File of cases to assist arguments, listed under various headings Options

[Hippocrates]

I am offering this list of cases to help people find cases quickly in order to support their arguments. It also saves me time in cross-referring to my other browser!

http://www.patasregistersofappeals.org.uk/

Please feel free to add. If you do so, please indicate at the start of your post the type of case your chosen decision(s) e.g. legitimate expectation.

Charge Certificate: premature issue

2130230240 and 2050339777. 213021691A. 213040742A 2140034850 2130622819 2140065151
2130296792, 2140068375.

Evidence not served in time

2110144328, 2130131442, 2120451094, 2130259672.


Will/may cases

2110072817, 2100649871, 2110415753, 2120021652, 2130049862, 2120448511, 212058885A, 2130236316, 2130516990, 2140068320, 2140026692, 2140006797, 2140046893, 2110029250

Legitimate expectation

2120130716, 2120134353 , 2110055104,. 2130190430, 2120088937, 2130288681, 213031735A

Mandatory info missing from Reg. 10 PCN

The PCN does not contain mandatory information re viewing the evidence. Case Nos.: 2120293222, 2130089798, 2130149029, 2130034162, 2130397290, 2130011644, 2130430807, 2140026692, 2140006797, 2140068320. 213009616A, 2120473279

Regulation 3(4) opening statement and 3(5) and (6) in their entirety. The adjudicator in the first case cites the legislation in her decision.

Representations treated as requests

2120488345, 2100587978, 2120408958, 2110494261.

Multiple choice decision: Code 12

2120562288

Failure to consider

http://davidmarq.com/uploaderv6_1/files/7/...ly%2520case.pdf

http://davidmarq.com/uploaderv6_1/files/7/...0discretion.pdf

http://davidmarq.com/uploaderv6_1/files/7/...520decision.pdf

http://davidmarq.com/uploaderv6_1/files/7/...520decision.pdf

http://davidmarq.com/uploaderv6_1/files/7/...520decision.pdf

Fettered discretion: I am unable to cancel

2130316200, 2130521902, 2130497615.

This post has been edited by Hippocrates: Mon, 12 May 2014 - 20:47

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[Mad Mick V]

A good exposition of "Abuse of Process"

One CEO says it's OK to park a second CEO issues a PCN-----not a procedural impropriety.

2180486406

Mr. Yousaf appeals against this penalty charge notice (PCN) on the basis of a procedural impropriety. The impropriety alleged is that the enforcement authority (EA) has issued and sought to enforce the PCN in circumstances where it is fundamentally unfair to do so.

The case is based on the factual circumstances described by Mr. Yousaf in his detailed notice of appeal, its appendices and his representations to the EA. He says that on the day in question he (he says ‘we’ but it is plain he was present at the time) parked the vehicle and went to a ticket machine where he inserted £2 into it, sufficient to pay for an hour’s parking. It did not produce a ticket. He spoke to a civil enforcement officer (CEO) who apologised and issued a note to be displayed in the windscreen so the vehicle did not receive a ‘ticket’ (in this context meaning PCN). The note was written on a blank PCN from the CEO’s machine and permitted the vehicle to remain until 6pm. The CEO said they would not get a PCN. Mr. Yousaf has provided a copy of the note in question. Mr. Yousaf has also provided a letter from a Miss Day who was present at the scene and corroborates Mr. Yousaf’s account. I do attach some, limited weight to the letter, which is signed.

The best corroboration for Mr. Yousaf’s account comes, however, from the photographs taken by the CEO who noted the alleged contravention at 16.58 and issued the PCN. One of the photographs shows a close-up image of a note in the windscreen. It is the original of the copy provided to this tribunal by Mr. Yousaf. The note is handwritten on a blank PCN and bears the logo of the EA. It reads, ‘Picked 2.00 pounds by machine. End time 18.00pm’. The visible presence of the note at the time of the alleged contravention is consistent with Mr. Yousaf’s account. The word ’picked’ on the note does not particularly make sense but the intended meaning of ‘end time’ shows that the note amounts to a permission for the vehicle to remain until 6pm that day.

The EA points out, correctly, that no pay-and-display ticket was displayed and that parking had not been paid for on the telephone payment system. The EA also points out, correctly, that the CEO who issued the PCN says he did not see the driver. But that is not what Mr. Yousef alleges. His case is that it was a different CEO who provided the note. The EA does not appear to have spoken to all CEOs who were on duty in that area at the relevant time to ascertain what, if anything, they know about the provision of this note to Mr. Yousaf. There is no evidence, therefore, that all the CEOs were spoken to and denied providing it. The EA has not engaged with the issue of the provenance of the blank PCN at all. The EA does not allege that it is a forgery or that it might have come from a stolen batch. On the face of it, this is a genuine blank PCN of a type that is kept in the possession of, and issued by, CEOs employed by the EA pursuant to s.76 of the Traffic Management Act 2004 (“the TMA”).

On the basis of the evidence of Mr. Yousaf, Miss Day and the photographic evidence of the blank PCN I am satisfied on the balance of probabilities that this document is genuine. The EA provides no alternative explanation for how Mr. Yousaf could have obtained the document. I therefore also find that it was provided by a CEO (albeit not the CEO who later issued the PCN) in the circumstances described by Mr. Yousaf and Miss Day. That is to say, a CEO employed by the EA pursuant to s.76 of the TMA and acting with its actual or ostensible authority, provided it in acknowledgement of the payment of £2 and permitting, or purporting to permit, the vehicle to remain there without penalty until 6pm. Although there is no express evidence on the point, I infer that, if he had not been provided with this assurance and the accompanying note, Mr. Yousaf would not have left his car in the car park with all the risk that it would have – quite rightly – received a PCN. I find that when he left the vehicle he was satisfied he would not receive a PCN.

Nonetheless a different CEO came along, ignored the note and issued a PCN.

What are the legal consequences of these findings of fact for the enforceability of the PCN that was issued?

The parameters of the concept of a ‘procedural impropriety’ within the meaning of the TMA and the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 were considered by Mr. Justice Burnett (as he then was) in London Borough of Camden v. The Parking Adjudicator (BFS Group 03568 t/a First for Food Service, Lee Sugden, Aidan Brady intervening) [2011] EWHC 295 (Admin). In that case Burnett J held that a procedural impropriety was confined to the definition in Regulation 4(5) of the 2007 Appeals Regulations. That sub-paragraph confines a procedural impropriety that renders a PCN unenforceable to a failure by the EA to observe a procedural requirement imposed by the TMA or either set of the 2007 Regulations. In this case, no such procedural impropriety is alleged or, indeed, present. The procedural requirements of the TMA and the two sets of 2007 Regulations have been complied with. In reality, Mr. Yousaf’s case is not that there has been a procedural failing within the meaning of Regulation 4(5) but that the decision to issue and to seek to enforce the PCN in the circumstances is more generally fundamentally unfair, or a breach of natural justice.

A challenge of such a type was referred, before the coming into force of the TMA and the 2007 Regulations, as a ‘collateral challenge’. There was ample authority that a traffic adjudicator could, in certain circumstances, order that a PCN should be cancelled on the grounds of some fundamental unfairness or procedural failing (see R v. Parking Adjudicator Ex parte Bexley LBC [1998] RTR 128 ). The judgment of Burnett J in London Borough of Camden at [46] makes clear that a ‘collateral challenge’ to a PCN issued pursuant to the TMA and 2007 Appeals Regulations must now be framed within the parameters of those Regulations; there is now no longer a general power to order the cancellation of the PCN on the basis of a collateral challenge as such. I turn then to consider the grounds of appeal within the parameters of the 2007 Appeals Regulations.

As I have said, there is no procedural impropriety here, nor is the traffic management order invalid. The 2007 Regulations also provide that a traffic adjudicator may make a recommendation to an EA in certain circumstances that a PCN should be cancelled, a possibility considered by Burnett J at [48]. That would not be an appropriate remedy in this case because there would remain a possibility that the EA could decline my recommendation. If that occurred the unfairness would not be cured.

