PePiPoo Helping the motorist get justice Support health workers

Welcome Guest ( Log In | Register )

PCN on private land, not a 'Grass verge'
DoverSt
post Sun, 16 Dec 2018 - 01:21
Post #1


New Member


Group: Members
Posts: 7
Joined: 15 Dec 2018
Member No.: 101,448



Any advice would be appreciated.

I received a PCN a short while back for a hired removal van outside a block of flats I was leaving for 'parking on a grass verge'.




This is private land [confirmed with the landowner] and, IMO, is clearly NOT a 'Grass verge'



I appealed the PCN stating this was private land and that it was not a grass verge and got the following response




Given all the postings about private land and carriageways should / can I contest this further ?
Whilst this land is obviously accessible to the public it is habitually NOT used by the public, people including residents DO use the pavement. This is not the case across the road further up where people do habitually walk over a short piece of [what was] grassed over private land.

https://www.google.co.uk/maps/@51.4274735,-...33;8i8192?hl=en

This post has been edited by DoverSt: Sun, 16 Dec 2018 - 01:57
Go to the top of the page
 
+Quote Post
 
Start new topic
Replies (1 - 11)
Advertisement
post Sun, 16 Dec 2018 - 01:21
Post #


Advertise here!









Go to the top of the page
 
Quote Post
cp8759
post Sun, 16 Dec 2018 - 01:43
Post #2


Member


Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



The issue is that the public could walk over the grass as of right, even if the land is private property, whether they actually do so is besides the point. See the Court of Appeal ruling here https://www.bailii.org/ew/cases/EWCA/Civ/2009/1411.html


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
Go to the top of the page
 
+Quote Post
DoverSt
post Sun, 16 Dec 2018 - 02:07
Post #3


New Member


Group: Members
Posts: 7
Joined: 15 Dec 2018
Member No.: 101,448



I read this. And noted the wording 'habitually'. As I noted, the public habitually DON'T walk on this area.

That being said the interpretation seems unreasonable, overbearing and far too broad.

What of garage forecourts, supermarket car parks, people's front gardens without hedge or fence to facilitate off-street parking, driveways without a closed gate ?
And I guess this sort of questioning would have to be moved to a more Law related section.

So thanks for the pointer and I guess I am paying the fine !!!

I still have a couple of days so will wait a little and look for any more advice and/or comment posted before paying up.

Thanks.


This post has been edited by DoverSt: Sun, 16 Dec 2018 - 02:17
Go to the top of the page
 
+Quote Post
cp8759
post Sun, 16 Dec 2018 - 02:52
Post #4


Member


Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (DoverSt @ Sun, 16 Dec 2018 - 02:07) *
That being said the interpretation seems unreasonable, overbearing and far too broad.

I agree, but it would take an Act of Parliament to change the definition. Something you can take up with your MP.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
Go to the top of the page
 
+Quote Post
Mr Meldrew
post Sun, 16 Dec 2018 - 06:25
Post #5


Member


Group: Members
Posts: 546
Joined: 31 Aug 2015
From: 19 Riverbank
Member No.: 79,151



QUOTE (DoverSt @ Sun, 16 Dec 2018 - 02:07) *
I read this. And noted the wording 'habitually'. As I noted, the public habitually DON'T walk on this area.

That being said the interpretation seems unreasonable, overbearing and far too broad.

What of garage forecourts, supermarket car parks, people's front gardens without hedge or fence to facilitate off-street parking, driveways without a closed gate ?
And I guess this sort of questioning would have to be moved to a more Law related section.

Although there is no gate on my driveway, or hedge or fence in my front garden preventing access, I’m confident the public at large have no “right of passage and repassage” over the frontage of 19 Riverbank, which I note was a decisive factor in the linked case, so I sleep soundly at night knowing it’s not part of a road and habitually and freely passed over.

I should consider whether Miss S King is entirely correct.


