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highways act 1980 offence code HA2, wilful obstruction of highway
Redcurrymonster
post Thu, 10 Oct 2019 - 00:44
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I got a Fixed penalty notice, can i appeal this..
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parking on a pavement, there were no signs is this a PCN?

wilful obstruction of a highway?

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post Thu, 10 Oct 2019 - 00:44
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PASTMYBEST
post Thu, 10 Oct 2019 - 12:17
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Parking on the footpath is a decriminalised contravention, and IIRC that being so criminal action cannot be taken


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Fredd
post Thu, 10 Oct 2019 - 12:27
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QUOTE (PASTMYBEST @ Thu, 10 Oct 2019 - 13:17) *
Parking on the footpath is a decriminalised contravention, and IIRC that being so criminal action cannot be taken

They're not relying on this being footway parking as such, they're alleging the criminal offence of wilful obstruction of the highway.


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PASTMYBEST
post Thu, 10 Oct 2019 - 14:34
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Schedule 22A of the 1980 act does not specify an offence under s137 as fixed penalty offence

http://www.legislation.gov.uk/ukpga/1980/66/schedule/22A


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Neil B
post Thu, 10 Oct 2019 - 14:37
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QUOTE (PASTMYBEST @ Thu, 10 Oct 2019 - 15:34) *
Schedule 22A of the 1980 act does not specify an offence under s137 as fixed penalty offence

http://www.legislation.gov.uk/ukpga/1980/66/schedule/22A

Like my skip case.

Maybe we're missing something?


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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Mad Mick V
post Thu, 10 Oct 2019 - 15:34
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My query would be --Police --Yes; but have the Council the authority to issue a fixed penalty?

All sorts of issues might arise like --how can a Council operate in this fashion in a decriminalised parking area?

Mick
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DastardlyDick
post Thu, 10 Oct 2019 - 16:23
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I'll check, but I believe there was some new Legislation enacted last year which gave designated Council Officials the power to issue FPNs for some offences.
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Mad Mick V
post Thu, 10 Oct 2019 - 18:18
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They have always had the power to issue an obstruction FPN under the environmental legislation in circumstances like a bin lorry being blocked. However, in this instance, they are using the Highways Act.

Maybe the deregulation legislation might give a clue. The following I always understood to be a Police matter:-

If a person, without lawful authority or excuse, in any way wilfully obstructs the free
passage of the highway, he commits an offence, (section 137 Highways Act 1980).
'Highway' means any public road and includes the whole or part of a highway, other
than a ferry or waterway, (section 328(1)) and where a highway passes over a bridge
or through a tunnel, that bridge or tunnel is to be taken as to be part of the highway
(section 328(2)).

It is an offence to wilfully cause an obstruction in any public footpath or public
thoroughfare, (section 28 of the Town Police Clauses Act 1828).

No person in charge of a motor vehicle or trailer shall cause or permit the vehicle to
stand on a road so as to cause any unnecessary obstruction of the road
(regulation 103 of the Road Vehicles (Construction and Use) Regulations 1986).

Their web page indicates they can issue a FPN for wilful obstruction of the highway:-

https://www.redbridge.gov.uk/our-streets/re...nforcement-team

OP can we see the FPN please?

Mick

This post has been edited by Mad Mick V: Thu, 10 Oct 2019 - 18:49
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Mad Mick V
post Thu, 10 Oct 2019 - 19:17
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This is covered by Sch 4 London Local Authorities and Transport for London Act 2003:-

http://www.legislation.gov.uk/ukla/2003/3/schedule/4/enacted

This document allegedly allows London Councils to issue FPNs for wilful obstruction:-

https://www.google.com/url?sa=t&rct=j&a...vT2b1cZ9tfd2_3R

I don't fully agree but the facts are there.

Mick

This post has been edited by Mad Mick V: Thu, 10 Oct 2019 - 19:18
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Incandescent
post Thu, 10 Oct 2019 - 20:37
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QUOTE
If a person, without lawful authority or excuse, in any way wilfully obstructs the free
passage of the highway, he commits an offence,

Yet apparently, according to the letter from Redbridge, there is no appeal process, so how does one even provide an excuse if an FPN is received ? It really does show the extremely poor quality of UK lawmaking,
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hcandersen
post Thu, 10 Oct 2019 - 20:42
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There are no facts regarding 'obstruction' wilful or otherwise, there is only a FPN based on the nebulous reasoning of 'I have evidence'.

Well let's see the evidence.

As regards DPE v criminal, it seems the law is clear:

1) No criminal proceedings may be instituted and no fixed penalty notice may be served in respect of any parking contravention occurring in a civil enforcement area, except a pedestrian crossing contravention.



Whether a PCN was served is, IMO, not the issue. As adjudicators have repeatedly stated, a vehicle is in contravention once one of the criteria specified in Sch 7 is met.

So OP, what happened?

If you were parked contrary to para. 3(2)(a) of Sch 7 to the TMA, then you should admit this and assert that this therefore denies the council the power to institute criminal proceedings as per regulation 7(1) of the General Regulations.
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cp8759
post Thu, 10 Oct 2019 - 20:59
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I agree with most of what hcandersen suggests, but not the part about making any admissions. For starters, the offence quoted can only bee committed by the driver of a vehicle, it is not a keeper offence. The council has no powers to request the identity of the driver. So the council can only prove this offence if a council officer saw you park the car, and knows you by name. Failing this, there is no way for the council to identify the driver in court.

