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x3 PCNs - Parked in special enforcement area adjacent to footway
j4ck100
post Sun, 21 Jul 2019 - 21:13
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Hi

I parked my car just behind the lamp-post seen here on Monday evening and then was traveling on work so did not return to the vehicle until Thursday when you can imagine my horror seeing x3 tickets piled up on the windscreen!

I have been parking in this space many times and in fact a resident came out of his house when i was removing the PCNs from the windscreen and said he couldn't believe it as he parks there (and streetview shows a van parked close-by too)

Alas i am now informed that parking on a section of carriage way that is raised to meet the pavement is prohibited

I guess i have no problem in paying the 1st PCN if I was indeed parked illegally, though it would be painful if i would have to pay all 3 given the car didn't move and i had no chance to rectify.

Thoughts welcome please, thanks




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post Sun, 21 Jul 2019 - 21:13
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j4ck100
post Tue, 26 Nov 2019 - 07:40
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QUOTE (PASTMYBEST @ Mon, 25 Nov 2019 - 22:45) *
QUOTE (cp8759 @ Mon, 25 Nov 2019 - 22:40) *
QUOTE (j4ck100 @ Mon, 25 Nov 2019 - 22:39) *
QUOTE (cp8759 @ Mon, 25 Nov 2019 - 22:36) *
QUOTE (j4ck100 @ Mon, 25 Nov 2019 - 22:31) *
Should it be essentially the same as my appeals thus far?

Basically yes, however I would recommend in the first instance you just register the appeal on the tribunal website and put "full grounds to follow" in the further information box, this will force the council to put its evidence in first.


My one major concern is that this goes against me because people only look at the grainy council photos which to the untrained eye could look like a dropped kerb - in reality it is not! Any ideas how I can try and emphasise this in my appeal?

Supply high quality photos to the adjudicator maybe? Of course, if you go to a personal hearing you can just spell it out.


This GSV I think proves the case

https://www.google.co.uk/maps/@51.3884128,-...6384!8i8192

I would hold fire on registering a couple of weeks Christmas gives all sorts of opportunity for council c**k ups


Thanks, that sounds like a good idea.

Can I ask, what is the law / legislation that I can refer to when making my case as to the fact that this PCN was issued incorrectly and is therefore not valid?

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PASTMYBEST
post Tue, 26 Nov 2019 - 12:45
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Don't know why but my laptop does not recognise government websites as secure so I cannot create a link.

http://assets.dft.gov.uk/trafficauths/case-3869.pdf

Copy and paste into your browser. you want the schedule then paragraph 1 (e) the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable

The CEO cannot truly believe that a penalty is due because the kerb is lowered when it is not, they might believe a penalty is due and would be right, just not for that reason


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cp8759
post Tue, 26 Nov 2019 - 15:18
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QUOTE (PASTMYBEST @ Tue, 26 Nov 2019 - 12:45) *
The CEO cannot truly believe that a penalty is due because the kerb is lowered when it is not, they might believe a penalty is due and would be right, just not for that reason

The issue of the CEO's belief is subjective, so the PCN was lawfully served. No penalty is payable because the contravention alleged on the PCN did not occur, but that has nothing to do with the CEO's belief.


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hcandersen
post Tue, 26 Nov 2019 - 15:31
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I think your appeal should not be an in-your-face the council's wrong and therefore the adj must allow the appeal type. We've seen too many perverse decisions to think that such an approach always wins. In fact IMO it could be counter-productive.

My approach would be to accept that you parked where you now know you should not and for which you apologise. Being wiser you will be more careful in future.

Nonetheless, you are appealing against the authority's rejection of your representations because they blatantly refuse to accept that, although the objective facts show that the footway - can we pl, pl, pl, pl stop referring to kerb! - is at the same level as the carriageway (and that this could only have occurred as a matter of highway(council) policy to install a raised cushion at this junction) the authority, despite being part of the council, refuse to recognise what the law has created i.e. a clear legal distinction between dropped footways and raised carriageways. You understand that the law does not concern itself with trifling issues, therefore you can only conclude that there must have been a sound and rational basis for legislators creating the distinct prohibition of 'raised carriageway'. You now know about and will in future respect this prohibition and expect the council similarly be held to the same standard i.e. to issue lawful PCNs citing the contravention which occurs at this location and to give proper consideration to reps where the incorrect contravention has been used.

And present evidence, not just assertion.

