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Sutton PCN 62
chinmeytops
post Wed, 30 May 2018 - 13:09
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Hi

I received the attached PCN within the London Borough of Sutton on 22 May.






I made the following representation:

"Dear Sir/Madam

I am writing to challenge the Penalty Charge Notice issued yesterday evening.

Between Bridge Road and Bute Road, there is an exemption to the footway parking ban on the north side of Clifton Road. Parking on the south side is fully on road.

My vehicle was parked consistently with all other vehicles parked on the north side of Clifton Road. Therefore, it was not causing any greater obstruction than any other vehicle similarly parked on the footway.

Had my vehicle been parked fully on the road it would, in fact, have caused an obstruction to traffic passing along Clifton Road, as there was a car parked fully on the road directly opposite on the south side.

In order to clarify whether a parking contravention has, in fact, occurred, please provide me with a copy of the resolution, and any subsequent amendments, which created the exemption to the ban on footway parking on the north side of Clifton Road.

Until such resolution has been received by me, I maintain that no parking contravention has occurred and I would ask that you cancel the Penalty Charge Notice."

I received the following response:






How should I respond and when? Do I now need to wait for a Notice to Owner before I can formally challenge the PCN? Will that keep the discounted period open?

Thanks.

This post has been edited by chinmeytops: Wed, 30 May 2018 - 13:23
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post Wed, 30 May 2018 - 13:09
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PASTMYBEST
post Wed, 30 May 2018 - 13:31
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post a GSV


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chinmeytops
post Wed, 30 May 2018 - 14:07
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QUOTE (PASTMYBEST @ Wed, 30 May 2018 - 14:31) *
post a GSV


Not sure GSV is very helpful, as photos taken at different points in time:

https://www.google.co.uk/maps/@51.3631429,-...33;8i6656?hl=en
https://www.google.co.uk/maps/@51.3628876,-...33;8i6656?hl=en
https://www.google.co.uk/maps/@51.3629579,-...33;8i6656?hl=en
https://www.google.co.uk/maps/@51.3630006,-...33;8i6656?hl=en

Looks like it was a double bay before a dropped kerb was introduced. Now there remains sufficient space for one parked car, although the white markings do not seem to be clearly visible.

I had noticed in another thread that the bays only mark, but do not define, the exemption to the pavement parking ban.
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PASTMYBEST
post Wed, 30 May 2018 - 14:20
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That the council believe the footway parking ban has been exempted is clear form the signs and markings. So rather like a TMO creating a waiting restriction the council must have a resolution that states the area the ban is exempted within. It is not enough that the council say so, You have made the challenge to the extent of the resolution it is now for the council to prove. But you must stress this all the way. Other errors with the rejection letter but as it is to an informal challenge these can wait


We need the council photos

This post has been edited by PASTMYBEST: Wed, 30 May 2018 - 14:21


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ford poplar
post Wed, 30 May 2018 - 14:21
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Show us where you actually parked?

This post has been edited by ford poplar: Wed, 30 May 2018 - 14:22
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hcandersen
post Wed, 30 May 2018 - 14:40
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You know of the recent adjudication decision in respect of Sutton.

I would write back and refer to your challenge and that in their response they failed to address the issue of providing the resolution - refer to the exact part of your challenge.

You would also refer them to the recent decision of adjudicator ***. (Case No. *******) a copy of which is enclosed.

Having already lost an appeal on this point and been chided by the adjudicator, you would hope that the authority are not going to repeat this approach in your case which must necessarily give rise to a claim for costs at a successful adjudication.

Please produce the resolution. If you were parked outwith the exempted area then you would hold your hands up and pay. You would also hope that, if the contrary is proved, which includes there not being a resolution or it being only between defined limits without any reference to marked bays or if those bays are not in conformity with the specified dimensions in the resolution, then the authority would promptly cancel the PCN.

What would not be acceptable would be for the authority to not obtain the resolution and to bluff their way through the enforcement process hoping that received wisdom, anecdote and hearsay trump legal resolutions.

The last part is optional!

This post has been edited by hcandersen: Wed, 30 May 2018 - 14:41
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chinmeytops
post Wed, 30 May 2018 - 14:45
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I was parked in the section marked in GSV photos of 24 and 41 Clifton Road.

Council photos:




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cp8759
post Wed, 30 May 2018 - 14:49
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I agree with hcandersen, if they can't produce the resolution they can't have the money either.


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chinmeytops
post Wed, 30 May 2018 - 15:08
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QUOTE (hcandersen @ Wed, 30 May 2018 - 15:40) *
You know of the recent adjudication decision in respect of Sutton.

I would write back and refer to your challenge and that in their response they failed to address the issue of providing the resolution - refer to the exact part of your challenge.

You would also refer them to the recent decision of adjudicator ***. (Case No. *******) a copy of which is enclosed.

Having already lost an appeal on this point and been chided by the adjudicator, you would hope that the authority are not going to repeat this approach in your case which must necessarily give rise to a claim for costs at a successful adjudication.

Please produce the resolution. If you were parked outwith the exempted area then you would hold your hands up and pay. You would also hope that, if the contrary is proved, which includes there not being a resolution or it being only between defined limits without any reference to marked bays or if those bays are not in conformity with the specified dimensions in the resolution, then the authority would promptly cancel the PCN.

What would not be acceptable would be for the authority to not obtain the resolution and to bluff their way through the enforcement process hoping that received wisdom, anecdote and hearsay trump legal resolutions.

The last part is optional!