At [53] of the London Borough of Camden case, Burnett J spoke of a further type of a ‘collateral challenge’ that did not sit comfortably in the above categories. It is based on the fact that parking contraventions typically used to be criminal offences. Parliament cannot have intended, in changing the status to that of a civil contravention, to have removed a defence that a motorist might have had before the criminal court. In certain, limited circumstances, it is open to a defendant in a criminal case to have the proceedings stayed on the grounds they are an abuse of the court’s process. The jurisdiction arises in two sets of circumstances (R v. Beckford [1995] R.T.R. 251 at 258) “(a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried.” It is collateral challenge of the second type in Beckford that arises for consideration here. Burnet J said; “… conduct on the part of the enforcing authority prior to the alleged contravention which would have made it an abuse to prosecute would be covered by this ground”. Expressed within the parameters of the 2007 Appeals Regulations, conduct that, if proved, would amount to an abuse of the process of a criminal court would mean that the alleged contravention would not be proved.

This type of parking contravention used to be a criminal offence contrary to s.35A of the Road Traffic Regulation Act 1984. Its status was changed in London to that of a civil contravention by s.65 of the Road Traffic Act 1991.

I turn then to consider whether the issuing and enforcement of the PCN in this case would amount to an abuse of process in the criminal court. There is no doubt that it is only in exceptional circumstances that a court would find that an abuse had occurred. The appropriate test for whether a prosecution amounts to an abuse of process in circumstances such as these is to be found in the case of R v. Abu Hamza [2006] EWCA Crim 2918 at [54]. After a review of various authorities, the then Lord Chief Justice said:

“These authorities suggest that that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment.”

I have found that there was a clear and unequivocal representation by the first CEO that Mr. Yousaf encountered that no PCN would be issued. A CEO is a person appointed under the TMA with conduct of investigations into parking contraventions. The only apparent condition to the representation was that the note was displayed. That condition was fulfilled because the note, written on a blank PCN was displayed in the car. Mr. Yousaf was satisfied, and entitled to be satisfied, that he would not receive a PCN, based on what the CEO had told him and what the CEO had done in providing the note.

Mr. Yousaf acted on that assurance to his potential – and actual – detriment. Had he not received the assurance he would not have left his car and would not have been exposed to the possibility – and the reality – of proceedings for the enforcement of the PCN. He could have – but did not - recover the £2 he paid. The reliance on the assurance has transpired to be entirely detrimental, save that the note written by the CEO permitted perhaps a few minutes more parking time than would normally be purchased for £2. I consider that irrelevant.

If this matter were prosecuted as it would have been prior to 1991 in a criminal court Mr. Yousaf would, in my view, have succeeded in an application to stay the proceedings as an abuse of the court’s process. The facts of this case are exceptional. It is, on the basis of my findings of fact, fundamentally unfair to enforce the PCN. In those circumstances, and applying the principle identified in [53] of the London Borough of Camden case, I do not find the alleged contravention proved.

Although reference to costs was made by the appellant no expenses have been identified. In any event, I do not consider this a suitable case for costs. There were good arguments on both sides.
----------------------------------

Mick

[PASTMYBEST]

Box junction contravention not strict liability offence,

2180478543

he main question to be considered is whether the authority has sufficiently complied with its duty to consider the representations and any supporting evidence from Mr Nelson, in particular whether Mr Nelson was at fault for the action that he took.
Mr Nelson has stated in the representations that: "Upon the green light filter, I could see a space into which I could move. It was only on proceeding into said space I realised the space may not have been entirely sufficient for my vehicle, but I was comfortable I was not affecting the passage of any other vehicle... ."
In its response the authority stated: ".... The purpose of box junctions is to keep busy junctions clear and free-flowing. If you are going straight across a box junction, you need to make sure you can cross it without stopping. If you are turning right and your exit road is clear, you may stop on a box junction while you wait for oncoming traffic to pass. We have looked again at the camera evidence, as well as considering your points in your letter, ... ."
I find as fact that: it was after Mr Nelson had already entered the box junction that he was able to acquire the knowledge that there was insufficient space on the left hand side for him to enter; Mr Nelson was not at fault for the action that he took.
The contravention is not one of strict or no fault liability
I am unable to be satisfied that the authority has complied with its duty to consider Mr Nelson's representations because it has not taken into sufficient consideration the requirement that Mr Nelson needed to have prior knowledge of the unlawfulness of the fact that he stopped in the box junction.

[Mad Mick V]

Free parking plus the 10 minute rule

Waltham Forest

2180505690

This appeal is against a penalty charge notice (PCN) issued in respect of an alleged contravention of the prohibition on waiting beyond the permitted parking period in High Road, The Waltham Forest (Charged-For Parking Places) Order 2016 (“the Order”). The Order designates parking places, and creates condition of their use, within the meaning of s.45 of the Road Traffic Regulation Act 1984. Therefore, penalties for alleged contraventions of it are included in paragraph 2 of schedule 7 to the Traffic Management Act 2004. In relation to the designated parking places on High Road, the Order permits free parking for a maximum period of 15 minutes.

Mr. Mahmood’s case is that there is insufficient evidence that his vehicle was parked for a period in excess of the 15 minutes during which parking at the location in question is free. After 15 minutes, parking must be paid for. I do not accept Mr. Mahmood’s case, put as it is. It is right to say that the photographs themselves do not prove the vehicle was there in excess of 15 minutes. However, the EA has provided a screenshot from its computer records showing the notes entered contemporaneously by the civil enforcement officer (CEO). There is no reason to believe those records are not accurate and I accept the truth of the matters stated by the entries in the records. The records show that the vehicle was first observed in the location at 12.04. The penalty charge notice was issued at 12.27 and, as shown by the CEO’s photographs, had been served by 12.28. The evidence is to the effect that the vehicle was at the location for 23 minutes before the PCN was issued, and 24 minutes before it was served. Therein lies the flaw in the EA’s case.

Article 4 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (“the 2007 Regulations”) reads as far as is relevant, as follows:

“4. Imposition of penalty charges

(1) Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle

(a) a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London);

(2) Paragraph (3) applies in relation to a contravention mentioned in subparagraph (a) … of paragraph (1) where a vehicle is stationary in a designated parking place and the vehicle has been left beyond the permitted parking period.

(3) No penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes.

(4) In this regulation

(a) “designated parking place” means a parking place established by virtue of an order made under… section 45 of the Road Traffic Regulation Act 1984 2;

(b) “permitted parking period” means

… (ii) a period of parking for which no charge is payable as authorised by or under any order made relating to the designated parking place.”

Sub-paragraph 3 applies to a contravention of this nature where it is alleged that a vehicle has been left beyond the permitted parking period, which includes a period of parking for which no charge is payable. The effect of sub-paragraph 3 is that a PCN cannot be issued until 10 minutes past the permitted parking period has elapsed. In this case, there is no evidence that the vehicle had parked in the designated parking place before 12.04. The earliest a PCN could be issued, therefore, was 12.29. In this case, the PCN was issued prematurely. Only 8 and not 10 minutes had elapsed before the PCN was issued. Accordingly, the PCN is unenforceable on the basis the issuing of the PCN amounts to a procedural impropriety because there has been a failure to comply with the mandatory requirements of the 2007 Regulations. I therefore allow the appeal on that basis.
--------------------------------

Mick

[Neil B]

UNREASONABLE DELAY 78 DAYS.

217042413A

Mr Aguilar appeals as he states that there was a delay by the local authority in responding to his representations. This meant that he was away on holiday at the time that the Notice of Rejection was issued and therefore lost the opportunity to settle the Penalty Charge Notice at the discounted rate.

