Sutton PCN 62 Options

[chinmeytops]

Hi

I received the attached PCN within the London Borough of Sutton on 22 May.






I made the following representation:

"Dear Sir/Madam

I am writing to challenge the Penalty Charge Notice issued yesterday evening.

Between Bridge Road and Bute Road, there is an exemption to the footway parking ban on the north side of Clifton Road. Parking on the south side is fully on road.

My vehicle was parked consistently with all other vehicles parked on the north side of Clifton Road. Therefore, it was not causing any greater obstruction than any other vehicle similarly parked on the footway.

Had my vehicle been parked fully on the road it would, in fact, have caused an obstruction to traffic passing along Clifton Road, as there was a car parked fully on the road directly opposite on the south side.

In order to clarify whether a parking contravention has, in fact, occurred, please provide me with a copy of the resolution, and any subsequent amendments, which created the exemption to the ban on footway parking on the north side of Clifton Road.

Until such resolution has been received by me, I maintain that no parking contravention has occurred and I would ask that you cancel the Penalty Charge Notice."

I received the following response:






How should I respond and when? Do I now need to wait for a Notice to Owner before I can formally challenge the PCN? Will that keep the discounted period open?

Thanks.

This post has been edited by chinmeytops: Wed, 30 May 2018 - 13:23

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[chinmeytops]

Post the page with article 1 please.

My prediction is that this will show that this order was made under the Road Traffic Regulation Act whereas resolutions may only be made pursuant to powers under the GLC General Powers Act. (I know that’s hat it will show, but arguments carry nore weight whn you disprove their evidence)

And who signed these letters - please do not delete this info, reinstate.

Probability:
The same person signed both.
That person is ignorant as regards the law.
You will write back, we’ll draft, and require that this matter is dealt wih by an appropriately experienced officer.
All grist to the mill.

Suttn dressed as lamb. Nothing changes; ignorance and stupidity seem to be systemic.

Thanks - I attached all the pages that the council attached, so no article 1.

Here is page 2 of the letter from the council with the signatory reinstated. Looks like a different person:

They have not provided the resolution, the Traffic Management Order has nothing to do with the resolution made under section 15(4) of the Greater London Council (General Powers) Act 1974.

Thanks, yes, agreed

[chinmeytops]

As you can see, I have attached the council letter, with signatory included, and the attachment represents all the pages the council attached and in the order they attached them.

Hoping you can help me with the next stage. Thanks.

[chinmeytops]

Ok, so I received the hard copy council response in the post today and, guess what, they only forgot to scan the reverse of each sheet of the attachments!!

So, here are the missing pages including Article 1, which does appear to confirm that the order was made under the Road Traffic Regulation Act.

[hcandersen]

Write back and thank them.

However, what they have provided is a Traffic Management Order made under the Road Traffic Regulation Act - see citation on page 1- and not a resolution disapplying the provisions of s15 of the Greater London Council(General Powers) Act. The authority are fully aware of the GLC Act because this is the basis of the PCN ( para. 2 of their letter dated 29 May refers) and that only such a resolution may permit parking on the footway, an order under the RTRA having no effect in this regard.

You respectfully request that the authority either produce the resolution or immediately cancel the PCN, to do otherwise would be nothing less than vexatious.

[ford poplar]

GSV or CEO photo's of Contravention?

[chinmeytops]

GSV or CEO photo's of Contravention?

See page 1 of this thread, thanks.

Write back and thank them.

However, what they have provided is a Traffic Management Order made under the Road Traffic Regulation Act - see citation on page 1- and not a resolution disapplying the provisions of s15 of the Greater London Council(General Powers) Act. The authority are fully aware of the GLC Act because this is the basis of the PCN ( para. 2 of their letter dated 29 May refers) and that only such a resolution may permit parking on the footway, an order under the RTRA having no effect in this regard.

You respectfully request that the authority either produce the resolution or immediately cancel the PCN, to do otherwise would be nothing less than vexatious.

Thanks very much, I will do so right away!

[chinmeytops]

Write back and thank them.

However, what they have provided is a Traffic Management Order made under the Road Traffic Regulation Act - see citation on page 1- and not a resolution disapplying the provisions of s15 of the Greater London Council(General Powers) Act. The authority are fully aware of the GLC Act because this is the basis of the PCN ( para. 2 of their letter dated 29 May refers) and that only such a resolution may permit parking on the footway, an order under the RTRA having no effect in this regard.