It is not self-evident (to the point of omitting any evidence in support) that the carriageway is raised. I cannot see that the authority have admitted this and therefore you must show. IMO, present GSV screenshots, do not rely on the adj accessing their GSV.
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j4ck100
post Tue, 26 Nov 2019 - 15:43
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QUOTE (PASTMYBEST @ Tue, 26 Nov 2019 - 12:45) *
Don't know why but my laptop does not recognise government websites as secure so I cannot create a link.

http://assets.dft.gov.uk/trafficauths/case-3869.pdf

Copy and paste into your browser. you want the schedule then paragraph 1 (e) the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable

The CEO cannot truly believe that a penalty is due because the kerb is lowered when it is not, they might believe a penalty is due and would be right, just not for that reason


Thank you, but I cannot see a Paragraph 1 (e) ?
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j4ck100
post Tue, 26 Nov 2019 - 16:03
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QUOTE (PASTMYBEST @ Tue, 20 Aug 2019 - 13:45) *
QUOTE (j4ck100 @ Tue, 20 Aug 2019 - 14:31) *
QUOTE (hcandersen @ Tue, 20 Aug 2019 - 13:16) *
OP, if you want certainty become a tax collector or undertaker, we cannot provide the certainty you seem to want!


There are few certainties in this life, and I understand that! I was just trying to get a view on the odds of a successful appeal here. It's very interesting as there are clearly differing opinions here as to what will happen at tribunal - it's not clear cut.

An offence was clearly committed but a procedural error has occured in processing. Can anyone point me towards guidelines for an adjudicator? Does said adjudicator have the power to say ''I understand there was a processing error (27 vs 28) but the contravention stands as you were clearly in contravention regardless'' ?

Thank you.


the PCN MUST state the reason the CEO believes a penalty is due. In you case it says parked adjacent to a DK. But it was not was it. so you have not been served a valid PCN. That the council do not pick up on that is further grist to the mill

There are case when an adjudicator says a contravention occurs but not the one stated

2170429213
This PCN was issued for the alleged contravention of failing to drive in the direction shown by the arrow on a blue sign (proceeding in the wrong direction). The location was Rushmead and the alleged contravention occurred at 12.24pm on 22 June 2017.
I have looked at the CCTV footage and still images submitted by the Council. These show that there was a blue sign attached to a post on each side of the road at the junction from which vehicle registration K33YVS exited. The driver of the car would not have seen these signs as they were facing in the opposite direction from the one in which the car was being driven. There is no evidence that the car was driven past any blue sign visible to the driver.
It would appear that the car may have been driven through a No Entry sign at the entrance to Rushmead. However, a No Entry restriction is not the same as the restriction conveyed by the arrow on a blue sign. It follows that the PCN was issued for the wrong alleged contravention. A driver cannot fail to comply with a sign that cannot be seen.


Just looping back to this, would i do well to reference this case in my appeal (in person)? It is of a similar nature as PMB indicates - offence commited but wrong PCN issued and therefore appeal allowed.
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PASTMYBEST
post Tue, 26 Nov 2019 - 16:10
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QUOTE (j4ck100 @ Tue, 26 Nov 2019 - 15:43) *
QUOTE (PASTMYBEST @ Tue, 26 Nov 2019 - 12:45) *
Don't know why but my laptop does not recognise government websites as secure so I cannot create a link.

http://assets.dft.gov.uk/trafficauths/case-3869.pdf

Copy and paste into your browser. you want the schedule then paragraph 1 (e) the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable

The CEO cannot truly believe that a penalty is due because the kerb is lowered when it is not, they might believe a penalty is due and would be right, just not for that reason


Thank you, but I cannot see a Paragraph 1 (e) ?


You wouldn't that was the wrong link try this

www.legislation.gov.uk/uksi/2007/3483/made

The case I posted highlights that even though there is an undoubted contravention the authority cite the wrong one so the PCN is invalid


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cp8759
post Tue, 26 Nov 2019 - 17:09
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I agree with everything hcandersen has said. Have you registered your appeal with the tribunal yet?


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PASTMYBEST
post Tue, 26 Nov 2019 - 19:13
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QUOTE (cp8759 @ Tue, 26 Nov 2019 - 17:09) *
I agree with everything hcandersen has said. Have you registered your appeal with the tribunal yet?


So do I


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j4ck100
post Wed, 27 Nov 2019 - 16:58
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QUOTE (cp8759 @ Tue, 26 Nov 2019 - 17:09) *
I agree with everything hcandersen has said. Have you registered your appeal with the tribunal yet?


