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PCN code 27. Parked in front of drive with no driveway, PCN code 27. Parked in front of drive with no driveway
k113ar
post Sun, 23 Apr 2017 - 19:13
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Dear all,

I hope everyone is well.

I received a PCN from London Borough of Redbridge. I parked in front of a dropped kerb. The dropped kerb was in front of a shop. Between my car and the shop is just a public footway. I got a contravention code 27 parking ticket. If the shop owner has no access to a driveway how can I get a ticket for this. Is that road space his/her parking space?? There were no yellow lines and I didn't park in a loading bay either, so I'm confused.

I've attached a pic of the PCN and where my car was parked.

Please can you advise.


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post Sun, 23 Apr 2017 - 19:13
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PASTMYBEST
post Sun, 23 Apr 2017 - 20:13
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post a GSV please


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stamfordman
post Sun, 23 Apr 2017 - 20:35
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GSV here:

https://www.google.co.uk/maps/@51.5519432,0...#33;6m1!1e1

Dropped kerb obscured by car and also on the other side. I doubt this was a crossing but an old DK for a previous use in the building, which is now a satellite shop and was empty last summer.

So this should probably be an easy win but if the OP can check there is no DK opposite that would seal it.

This post has been edited by stamfordman: Sun, 23 Apr 2017 - 20:37
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k113ar
post Sun, 23 Apr 2017 - 21:17
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QUOTE (stamfordman @ Sun, 23 Apr 2017 - 21:35) *
GSV here:

https://www.google.co.uk/maps/@51.5519432,0...#33;6m1!1e1

Dropped kerb obscured by car and also on the other side. I doubt this was a crossing but an old DK for a previous use in the building, which is now a satellite shop and was empty last summer.

So this should probably be an easy win but if the OP can check there is no DK opposite that would seal it.



Thank you so much for your reply.

Just to answer your question there is no DROPPED KERB directly opposite the dropped kerb I parked outside.

What do I write in my appeal letter to win, i.e. what argument do i use? Is it the fact that there is no access to any drive because I'm not obstructing anyone? Also how does not having a dropped kerb directly opposite i.e. on the other side have an impact.

Cheers

K113ar
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stamfordman
post Sun, 23 Apr 2017 - 21:33
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QUOTE (k113ar @ Sun, 23 Apr 2017 - 22:17) *
Just to answer your question there is no DROPPED KERB directly opposite the dropped kerb I parked outside.

What do I write in my appeal letter to win, i.e. what argument do i use? Is it the fact that there is no access to any drive because I'm not obstructing anyone? Also how does not having a dropped kerb directly opposite i.e. on the other side have an impact.


There are three grounds for a DK contravention and a pedestrian crossing is one - i.e. dropped kerbs on both sides. The full rules:

Assisting pedestrians crossing the road
Assisting vehicles entering or leaving the off street parking areas such as driveways across the footway, cycle track or verge.
Assisting cyclists entering or leaving the road.

So none apply in this case.
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PASTMYBEST
post Sun, 23 Apr 2017 - 21:33
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this case is very similar

2170054391

The Appellant did not attend the hearing.
There is no doubt the vehicle was parked adjacent to a dropped footway; and it is in clear that the footway at that point was originally lowered for one of the three statutory purposes set out in s 86 Traffic Management Act 2004, namely to facilitate vehicular access to adjoining premises. If a vehicle is parked adjacent to a footway lowered for one of the statutory purposes a contravention occurs, obstruction or no.
The issue in this case is, however, whether it can be said that at the time of the contravention the statutory purpose had ceased to exist, and, if so, whether that provides, as it were, a defence. In the absence of any evidence to the contrary I see no reason to doubt the Appellant’s evidence that the gates had been welded shut. In my view it cannot be the case that once a footway has been lowered for a statutory purpose it remains so for ever, no matter what the physical alterations to the adjacent area might be. On the facts of this case it seems to me that a welding shut of the gates is sufficient to amount to an alteration of a nature permanent enough for it to be said that the statutory purpose no longer subsists. Although I would not fault the CEO for issuing the PCN I am on balance satisfied that as it transpires it was issued incorrectly.