Two Penalty Charge Notices were issued on 4th May 2017. They were for the alleged contraventions at the same location on 20th and 22nd April. Mr Aguilar representations were received by the local authority on 15th May 2017. The Notice of Rejections were issued on 31st July 2017. The Notice of Rejection offered the appellant the opportunity to settle the Penalty Charge Notices at the discounted rate out of time. The local authority is not obliged to re-offer the discounted penalty but it is usual for it to do so.

In its case summary the local authority does not explain why it took 78 days to respond to the representations. The Notice of Rejection does not refer to the delay or apologise for the delay. Mr Aguilar has provided evidence that he was abroad at the time that the Notice of Rejection was issued. The local authority does not refer to this in the case summary which states that the local authority is not prepared to re-offer the discounted penalty.

There is no statutory time limit by which a local authority must issue a Notice of Rejection for a Penalty Charge Notice issued for a moving traffic contravention. Had the Penalty Charge Notice been issued for a parking contravention and the local authority had failed to issue a Notice of Rejection within 56 days the representations would have been deemed to be accepted.

There was a delay issuing the Notice of Rejection for which the local authority offers no explanation.

I have considered the case of Davis and The Royal Borough on Kensington and Chelsea PAS Case 1970198981. The case considered the issue of delay. The adjudicator stated that the local authority is under a duty to act fairly and this includes taking steps to enforce the penalty within a reasonable time. The decision does not lay down rigid time limits but suggests that in a case without extraordinary features the authority should then respond to a notice to owner within 2 to 3 months.

The local authority did not respond to Mr Aguilar’s representations for 2 ½ months. I find that this is an unreasonable delay. I consider that the delay has means that the local authority has not complied with its duty to consider representations and and its obligation to act in a timely manner. I am not satisfied that the local authority has acted fairly.

I find that the local authority cannot now pursue any penalty against the appellant and so I allow the appeal.

[Mad Mick V]

Free parking period and RingGo


2190001456 (Extract)

Further, the image of the sign notifying motorists of the restriction advises that a motorist 'must be registered with RingGo' to qualify for the initial free 30 minute period; nowhere on the sign does it inform motorists that contact must be made with RingGo to activate that free period.

Whilst it is incumbent upon a motorist to consult signage and comply with restrictions, it is incumbent upon an enforcement authority to ensure the signage implementing the terms of a Traffic Management Order is adequate to communicate the nature and extent of the restriction to motorists.I do not find that to be the case in this instance.

Evidentially I am not satisfied that the contravention occurred, accordingly I allow this Appeal.

________________________

Mick

[PASTMYBEST]

Manchester Oxford rd bus gates consolidated decisions


https://1drv.ms/b/s!AtBHPhdJdppVqkNx3g8q3GPKWApV

[PASTMYBEST]

Grace period does not apply to a setting down/picking up bay RR


2180462270

Mr Saunders attended today.
Mr Saunders appeals as he argues that a Penalty Charge Notice could not be issued for an alleged contravention at 18:47 on 12th September because the provisions of the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 apply.
The CCTV footage shows the appellant’s car stop in a red route bay at 18:41:43. The car is still stationary when the footage ends at 18:47:07. Mr Saunders states that his wife was driving his car. He was arriving by a delayed train at West Dulwich station. The bay is situated close to the station. The sign indicates that there is a red route. The lower part of the timeplate has the symbol P for parking and states 2 minutes pick up or set down only. I accept the appellant’s evidence that his wife was waiting in the bay for his train to arrive so they could drive home.
The Regulations referred to above amend The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 .
The amendment applies to a contravention where a vehicle is stationary in a designated parking place and the vehicle has been left beyond the permitted parking period. The amendment states that no penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes.
A designated parking place is a parking place established by an order under the Road Traffic Regulation Act 1984.
A permitted parking period means (i) a period of parking that has been paid for as authorised by or under any order made relating to the designated parking place or (ii) a period of parking for which no charge is payable as authorised by or under any order made relating to the designated parking place.
The Traffic Management Order was made pursuant to the powers in section 6 of the Road Traffic Regulation Act 1984.
Article 4 of the Traffic Management Order deals with exemptions for parking set out in Schedule 2B. Schedule 2B sets out the lengths of red route on which there are exemption for parking and disabled person’s vehicles. Item 30 of the Schedule creates the bay in Thurlow Park Road and states that the maximum period of parking is 2 minutes pick up or set down only.
I am satisfied that the bay in Thurlow Park Road is a designated parking place as defined by the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 .
In the case summary Transport for London states that it has applied the 10 minute ‘grace’ period created by the 2015 Regulations to Penalty Charge Notices issued when vehicles are parked in red route bays where free parking is allowed usually for up to thirty minutes. The local authority states that a Penalty Charge Notice will not be issued until the vehicle has been observed for 40 minutes.
Transport for London argues that the vehicle needs to be parked in a bay adhering to all the restrictions in place in order to apply the grace period. Transport for London refers to the bay in Thurlow Park Road as a special purpose bay and not a parking bay. Transport for London argues that as no picking up or setting down happened within 2 minutes the vehicle was not complying with the terms and conditions of use of the bay.
During the period of observation of the appellant’s car no picking up or setting down took place. The Traffic Management Order authorises parking for no more than 2 minutes for the purposes of picking up and setting down. I find that Article 2(2)(b) (4)(b) (ii) does not apply in this case because the car was not parked as authorised by the Traffic Management Order.
I am satisfied that Transport for London was entitled to issue a Penalty Charge Notice following an observation of less than twelve minutes.
Mr Saunders also argues that the sign at the location is unclear and does not comply with the Traffic Signs Regulations and General Directions 2016. The sign states red route but does not have a red route sign on the timeplate. The sign does not state no stopping.
Schedule 6 Part 1 Item 2 of the 2016 Regulations states that the sign must consist of, at least, the top and middle panels of the sign shown in the diagram at the beginning of this part. The top panel has the no stopping symbol. The middle panel states no stopping.
I am not satisfied that the sign in Thurlow Park Road complies with the Traffic Signs Regulations and General Directions 2016. For that reason I allow this appeal.

Authority Response


Decision Date
18 Feb 2019
Adjudicator
Carl Teper
Previous decision
Appeal allowed
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
This is an application by the Authority for a review of the decision in this case on the grounds that the Appeal Adjudicator was wrong to decide that the red route sign plate was not compliant with the regulations. No complaint is made in relation to all other findings made in the original decision.
The Appellant has not attended because he was given incorrect information in relation to the nature of the hearing today. He contacted the Tribunal and explained, in a telephone conversation to the Tribunal that has been recorded in the notes, that he would not be able to attend this hearing but would like to attend any hearing that may be scheduled after this one.
The Appellant should have been told that once a matter is listed as an application for review the Adjudicator may grant the application and move straight to a decision in the case.
I have decided that this review application is to be refused for the following reasons:
First, there have been a number of errors and delays in this case, these include Adjudicator error, Tribunal staff providing misinformation and a delay in the authorisations being received at the Tribunal from the Authority.
Secondly, the Appellant is undoubtedly unaware of the status of todays hearing.
Third, I find that it is not in the interests of justice to adjourn this case to enable the Appellant to attend again.
Fourth, the Appellant attended at the original hearing.
Fifth, I find that the interests of justice, which include finality and proportionality, are not served by delaying this appeal further.
I also note that at the original hearing the penalty amount was recorded as £130.00 whereas it is stated in the case summary that the penalty was £65.00.
The current authorisation of traffic signs and road markings for red route controls on GLA roads and GLA side roads was only received, in its entirety, at the Tribunal this morning when I had commenced hearing this review application. It is dated 17 September 2013 and is under reference number GT50/139/0110.
This particular authorisation, GT50/139/0110, replaced the authorisation dated 26 October 2011 under reference GT50/139/0035, which was revoked.
There was also an authorisation dated 25 April 2013 under reference GT50/190/003, which was in addition to two previous authorisations. The first of these was dated 9 May 2012 under reference GT50/190/001, and a second, dated 29 June 2012, under reference GT50/190/002.
There does appear to have been a number of authorisations, which, as delegated legislation, will not be contained within the Traffic Signs Regulations and General Directions 2016.
At the original appeal hearing the Appellant had argued that the sign plate was not compliant with the regulations. Having considered the current authorisation I find that the Appeal Adjudicator did fall into error in stating that the red route sign plate, at the location where the Appellant was stopped, was not compliant with the current authorised signs.
However, I find that in a situation where a red route sign plate is materially different from all other red route sign plates, in this case there is no rondel with its distinctive red cross, there should be a reference to this in the Notice of Rejection or in the case summary.
Accordingly, I find that the Adjudicator was entitled to reach the decision she did on the basis of the evidence before her.
The application for a review is refused.

