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Ealing Old Oak Common Lane PCN No.62, Parking charge for parking on a footway
coolhluke
post Mon, 9 Sep 2019 - 15:46
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Hi, Just wondering if anyone can assist me with this.
I have received a PCN for parking on a footpath adjacent to a Network Rail access gate to which i was undertaking some survey works inside of the Network Rail land.
The location is Old Oak Lane W3 7DS. i was carrying out some works for the HS2 project for which there is a sign located on the footpath detailing this which is evident in the photos.
also as common practice for railway staff i had placed an NR orange Hi-vis over the steering wheel to highlight the fact i was working on NR lands.
is there any justification of this or am i peeing into the wind, any advice greatly appricated.
Attached File  2019_09_05_Ealing_PCN_f.pdf ( 86.01K ) Number of downloads: 106

Attached File  2019_09_05_Ealing_PCN_r.pdf ( 107.32K ) Number of downloads: 114

Attached File  pcn_PICS.pdf ( 253.97K ) Number of downloads: 135


This post has been edited by coolhluke: Mon, 9 Sep 2019 - 16:24
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post Mon, 9 Sep 2019 - 15:46
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cp8759
post Tue, 10 Sep 2019 - 15:28
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The land where you parked was not fenced off or otherwise restricted to Network Rail staff, so it's basically just a normal road open to the public and normal road traffic regulations apply.

There are a couple of exemptions under section 15(7)(a) https://www.legislation.gov.uk/ukla/1974/24 such as

(ix) vehicles used in connection with the placing, inspecting, maintaining, adjusting, repairing, altering, renewing or removing of apparatus or accommodation therefor in, under or over a road;

(x) any vehicle not falling within sub-paragraph (viii) or (ix) of this paragraph used by statutory undertakers in pursuance of their statutory powers or duties provided that is reasonably necessary for the vehicle to be so parked;


15(7)(b) clarifies:

In sub-paragraph (ix) of the foregoing paragraph “apparatus” means any apparatus belonging to statutory undertakers or for the maintenance of which they are responsible (including any structure for the lodging therein of apparatus), and includes any apparatus belonging to the British Railways Board Transport for London or any of its subsidiaries (within the meaning of the Greater London Authority Act 1999) or for the maintenance of which that Board or (as the case may be) Transport for London or any such subsidiary is responsible.

The problem you face is that:

1) Quote oddly, the definition of statutory undertakers for the purposes of the 1974 Act is quite limited:

“statutory undertakers” means a universal service provider within the meaning of Part 3 of the Postal Services Act 2011, a water authority and the persons authorised by any enactment to carry on any undertaking for the supply of electricity, gas, hydraulic power or water;

2) It is not at all clear that your vehicle was being used in connection with the work being undertaken. If it had been a marked work van used to carry equipment you'd probably have a good case. If you simply used your car to get there for your own convenience, rather than because it was actually necessary for the purposes of the job being done, then it's not at all evident the vehicle was being used for any of the exempted purposes. It seems more that you used the vehicle while acting in a private capacity, effectively just to commute to a place of work.


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coolhluke
post Wed, 11 Sep 2019 - 06:23
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Thanks for the assistance, the only reason I drove is I had quite a bit of survey equipment, I was there for a week and only drove on the Thursday the rest of the weekend I took public transport.
The white Astra van in the photos was the only vehicle that didn't get a ticket which from your response now makes sense.
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cp8759
post Wed, 11 Sep 2019 - 09:02
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How much equipment are we talking about? If it's more than you could reasonably carry from the nearest available legal parking place, you could reasonably claim the British Railways Board "apparatus" exemption. If you can get us a photo of the equipment that would be ideal.