Make a challenge on the ground that the statutory reason for the DK has ended


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hcandersen
post Mon, 24 Apr 2017 - 07:25
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And be prepared for the authority to be stubborn and reject, whenever they see lowered kerbs they think, wrongly, 'dropped footway'.

Don't dodge issues, be positive. I parked at the location because it is unrestricted. Although the kerb was lowered some time ago, perhaps for one of the specified purposes, it is clear that this purpose no longer exists: vehicles cannot cross the footway at this point; there is no provision for cyclists to enter or leave the carriageway; and there is no dropped footway on the opposite side to facilitate pedestrians crossing the road, not that the council would want to encourage pedestrians to use this location given the very uneven and potentially hazardous condition of the surface. Consequently, the location does not fall within the scope of 'dropped footway', as defined in s86 of the Act, the contravention did not occur and the PCN must be cancelled.
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Mr Mustard
post Mon, 24 Apr 2017 - 11:45
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+1 posts 5,6 & 7.

Is the dropped portion of kerb (ignore the taper kerbs, the parts which slope) wide enough for a car in any event? (technically is dropped for a vehicle which includes a motorbike but a very rare drop that would be)


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DancingDad
post Mon, 24 Apr 2017 - 12:47
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QUOTE (Mr Mustard @ Mon, 24 Apr 2017 - 12:45) *
+1 posts 5,6 & 7.

Is the dropped portion of kerb (ignore the taper kerbs, the parts which slope) wide enough for a car in any event? (technically is dropped for a vehicle which includes a motorbike but a very rare drop that would be)


Plus 2, same posts

Looking back on historical GSV, this DK seems to have had a chequered past.
Wide enough for a vehicle and IMO originally to a garage or driveway.
2008 led to a blank wall.
2012 - 2015m led to roller shutter doors and signs up saying keep clear, so no question vehicle access.
2016 - Shop front.

These show if not original purpose, at least the historical progression from non enforceable, enforceable and back to non enforceable.
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k113ar
post Mon, 24 Apr 2017 - 13:51
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QUOTE (PASTMYBEST @ Sun, 23 Apr 2017 - 22:33) *
this case is very similar

2170054391

The Appellant did not attend the hearing.
There is no doubt the vehicle was parked adjacent to a dropped footway; and it is in clear that the footway at that point was originally lowered for one of the three statutory purposes set out in s 86 Traffic Management Act 2004, namely to facilitate vehicular access to adjoining premises. If a vehicle is parked adjacent to a footway lowered for one of the statutory purposes a contravention occurs, obstruction or no.
The issue in this case is, however, whether it can be said that at the time of the contravention the statutory purpose had ceased to exist, and, if so, whether that provides, as it were, a defence. In the absence of any evidence to the contrary I see no reason to doubt the Appellant’s evidence that the gates had been welded shut. In my view it cannot be the case that once a footway has been lowered for a statutory purpose it remains so for ever, no matter what the physical alterations to the adjacent area might be. On the facts of this case it seems to me that a welding shut of the gates is sufficient to amount to an alteration of a nature permanent enough for it to be said that the statutory purpose no longer subsists. Although I would not fault the CEO for issuing the PCN I am on balance satisfied that as it transpires it was issued incorrectly.

Make a challenge on the ground that the statutory reason for the DK has ended



QUOTE (hcandersen @ Mon, 24 Apr 2017 - 08:25) *
And be prepared for the authority to be stubborn and reject, whenever they see lowered kerbs they think, wrongly, 'dropped footway'.

Don't dodge issues, be positive. I parked at the location because it is unrestricted. Although the kerb was lowered some time ago, perhaps for one of the specified purposes, it is clear that this purpose no longer exists: vehicles cannot cross the footway at this point; there is no provision for cyclists to enter or leave the carriageway; and there is no dropped footway on the opposite side to facilitate pedestrians crossing the road, not that the council would want to encourage pedestrians to use this location given the very uneven and potentially hazardous condition of the surface. Consequently, the location does not fall within the scope of 'dropped footway', as defined in s86 of the Act, the contravention did not occur and the PCN must be cancelled.