--------------------
I do tend to have a bee in my bonnet re failing to consider and fairness
Go to the top of the page
 
+Quote Post
hcandersen
post Sun, 16 Dec 2018 - 08:57
Post #6


Member


Group: Members
Posts: 35,063
Joined: 2 Aug 2008
From: Woking
Member No.: 21,551



We should apply the correct test and not be misled by the OP: does this form part of a road or highway?

It is not black and white, more a shade of green.

The facts appear to be:

There is clear delineation between the footway and the grass - it is not a verge IMO - and this can be seen as a line of stones, a mini-kerb whose position is mirrored by the street lights.

There is no indication that the grass is in any way trodden, there is no exposed earth for example.

The area extends wholly to the building.

IMO, taking all the tests into account, there is no evidence that 'what in fact happens from day to day on the road' (to use the words of the adjudicator) shows any use of the area as if it were part of the road.


'In my opinion, this must be the true test.' in the words of the adjudicator and the court.

Not what could happen, but what does.

OP, what you will glean from this is that it is not as clear cut as it appears.

In any event, the issue is probably not relevant because it is a hired van. The next stage is that the hiring company would get a NTO - not you, them. They may choose to pay or make reps which effectively cause the authority to serve a NTO on you in your name. But it's not in your hands at this stage unless you pay.


Go to the top of the page
 
+Quote Post
Mad Mick V
post Sun, 16 Dec 2018 - 09:25
Post #7


Member


Group: Closed
Posts: 9,710
Joined: 28 Mar 2007
Member No.: 11,355



Footway parking, the definition of road and what comprises public land

2170551476

Dr. Osment appeals against a penalty charge notice (PCN) issued in respect of an alleged contravention of the prohibition on parking a vehicle “in or on any urban road in Greater London … so that one or more of its wheels is resting on—

(a) any footway;

(b) any land (not being a footway) which is situated between two carriageways in any such road; or

© any grass verge, garden or space not falling within the foregoing paragraph (a) or (b)”, to quote from the relevant legislation, namely s.15(1) of the Greater London Council (General Powers) Act 1974.

The definition of a road is to be found in s.192 of the Road Traffic Act 1988. It is defined as a “highway and any other road to which the public has access”. Accordingly, whether a vehicle’s wheel or wheels are resting on any of the spaces in paragraphs (a) to © of s.15(1) only falls to be considered if the vehicle is parked “in or on” a road as defined in s.192 of the 1988 Act. Whether a given place is a road is a matter of fact, in accordance with the principles in Clark v. General Accident [1998] 1 WLR 1647.

Dr. Osment helpfully produced a skeleton argument. Although I rejected summarily most of the grounds, an argument raised at point 2 had real merit and warranted consideration. At point 2 he argued: “The photos clearly show that I was on a void space further on and well clear of the footway.” This was foreshadowed in his representations to the Enforcement Authority (EA), which included the following: “I was not on a footpath. I was on an area of hardstanding forming no other purpose, other than suitable for parking.” I am afraid I disagree with the second point raised there; the area on which, the photographs show, the vehicle was parked was plainly not designed, or suitable, for parking. Whether it forms part of a road, however, is a different matter. Dr. Osment argues he was not parked in or on a road at all. Rather, he says, his vehicle was parked wholly on an area of land that does not comprise part of the road. It is the EA’s case that the vehicle was parked (at least partially) on the footway of North Street and was thus in or on a road with one or more wheels on the footway.

I have not been provided with any map showing the parameters of North Street, or the road which is parallel to it. I have, however, studied the photographs in some detail. There is a footway, which I accept is part of North Street. There is a parallel road, which has parking spaces next to it. In between those two roads is a space which, to my mind, is a pleasant open space for people to enjoy, paved differently from the footway, containing trees and benches. Bearing in mind the reasoning in Clark v. General Accident [1998] 1 WLR 1647 I find that it is a place to which the public have access, but not a road. In particular, it is not an area of the road that is between two carriageways; the other road is separate and is not merely a carriageway of North Street.