[PASTMYBEST]

Right turn exemption can ally at tee junction

2190062519

Adjudicator
Michael Lawrence
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons
The Appellant attended this hearing.
The contravention is that the Appellant "caused[d] a vehicle to enter the box junction so that [it] has to stop within the box junction due to the presence stationary vehicles”. The exemption for turning right applies to “any person who causes a vehicle to enter the box junction (other than a box junction at a roundabout) for the purpose of turning right; and stops it within the box junction for so long as it is prevented from completing the right turn by oncoming vehicles or other vehicles which are stationary whilst waiting to complete a right turn”- Law TSRGD regs 10(1) & 29(2), schedule 19 pt II clause 7.
The Highway code puts it clearly in this way:150: Box junctions. These have criss-cross yellow lines painted on the road (see Other road markings section). You MUST NOT enter the box until your exit road or lane is clear. However, you may enter the box and wait when you want to turn right, and are only stopped from doing so by oncoming traffic, or by other vehicles waiting to turn right. At signalled roundabouts you MUST NOT enter the box unless you can cross over it completely without stopping.Law TSRGD regs 10(1) & 29(2).
The cctv footage shows the Appellant’s vehicle making a right turn at a tee junction following another vehicle that was doing the same and that other vehicle stops just outside the box junction leaving insufficient room for the Appellant to clear the box junction and she is trapped in it.
The Appellant claims the turning right exemption, that she was only stopped from completing her turn as she entered the box ( at a tee junction ) by other vehicles which are stationary whilst waiting to complete a right turn. The counter argument is that when she stopped in the box the vehicle ahead had completed the right turn and was not waiting to do so and it is a that point you judge whether the exemption applies not when the vehicle ( that has allegedly contarvened) first entered the box junction. I am aware of different opinions amonst adjuducators ( there has been no court determination of the point) and that some would rule that the exemption applies in these circumstances.
The Appellant had obatined face book dicussions with the Enforcement Authority in which they have specifally advised a motorist in relation to this t junction that you may enter a yellow box junction when waiting to turn right and this is exactly what the Appellant did. The logic of the situation supports the Authorities’ face book advice. From freedom of information replies they have stated that the box junction was placed there for the specific purpose of facilating right turns from Lower Sunbury Road and to do this must entail a vehicle waiting in the box junction to complete their right turn manouvre. Moreover, the FoI revealed that contary to the guidelines in the Signs Manual the Enforcement Authority did not consult the police before creating this box junction.
Where an Enforcement Authority publiclly declare an enforcement policy or particular interepation of a traffic regulaion/restriction they are bound by that even if it contradicts a different and possibly correct interpretitation of the restriction it or attempted enforcement.
As the Appellant acted in accordance with the Enforcement Authority public advice her appeal must be allowed. If I am wrong about that, then I would rule that in any event the right turn exemption applies.

[Mad Mick V]

The practice of using Witness Statements to delay payment--Councils now seeking costs

2180070951

Contravention Parked resident/shared use without clearly display
Direction Date 08 May 2018
Adjudicator By Order of the Chief Adjudicator
Direction Full penalty charge notice amount stated to be paid within 28 days.
Reasons The adjudicator required you to produce evidence to support your witness statement/declaration.
You have not responded and /or the penalty has not been paid.
-----------------------------------------------------------

Decision date 20 Mar 2019
Adjudicator Anthony Chan
Decision Cost award allowed
Direction -
Reasons
The Appellant made a Witness Statement in January 2018 to the effect that he made representations to the Authority but had not received a reply. The County Court made a Revoking Order and the matter was referred to the Adjudicator. The Adjudicator directed the Appellant to pay the penalty.

In August 2018 and January 2019, the Appellant made two further Witness Statements to the effect that he appealed to the Adjudicator but had not received a response. It is not clear how the Appellant was able to make an appeal if, as he had previously declared, he did not receive a Notice of Rejection. The Adjudicator found that the Appellant’s Witness Statements had no merit and made orders for payment of the penalty. The Appellant was directed to pay the penalty.

I am asked to consider the Authority’s application for costs against the Appellant. Neither party attended the hearing today. The Appellant was informed that the Authority has applied for their costs. The Appellant has made no submissions in relation to the application.

The Witness Statement procedure is designed to assist when, for example an appellant has genuinely not received a notice and then lost the right to appeal within the prescribed time limits or that when the Appellant had not received a response from the Tribunal having made an appeal. It is the prescribed process and the fact that it has been used does not of itself mean that the party doing so has acted frivolously or vexatiously or that such conduct was wholly unreasonable. On the other hand, the process is not designed to be used as a way to indefinitely postpone payment of a penalty charge due

I am satisfied that costs should be awarded in this matter. The amount awarded includes the referral costs and administration costs.
________________

Mick

[Mad Mick V]

Redbridge Car Parks ----Prevented from Paying

We know that Redbridge have let their ticket machines decay and become unusable but this one relates to their Pay By Phone scam.

2180509840

The Appellant is appealing a Penalty Charge Notice issued in respect of parking in a car park without clearly displaying a valid ticket at the above location.

The matter is listed for personal hearing and the Appellant has attended and given evidence.

The Enforcement Authority relies upon the contemporaneous evidence of the Civil Enforcement Officer, a copy of the relevant Traffic Management Order and a copy of the PCN.

The Appellant contends that he was willing and able to pay for his parking but was prevented from doing so by the system operated by the Council.

I have carefully considered all the evidence in this matter, including the oral evidence of the Appellant which I found to be credible and thoughtful.

TheAppellant parked his vehicle in the car park in question, before boarding his train to work. The car park, which is effectively a commuter car park, is one of two car parks near to Woodford station. When he arrived, at around 8.45 am, the car park was open and already more than half full of vehicles. He attempted to pay for parking - firstly via the RingGo app, and then via another phone system. Neither system would accept payment for parking prior to 9am, presumably because parking was free until then. The Appellant then boarded his underground train and paid for his parking as soon as he was able - which was at 9.52 -by which time a PCN had been issued.

I am of the view that it is wholly unreasonable and unworkable to expect drivers, especially in a car park such as this one which is open and usable early in the morning, and before parking charges are incurred, and is evidently is frequented to a high degree by commuters, to wait for parking payment to be accepted. The Appellant was effectively prevented from paying for his parking despite being able and willing to pay upon his arrival at the car park. (I note and I accept the Appellant's assertion that dozens of cars had been similarly issued with PCNs).