Hi all,

Thank you all for your replies.

I've written up the following to send off do I need to add anything further?

I am writing to formally challenge the Penalty Charge Notice.

On 23/04/2017 my vehicle …….. was issued with a Penalty Charge Notice for the reason of offence code 27: Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.

In accordance with the Traffic Management Act 2004, my challenge is on the basis that the contravention did not occur. I parked at the location because it is unrestricted. Although the kerb was lowered some time ago, perhaps for one of the specified purposes that are mentioned in the following points:

1) Assisting pedestrians crossing the road – However, there is no dropped footway on directly on the opposite side to facilitate pedestrians crossing the road, (not that the council would want to encourage pedestrians to use this location given the very uneven condition of the surface.)

2) Assisting vehicles entering or leaving the off street parking areas such as driveways across the footway, cycle track or verge – However, vehicles cannot cross the footway at this point nor can they leave as there is a shop there. No vehicles can enter or leave using this dropped footway.

3) Assisting cyclists entering or leaving the road: However, there is no provision for cyclists to enter or leave the carriageway from this point.

Consequently, the location where the supposed contravention took place does not fall within the scope of a 'dropped footway', as defined in Section 86 of the Traffic Management Act 2004. The contravention did not occur and the PCN must be cancelled by London Borough of Redbridge.


Do I need to add any photos? and one of the replies (quoted in this post) mentioned a previous case which was similar to mine, where do i get the reference for this case, Should I include it in my appeal?

I look forward to hearing from you.

Regards,

k113ar
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stamfordman
post Mon, 24 Apr 2017 - 15:22
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I am writing to formally challenge the Penalty Charge Notice.

On 23/04/2017 my vehicle …….. was issued with a Penalty Charge Notice for the reason of offence code 27: Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.

In accordance with the Traffic Management Act 2004, my challenge is on the basis that the contravention did not occur. I parked at the location because it is unrestricted. Although the kerb was lowered some time ago, perhaps for one of the specified purposes that are mentioned in the following points, none now apply:

1) Assisting pedestrians crossing the road – However, there is no dropped footway on directly on the opposite side to facilitate pedestrians crossing the road, (not that the council would want to encourage pedestrians to use this location given the very uneven condition of the surface.)

2) Assisting vehicles entering or leaving the off street parking areas such as driveways across the footway, cycle track or verge – However, vehicles cannot cross the footway at this point nor can they leave as there is a shop there. No vehicles can enter or leave using this dropped footway.

3) Assisting cyclists entering or leaving the road: However, there is no provision for cyclists to enter or leave the carriageway from this point.

Consequently, the location where the supposed contravention took place does not fall within the scope of a 'dropped footway', as defined in Section 86 of the Traffic Management Act 2004. The contravention did not occur and the PCN must be cancelled by London Borough of Redbridge.

This post has been edited by stamfordman: Mon, 24 Apr 2017 - 15:25
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k113ar
post Mon, 24 Apr 2017 - 15:47
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QUOTE (stamfordman @ Mon, 24 Apr 2017 - 16:22) *
I am writing to formally challenge the Penalty Charge Notice.

On 23/04/2017 my vehicle …….. was issued with a Penalty Charge Notice for the reason of offence code 27: Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.

In accordance with the Traffic Management Act 2004, my challenge is on the basis that the contravention did not occur. I parked at the location because it is unrestricted. Although the kerb was lowered some time ago, perhaps for one of the specified purposes that are mentioned in the following points, none now apply:

1) Assisting pedestrians crossing the road – However, there is no dropped footway on directly on the opposite side to facilitate pedestrians crossing the road, (not that the council would want to encourage pedestrians to use this location given the very uneven condition of the surface.)

2) Assisting vehicles entering or leaving the off street parking areas such as driveways across the footway, cycle track or verge – However, vehicles cannot cross the footway at this point nor can they leave as there is a shop there. No vehicles can enter or leave using this dropped footway.