Thanks, do I respond now or do I now need to wait for a Notice to Owner before I can formally challenge the PCN? Will that keep the discounted period open?
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cp8759
post Wed, 30 May 2018 - 15:12
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There's no harm in writing back now but they will probably refuse to consider until you reply to the NtO. They've made it pretty clear that if you write to them again, they won't re-offer the discount, so your options are to pay the reduced charge now, or fight it all the way with the full penalty in play. Personally I would fight it.


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chinmeytops
post Wed, 30 May 2018 - 15:14
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QUOTE (cp8759 @ Wed, 30 May 2018 - 16:12) *
There's no harm in writing back now but they will probably refuse to consider until you reply to the NtO. They've made it pretty clear that if you write to them again, they won't re-offer the discount, so your options are to pay the reduced charge now, or fight it all the way with the full penalty in play. Personally I would fight it.


Thank you. Let's hope that the resolution point and the precedent adjudication decision from earlier this year clinches it.
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hcandersen
post Wed, 30 May 2018 - 15:36
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That's not how it works. If there is a resolution and if you were parked beyond its defined limits, then you're in contravention.

You would be writing back now NOT challenging their decision, that's not what I wrote. All you are doing is drawing their attention to the point already made regarding them needing to produce the resolution: the traffic signs and road markings no more mark an exempted area on their own than do parking place markings, traffic signs and yellow lines, there must be lawful underpinning of the restriction.

If they refuse to respond substantially, then it's all grist to the mill because your challenge was clear as was their reply: you were perfectly within your rights to ask for the resolution. For their first response we might look upon their failure to respond as an oversignt, but not for their second.

As the General Directions to Schedule 4 state clearly:

1.—(1) The signs provided for in this Schedule 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.

This applies as much to your case as to every parking place in the country.

I can also see traces of a marked bay where you were. Whether by commission or omission this has been allowed to degrade.

This post has been edited by hcandersen: Wed, 30 May 2018 - 15:37
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chinmeytops
post Wed, 30 May 2018 - 16:09
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"if the contrary is proved, which includes there not being a resolution"

If there is a resolution this would, presumably, define any exemption - whether in marked bays or between defined limits without reference to marked bays?

If there was no resolution in the first place, then would everyone be parked illegally given the London wide ban or would the Council be misleading anyone attempting to park legally by placing signs and marked bays in the road?


"I can also see traces of a marked bay where you were. Whether by commission or omission this has been allowed to degrade"

If the intention was to remove the previously existing bay, would the council have needed to have passed an amendment to any existing resolution, thereby legally removing this section from the exemption?

Thanks.
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hcandersen
post Wed, 30 May 2018 - 16:19
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I feel I'm being interrogated.

If there isn't a resolution, then the council are acting ultra vires and failing to discharge their duty as an enforcement authority by permitting parking on the footway when this is prohibited by statute. Not something they'd want exposed, the political embarrassment would be significant.

I dealt with this council for many years and Sutton dressed as lamb is probably as true now as it was then. Several politicians and officers fell when their unique approach to the law at that time was exposed.

Do not concern yourself on this point.
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chinmeytops
post Fri, 1 Jun 2018 - 11:56
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QUOTE (hcandersen @ Wed, 30 May 2018 - 17:19) *
I feel I'm being interrogated.

If there isn't a resolution, then the council are acting ultra vires and failing to discharge their duty as an enforcement authority by permitting parking on the footway when this is prohibited by statute. Not something they'd want exposed, the political embarrassment would be significant.

I dealt with this council for many years and Sutton dressed as lamb is probably as true now as it was then. Several politicians and officers fell when their unique approach to the law at that time was exposed.

Do not concern yourself on this point.


Apologies, I did not intend to interrogate, but rather to clarify my own understanding of the situation to ensure I responded appropriately to the "unable to cancel" letter. Thanks again.
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cp8759
post Fri, 1 Jun 2018 - 12:08
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I should add I made an FOI request for the resolution on Wednesday.


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chinmeytops
post Fri, 1 Jun 2018 - 12:52
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QUOTE (cp8759 @ Fri, 1 Jun 2018 - 13:08) *
I should add I made an FOI request for the resolution on Wednesday.


Thanks, I have now reverted reminding them of my request for a copy of any resolution and referring them to the recent adjudication decision.
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chinmeytops
post Tue, 5 Jun 2018 - 15:29
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Hi all. Here is the reply from the council to my email of late last week, Letter 1 and Letter 2:




with the following pages attached:










Please would you let me know whether the council have in any way addressed my initial request to "provide me with a copy of the resolution which created the exemption to the ban on footway parking on the north side of Clifton Road"?

How should I respond when I receive the Notice to Owner?

Thanks.
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hcandersen
post Tue, 5 Jun 2018 - 15:47
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Post the page with article 1 please.

My prediction is that this will show that this order was made under the Road Traffic Regulation Act whereas resolutions may only be made pursuant to powers under the GLC General Powers Act. (I know that’s what it will show, but arguments carry more weight when you disprove their evidence)

And who signed these letters - please do not delete this info, reinstate.

Probability:
The same person signed both.
That person is ignorant as regards the law.
You will write back, we’ll draft, and require that this matter is dealt wih by an appropriately experienced officer.
All grist to the mill.

Suttn dressed as lamb. Nothing changes; ignorance and stupidity seem to be systemic.

This post has been edited by hcandersen: Tue, 5 Jun 2018 - 20:35
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cp8759
post Tue, 5 Jun 2018 - 15:50
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They have not provided the resolution, the Traffic Management Order has nothing to do with the resolution made under section 15(4) of the Greater London Council (General Powers) Act 1974.


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