This post has been edited by cp8759: Wed, 11 Sep 2019 - 09:03


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coolhluke
post Tue, 17 Sep 2019 - 07:14
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Apologies for the delay in responding however i have been away for the last week.
The following is a photo of the items i had on site for the works.
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cp8759
post Tue, 17 Sep 2019 - 19:38
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That is way more than you can reasonably expect to carry, so I take the view that an exemption is engaged. Draft reps:

--------

Dear London Borough of Ealing

I make representations on the basis that the alleged contravention did not occur, because at the time my vehicle was observed the exemption under section 15(7)(a)(ix) of the Greater London Council (General Powers) Act 1974 was engaged. This section provides the following exemption:

Nothing in this section shall make it unlawful under subsection (1) of this section to park a vehicle of any of the following descriptions, that is to say:—
...
(ix) vehicles used in connection with the placing, inspecting, maintaining, adjusting, repairing, altering, renewing or removing of apparatus or accommodation therefor in, under or over a road;


Subsection 15(7)(b) specifies that:

In sub-paragraph (ix) of the foregoing paragraph “apparatus” means any apparatus belonging to statutory undertakers or for the maintenance of which they are responsible (including any structure for the lodging therein of apparatus), and includes any apparatus belonging to the British Railways Board Transport for London or any of its subsidiaries (within the meaning of the Greater London Authority Act 1999)] or for the maintenance of which that Board or (as the case may be) Transport for London or any such subsidiary is responsible.

It is common knowledge that Network Rail is the successor body to the British Railways Board. While I did not have use of a liveried vehicle on the day, this is not a requirement for the exemption to be engaged and I did leave a Network Rail high visibility vest on the steering wheel to indicate that the vehicle was being used in connection with the work of a statutory undertaker.

The exemption under subsection 15(7)(a)(x) is also engaged and it provides an exemption for:

any vehicle not falling within sub-paragraph (viii) or (ix) of this paragraph used by statutory undertakers in pursuance of their statutory powers or duties provided that is reasonably necessary for the vehicle to be so parked

On this particular occasion, the vehicle was being used in connection with the placement of a significant amount of equipment or apparatus and the vehicle therefore had the benefit of the exemption provided for at subsection 15(7)(a)(ix), I enclose a photo of the relevant apparatus for your records. It was also reasonably necessary for the vehicle to be so parked as it would not have been practicable to carry this amount of equipment by hand, and the vehicle was thus being used on behalf of a statutory undertaker in pursuance of the statutory undertaker's lawful duties. In light of this the alleged contravention did not occur and the PCN must be cancelled.

This post has been edited by cp8759: Wed, 18 Sep 2019 - 20:38


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coolhluke
post Wed, 18 Sep 2019 - 18:04
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cp8759, Thanks so much for the assistance on this.
I have challenged the PCN so will keep you informed on the status.
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coolhluke
post Mon, 23 Sep 2019 - 08:07
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HI,

I received the attached response for Ealing council stating they have decided not to cancel the PCN.
Any thoughts?
Attached File  00189031.pdf ( 21.56K ) Number of downloads: 103
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cp8759
post Mon, 23 Sep 2019 - 17:26
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Well there's been a complete failure to consider your representations, so on that basis I'd carry on. Do you have the V5C?


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PASTMYBEST
post Mon, 23 Sep 2019 - 17:35
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QUOTE (cp8759 @ Mon, 23 Sep 2019 - 18:26) *
Well there's been a complete failure to consider your representations, so on that basis I'd carry on. Do you have the V5C?



They are confused, never having read the regs that far. but then deny that a loading exemption exists. I too would carry on


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coolhluke
post Tue, 24 Sep 2019 - 08:52
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I have just moved property so have sent the V5C to the DVLA to have the address changed but i do have a copy of it.
The new V5C should arrive this week hopefully.
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cp8759
post Tue, 24 Sep 2019 - 11:44
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QUOTE (coolhluke @ Tue, 24 Sep 2019 - 09:52) *
I have just moved property so have sent the V5C to the DVLA to have the address changed but i do have a copy of it.
The new V5C should arrive this week hopefully.

Do you have a redirection set up with the Royal Mail? If not, do you have some sort of arrangement to deal with post sent to the old address?


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coolhluke
post Tue, 24 Sep 2019 - 13:03
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Yes i have a redirection set up with Royal Mail.
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coolhluke
post Wed, 25 Sep 2019 - 16:19
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Just so i am clear the next step is to wait for Ealing Council to issue a notice To Owner (NTO) from which i can make a formal representation,
which i assume will be the same as the initial challenge to the PCN.
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cp8759
post Wed, 25 Sep 2019 - 19:41
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QUOTE (coolhluke @ Wed, 25 Sep 2019 - 17:19) *
Just so i am clear the next step is to wait for Ealing Council to issue a notice To Owner (NTO) from which i can make a formal representation,
which i assume will be the same as the initial challenge to the PCN.