I find that no contravention occurred and this Appeal is allowed.
-------------------------------------

Mick

[PASTMYBEST]

Pheonix way TMO defective

2190096099

Mrs Patel indicated shortly after this hearing was scheduled that she did not wish to attend personally and therefore I have dealt with it, as requested, as a postal hearing.
This is an appeal against four penalty charge notices (PCNs) issued in respect of alleged contraventions of a prohibition on certain types of vehicles, namely motor vehicles, on Phoenix Way, Hounslow. The prohibition is created by The London Borough of Hounslow (Prescribed Routes) (No.1) Order 2015, as amended by The London Borough of Hounslow (Prescribed Routes) (2015, No.1) (Amendment No.1) Order 2018.
The precise nature of the contravention created by the 2018 amendment to the 2015 Order, which I shall hereafter refer to simply as “the Order”, is in dispute. Suffice to say at this stage, there is no dispute between the parties that Mrs Patel’s vehicle, which is a motor car, drove on both Phoenix Way and Norwood Road. The undisputed evidence is, and I find, that it drove northbound on Phoenix Way, followed the natural left-hand turn in Phoenix Way and then, at the point where Phoenix Way becomes Norwood Road, continued to travel westbound on Norwood Road.
I would to pay tribute at the outset to Mrs Patel’s diligent researches and very thorough and persuasive submissions; they were most impressive. Although I would not have upheld all the grounds of appeal, all were arguable.
I shall deal first of all with what I consider to be the strongest ground of appeal and, indeed, the ground upon which I have allowed this appeal. Because the other grounds of appeal fall away I can deal with them far more briefly.
The first ground of appeal (although Mrs Patel’s Ground 3) relates to the nature of the contravention created by the Order. I have already set out the terms of the Order. It is Mrs Patel’s case that she did not contravene the terms of the Order or, in the alternative, that, if she did, there was no sign in the appropriate location conveying to road users the terms of the restriction beyond it. In either event, if Mrs Patel is right, the contravention could not be proved.
According to the schedule to the 2018 amendment, which adds an item (12) to schedule 9 to the Order, the road subject to the restriction is said to be ‘Phoenix Way, Honslow [sic], at its junction with Norwood Road’. The explanatory note to the schedule to the 2018 amendment, to which I attach some weight in respect of the proper interpretation of the amended Order, states:
“This Order amends the Order of 2015 by introducing prohibitions in Phoenix Way at its junction with Norwood Road.”
The PCNs themselves read that the location of the alleged contraventions is ‘Phoenix Way (Services)’.
As I hope is apparent from all the foregoing, it is clear, and I find, that the Order creates a restriction on Phoenix Way.
I have had regard to all the evidence submitted by both parties and, in particular, to the map extracts from the Highways Register provided by the enforcement authority (EA). I have dealt with a number of appeals concerning this particular restriction but I have not previously seen these map extracts. Upon these map extracts the EA has helpfully marked the point it considers the restriction created by the Order to take effect. I have also had regard to the photographic evidence of the signage that purports to indicate to users of the road the beginning of the restriction, as understood by the EA. Its placement is consistent with the point on the map where the EA considers the restriction to take effect. The signage is visible from the perspective of a motorist travelling, as Mrs Patel was, in a sweeping left turn from Phoenix Way northbound to Norwood Road westbound. There are two signs, either side of the carriageway. The signage complies with the Traffic Signs Regulations and General Directions 2016 and, in particular, with Diagram 619, which is item 12 in the Part 2 sign table within Schedule 3 to those Regulations. That is to say, the signs indicate that motor vehicles (cars and motorbikes) may not pass that point ‘except permit holders’. It is not suggested that Mrs Patel is a permit holder.
Paragraph 1 of Part 5 of the Schedule 3 General Directions states:
“1(1) The sign must only be placed to indicate the effect of an Act, order, regulation, bylaw, resolution or notice which prohibits or restricts the use of the road by traffic.
(2) When the sign is placed to indicate the point at which a restriction, requirement or prohibition begins or ends, it must be placed as near as practicable to that point.”
It is the EA’s case that the signage to which I have referred complies with both limbs of the above paragraph because it is sited at the point where the restriction created by the Order begins, and was placed to indicate the effect of the Order. In its case summary it says:
“… As the contravention occurs at the point of the junction where Phoenix Way and Norwood Road are located, evidenced by the enclosed maps in Folder H [the map extracts to which I have referred], the Council has sought to provide the most accurate description of the location [in the Order] in line with where the signs are located.”
It is the EA’s own evidence, however, taken from the marked map extracts and corroborated by the location of the signage itself, that the restriction begins at the very point where Phoenix Way becomes Norwood Road. I find, based on the EA’s own evidence, that the sign is placed precisely at the end of Phoenix Way and, by the same measure, at the very beginning of Norwood Road. The signs reasonably indicate to motorists travelling, as Mrs Patel did, towards them, that motor vehicles are not permitted to travel on Norwood Road, which is the road immediately beyond the signs. It would not be a reasonable interpretation of the signs that they related to the stretch of road upon which the motorist was already driving, and had already driven, i.e. Phoenix Way.
The effect of the Order is to create a restriction not on Norwood Road, but on Phoenix Way. Accordingly, I find that there has been a breach of the mandatory requirement of paragraph 1(1) because the sign does not indicate the effect of the Order to which the EA says it relates. Rather, it purports to indicate that motor vehicles are prohibited on Norwood Road whereas there is no such prohibition created by a traffic management order. I am fortified in this conclusion by the finding to the same effect of Adjudicator Teresa Brennan in Hothi v. LB Hounslow, decided on 5 January 2019 (2180474156), in which the appeal was allowed for the same reason contended for by Mrs Patel in her Ground 3. Although I am not strictly bound by the decisions of other adjudicators, the decision in Hothi is thorough and well-reasoned and was clearly decided on similar evidence. Indeed, the evidence that the road beyond the two signs is Norwood Road and not Phoenix Way is stronger in this case than in Hothi. I find the reasoning in Hothi persuasive.
Conversely, given that the Order creates a restriction on Phoenix Way, there is no evidence of any mandatory signage in accordance with Diagram 619 in the 2016 Regulations that Mrs Patel would have passed upon entering Phoenix Way from Cranford Lane. The advance warning signs at that point are ineffective for that purpose. It follows that the restriction that is in fact created by the Order is inadequately signed for a motorist entering Phoenix Way from Cranford Lane. There is one respect in which the restriction created by the Order is properly signed. That is, for a motorist travelling east-bound on Norwood Road towards Phoenix Way, the signs on the reverse of the signs that Mrs Patel past are apt to indicate to such a motorist that motor vehicles are prohibited on Phoenix Way, at its junction with Norwood Road. That is, in fact, the restriction created by the Order.
I do not find that there has been a contravention of the Order. I allow the appeal on that basis.
I hope that the EA will amend the wording of the Order so that it creates, as it intended, a prohibition on motor vehicles on Norwood Road.
In respect of Mrs Patel’s other grounds of appeal, I would have been minded to find that Norwood Road is a road to which the public have access, within the meaning of the Road Traffic Regulation Act 1984, in reliance on the principles contained in DPP v. Vivier [1991] R.T.R. 205, supported by Andrew Barsby, Private Roads: The Legal Framework (5th ed.), 2013, para 1-21 and Halsbury's Laws of England - Highways, Streets and Bridges, Volume 55, 2012, para 1. With respect, the case of Dawood, R (on the application of) v The Parking Adjudicator & Anor [2009J EWCA Civ 1411, which was a renewed application for permission to appeal at which the respondent was not represented, is not a ‘leading authority’ and, in any event, did not support the ultimate proposition put forward by Mrs Patel. The very nature of Norwood Road leading, as it does, to a service station open to the public, indicates that it is a road to which the public have access. Even on the EA’s interpretation of the Order, pedestrians and cyclists would have been able to use the road for their own purposes and as members of the public, not as bare licensees of the occupiers of the land at the other end of the road. That the road may or may not be privately owned is not inconsistent with it being a road to which the public have access. The fact that Mrs Patel herself used the road four times (and did not assert that she did so as a bare licensee of the occupiers of the land) rather suggests that she did so as a member of the public.
The PCN adequately described the nature of the alleged contravention; Mrs Patel was, to her knowledge, driving a motor car and so it was a clear inference that it was alleged that the prohibition in question related to such vehicles.
As to the decision to enforce all four penalties I would observe that the alleged contraventions did not occur on consecutive days (by contrast to the case relied upon) and it was a matter of discretion for the EA as to whether to enforce them.
Authority Response

[Mad Mick V]

Permit renewal problems and the amount of the penalty.
Code 12 or Code 19?
2190123464
The Appellant made the point that as his permit had expired by less than two weeks, the Authority should have used a Code 19 PCN. He submits that it is common practice to allow a lapse of several weeks.