So, do you think a council officer saw the driver park the vehicle?

Do not tell anyone whether the registered keeper is the driver, not even us.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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hcandersen
post Fri, 11 Oct 2019 - 07:48
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I take cp's point, but I like to get things up front.

If this would increase the risk then write something along the following lines:

Thank you for your letter demanding payment of a fixed penalty for the alleged offence of 'wilful obstruction of the highway' by virtue of the vehicle of which I am the registered keeper being 'parked on the public footway'.

I would refer you to the Traffic Management Act 2004 and regulations made thereunder, in this case the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, regulation 7(1) of which states:

Criminal proceedings for parking contraventions in civil enforcement areas
7.—(1) No criminal proceedings may be instituted and no fixed penalty notice may be served in respect of any parking contravention occurring in a civil enforcement area, except a pedestrian crossing contravention.


I would further refer you to Schedule 7 of the Act, Part 2 of which provides as follows:

Other parking contraventions in Greater London

3(1)In Greater London there is a parking contravention in relation to a vehicle if it is stationary in circumstances in which any of the offences listed below is committed.

(2)The offences are—

(a)an offence under section 15 of the Greater London Council (General Powers) Act 1974 (c. xxiv) (parking on footways, verges, etc.);


For the avoidance of doubt, I have reproduced s15 below:

As to parking on footways, grass verges, etc.

[F1(1)Save as provided in subsections (3), (4), (7) and (11), any person who causes or permits any vehicle to be parked in Greater London with one or more wheels [F2on or over any part of a road] other than a carriageway [F3, or on or over a footpath,] shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.]


It therefore follows that as the vehicle was allegedly parked on the footway then an offence would have occurred under the GLC Act which, by virtue of Schedule 7 to the TMA, would have been a road traffic contravention under that Act which by virtue of regulation 7 would deny the authority the power to serve a fixed penalty notice.

The notice is therefore void and I look forward to confirmation that it has been formally cancelled.

If the recipient of this letter is in any doubt regarding the above then they must seek the advice of their legal officers.

Hugs

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Mad Mick V
post Fri, 11 Oct 2019 - 08:07
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+1

The Council has no authority is the crux of the matter.

Mick
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PASTMYBEST
post Fri, 11 Oct 2019 - 08:17
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QUOTE (Mad Mick V @ Fri, 11 Oct 2019 - 09:07) *
+1

The Council has no authority is the crux of the matter.

Mick


+ +1


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cp8759
post Fri, 11 Oct 2019 - 11:42
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I would change

would deny the authority the power to serve a fixed penalty notice.

to

would deny the authority the power to institute criminal proceedings.

If you're not going to pay it the FPN becomes somewhat irrelevant, what counts is whether the council has a power to prosecute. I would add that the offence could be prosecuted notwithstanding the TMA 2004 in certain circumstances that might or might not exist here, but there's no point in going off on a hypothetical discussion. Send the suggested response and let's see what they do next.


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No, I am not a lawyer.
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Redcurrymonster
post Sun, 13 Oct 2019 - 00:59
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see image taken...

does this change anything
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hcandersen
post Sun, 13 Oct 2019 - 06:52
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As regards this issue, no.

But hopefully as regards the future you will not put yourself and pedestrians in jeopardy: keep you car on the carriageway where it belongs.


For info, not only were you in breach of the prohibition on parking on the footway, you were also in contravention of the DYL which extends from the centre of the carriageway to the back of the footway.
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Incandescent
post Sun, 13 Oct 2019 - 08:26
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QUOTE (hcandersen @ Sun, 13 Oct 2019 - 07:52) *
As regards this issue, no.

But hopefully as regards the future you will not put yourself and pedestrians in jeopardy: keep you car on the carriageway where it belongs.


For info, not only were you in breach of the prohibition on parking on the footway, you were also in contravention of the DYL which extends from the centre of the carriageway to the back of the footway.

So the question has to be - why did this council not issue a PCN for contravening the double-yellow lines ? The contravention is undeniable. Something fishy is going on here. It does have the look of some smart-arse in the council seeing what he can do to get his yearly bonus.
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PASTMYBEST
post Sun, 13 Oct 2019 - 09:44
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QUOTE (Incandescent @ Sun, 13 Oct 2019 - 09:26) *
QUOTE (hcandersen @ Sun, 13 Oct 2019 - 07:52) *
As regards this issue, no.

But hopefully as regards the future you will not put yourself and pedestrians in jeopardy: keep you car on the carriageway where it belongs.


For info, not only were you in breach of the prohibition on parking on the footway, you were also in contravention of the DYL which extends from the centre of the carriageway to the back of the footway.

So the question has to be - why did this council not issue a PCN for contravening the double-yellow lines ? The contravention is undeniable. Something fishy is going on here. It does have the look of some smart-arse in the council seeing what he can do to get his yearly bonus.


Your right on something fishy, but I suspect a councillor or a council officer of seeing this and as no CEO available trying it on. The fact it is a CPE area is your saving grace. That is the route the council are obliged to take.


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