3) Assisting cyclists entering or leaving the road: However, there is no provision for cyclists to enter or leave the carriageway from this point.

Consequently, the location where the supposed contravention took place does not fall within the scope of a 'dropped footway', as defined in Section 86 of the Traffic Management Act 2004. The contravention did not occur and the PCN must be cancelled by London Borough of Redbridge.


Thank you so much for reading that. Do i need to attach any photos or reference previous case above ?
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stamfordman
post Mon, 24 Apr 2017 - 16:04
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QUOTE (k113ar @ Mon, 24 Apr 2017 - 16:47) *
Do i need to attach any photos or reference previous case above ?


I don't think so - this is parking 101 and the council shouldn't need any more. If they reject they'll probably do so regardless of anything else.
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k113ar
post Sun, 3 Sep 2017 - 17:37
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Dear all,

First of all I would like to say Thank you to all those who helped me appeal this ticket. From everyone's opinion and my own research I thought victory was on sight but I LOST the appeal with London tribunals. My ticket was in doubt controversial. VERY DISAPPOINTED with the decision. I believe this is relevant to you all.

Here is the appeal case reference:

217036693A. COPIED the ADJUDICATOR's RESPONSE BELOW.

Mr. Hassan appeals against a penalty charge notice (PCN) issued in respect of an alleged contravention of the prohibition on parking adjacent to a dropped footway, contrary to s.86 of the Traffic Management Act 2004. Given the issue in this case, for convenience I reproduce the relevant part of s.86 as follows:

86 Prohibition of parking at dropped footways etc.E+W

This section has no associated Explanatory Notes

(1) In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—

(a) the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—

(i) assisting pedestrians crossing the carriageway,

(ii) assisting cyclists entering or leaving the carriageway, or

(iii) assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; …

There is no dispute that Mr. Hassan’s vehicle was indeed parked on the carriageway adjacent to a lowered part of the footway (“the Dropped Footway”).

The argument advanced on appeal is ingenious. Mr. Hassan argues that the purpose of the lowering of the footway at the time it was lowered, which he argues was to facilitate the smooth passage of vehicles from the carriageway into what used to be a driveway, no longer exists. Mr. Hassan’s photographic evidence shows that what was probably a driveway has now been built over and so now no vehicles would need to be assisted across the footway to it. Thus, he argues, whereas at the time of the driveway existed, the lowered footpath would fall within s.86(1)(a)(iii) such that any vehicle parking adjacent to it contravened that section, now the Dropped Footway cannot fall within that section. It follows, he argues, that no contravention can have occurred. For the purposes of this aspect of his argument Mr. Hassan relies on the decision of Adjudicator Edward Houghton in the case of Rees v. London Borough of Lambeth (4 Mar 2017, 2170054391).

Mr. Hassan further argues that the original (or indeed existing) purpose of the lowering cannot fall within s.86(1)(a)(i) or (ii). In respect of sub-paragraph (i) Mr. Hassan argues that, because there is no corresponding dropped footway on the kerb directly opposite the Dropped, the Dropped Footway cannot have been for the purpose of assisting pedestrians crossing the carriageway. Also, parked cars prevent them from doing so. I can deal briefly with Mr. Hassan’s argument on sub-paragraph (ii); he is plainly correct to say that the assistance of cyclists was (and is) no purpose of the Dropped Footway.

It is regrettable that the Enforcement Authority have not seen fit, either at the appeal stage or when Mr. Hassan made his representations to it, to engage with the substance of his arguments. I would have been assisted by its argument in response and possibly by evidence of the original, and current purpose of the Dropped Footway.

I have considered with care the decision of Mr. Houghton in Rees. The basis for his conclusion that the contravention did not occur in that case was that there was clearly only one purpose for which the footway was lowered, namely to facilitate vehicular access to the gates of adjacent premises. He found that the gates had been welded shut so the purpose no longer subsisted. He interpreted the statute as meaning that the original purpose of the lowering must still subsist at the time of the alleged contravention. There is some support for that interpretation in the wording of the statute itself; the words ‘has been lowered… for the purpose of’ in s.86(1)(a), i.e. the present perfect tense rather than the past tense, imply that the purpose must be ongoing. I am not sure that is either the purpose or the effect of the section. It may be that s.86(1)(a) encompasses a purpose that was in the past but is no longer present. But I do not have to decide that point because in this case the factual matrix is different.