The Authority points out that it allows a window of two weeks for a Code 19 and the Appellant's permit had in fact expired by over two weeks.

It is common ground that Code 12 and Code 19 overlap to some extent. At one stage, these were used to indicate "differential penalties". Code 19 bears a lower penalty and covers genuine forgetfulness to renew a permit.

Differential penalties are no longer used but the essence of the choice between the two Codes remain, and not really disputed.

What is disputed is the "grace period". While the Authority accuses the Appellant of using his own interpretation of the grace period, it has not escaped the Appellant's or my notice that the Authority failed to state this period in its Notice of Rejection. Furthermore, while it now states that the period is two weeks, it has offered no evidence to confirm this. It has not referred to any published document or guidance from which the information can be ascertained.

The responsibility for renewing a permit falls on the permit holder. I am satisfied that there was a contravention. That said, where the same situation can give rise to more than one contravention, the Authority is obliged to proceed on the one involving the smallest penalty. I must therefore consider whether the Authority has acted fairly in preferring the appropriate PCN code. I find that it has not done so. I allow the appeal.

Mick

[Mad Mick V]

Motorcycles in contravention on cycle stands on the footway.


Some excellent Chan logic implies motorcycles are not in contravention of footway parking.

2190123635
The Appellant attended the hearing in person.

I am allowing the appeal and I shall give my reasons below. I would note that the Authority seemed not to be engaged in the process at all. It failed to address the Appellant's points in any meaningful way if at all. It said in the case summary that the PCN was attached to the windscreen when it was on the handlebar of the scooter. It is not for me to supervise the Authority's approach to appeals. This lack of attention does however have significant bearing on the issues raised by the Appellant.

The Appellant submits that his motor scooter was not on a pavement. This is debateable but not determinant of the issue. A contravention occurs when a vehicle is parked with one or more wheel on a part of the road other than the carriageway. The Appellant's vehicle was undoubtedly on a part of the road other than the carriageway.

That said, the vehicle was in an area which had a different surface to the rest of the pavement and it had stanchions which appear to be provided by the Authority for pedal cycles to be secured. The Appellant's case is that this is clearly an area for parking and there is no sign to say that it is just for bicycles

I have on doubt that the Authority had intended to create a parking space for pedal cycles only. I am not satisfied that it given adequate considerations to the legal implications.

The so called pavement parking prohibition applies to "vehicles". A vehicle is not defined in the legislation but case law would suggest that it includes pedal cycles. The fact that some road traffic legislation refer to motor vehicles or mechanically propelled vehicles would also suggest that a "vehicle" can include those which are not mechanically propelled.

An Authority can by resolution permit pavement parking by vehicles but the legislation does not seem to allow Authorities to make allowance for certain types of vehicles only.

It follows that either the Appellant's motor scooter and the pedal cycles in the parking place are all in contravention, or there was no contravention at all.

I would think that the Authority can resolve the problem by deciding as a matter of policy that pedal cycles parking at the location will not be penalised. This will mean that there should be a sign indicating cycles only to avoid any confusion.

I allow the appeal.


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




Mick








This post has been edited by Mad Mick V: Sat, 27 Apr 2019 - 11:54

[Mad Mick V]

Hornchurch car park " honeypot" space is a dedicated parking bay
We've had a few of these around the country where the Council tries to contend that a vehicle is parked beyond the bay markings.
2190022864
I admire Mr. Reeves’ energy and industry in preparing and presenting his case; he told me he had taken 1,000 photographs of the “space” (to put it neutrally) that is the subject matter of this dispute and produced a number of them in evidence. The sheer number of photographs is in itself relevant, because one of the points Mr. Reeves seeks to make with them is that a very large number of other motorists have made precisely the same mistake (if a mistake it is) that his daughter made in parking his car in a place that the enforcement authority (EA) says is not a parking place. Rather, the EA says, Mr. Reeves’ vehicle was parked in an area of the car park that is outwith the marked parking places.

Mr. Reeves has obtained some historical images from Google Earth. These show that, some years ago, the space was indeed a marked parking place. It is – and remains - on the corner of a central block of parking places within a car park. The images also show that there are rows of parking places on the outside edge of the car park. Between those rows on the outside and the central block is an asphalt carriageway that, Mr. Reeves tells me and I have no reason to doubt, is a consistent 18 feet and 2¾ inches in width.

The photographs taken by Mr. Reeves show remnants of a white line that, originally, indicated the outer edge of the space and, as such, clearly indicated that it was a parking place. That white line has very significantly, but not completely, abraded. On the opposite side of the space from, and parallel to, that abraded white line is a clear white line. On the EA’s case, that line marks the edge of the row of parking places in that central block. On Mr. Reeves’ case, that white line simply demarcates the boundary between the space and the parking place adjacent to it. The photographs taken by both Mr. Reeves and the civil enforcement officer also show that immediately adjacent to that abraded white line the asphalt changes, forming a natural boundary. The asphalt on the far side of the line from the space forms the carriageway. Further, those photographs show that one of the sides of the space comprises guttering that extends along the whole row of parking places in the central block.

In short, notwithstanding the abrasion of what used to be a white line that formed one of the boundaries of the space, the space does appear to have natural boundaries around an area that is, undoubtedly, sufficient to contain a car and, indeed, is of the same dimensions as the adjacent parking places. The space falls outside the clear parameters of the carriageway.

Clearly, as Mr. Reeves’ photographs demonstrate, very many people seem to believe that the space is indeed a parking place. That is not conclusive evidence that the space reasonably appears to be a parking place but it is evidence that would tend to suggest that the space does, reasonably, have that appearance. Mr. Reeves makes the point that if the EA wishes to inform motorists that an area of a car park that is not the carriageway, that has boundaries forming the right shape and size to contain a car and is the same shape and size as other parking places, then it should take positive steps to inform motorists that it is not a parking place. Mr. Reeves suggests chevrons.

I agree with Mr. Reeves’ case and uphold his appeal. Put simply, the space has almost every appearance of being a parking place and could reasonably be seen as such. Whilst some motorists might recognise that it lies outwith the set of parking places, that it is far from obvious. In those circumstances, the markings (or lack of them) are inadequate and I do not find the contravention proved.

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




Mick

[Mad Mick V]

Traffic Signs Manual now updated (March 2019) to incorporate TSRGD 2016 regulatory changes
https://www.google.com/url?sa=t&rct=j&a...dvsOKy9ilJhlM4p
Mick

[Mad Mick V]

Council must prove that the original PCN to a hire company has been cancelled before issuing a new PCN to the hirer



2190142549

This is one of three cases before me where the Appellant’s vehicle is seen on the CCTV to execute a U-turn in breach of the prohibition indicated by three very clear “No U-turn “signs. The Appellant, however raises the issue of the delay in issuing the PCNs which on their face are outside the statutory 28 day time limit. The onus is on the Council to prove that the PCNs were served within those time limits. The Council states that the delay occurred as the PCNs were originally served on the registered keeper of the vehicle which transpired to be a hire company. So far as that goes I see no reason to doubt that this was so. However the Council is required to prove that that PCN was cancelled as a result of representations made and that the PCNs in the present case were served within 28 days of the date of that cancellation. In the absence of the correspondence /representations relating to the initial PCN there is no clear evidence as to the date of the cancellation and I am therefore unable to be satisfied the PCNs were served with in the statutory time limit. No penalty may therefore be demanded on the basis of them.
____________________________
Mick

[Mad Mick V]

Council failure to supply the Schedules to the Traffic Order at Adjudication

2190099042

The appellant appeared before me today represented by Mr Pack.