I turn then to whether Dr. Osment’s vehicle was parked on the road, namely North Street, or the area that is not a road. I have looked at the photographic evidence provided. It is clear to me that no wheels of Dr. Osment’s vehicle were resting on the footway, which is paved distinctly. Rather, his vehicle was wholly within that area that I have deemed on the evidence to be public land but not a road.

It follows from that that I am not satisfied that the vehicle was parked on a road. Section 15(1) is not engaged and the contravention did not occur.

Dr. Osment was aggrieved that the EA’s rejection of his representations contained an allegation that he had caused an obstruction; perhaps it might have been better not to mention this given it is not a necessary element of the contravention (or offence, as it used to be). However, the allegation was not wholly unreasonable given that, as I find, Dr. Osment should not have parked on that area of public land. Although Dr. Osment applied, partly for that reason, for his costs, I am not satisfied that the EA has conducted this appeal is such a way as to warrant an order for costs.
----------------------------------------------------------

Mick
Go to the top of the page
 
+Quote Post
DoverSt
post Tue, 18 Dec 2018 - 11:35
Post #8


New Member


Group: Members
Posts: 7
Joined: 15 Dec 2018
Member No.: 101,448



One last request for info.

If it can be successfully shown / argued that the area parked on is not a road (of any sort) and not part of the highway (i.e. outside the extents as designated by local authority register) would that mean that the parking department has no juristiction / authority to issue a PCN on that area and thus the PCN should be cancelled / voided ?

Thanks.
Go to the top of the page
 
+Quote Post
cp8759
post Tue, 18 Dec 2018 - 11:41
Post #9


Member


Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



You are correct, you would need to check the council terrier to confirm this.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
Go to the top of the page
 
+Quote Post
DoverSt
post Tue, 18 Dec 2018 - 11:42
Post #10


New Member


Group: Members
Posts: 7
Joined: 15 Dec 2018
Member No.: 101,448



QUOTE (Mr Meldrew @ Sun, 16 Dec 2018 - 06:25) *
I should consider whether Miss S King is entirely correct.


Would you be a bit more specific in which part of the response Ms King is incorrect and why you think so.

Thanks.
Go to the top of the page
 
+Quote Post
hcandersen
post Tue, 18 Dec 2018 - 11:52
Post #11


Member


Group: Members
Posts: 35,063
Joined: 2 Aug 2008
From: Woking
Member No.: 21,551



OP, I've explained that YOU have no further standing in this matter therefore what you can establish is not relevant yet and might not be at all.

You should post your hire agreement here, just redact personal details. At present you have no liability.
Go to the top of the page
 
+Quote Post
Mr Meldrew
post Tue, 18 Dec 2018 - 13:05
Post #12


Member


Group: Members
Posts: 546
Joined: 31 Aug 2015
From: 19 Riverbank
Member No.: 79,151



QUOTE (DoverSt @ Tue, 18 Dec 2018 - 11:42) *
QUOTE (Mr Meldrew @ Sun, 16 Dec 2018 - 06:25) *
I should consider whether Miss S King is entirely correct.

Would you be a bit more specific in which part of the response Ms King is incorrect and why you think so.

Thanks.

QUOTE
With regards to [sic] the vehicle being parked on private land, any location where public
have access is considered enforceable and vehicles should not park on it.

The circumstances that you describe in your correspondence do not warrant
cancellation of the PCN.

See post #5 regarding my opinion that although the public may have access in the absence of fences, gates and what have you, that is not the same as a right of passage and repassage to habitually and freely pass over; a key consideration in the linked BAILII database.


--------------------
I do tend to have a bee in my bonnet re failing to consider and fairness
Go to the top of the page
 
+Quote Post

Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Friday, 29th March 2024 - 00:59
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.
IPS Driver Error

IPS Driver Error

There appears to be an error with the database.
You can try to refresh the page by clicking here