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Brent PCN - Contravention 62
hashim
post Wed, 4 Sep 2019 - 08:50
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Hi guys

I got a PCN last night. I was attending an event and parked on a narrow street that has single yellow line on the RHS and no lines on the LHS. As there were cars parked on the left side, the only way I could park without blocking large vehicles entering the road was to put two wheels on the pavement. Do I have any grounds of appeal?

Here is the PCN front page
https://ibb.co/qBK9wTv

PCN back page
https://ibb.co/mBByxqH

Brent council evidence
https://ibb.co/C55XbgB

GSV
https://www.google.co.uk/maps/@51.5353847,-...6384!8i8192

I was parked opposite the lampost on the RHS

I appreciate your assistance with this.
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post Wed, 4 Sep 2019 - 08:50
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cp8759
post Mon, 18 Nov 2019 - 14:11
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QUOTE (hashim @ Mon, 18 Nov 2019 - 12:10) *
Do I still have a strong case using Oliver Bishop v London Borough of Wandsworth?

IMO you do, after all why would a motorist think to himself "clearly the council allows footway parking here provided its not next to a lamp post"?


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hashim
post Tue, 19 Nov 2019 - 09:20
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QUOTE (PASTMYBEST @ Mon, 18 Nov 2019 - 14:10) *
Worth a good shot, apart from the " how can anyone know about the informal rules" Which is not very strong, there is a definite fettering of discretion and/or a will may flaw in the last emboldened paragraph of the NOR


sorry for my ignorance, but what do you mean regarding the flaw in the last paragraph?
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cp8759
post Tue, 19 Nov 2019 - 20:48
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QUOTE (hashim @ Tue, 19 Nov 2019 - 09:20) *
sorry for my ignorance, but what do you mean regarding the flaw in the last paragraph?

It says if you do nothing, the penalty will increase. The law does not allow the council to say this, it can only say the penalty may increase: it is a possibility, not a foregone conclusion. See for example Paul Faisant v London Borough of Camden (2190030807, 21 February 2019) http://bit.ly/2LJmzcE


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PASTMYBEST
post Tue, 19 Nov 2019 - 21:03
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QUOTE (cp8759 @ Tue, 19 Nov 2019 - 20:48) *
QUOTE (hashim @ Tue, 19 Nov 2019 - 09:20) *
sorry for my ignorance, but what do you mean regarding the flaw in the last paragraph?

It says if you do nothing, the penalty will increase. The law does not allow the council to say this, it can only say the penalty may increase: it is a possibility, not a foregone conclusion. See for example Paul Faisant v London Borough of Camden (2190030807, 21 February 2019) http://bit.ly/2LJmzcE


IMO the fettering of discretion is stronger than the will may angle. The NOR correctly states all the right things, then goes on to say in bold letters but that doesn't matter cos we have already decided what we will do. They are not allowed to do that

This post has been edited by PASTMYBEST: Tue, 19 Nov 2019 - 21:03


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cp8759
post Tue, 19 Nov 2019 - 22:12
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@PASTMYBEST I agree, I was illustrating the point to hashim because to most people, "the will may argument" doesn't mean anything. However this case raises exactly the same point I did in a recent Barnet appeal where page 1 is complaint and page 2 says they will increase the charge and issue the CC (must to hcandersen's protestations), but the bold wording makes this case stronger.


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hashim
post Wed, 20 Nov 2019 - 10:28
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Thanks guys

is the ground for appeal:

There has been a procedural impropriety on the part of the Enforcement Authority?

Or even

The traffic order allegedly contravened is invalid?

Or does it not matter which one is ticked on London Tribunals website.
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cp8759
post Wed, 20 Nov 2019 - 12:23
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The grounds are:

1) The alleged contravention did not occur.
2) There has been a procedural impropriety on the part of the enforcement authority.

It can't be anything to do with a traffic order because nobody has alleged you have contravened a traffic order. And to be honest, what box you tick on the tribunal website makes no difference to anything.


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hashim
post Wed, 20 Nov 2019 - 15:05
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Thank you for your response as usual biggrin.gif

Here is my appeal that I will upload to Tribunals if it makes sense

Dear Sir,

I am appealing this PCN based on two reasons:

Firstly, the Notice of Rejection letter dated 14 November 2019 does not contain the wording required by paragraph 3 of Schedule 1 to the London Local Authorities and Transport for London Act 2003.

The Notice of Rejection must state that a Charge Certificate may be served if payment or an appeal have not been made within the required period. The Notice of Rejection served by the Council stated that a Charge Certificate will be served, not that it may be served. The wording is mandatory and it follows that the Notice of Rejection is invalid.
I refer you to Paul Faisant v London Borough of Camden (2190030807, 21 February 2019)

My second reason for the appeal is as follows:

I do not dispute that my car was parked with two wheels on a footpath and I acknowledge the prohibition provided for at section 15(1) of the Greater London Council (General Powers) Act 1974.

I parked here as there were other cars also parked with two wheels on the footpath, I ensured that there was enough carriageway width for vehicles to safely pass. It is a residential street and had all the hallmarks of footway parking being the norm, notwithstanding the statutory prohibition. In such circumstances, motorists are entitled to form a legitimate expectation that the council does not enforce the prohibition. There appear to be many streets within the borough where the council tolerates this sort of footway parking.