The council was represented by Mr Leask.

Upon Mr Pack submitting that the council had failed to prove the contravention given it had not provided to the appellant or the tribunal the Schedules to the Traffic Management Order (TMO) in which the restriction that applied to this bay was set out that being accepted by Mr Leask.

I reserved my decision to consider the submission that was made.

A TMO is delegated legislation. There is a duty on the authority bringing proceedings under delegated legislation to adduce all supporting documentation in order to prove its case. There is no duty on the party against whom proceeding are issued to request the same.

Mr Leask did not have the Schedules with him.

I am not satisfied as to the merit of the other submissions made by Mr Pack on the appellant's behalf but I have concluded that his argument on this issue has force.

Given the complete TMO including schedules was not served by the council on the appellant or provided to the tribunal I am not satisfied that it has proved this contravention.

The appeal must accordingly be allowed.

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




Mick

[Mad Mick V]

Bus lane CCTV evidence, if requested, needs to be received 7 days before a Tribunal hearing.


This is a Review of a Brent case:-

2190095074

This is an application by the Appellant for a review of a decision of the Adjudicator who refused his appeal on 3 April 2019. The Appellant had attended the appeal hearing, but has not attended the application today.

The main thrust of the Appellant's argument before the original Adjudicator was that he received the CCTV recording a few days before the hearing and it was unfair for the Authority not to provide access to the CCTV recording at the representation stages.

The Authority submitted a six page submissions. They essentially repeated the Appellant's submissions of roughly the same length but did not say why the Appellant's submissions were not sustainable.

The original Adjudicator found, and I agree, that the law does not require the disclosure of any evidence at the representations stage. The Adjudicator has not made an error of law in this regard.

However, while there is no legal obligation to offer a view of the CCTV recording at the representation stages, the same cannot be said after an appeal is made. The legislation has provided for admissibility rules with regards to bus lane contraventions. These are contained in Schedule 1 to the London Local Authorities Act 1996 (as amended). Paragraph 7 (1)(6) of the Schedule provides:

"Nothing in sub-paragraph (1) or (4) above makes a document admissible as evidence in proceedings under paragraph 6 above unless a copy of it has not less than 7 days before the hearing, been served on the appellant; and nothing in those paragraphs makes a document admissible as evidence of anything other than the matters shown on a record produced by a prescribed device if that person, not less than three days before the hearing or within such further time as the traffic adjudicator may in special circumstances allow, serves a notice on the council enforcing authority requiring attendance at the hearing or trial of the person who signed the document."

The focus by both parties on disclosure at the representation stage has meant that compliance with the admissibility rule n paragraph 7 has not come to the fore. There is no apparent finding as to when the Appellant received the DVD containing the recording. There is nothing to contradict his claim that it was 29 March. The Tribunal received the evidence on 28 March. Even if the evidence was served on the Appellant on 28 March, it would have been served it was served just short of 7 days before the hearing.

Furthermore, Paragraph 7(1) of Schedule 1 also provides that " Evidence of a fact relevant to proceedings under paragraph 6 above may be given by the production of a record produced by a prescribed device; and (in the same or another document) a certificate as to the circumstances in which the record was produced signed by an authorised officer of the enforcing authority.

The certificate in this case was in the form of a statement signed by Durga Pokurec. The statement produces "4 photographs from a video recorder". There was no reference to the video recording so it cannot be said that the video recording itself had been produced by a certifcate.

The failure to allow for the 7 days and the failure properly to certify the production of the evidence means that the video recording cannot be admitted as evidence. As the Adjudicator has made clear that his finding of the contravention is premised on his view of the moving images, I must allow the appeal.




Mick

This post has been edited by Mad Mick V: Mon, 3 Jun 2019 - 17:34

[Mad Mick V]

TfL PCNs to individuals but addressed to the Company Secretary are invalid.

2190181937

The Appellant disputes the PCN stating that it was incorrectly addressed to "The company Secretary" and that it is not possible to determine by the use of the camera the weight or contents of the goods being carried as to whether they required the use of the vehicle to transport them.In addition the appellant states that he wanted to collect something which was not ready.

The video evidence does show the driver exiting the vehicle with a large carrier bag and returning a few minutes later without it. The appellant's evidence is vague as to the contents of the bag and what he claims he was intending to collect. The onus is on the motorist to prove that they fall within the loading/unloading exemption.

However with regard to the PCN, the local authority say that the words "Company Secretary" were inserted into the PCN in error but that this should not invalidate the PCN.

I do not agree.

The PCN is a legal document and should be accurate as to its contents and to whom it is addressed, and which should accord with the registered keepers details at the DVLA. As the addressee is incorrect I find the PCN to be defective and allow this appeal.





Mick

[Mad Mick V]

Rotherhithe Tunnel and its Approach Roads

This puts paid to a lot of our appeal grounds.


2190149923
This is one of a large number of cases listed before me many of which raise issues relating to the weight restriction in force in the Rotherhithe Tunnel and to the clarity or otherwise of the signage indicating that restriction. In the cases involving personal Appellants the enforcement authority, TfL, attended the hearing (and its adjournment) represented by its officer Mr. Garrett. Although each individual case must be decided on its own merits some of the same points are raised time and time and again, either separately or in combination. In summary these may be stated as the inadequacy of the indication that the limit is only two tonnes, the absence of any indication that the 2 tonnes means the weight the vehicle is capable of carrying as opposed to the actual weight, and the impression given by the sign that the restriction applies only to lorries. In addition some Appeals raise issues as to what the vehicles gross weight actually is. and whether or not the vehicle falls within the definition of a goods vehicle at all.

In the cases where a personal hearing took place TfL has made detailed written submissions dealing with these and other potential points relating to enforcement. At the conclusion of the hearing I reserved my decision to give the matter the detailed consideration it requires. Having done so it seems to me appropriate to include in this and nearly all the cases identical paragraphs setting out my decision on the relevant issues, and then to deal as may be necessary with any remaining issues raised in individual cases.

The Appellant will therefore appreciate that not everything in the extensive paragraphs that follow will necessarily apply to his/her particular case.

THE RESTRICTION AND TRAFIFC MANAGEMENT ORDER

By virtue of a Traffic Management Order coming into force on the 21st September 2018 a weight restriction for goods vehicles with a “maximum gross weight exceeding 2 tonnes” was imposed on defined sections of roads immediately leading to the Rotherhithe Tunnel (Branch Road and Brunel Road). The Order was subsequently amended with effect from the 1st May 2019 to include definitions of “Goods vehicle” and “maximum Gross weight” and to amend a previous consolidation Order to change the prohibition on vehicles actually entering the tunnel from 17 tonnes maximum to bring that prohibition, rather late in the day, in line with the 2018 Order.

DEFINITION OF A GOODS VEHICLE

At the date of the alleged contravention the definition of a goods vehicle in the Order of the 18th April (and which is lifted from the definition in the Traffic Signs Regulations and General Directions 2016) i.e. a motor vehicle or trailer constructed or adapted for use for the carriage or haulage of goods or burden of any description”) was not in force. However it seems to me that considering the meaning of the words as a matter of ordinary use of the English language a similar conclusion is arrived at. Whether a vehicle is a goods vehicle depends on what it is, what it is designed for, not what it is being used for. A saloon car does not become a goods vehicle as soon as goods are put in it, and a van does not cease to be a goods vehicle because it happens to be empty.

Whether or not a vehicle is a goods vehicle is essentially a question of fact. TfL relies heavily on the category allocated to it by the DVLA, which is based on its type approval (category N for goods vehicles). It submits, in simple terms, that if the manufacturer tells the authorities that it considers its vehicle to be a goods vehicle then it should be treated as such on the basis that the manufacturer must be taken to know what the vehicle is constructed to do. Whilst I would not regard the DVA record as unchallengeable I would agree that this is extremely persuasive evidence and that in the absence of any evidence of some error on the part of the DVLA when registering the vehicle very strong evidence would be required to refute that of the DVLA registration.