You respectfully request that the authority either produce the resolution or immediately cancel the PCN, to do otherwise would be nothing less than vexatious.

Hi, here is the council's response, which I find rather surprising.

[cp8759]

They just don't know what they're on about. Wait for the Notice to Owner, post it on here when you get it and we'll draft formal representations for you.

Once the PCN has been cancelled (Whether at NtO stage or by the tribunal), I would in any event make a formal complaint against the council, on the basis that Mrs S Wallis has (undoubtedly through no fault of her own) been provided with insufficient training to handle representations related to footway parking.

[chinmeytops]

They just don't know what they're on about. Wait for the Notice to Owner, post it on here when you get it and we'll draft formal representations for you.

Once the PCN has been cancelled (Whether at NtO stage or by the tribunal), I would in any event make a formal complaint against the council, on the basis that Mrs S Wallis has (undoubtedly through no fault of her own) been provided with insufficient training to handle representations related to footway parking.

Thanks so much, as I would never have known all this without your invaluable advice.

[chinmeytops]

They just don't know what they're on about. Wait for the Notice to Owner, post it on here when you get it and we'll draft formal representations for you.

Once the PCN has been cancelled (Whether at NtO stage or by the tribunal), I would in any event make a formal complaint against the council, on the basis that Mrs S Wallis has (undoubtedly through no fault of her own) been provided with insufficient training to handle representations related to footway parking.

Notice to Owner now received, please see below. I should be most grateful for advice on how to respond. Thank you.

[cp8759]

I would make formal representations on the basis that it is for the council to prove that you were in contravention, it is not for you to prove that you weren't. The council assert the general ban on footway parking has only been lifted in the marked bays, but only the resolution made by the council under section 15(4) of the Greater London Council (General Powers) Act 1974 can confirm if this is correct. Absent the resolution, it cannot be confirmed whether the footway parking ban has been lifted only in the marked bays, or along the entire section of Clifton Road, or indeed along the entirety of Clifton Road.

Absent the resolution, the council cannot show that a contravention has occurred, so they must either provide a copy of the resolution, or cancel the PCN.

Note to self: Escalate to ICO on 11 July.

[chinmeytops]

I would make formal representations on the basis that it is for the council to prove that you were in contravention, it is not for you to prove that you weren't. The council assert the general ban on footway parking has only been lifted in the marked bays, but only the resolution made by the council under section 15(4) of the Greater London Council (General Powers) Act 1974 can confirm if this is correct. Absent the resolution, it cannot be confirmed whether the footway parking ban has been lifted only in the marked bays, or along the entire section of Clifton Road, or indeed along the entirety of Clifton Road.

Absent the resolution, the council cannot show that a contravention has occurred, so they must either provide a copy of the resolution, or cancel the PCN.

Note to self: Escalate to ICO on 11 July.

Thanks for this - how detailed do the representations need to be? Did you ever receive a copy of the resolution under the FOI request you made?

[cp8759]

Thanks for this - how detailed do the representations need to be? Did you ever receive a copy of the resolution under the FOI request you made?

For formal reps I would make it reasonably detailed but without going OTT, post a draft for comment before sending. The council has not provided anything under FOI yet, although they tell me they are chasing the relevant department. If they haven't provided it in a week, I'll escalate it to the ICO.

This post has been edited by cp8759: Wed, 4 Jul 2018 - 14:37

[chinmeytops]

I would make formal representations on the basis that it is for the council to prove that you were in contravention, it is not for you to prove that you weren't. The council assert the general ban on footway parking has only been lifted in the marked bays, but only the resolution made by the council under section 15(4) of the Greater London Council (General Powers) Act 1974 can confirm if this is correct. Absent the resolution, it cannot be confirmed whether the footway parking ban has been lifted only in the marked bays, or along the entire section of Clifton Road, or indeed along the entirety of Clifton Road.

Absent the resolution, the council cannot show that a contravention has occurred, so they must either provide a copy of the resolution, or cancel the PCN.

Note to self: Escalate to ICO on 11 July.

I have drafted the following response:

"Dear Sir/Madam,

Please be advised that it is for the Council to prove that a contravention has, in fact, occurred.

To that end, all you have provided is a Traffic Management Order made under the Road Traffic Regulation Act and not a resolution disapplying the provisions of s15 of the Greater London Council (General Powers) Act.
This is the basis of the PCN (para. 2 of your letter dated 29 May refers). Only such a resolution may permit parking on the footway, an order under the RTRA having no effect in this regard. Traffic signs road markings and bays on their own do not define an exempted area.

