 - 15:32
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Special enforcement area is just the regulatory language for the lowered footway so forget that.

You can email them and ask for clarification of their letter to enable you make a decision. You can say that you have consulted the regulations and their statement that the sloping area counts in the enforecement area is not correct, citing the regulation (we can give you that).

You would invite them to reconsider in the light of the regulation.
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SpelthorneReside...
post Thu, 20 Jan 2022 - 15:58
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I've already had a reasonable amount of correspondence with the Administrator asking for clarification of things.

Regarding the positioning assessment:
QUOTE (Me)
Please can you tell me exactly how much further back does my car need to be to not be applicable for a PCN in future?

[Referring to the diagram in the challenge response (and Post #3)]
So as long as my wheel is not crossing the top end of the sloping kerb stone, I am ok? Can that be equated to where the new surface has been laid on the actual pavement, since the kerb can't be seen below the car? If not, how much is 'significant overhang'?

QUOTE (Admin)
Yes, so the wheel of the vehicle cannot be over the part of the kerb that slopes down, the red line on the diagram.

If you cant see where the dropped kerb is then the new surface would be a guide to where it begins or some people have a white line as advisory for drivers then it would be consideration with any overhang.

We look at the wheel, if the wheel is clear then a PCN may shouldn’t be issued.

QUOTE (Me)
Ok, so just to be completely clear, is that where the tyre touches the pavement, or the front/back edge of the tyre?

QUOTE (Admin)
If any part of the wheel/tyre is on or over a dropped kerb while parked on the pavement or road a PCN may be issued.


So clearly their CEOs are not assessing things based off how the legislation describes the applicable area.
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hcandersen
post Thu, 20 Jan 2022 - 16:21
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which crosses the boundary of their property in front of ours

??? As far as you've shown us, the vehicle crossover doesn't extend into your property, it covers the length of the footway between the property boundaries.

We haven't seen the PCN.

By all means conduct parallel correspondence with the council - the name of which we don't know but which is presumably outside Greater London otherwise you could be penalised for parking on the footway- regarding the permissible limits of your encroachment into the crossover, but this won't stop the enforcement process.

But you have a PCN and there are procedures to be followed to give yourself the best chance of getting it cancelled.

You are tying our hands behind our backs because we cannot look at the procedural compliance of notices unless you post them (redact everything except personal info).

And as regards photos, the one which is missing is that of the crossover without a car. The edge of the tarmac would give us the relative position of the start of the prohibited area which could then be superimposed on the photo of your car in situ. Maybe de minimis comes into play, maybe it doesn't, we just don't know.

And as regards the council's special enforcement area status, be my guest and peruse:

https://www.legislation.gov.uk/primary+seco...0contraventions



This post has been edited by hcandersen: Thu, 20 Jan 2022 - 16:33
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SpelthorneReside...
post Thu, 20 Jan 2022 - 17:17
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QUOTE (hcandersen @ Thu, 20 Jan 2022 - 16:21) *
??? As far as you've shown us, the vehicle crossover doesn't extend into your property, it covers the length of the footway between the property boundaries.

And as regards photos, the one which is missing is that of the crossover without a car. The edge of the tarmac would give us the relative position of the start of the prohibited area which could then be superimposed on the photo of your car in situ. Maybe de minimis comes into play, maybe it doesn't, we just don't know.

The side my car is on has been cut at an angle, but it's not easily visible in the photos taken by the CEO and I can't leave my home to move the car or take any myself due to having COVID.

QUOTE (hcandersen @ Thu, 20 Jan 2022 - 16:21) *
We haven't seen the PCN.

You are tying our hands behind our backs because we cannot look at the procedural compliance of notices unless you post them (redact everything except personal info).

The content of the 2 PCN PDFs I have been sent are in Post 3, the latter verified by stamfordman. That's the only official documentation I have.

QUOTE (hcandersen @ Thu, 20 Jan 2022 - 16:21) *
By all means conduct parallel correspondence with the council - the name of which we don't know but which is presumably outside Greater London otherwise you could be penalised for parking on the footway- regarding the permissible limits of your encroachment into the crossover, but this won't stop the enforcement process.

But you have a PCN and there are procedures to be followed to give yourself the best chance of getting it cancelled.

My username is 'SpelthorneResident01' and the email address in Post 3 has 'spelthorne.gov.uk' in it. And yes, Spelthorne is outside greater london. I had to initiate contact with the Administrator by email because I couldn't collect the physical notice, and I explained/summarised in my first post what I've done so far.

QUOTE (hcandersen @ Thu, 20 Jan 2022 - 16:21) *
And as regards the council's special enforcement area status, be my guest and peruse:

https://www.legislation.gov.uk/primary+seco...0contraventions

There are quite a few listed there. I found the advanced search and managed to find this, which I guess is what I was looking for. I'm surprised by how new it is, and feel like we should have had some kind of notice given that this changed when it did...

I hope that addresses all your concerns, I'm trying to give the necessary information and not deliberately being difficult, I'm just in a difficult situation because I have COVID.

This post has been edited by SpelthorneResident01: Thu, 20 Jan 2022 - 17:25
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SpelthorneReside...
post Thu, 20 Jan 2022 - 23:07
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Having found the The Civil Enforcement of Parking Contraventions Designation (No. 2) Order 2020 I now understand that the entirety of Surrey is a Special Enforcement Area (not specifically the lowered part of the kerb, or the dropped kerb as I have been previously told), and this has been active since 29th September 2020. So it's been less than 18 months that it's been possible to issue a PCN 27 in my borough.