As Brent state in their notice of rejection, Brent allow informal footway parking areas in the borough. In fact, there are over 100 streets where this is allowed. It is the councils job to mark out these exemptions within the Borough so that the motorist is aware of your discretionary exemption policy. It is unreasonable for the motorist to know whether a road exemption applies without adequate signage.

In Oliver Bishop v London Borough of Wandsworth (218035704A, 16 November 2018) the tribunal held that:

"I am satisfied on the evidence before me that this vehicle was parked with
two of its wheels on a footpath.

Parking on a footpath is prohibited 24/7 throughout Greater London unless
an exemption applies.

On the council's case is applies a de facto footway parking exemption
within its borough allowing vehicles to park on the footway outside of a
CPZ where a space of 1.2 metres has been left to allow pedestrians with
double buggies and wheelchairs to pass.

Upon the appellant raising the point I am not satisfied in the absence of
this 'exemption' being signed that the prohibition the council seeks to
enforce is clearly and unambiguously communicated to the motorist and I
accordingly find that the contravention has not been proved."

On an application for review from the council, the tribunal further ruled that:

"The Appellant was unaware of the policy until he tracked it down
as a result of the present proceedings. He parked because many other
vehicles were similarly parked and routinely parked there with impunity as
he had himself.

The question that really arises for decision in this case is therefore this -
whether the results of the relatively uncommunicated policy of the Council
not to enforce, namely large numbers of vehicles routinely parked off the
carriageway with no PCNs issued in what one assumes to be a patrolled
area, amounts in itself to an indication to a reasonable motorist despite the
absence of formal signed exemption, that the Council will not enforce
footway parking contraventions in that road. It seems to me that a
reasonable motorist might well draw such a conclusion and would be
entitled to rely on what is in effect an implied undertaking on the Council’s
part. The motorist would be entitled to say to himself “clearly the Council
allows footway parking here”, or possibly “clearly the Council allows
parking with two wheels on the footway” not “clearly the Council allows
footway parking but only if 1.2m is left”.

The Council states it cannot be expected to sign every street to which the
policy applies. One has to ask why not, when statute clearly sets out the
procedure envisaged for doing so which provides certainty for the motorist.
There are many areas in London with extensive exemption signage. If The
Council is not prepared to take this course on the obvious grounds of
trouble and expense it might usefully employ other more direct ways of
communicating its policy to the motorists in the streets affected to prevent
motorists from making a reasonable assumption that the Council has no
objection to vehicles parked (at least in part) off the carriageway

The Appeal therefore remains allowed (and the review application hence
formally refused)."

The same situation arises here. The council has implemented an unofficial footway parking exemption, by exercising discretion not to enforce section 15(1) on certain streets but not on others. The question then arises: How is a motorist unfamiliar with this policy (which can only be tracked down by conducting a search on the authority's website) to ascertain the exact extent of the area where the authority permits footway parking? As adjudicator Houghton remarked, there is no obvious reason why a footway parking exemption cannot be communicated through the appropriate signage prescribed under the national regulations.

A motorist in Brent, observing large numbers of vehicles parked in quiet residential streets with two wheels on the footpath, might reasonably say to himself "clearly the Council allows footway parking in this area" or "clearly the Council allows footway parking in quiet residential streets", not "clearly the Council allows footway parking but only on a prescribed list of streets".

For these reasons, notwithstanding the provisions of section 15(1), the alleged contravention did not occur and the PCN should be cancelled.
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PASTMYBEST
post Wed, 20 Nov 2019 - 16:28
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It needs a bit of tidying hold fire for a day or so


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hashim
post Wed, 20 Nov 2019 - 16:29
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QUOTE (PASTMYBEST @ Wed, 20 Nov 2019 - 17:28) *
It needs a bit of tidying hold fire for a day or so


will do happy.gif
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cp8759
post Wed, 20 Nov 2019 - 21:06
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I would recommend you simply register the appeal on the tribunal website with "full submissions to follow"; there must be at least a 20% change the council won't even contest in which case you've won without needing to do anything.

And even if not, this gives you a chance to see the council's evidence and submissions before drafting your appeal, which is an obvious tactical advantage.


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hashim
post Fri, 6 Dec 2019 - 11:25
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QUOTE (cp8759 @ Wed, 20 Nov 2019 - 22:06) *
I would recommend you simply register the appeal on the tribunal website with "full submissions to follow"; there must be at least a 20% change the council won't even contest in which case you've won without needing to do anything.

And even if not, this gives you a chance to see the council's evidence and submissions before drafting your appeal, which is an obvious tactical advantage.


So Brent are challenging it. Here is their letter

https://ibb.co/vsTcJpm
https://ibb.co/jTTyRMH
https://ibb.co/J3ygDsX

Any suggestions? Should I emphasise on the NOR saying will, rather than may?
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cp8759
post Sat, 7 Dec 2019 - 18:08
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Drat appeal: http://bit.ly/2Ly9cdE

Just download it and upload it to the tribunal website.

Also upload a copy of David Chapman v Portsmouth City Council (PO00086-1811, 09 January 2019) which you can download here: http://bit.ly/2OxA9Au


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hashim
post Mon, 9 Dec 2019 - 11:31
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cp8759

That's amazing,

really appreciate your time on this.

Court case is on 19/12. Will post the outcome after the case.
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hashim
post Thu, 19 Dec 2019 - 13:00
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Thank you so much @cp8759 and Pastmybest

the appeal was won based on the first reason (that how was I to know this road was exempt when other cars were parked there). The adjudicator didn't even look at the error on NOR.
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