Although I requested a copy of such resolution on 23rd May, referencing that request again on 1st June and repeating the request for a copy of the resolution on 6th June, you have failed to provide such resolution.

I also referred you to the recent adjudication 2180039055 where it was directed that the PCN and Notice to Owner were to be cancelled.

Without a copy of the resolution, the Council cannot prove that a contravention has occurred, so must either provide a copy of the resolution or cancel the PCN immediately."


Also, should I tick box A or F?

Many thanks.

[cp8759]

Suggested amendments (keep all italics and bold formatting, and tick box A):
---------------------------

Dear Sir/Madam,

Ground 1: The council alleged contravention did not occur:

The burden of evidence falls on the council to prove, on the balance of probabilities, that a contravention has occurred.

To that end, all you have provided is a Traffic Management Order made under the Road Traffic Regulation Act and not a resolution disapplying the provisions of s15 of the Greater London Council (General Powers) Act 1974.
This is the basis of the PCN (para. 2 of your letter dated 29 May refers). Only such a resolution may permit parking on the footway, an order under the RTRA having no effect in this regard. Traffic signs road markings and bays on their own do not define an exempted area.

Although I requested a copy of such resolution on 23rd May, referencing that request again on 1st June and repeating the request for a copy of the resolution on 6th June, you have failed to provide such resolution.

I refer you to the decision in Daniel Gentry v London Borough of Redbridge (case reference 2160356237):

"Mr Gentry has repeatedly asked the Authority to produce copies of the resolution(s) which he argues were required under Section 15(4) of the Greater London Council (General Powers) Act 1974 (as amended) to authorise the exemption (and more particularly the extent of such exemptions at this location) from the London-wide ban on footway parking. Having first informed him that no such resolutions were required, and that they were entitled to simply rely on the signs, the Authority asserted in their Notice of Rejection that they had indeed “obtained the relevant resolutions to exempt roads from the Great London Councils footway ban". They have not, however, seen fit to produce any such resolutions for the appeal.
...
Without that evidence, which Mr Gentry has clearly and repeatedly requested, I cannot be satisfied that the point in Fairway Gardens where he parked was not in fact, despite the positioning of the signs, still not subject to a footway parking exemption. Consequently I cannot be satisfied that the contravention alleged occurred."

I also referred you to the recent adjudication of David John Turner v London Borough of Sutton (case reference 2180039055) where the tribunal held as follows:

"In his initial challenge to the Penalty Charge Notice, his original representations to the Enforcement Authority and his appeal, Mr Turner has sought a copy of the resolution under Section 15(4) of the 1974 Act which created the emption, so as to establish its exact extent.
The images produced show that the white lines are by no means clear at this location and, despite Mr Turner’s requests, the Enforcement Authority have failed to provide a copy of the instrument to the Appellant at any time or produce it with the evidence for this appeal.
Whilst the vehicle was parked with two wheels on the footway, considering all the evidence before me carefully I am not establish exactly its position in respect of the exempted area and thus I cannot find as a fact that, on this particular occasion, a contravention did occur.
Accordingly this appeal must be allowed."

Without a copy of the resolution, the Council cannot prove that a contravention has occurred, so the council must either provide a copy of the resolution or cancel the PCN.

Ground 2: The council alleged contravention did not occur:

Furthermore, the location of the alleged contravention is a location where the council has installed the signs found at diagram 667 of The Traffic Signs Regulations and General Directions 2016, which mean “Vehicles may be parked partially on the verge or footway”. The meaning of these signs is defined by Parliament and the council has no authority to alter the meaning conveyed by the signs.

The council could have chosen to use diagram 667.1, which permits a highways authority to include a panel with the words “In marked bays”, but it chose not to do so.

It follows that the signs used by the council in this instance do not convey that verge or footway parking is only allowed in marked bays.

The bay markings have no legal effect because the sign does not convey the meaning that permitted footway parking is restricted to these. Although the council's letter of 29 May asserts that footway parking is limited to within the bays, this is not the position in law. If the council wishes to restrict parking in this way, it will need to install the appropriate variation of the signs authorised under diagram 667.1.

This post has been edited by cp8759: Wed, 11 Jul 2018 - 13:05

[chinmeytops]

Suggested amendments (keep all italics and bold formatting, and tick box A):
---------------------------

Dear Sir/Madam,

Ground 1: The council alleged contravention did not occur:

The burden of evidence falls on the council to prove, on the balance of probabilities, that a contravention has occurred.