The majority of the present cases involve vans of some description - which are self-evidently goods vehicles on any view.

MAXIMUM GROSS WEIGHT

The TMO prohibition applies to vehicles of a maximum gross weight. This is not the actual weight of the vehicle at the time but its maximum weight fully loaded to its maximum design capacity. It is the case that, no doubt as a result of hasty drafting, no definition of the expression “maximum gross weight” appears in the TMO as it was in force at the time. Nevertheless this is a long standing expression in Road Traffic law and is defined in the Road Traffic Act 1988 s 108 as “the weight of the vehicle laden with the heaviest load which it is constructed or adapted to carry”. It is a term used and defined in the TSRGD (see below). Other terms are also in use, The DVLA website states that -

Maximum authorised mass (MAM) means the weight of a vehicle or trailer including the maximum load that can be carried safely when it’s being used on the road This is also known as gross vehicle weight (GVW) or permissible maximum weight It will be listed in the owner’s manual and is normally shown on a plate or sticker fitted to the vehicle This weight is also the “revenue weight” of the vehicle (s60A vehicle Excise and Registration Act 1994 In proving that a given vehicle had a maximum weight in excess of 2 tonnes TfL has relied on the information held by the DVLA and which appears on the registration document showing that weight. This is as I accept, derived from information provided by the manufacturer, and I would regard this as all but conclusive in the absence of some very persuasive evidence from an Appellant that some error had occurred in the DVLA’s records. The manufacturer must be taken to know the weight the vehicle is designed to carry.

Some Appellants submitted that they cannot be expected to know this weight. I reject that submission. It seems to me that a driver of any goods vehicle should be familiar with the maximum load it is designed to carry which can be ascertained from the vehicle’s handbook or its registration document.

THE STATUTORY SIGNAGE

The sign showing the outline of a lorry with a figure on it , in this case 2t, is the sign prescribed by the Traffic Signs Regulations and General Directions 2016 ( “the TSRGD”) to show the maximum weight. Diagram 622.1A is stated (at Schedule 3 Part 2 item 13) to indicate “Goods vehicles exceeding the maximum gross weight indicated prohibited” Maximum gross weight is defined in Schedule 1 TSRGD as the “maximum laden weight”, which is in turn defined as “” the weight which the vehicle is designed or adapted not to exceed when in normal use and travelling on a road laden”. It appears that many of the drivers in these cases did not appreciate that the weight shown means the maximum weight the vehicle is designed to carry, not the actual weight the vehicle happened to be at the time.

In addition some Appellants have submitted that the use of a lorry image is incorrect or confusing; however this is simply the symbol prescribed by Regulations to indicate merely a goods vehicle (not necessarily a heavy goods vehicle or lorry). There is no separate symbol prescribed by the Regulations for light goods vehicles. The lorry symbol is used for this general purpose to cover goods vehicles of all sizes, in this and previous Regulations, on many types of sign; and many a small van driver has correctly relied on it for exemption when it appears on a sign indicating , for example, an exemption to entering a Pedestrian Zone in order to load/unload.

The sign is the correct sign for the restriction specified in the TMO, and is indeed the only sign TfL could lawfully use, at the entry point to the tunnel, to indicate the presence of the restriction. Any other sign of some design other than that prescribed the TSRGD would be open to challenge on the basis that it was not the legally prescribed sign. The sign is shown in the Highway Code, with which all motorists should be familiar, and is correctly described there as indicating a prohibition on a goods vehicle over the maximum gross weight shown.

As a result of the positioning of the cameras the sign is not visible in the photographs showing the various vehicles. However TfL has produced site photographs showing the signs in position; and although these are dated the 23rd May I accept TfL’s evidence that, as one would expect, the signs were erected prior to the coming into force of the Order and were regularly checked. In the absence of any compelling evidence to suggest that these signs were not there at the material time it seems to me the balance of probabilities lies strongly in of their being in place as shown.

ADVANCE WARNING SIGNS

I would accept in principle that a single sign at the very entrance to the tunnel ( though legally required in the prescribed form) would not necessarily be sufficient on its own to give adequate information as to the prohibition relied on ( which is what the signage is required to do). Various passages in the Traffic Signs Manual, official guidance on siting of signage, 2019 Chapter 3 support this position

5 1.2 “it is important to address the directional signing changes needed when a regulatory measure prevents some or all traffic from following the previously signed route

5.1.3 Advance warning of certain restrictions may be given by incorporating the prohibitory sign into directions signs. These are not a substitute for the terminal signs at the start of the restriction.

5.17 only one sign is required but care should be taken to ensure that a single sign is clearly visible to all road users and does not give rise to issues of enforcement or road safety…

In the present case by the time motorists sees the single statutory is sign there is a risk that they do so too late to take another “escape” route. In my judgement some sort of warning is required, and indeed it appears to be accepted by TfL that the warning is at least desirable. It duly points to the presence of the warning signs shown on its plan. I accept that the signs are in the positions shown. Photographs produced by some appellants appear to show the previous signage

The signs are of a large rectangular design containing four roundels, including one showing the 2t weight restriction, headed with the warning “ROTHERHITHE TUNNEL RESTRICTIONS SHEAD” and in the case of the signs positioned further away from the tunnel entrance , an indication of the route to be followed by restricted traffic. I accept TfL’s evidence that a motorist could not arrive at either the entrance without passing one of these signs. Some motorists refer to the possibility of these signs being temporarily obscured from certain angles by passing traffic. However given the number and size of these it seems to me improbable that a motorist could arrive at the mouth of the tunnel without having seen any warning sign. Indeed the majority of the motorists in these cases do appear to have noted the presence of the signs, but misinterpreted their meaning.

These signs do not comply with any signage in the TSRGD but they are not required to do so, falling to be treated as a freestyle warning sign. The only issue is whether they are effective to provide clear warning. It seems to me that they are adequate. They tell the motorist that there are “restrictions” at the tunnel and that the restrictions are those shown on the four roundels. Those roundels are copies of the signs prescribed by law to indicate the restrictions in force and are in my view a reasonable; method of giving advance information of the restrictions and the signage later to be encountered. There is a sign available in the TSRGD for giving advance warning of a weight restriction (Diagram 818.4). However this sign also similarly gives the warning by means of a copy of the same rondel (on a blue background with the wording Weight restriction). I am not persuaded that this sign (sited together in a group of the three others that would then be necessary for the other restrictions) would be any more visible or its meaning any clearer to motorists clearer to motorists that the one in use.

CONCLUSION

It seems to me that in those cases where the issues of signage are raised that the Appellants fell foul of the weight restriction not because of a failure of signage but as a result of a failure of understanding. It is in my view impossible to say that the rondels indicating the weight restriction were not reasonably visible, even as one of a group of four, and they are the entirely correct and prescribed signage to indicate that restriction. Naturally the number of PCNs issued (obtained in one case by a Freedom of Information request) and the fact that initially personnel were placed at the tunnel entrance to turn van drivers away might suggest the level of misunderstanding to be fairly widespread On the other hand one has to approach this kind of evidence with some caution in that for every driver who misunderstood the sign there may be many others who did not, and took care not to enter the tunnel.

The Appellant submits that he should have the right to pay at the discounted rate if having made representations those representations are rejected. This is not so. The penalty prescribed by law is £130. A motorist has the statutory right to settle the penalty at a 50% discount if payment is made within14 days. If payment is not made within that period any further opportunity to do so is entirely at the discretion of the enforcement authority. The discount period is not automatically extended by making representations or appealing. The discount is Parliament’s reward for prompt payment, not for prompt challenge.

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Mick