Well we might add another ground for failure to consider, which is a procedural impropriety, but yes the next step is to wait for the NtO.


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coolhluke
post Sat, 26 Oct 2019 - 15:02
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Hi,
I have received the NtO for the non payment of the PCN, attached.
Any advise on the wording for the challenge to this.
Attached File  2019_10_24_NTO.pdf ( 682.09K ) Number of downloads: 63
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cp8759
post Sun, 27 Oct 2019 - 12:49
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Draft reps:, keep all italics exactly as I've used them below. Also send copies of these two decisions:

Jaffer Husseyin v Royal Borough of Greenwich (2170256432, 03 July 2017) http://bit.ly/2U7F27s
Laura Zingstra-Matson v Kent County Council (with Swale Borough Council) (KL00008-1908, 3 October 2019) http://bit.ly/2odduys

---------------

Dear London Borough of Ealing

I make representations on the basis that the alleged contravention did not occur, because at the time my vehicle was observed the exemption under section 15(7)(a)(ix) of the Greater London Council (General Powers) Act 1974 was engaged. This section provides the following exemption:

Nothing in this section shall make it unlawful under subsection (1) of this section to park a vehicle of any of the following descriptions, that is to say:—
...
(ix) vehicles used in connection with the placing, inspecting, maintaining, adjusting, repairing, altering, renewing or removing of apparatus or accommodation therefor in, under or over a road;


Subsection 15(7)(b) specifies that:

In sub-paragraph (ix) of the foregoing paragraph “apparatus” means any apparatus belonging to statutory undertakers or for the maintenance of which they are responsible (including any structure for the lodging therein of apparatus), and includes any apparatus belonging to the British Railways Board Transport for London or any of its subsidiaries (within the meaning of the Greater London Authority Act 1999)] or for the maintenance of which that Board or (as the case may be) Transport for London or any such subsidiary is responsible.

It is common knowledge that Network Rail is the successor body to the British Railways Board. While I did not have use of a liveried vehicle on the day, this is not a requirement for the exemption to be engaged and I did leave a Network Rail high visibility vest on the steering wheel to indicate that the vehicle was being used in connection with the work of a statutory undertaker.

The exemption under subsection 15(7)(a)(x) is also engaged and it provides an exemption for:

any vehicle not falling within sub-paragraph (viii) or (ix) of this paragraph used by statutory undertakers in pursuance of their statutory powers or duties provided that is reasonably necessary for the vehicle to be so parked

On this particular occasion, the vehicle was being used in connection with the placement of a significant amount of equipment or apparatus and the vehicle therefore had the benefit of the exemption provided for at subsection 15(7)(a)(ix), I enclose a photo of the relevant apparatus for your records. It was also reasonably necessary for the vehicle to be so parked as it would not have been practicable to carry this amount of equipment by hand, and the vehicle was thus being used on behalf of a statutory undertaker in pursuance of the statutory undertaker's lawful duties. In light of this the alleged contravention did not occur and the PCN must be cancelled.

I make a further representation on the basis of a procedural impropriety. My informal representations were made on the same basis outlined above. The council was under no obligation to respond at all, but it was under a duty to consider the representations made. The informal rejection notice that has been served shows no consideration at all of the representations made, it is a generic, stock response that could apply to virtually any footway parking PCN. The templated wording employed has not even been amended to reflect the number of wheels that were on the footpath, as it asserts the PCN was issued for "for parking with one wheel (or more) on the pavement".

There is no explanation as to why the council does not accept that the statutory exemptions put forward are applicable in this case. The council's attention is drawn to Laura Zingstra-Matson v Kent County Council (with Swale Borough Council) (KL00008-1908, 03 October 2019) where the tribunal ruled as follows:

"7. A Council must consider the representations made to them fully before deciding whether to reject the
representations or whether to exercise discretion in the matter (Regulation 5(2) of the Civil Enforcement of
Parking Contraventions (England) Representations and Appeal Regulations 2007). It follows that if the
circumstances presented by the motorist are not fully taken into account in the decision making process then an
unlawful decision is reached as the duty under Regulation 5 to consider all representations has not been
complied with.