Appeal not yet registered, I am planning on doing it on Friday. Unless i should wait until the 13th hour to submit with the hope that something goes awol over the xmas period?
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j4ck100
post Wed, 27 Nov 2019 - 23:08
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Appeal lodged, outline hearing date 07 February. Opted to supply information at a later date. So now we wait for the council to upload their evidence?
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cp8759
post Fri, 29 Nov 2019 - 16:35
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Well, by law the council must upload certain minimum documents (NtO, reps, Notice of Rejection) within 7 days, failure to do so is a procedural impropriety. Most councils miss this deadline because they don't know about it.


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j4ck100
post Fri, 3 Jan 2020 - 16:04
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Just logged in to the Appellant Portal and to date, nothing has been received by way of evidence from Kingston Council. Is this of relevance here?

Thanks


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cp8759
post Sat, 4 Jan 2020 - 13:25
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QUOTE (j4ck100 @ Fri, 3 Jan 2020 - 16:04) *
Just logged in to the Appellant Portal and to date, nothing has been received by way of evidence from Kingston Council. Is this of relevance here?

Well obviously, the council only has 7 days to lodge the minimum mandatory evidence. The requirement is spelt out here at paragraph 3(3): http://www.legislation.gov.uk/uksi/2007/3482/schedule/made


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j4ck100
post Mon, 6 Jan 2020 - 11:28
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QUOTE (cp8759 @ Sat, 4 Jan 2020 - 13:25) *
QUOTE (j4ck100 @ Fri, 3 Jan 2020 - 16:04) *
Just logged in to the Appellant Portal and to date, nothing has been received by way of evidence from Kingston Council. Is this of relevance here?

Well obviously, the council only has 7 days to lodge the minimum mandatory evidence. The requirement is spelt out here at paragraph 3(3): http://www.legislation.gov.uk/uksi/2007/3482/schedule/made


Thanks, would you describe this as 'fatal' to the PCN or not?
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cp8759
post Mon, 6 Jan 2020 - 20:59
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QUOTE (j4ck100 @ Mon, 6 Jan 2020 - 11:28) *
Thanks, would you describe this as 'fatal' to the PCN or not?

I wouldn't rely on that alone, but it's an argument I'd throw in for good measure.


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j4ck100
post Mon, 3 Feb 2020 - 09:50
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Hi all,

Hearing is on Friday this week, all prepped and ready. Please see evidence attached and wish me luck!

Council did not send through original reps/pcn/notice of rejection until Friday last week (legally required to send within 7 days of my appeal being lodged)

Thanks

This post has been edited by j4ck100: Mon, 3 Feb 2020 - 09:50
Attached File(s)
Attached File  Parking___Appelant_Evidence.pdf ( 1.04MB ) Number of downloads: 23
 
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cp8759
post Mon, 3 Feb 2020 - 17:39
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Time constraints prevent me from going through this with a fine tooth comb but I think your appeal is drafted better than most we see on here.


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j4ck100
post Tue, 4 Feb 2020 - 09:49
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Thank you, let's see how I get on!
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hcandersen
post Tue, 4 Feb 2020 - 11:19
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Not my style.

You are a motorist, not Perry Mason.

Most of the appeal is tantamount to an instruction to the adj on the law - I'm not certain they take kindly to such approaches - with the least reserved to addressing your reps and their replies.

No hint of contrition or mistake (from which you've learned) on your part.

No attempt to develop the argument regarding why the authority resolutely and without reason continued to deny that there is a difference between the two contraventions - the legislation is pants in this regard because whereas a dropped footway is pretty clear, how the hell is one to know definitively whether a raised carriageway has been raised for one of the 3 purposes or simply as a traffic control measure AKA speed cushion?
e.g. I refer the adj to my challenge dated *** in which I stated that *** and the authority's reply dated ** which, in as much as it even addressed this point, rather kicked it into the long grass; my formal reps in which I resurrected the same point - paras ** and *** refer - which were dealt with in a similar summary fashion and their case summary in which *******.

And as for quoting a case involving moving traffic in support of the need for a TMA parking PCN to comply with the regs!!!! And it's 3 years old, and the issue there was that the fact finder found that the signs were not visible; the law therefore followed on like night follows day. But you've not taken this approach i.e. to construct your appeal incrementally dealing with the facts first and using language to get the adj engaged as part of the progression of your argument.

But hey, ho, we'll see how it goes. It should be straightforward as long as the adj hasn't got an aversion to barrack-room lawyers!

This post has been edited by hcandersen: Tue, 4 Feb 2020 - 11:20
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