To that end, all you have provided is a Traffic Management Order made under the Road Traffic Regulation Act and not a resolution disapplying the provisions of s15 of the Greater London Council (General Powers) Act 1974.
This is the basis of the PCN (para. 2 of your letter dated 29 May refers). Only such a resolution may permit parking on the footway, an order under the RTRA having no effect in this regard. Traffic signs road markings and bays on their own do not define an exempted area.

Although I requested a copy of such resolution on 23rd May, referencing that request again on 1st June and repeating the request for a copy of the resolution on 6th June, you have failed to provide such resolution.

I refer you to the decision in Daniel Gentry v London Borough of Redbridge (case reference 2160356237):

"Mr Gentry has repeatedly asked the Authority to produce copies of the resolution(s) which he argues were required under Section 15(4) of the Greater London Council (General Powers) Act 1974 (as amended) to authorise the exemption (and more particularly the extent of such exemptions at this location) from the London-wide ban on footway parking. Having first informed him that no such resolutions were required, and that they were entitled to simply rely on the signs, the Authority asserted in their Notice of Rejection that they had indeed “obtained the relevant resolutions to exempt roads from the Great London Councils footway ban". They have not, however, seen fit to produce any such resolutions for the appeal.
...
Without that evidence, which Mr Gentry has clearly and repeatedly requested, I cannot be satisfied that the point in Fairway Gardens where he parked was not in fact, despite the positioning of the signs, still not subject to a footway parking exemption. Consequently I cannot be satisfied that the contravention alleged occurred."

I also referred you to the recent adjudication of David John Turner v London Borough of Sutton (case reference 2180039055) where the tribunal held as follows:

"In his initial challenge to the Penalty Charge Notice, his original representations to the Enforcement Authority and his appeal, Mr Turner has sought a copy of the resolution under Section 15(4) of the 1974 Act which created the emption, so as to establish its exact extent.
The images produced show that the white lines are by no means clear at this location and, despite Mr Turner’s requests, the Enforcement Authority have failed to provide a copy of the instrument to the Appellant at any time or produce it with the evidence for this appeal.
Whilst the vehicle was parked with two wheels on the footway, considering all the evidence before me carefully I am not establish exactly its position in respect of the exempted area and thus I cannot find as a fact that, on this particular occasion, a contravention did occur.
Accordingly this appeal must be allowed."

Without a copy of the resolution, the Council cannot prove that a contravention has occurred, so the council must either provide a copy of the resolution or cancel the PCN.

Ground 2: The council alleged contravention did not occur:

Furthermore, the location of the alleged contravention is a location where the council has installed the signs found at diagram 667 of The Traffic Signs Regulations and General Directions 2016, which mean “Vehicles may be parked partially on the verge or footway”. The meaning of these signs is defined by Parliament and the council has no authority to alter the meaning conveyed by the signs.

The council could have chosen to use diagram 667.1, which permits a highways authority to include a panel with the words “In marked bays”, but it chose not to do so.

It follows that the signs used by the council in this instance do not convey that verge or footway parking is only allowed in marked bays.

The bay markings have no legal effect because the sign does not convey the meaning that permitted footway parking is restricted to these. Although the council's letter of 29 May asserts that footway parking is limited to within the bays, this is not the position in law. If the council wishes to restrict parking in this way, it will need to install the appropriate variation of the signs authorised under diagram 667.1.

This is exceptionally helpful, thank you.

Regarding Ground 2 there is, in fact, a sign saying "In Marked Bays Only", so does that affect things?

[cp8759]

This is exceptionally helpful, thank you.

Regarding Ground 2 there is, in fact, a sign saying "In Marked Bays Only", so does that affect things?

Yes it does, drop ground 2 and just leave ground 1.

[chinmeytops]

Perfect, thank you.

[chinmeytops]

Hi all

I made representations as above and have received the attached response from the council.

Assuming I take this to tribunal, please would you advise on next steps.

Many thanks.