8. How the duty to consider representations is to be carried out is set out in the Statutory Guidance on the Civil
Enforcement of Parking Contraventions issued by the Department for Transport (November 2015). Chapter
10 of the Guidance emphasises the importance of the Council considering the motorists’ representations
properly and in accordance with the general principles of public law. In particular at paragraph 10.22 the
Guidance says:

“The authority should give the owner clear and full reasons for its decision on a representation, in addition to the
minimum required information.”

...

10. The Notice of Rejection (NOR) sent to Mrs Zingstra-Mason is very brief. It simply deals with one aspect of
her representations, namely whether the vehicle was parked longer than permitted and that the lack of suitable
spaces did not provide a defence to the contravention. It also acknowledges the claimed lack of a PCN on the
vehicle made by Mrs Zingstra-Matson but it does not mention anything else Mrs Zingstra-Matson puts forward
as to why she believed the PCN should be cancelled. In particular no reference is made to her detailed
argument about the wording of the NTO not complying with the General Regulations although the NOR was
issued after the second set of representations was received.

11. Thus on the basis of the evidence before me I find that the Council failed properly to fully consider the
representations made and whether they should exercise discretion and cancel the penalty charge. This amounts
to a failure to follow paragraph 5(2) (b) of the Appeals Regulations and is a procedural impropriety.

12. The appeal is allowed on this basis. Mrs Zingstra-Matson has nothing to pay.
"

The circumstances here are the same: I submitted detailed arguments as to why an exemption under section 15 was applicable, and the informal rejection notice does not even mention any of the points made, indeed there is no indication the author of the informal rejection has even read the representations which I submitted.

The same point was made in Jaffer Husseyin v Royal Borough of Greenwich (2170256432, 03 July 2017) where the tribunal ruled that:

"The Rejection Notice has every appearance of a pro-
forma letter and does not deal at all with the representations made. The response
required was a very simple one, namely words to the effect that that whilst we
accept that you had a permit on display you were not parked in the road to which it
applied – see terms of permit. Motorists are entitled to have their representations
properly considered and an explanation, even if brief, why they are rejected. I am
unable to be satisfied that in issuing this rejection notice the Council had properly
performed its statutory duty to consider representations and this amounts to
procedural impropriety. The Appeal is therefore allowed.
"

The informal rejection notice does not allow me to understand why or on what basis my detailed representations were rejected. This is a breach of the duty to consider the representations submitted, it is also a breach of the duty at common law to act fairly when exercising a statutory function, as per R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8.

In light of this procedural impropriety even if the alleged contravention occurred, nonetheless the PCN must be cancelled.


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coolhluke
post Tue, 29 Oct 2019 - 17:08
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Thanks for the assistance with the challenge, however when i enter the text on the Ealing Council website it all comes out as plain text and wont allow italics for some reason.
I had originally typed the text and then tried to copy it from word however on both occasions it is just plain with no difference between the two.
Any thoughts?
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cp8759
post Tue, 29 Oct 2019 - 18:52
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QUOTE (coolhluke @ Tue, 29 Oct 2019 - 17:08) *
Thanks for the assistance with the challenge, however when i enter the text on the Ealing Council website it all comes out as plain text and wont allow italics for some reason.
I had originally typed the text and then tried to copy it from word however on both occasions it is just plain with no difference between the two.
Any thoughts?

The back of the NtO says you can make representations by email, so just put the draft in an email and send it to the address provided on the second page of the NtO.


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coolhluke
post Wed, 30 Oct 2019 - 19:49
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QUOTE (cp8759 @ Tue, 29 Oct 2019 - 18:52) *
QUOTE (coolhluke @ Tue, 29 Oct 2019 - 17:08) *
Thanks for the assistance with the challenge, however when i enter the text on the Ealing Council website it all comes out as plain text and wont allow italics for some reason.
I had originally typed the text and then tried to copy it from word however on both occasions it is just plain with no difference between the two.
Any thoughts?

The back of the NtO says you can make representations by email, so just put the draft in an email and send it to the address provided on the second page of the NtO.

I hadn't spotted the email address, I have sent the representation via email and will keep you posted on the outcome.
Again thanks for the assistance on this, very much appreciated.
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