I find the following facts, based on Mr. Hassan’s oral and photographic evidence of the location in question. I accept that there is a building over what used to be a driveway. The primary purpose of the Dropped Footway was, I accept, to facilitate the smooth passage of vehicles over it. There is now no reason for vehicles to drive across the carriageway. Sub-paragraph (iii) cannot apply.

However, I find that that was not the only purpose of lowering the footway. The road has houses on both sides of it, and a series of dropped footways adjacent to each house. They were probably lowered additionally to enable pedestrians, particularly the elderly or infirm, to cross the road more easily. In respect of the Dropped Footway, next to the new building over what use to be a driveway is an alleyway. It leads, Mr. Hassan told me and I accept, to the back of some shops and a house. There would be a particular reason, therefore, for pedestrians leaving the alleyway to use the Dropped Footway. That there is not a corresponding dropped footway on the opposite kerb immediately opposite the Dropped Footway does not mean it cannot assist pedestrians. Mr. Hassan told me, and I also accept, that there is a dropped footway about 4 metres from a point on the opposite kerb directly opposite the Dropped Footway. Therefore, the Dropped Footway would assist pedestrians crossing diagonally, as I expect many do. There was, I find, a secondary purpose to the lowering of the footway in the location in question, namely that within sub-paragraph (i) and that purpose still subsists.

The Dropped Footway is therefore a footway to which s.86(1)(a) applies, by virtue of sub-paragraph (i) and the contravention therefore occurred.

Notwithstanding the helpful, thorough and persuasive submissions of Mr. Hassan, I reject this appeal.

J L Walsh

31 August 2017
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stamfordman
post Sun, 3 Sep 2017 - 17:42
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Oh dear - another DK failure. This one really is ridiculous - it obviously is not a pedestrian footway.

"The road has houses on both sides of it, and a series of dropped footways adjacent to each house. They were probably lowered additionally to enable pedestrians, particularly the elderly or infirm, to cross the road more easily."

No they weren't.

"That there is not a corresponding dropped footway on the opposite kerb immediately opposite the Dropped Footway does not mean it cannot assist pedestrians."

Arrgh...

My commiserations.

This post has been edited by stamfordman: Sun, 3 Sep 2017 - 17:44
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DancingDad
post Sun, 3 Sep 2017 - 18:02
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Keerist, when will adjudicators see these iffy DK PCNs for what they are.
This was simply a PCN for a historical DK with little or no modern purposes...

One cornerstone on the pedestrian issue has always been to cross the road and thus, if someone needs that assistance, say for a wheelchair, they are stranded without the corresponding DK.... this, to use his word, ingenious finding drives a coach and four through the DK laws.
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Incandescent
post Sun, 3 Sep 2017 - 21:51
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It seems to me that the prestidigitation of this adjudicator indicates he was determined to shoot down the case cited in support. I wonder how he gets on in the Staff Room with the adjudicator concerned.

I would ask for a review in the interests of justice. An adjudicator surely is acting ultra vires in guessing the intentions of the council relating to dropped footways -

QUOTE
"They were probably lowered additionally to enable pedestrians"


Clearly, if the council had pointed out in their evidence the several dropped footways and their purpose then an adjudicator would have most likely rejected the appeal. But they didn't. Where there is doubt, as there is here with the use of the word "probably" then that should be in favour of the appellant.

A rather poor occupant of the adjudicator's role.

This post has been edited by Incandescent: Sun, 3 Sep 2017 - 21:52
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k113ar
post Sun, 3 Sep 2017 - 22:24
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I was thinking of emailing the council and asking the purpose of the ticket and how it was issued.

Do you think I can appeal this decision using the criteria below:


A. Review under paragraph 12 in the Schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

There is no right of appeal from the adjudicator’s decision.