I have also found this guidance on civil enforcement (published under TMA 2007(87)) which has two sections I feel are applicable.

Firstly, '5. Communicating civil parking enforcement' states:
QUOTE
Once authorities have finalised their parking enforcement policies, they should publish and promote them openly. There should be regular communication after civil parking enforcement is introduced, and when changes are made.

Enforcement authorities should consider the full range of media available to them when communicating with the public. They should consider telling every household in the CEA when they propose changes - for example, to the operation of a scheme.

No effort was made by Surrey County council to disseminate this information to the households as advised, so it's no wonder I was unaware of it (I have lived here 30 years, so I didn't just miss it).

Secondly, '10. Considering challenges / representations / appeals'
QUOTE
An authority has a discretionary power to cancel a PCN at any point throughout the process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case.

Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest.

So the Administrator has the discretion to cancel the PCN if it seems unfair, which I hope most of you would agree it's not in this case since access hasn't been blocked and our neighbours are being unreasonable, even if technically it might be enforcable.

There are additonal parts I've noticed which I feel encourage leniency and fairness where it's due, in addition to accuracy and consistency, which we have established is not being followed in the way the parking position is evaluated, since it should only be the lowered part of the kerb.

I feel like I should lead with this in my continued correspondence with the Administrator, what do you think?

This post has been edited by SpelthorneResident01: Thu, 20 Jan 2022 - 23:08
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Incandescent
post Thu, 20 Jan 2022 - 23:47
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OP, you are not going to get the council to engage in a lengthy correspondence. The only forum to test your case is at adjudicatioh with the full PCN penalty in play. You've quoted from the statutory guidance, but it is just that, guidance. If you have intruded into the dropped section that's it they can enforce. If you're convinced you're right then you have to stand your ground and take them to adjudication.
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hcandersen
post Fri, 21 Jan 2022 - 11:27
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My username is 'SpelthorneResident01' and the email address in Post 3 has 'spelthorne.gov.uk' in it. And yes, Spelthorne is outside greater london. I had to initiate contact with the Administrator by email because I couldn't collect the physical notice, and I explained/summarised in my first post what I've done so far.


...and my nephew performed with Spelbound (who won BGT) but lives in Elmbridge.

Pl stop making life unnecessarily difficult playing by expecting posters to join up your dispersed dots, this is a low level, decriminalised issue, not a matter concerning the Official Secrets Act.

As regards SEA status, now that we know this relates to Spelthorne and therefore Surrey, this applies:

https://www.legislation.gov.uk/uksi/2020/946/made

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Andy Buchanan
post Fri, 21 Jan 2022 - 14:17
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QUOTE (hcandersen @ Thu, 20 Jan 2022 - 16:21) *
(redact everything except personal info).


unsure.gif

laugh.gif
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SpelthorneReside...
post Fri, 21 Jan 2022 - 23:15
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QUOTE (hcandersen @ Fri, 21 Jan 2022 - 11:27) *
my nephew performed with Spelbound (who won BGT) but lives in Elmbridge.

Congratulations to your nephew. Elmridge is nice, the pool is good, but I've only been twice since COVID started.

QUOTE (hcandersen @ Fri, 21 Jan 2022 - 11:27) *
Pl stop making life unnecessarily difficult playing by expecting posters to join up your dispersed dots, this is a low level, decriminalised issue, not a matter concerning the Official Secrets Act.

I'm sorry you feel this way, I've tried to provide everything that I could without any personal information, which was encouraged when I signed up. I assure you I'm not trying to be difficult, just careful about my personal information. The vast majority of the relevant information is In posts 1 and 3, so I don't think you need to join too many dots. Everything after that I have either learned or received since those posts, so I couldn't have posted it sooner.

If you ask me questions, and I can provide answers then I will. I'll point out again that I still have COVID, and it can make it difficult to think, so please take that into consideration.

QUOTE (hcandersen @ Fri, 21 Jan 2022 - 11:27) *
As regards SEA status, now that we know this relates to Spelthorne and therefore Surrey, this applies:

Thanks, I found that by myself a few posts ago.
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cp8759
post Sun, 23 Jan 2022 - 01:18
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QUOTE (SpelthorneResident01 @ Thu, 20 Jan 2022 - 15:25) *
Thanks @stamfordman, that's good to know. Unless it's the only guaranteed way to get this cancelled, I would prefer to only wait for an NTO as a last resort, and ideally convince the Administrator to cancel the notice before the payment period ends. Even better if I could do so before I am able to move my car so I can be sure about where I stand in terms of parking in future.

I wish you luck but you'd be very lucky, the general expectation here is that you will need to challenge the NTO, get a notice of Rejection and then appeal to the Traffic Penalty Tribunal to get a PCN cancelled. Anything that is cancelled sooner than that is a bonus of course.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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SpelthorneReside...
post Sun, 23 Jan 2022 - 23:09
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QUOTE (cp8759 @ Sun, 23 Jan 2022 - 01:18) *
I wish you luck but you'd be very lucky, the general expectation here is that you will need to challenge the NTO, get a notice of Rejection and then appeal to the Traffic Penalty Tribunal to get a PCN cancelled. Anything that is cancelled sooner than that is a bonus of course.


Thanks. Yes, I understand that the typical way to fight this would be with an NoR after the discount period ends, but it seems worth trying any reasonable informal challenges until then to maximise my chances of a fair resolution.
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