[cp8759]

The next steps are to file an appeal with the London Tribunals, instructions for doing so are in the rejection letter and also on https://www.londontribunals.gov.uk

I'd keep this short and simple, feel free to amend as you see fit and in line with comments made by others (advice is to keep all italics, italic bold and italics bold underlined as used below):
----------------------------------------
I rely on my formal representations in the first instance. I make the following additional submissions:

First and foremost, In the Notice of Rejection S Wallis asserts that the council may lift the footway parking restrictions by passing a "resolution or notice", this is not correct. The power to lift the footway parking restriction by means of a notice is reserved to the Secretary of State, to the extent that London Borough of Sutton believes is has the powers of the Secretary of State, the borough is suffering from delusions of grandeur. The Act makes it abundantly clear that the council may only lift the footway parking restriction by passing a resolution.

The council relies on the Sutton (free parking places, loading places and waiting, loading and stopping restrictions) Order 2017, but this is blatantly not a resolution, but rather a Traffic Management Order made under the Road Traffic Regulation Act 1984. There words "it is resolved that" or similar words to that effect do not appear in the order, furthermore the order states on its face that it is made under section 6 and 124 and part VI of schedule 9 of the Road Traffic Regulation Act 1984 and all powers "thereunto enabling", which can only sensibly be taken to mean powers under the Road Traffic Regulation Act 1984. The Greater London Council (General Powers) Act 1974 is not mentioned anywhere within the order.

The attempts of S Wallis to rely on a TMO as if it were a resolution passed by the council appears to be nothing more than a haphazard attempt to rewrite history: The order is not a resolution passed under section 15(4) of the Greater London Council (General Powers) Act 1974 and it cannot be retrospectively turned into such a resolution by an official working within the parking department.

The only means by which a council may lift the footway parking restriction is by passing a resolution: where a vehicle is parked on a road where the footway parking ban has been fully or partially lifted, a motorist in receipt of a PCN must be allowed to examine the resolution so that he may confirm whether his vehicle was in fact parked in contravention.

I draw the tribunal's attention to Daniel Gentry v London Borough of Redbridge (case reference 2160356237) (my emphasis):

"Mr Gentry appeared before me today for the personal hearing of his appeal. He gave evidence in the same terms as his earlier representations to the Enforcement Authority and his Notice of Appeal, adding further details to his account.
He does not dispute that his car was parked with two wheels on the footway in Fairway Gardens not far from its junction with Loxford Lane when this Penalty Charge Notice (PCN) was issued to it. He does not now dispute either that there was a sign on a lamp post in front of his car indicating that footway parking was permitted beyond that point. However he has challenged the Authority’s power to issue a PCN in these circumstances, on the basis of information which he saw on plans published on their own website.

Mr Gentry has repeatedly asked the Authority to produce copies of the resolution(s) which he argues were required under Section 15(4) of the Greater London Council (General Powers) Act 1974 (as amended) to authorise the exemption (and more particularly the extent of such exemptions at this location) from the London-wide ban on footway parking. Having first informed him that no such resolutions were required, and that they were entitled to simply rely on the signs, the Authority asserted in their Notice of Rejection that they had indeed “obtained the relevant resolutions to exempt roads from the Great London Councils footway ban". They have not, however, seen fit to produce any such resolutions for the appeal.

By way of background, Mr Gentry explained that he had lived for 10 years at his parents’ house just round the corner from this location in Loxford Lane, and that for many years vehicles routinely parked on the full length of the footways in all the streets in the area, save for where there were double yellow lines on the corners. He acknowledged that on this occasion he had parked where he did for that reason, and accepted that he had not actually seen the footway parking sign on the lamp post at the time.

However he has produced the plans from the Authority’s website, which indicate that they relate to a review carried out in 2014 of footway parking provision in the area. As far as I can interpret them, the streets marked in blue were those subject to review. The Key appears to indicate that dotted black lines indicated the Existing lengths of street which were currently exempt from the ban. That dotted black line appears to include the part of Fairway Gardens where Mr Gentry’s car was parked when this PCN was issued to it.

It is apparent that the review proposed the erection of signs which were in fact in place at the location when the PCN was issued, but what is conspicuously lacking in the evidence before me is any resolution by the Authority which puts those changes (between existing and proposed exemptions) into effect.

Without that evidence, which Mr Gentry has clearly and repeatedly requested, I cannot be satisfied that the point in Fairway Gardens where he parked was not in fact, despite the positioning of the signs, still not subject to a footway parking exemption. Consequently I cannot be satisfied that the contravention alleged occurred.

I must therefore allow this appeal."

I respectfully submit that without sight of the resolution, the tribunal cannot be satisfied that a contravention has occurred and therefore the appeal must be allowed.

This post has been edited by cp8759: Mon, 13 Aug 2018 - 20:57