A review may only be granted in the following limited cases:

The decision was wrongly made because of an error by our administrative staff;

You failed to appear or be represented at a hearing for some good reason;

There is new evidence and the existence of this could not have been reasonably known of or foreseen before the decision;

The interests of justice require a review. You should note that an adjudicator's findings of fact are normally regarded as final and will only be overturned if they are plainly incompatible with the evidence that was before the adjudicator. The mere fact that you disagree with these findings is not a ground for review.

Please note that a review will only be granted if an adjudicator is satisfied that one or more of these applies. A review is not simply an opportunity for you to appeal again. You cannot ask for a review just because you disagree with the adjudicator's decision.

If you wish to apply for review, you should write to the Tribunal Manager at the address given on your decision letter within 14 days of the decision being sent to you or handed to you at the hearing centre.

You must:

Set out in full your grounds for asking for a review; and
Say which of the cases one to four above you claim applies and why; and
If you are writing outside the 14 days, explain why. The adjudicator will not accept an application out of time unless there is good reason for the delay
Request a personal hearing of your application if you want one – if you do not, the application will be decided on the papers only.
Unless you attend a personal hearing, the decision will be posted to you.

Please note that London Tribunals will not inform the enforcement authority of your application unless it is successful - you may wish to inform the enforcement authority of the application yourself.
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PASTMYBEST
post Mon, 4 Sep 2017 - 07:58
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QUOTE (k113ar @ Sun, 3 Sep 2017 - 23:24) *
I was thinking of emailing the council and asking the purpose of the ticket and how it was issued.

Do you think I can appeal this decision using the criteria below:


A. Review under paragraph 12 in the Schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

There is no right of appeal from the adjudicator’s decision.

A review may only be granted in the following limited cases:

The decision was wrongly made because of an error by our administrative staff;

You failed to appear or be represented at a hearing for some good reason;

There is new evidence and the existence of this could not have been reasonably known of or foreseen before the decision;

The interests of justice require a review. You should note that an adjudicator's findings of fact are normally regarded as final and will only be overturned if they are plainly incompatible with the evidence that was before the adjudicator. The mere fact that you disagree with these findings is not a ground for review.

Please note that a review will only be granted if an adjudicator is satisfied that one or more of these applies. A review is not simply an opportunity for you to appeal again. You cannot ask for a review just because you disagree with the adjudicator's decision.

If you wish to apply for review, you should write to the Tribunal Manager at the address given on your decision letter within 14 days of the decision being sent to you or handed to you at the hearing centre.

You must:

Set out in full your grounds for asking for a review; and
Say which of the cases one to four above you claim applies and why; and
If you are writing outside the 14 days, explain why. The adjudicator will not accept an application out of time unless there is good reason for the delay
Request a personal hearing of your application if you want one – if you do not, the application will be decided on the papers only.
Unless you attend a personal hearing, the decision will be posted to you.

Please note that London Tribunals will not inform the enforcement authority of your application unless it is successful - you may wish to inform the enforcement authority of the application yourself.


I would, incandescent lays out the reasoning


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hcandersen
post Mon, 4 Sep 2017 - 10:05
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Request a review.

Interests of justice.

The adjudicator misapplied the law.

The Act is specific:

86Prohibition of parking at dropped footways etc.

(1)In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

To paraphrase original adjudicator, and I hope objectively and fairly, the issue here is whether:

They (the other lowered kerbs in the area and presumably the one in question) 'were probably lowered additionally to enable pedestrians, particularly the elderly or infirm, to cross the road', and whether in the absence of any evidence from the authority as to the original or subsisting purpose, to which the adjudicator referred and whose absence he regretted, he was entitled to conclude that the purpose of the kerb in question met the specific test as set out in the Act, namely that this was to 'assist pedestrians crossing the carriageway'.

I respectfully make two points:
That on the balance of probabilities and in light of the evidence, as opposed to guesswork, the adjudicator was not entitled to reach the decision he did;

Whether in this context or any other, the purpose for which something is done should not be confused with the benefits, real or imaginary, which may or may not arise or derive from it.

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