Sutton PCN 62 Options

[chinmeytops]

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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[chinmeytops]

Thank you , that is excellent.

Does it help my case to mention the fact that where I was parked was indeed a marked bay until a few years ago and one of the GSVs backs this up?

Equally, I am also aware that cars often park there all day without receiving a PCN and there is clear ambiguity and confusion as to whether parking is permitted at that point.

[cp8759]

Thank you , that is excellent.

Does it help my case to mention the fact that where I was parked was indeed a marked bay until a few years ago and one of the GSVs backs this up?

Yes it does help, and include a screenshot of GSV. You can then draw and even closer parallel between your case and the one I quoted.

[chinmeytops]

Thank you , that is excellent.

Does it help my case to mention the fact that where I was parked was indeed a marked bay until a few years ago and one of the GSVs backs this up?

Yes it does help, and include a screenshot of GSV. You can then draw and even closer parallel between your case and the one I quoted.

Thank you

[chinmeytops]

Hi, my hearing is this week.

Here is the council's response to my appeal.

Does anyone have any further thoughts before I enter the fray?

Thanks.

[cp8759]

Reply for the tribunal, should be the nail in the coffin:
---------------------------------------
The Council maintains that it is able to lift the footway parking restriction using a Traffic Management Order, but this is simply not the case. The footway parking restriction may only be lifted by means of a resolution under section 15(4) of the Greater London Council (General Powers) Act 1974 as has been ruled in numerous adjudications. The enforcement authority does not advance any basis to support the proposition that a Traffic Management Order issued under the Road Traffic Regulation Act 1984 means a resolution under the Greater London Council (General Powers) Act 1974 is not required, though I accept that if council officials are not aware of the correct legal position this may cause significant enforcement difficulties for the respondent.

Furthermore, I draw the tribunal's attention to the third paragraph of the council's submissions, where it is asserted that my vehicle was parked dangerously on the zig-zags of a pedestrian crossing. There is simply no evidence whatsoever to support this assertion, indeed this appears to be a wholly unwarranted allegation. In the absence of any evidence whatsoever, this unwarranted allegation is wholly unreasonable: No reasonable enforcement authority would make such an allegation on the basis of the evidence available. I aver it is a procedural impropriety for the enforcement authority to advance, at such a late stage, a wholly unwarranted allegation of criminal behaviour (parking on zig-zags being a criminal offence as well as a civil contravention) and in light of this, the appeal should be allowed.

This post has been edited by cp8759: Mon, 24 Sep 2018 - 20:08

[chinmeytops]

Reply for the tribunal, should be the nail in the coffin:
---------------------------------------
The Council maintains that it is able to lift the footway parking restriction using a Traffic Management Order, but this is simply not the case. The footway parking restriction may only be lifted by means of a resolution under section 15(4) of the Greater London Council (General Powers) Act 1974 as has been ruled in numerous adjudications. The enforcement authority does not advance any basis to support the proposition that a Traffic Management Order issued under the Road Traffic Regulation Act 1984 means a resolution under the Greater London Council (General Powers) Act 1974 is not required, though I accept that if council officials are not aware of the correct legal position this may cause significant enforcement difficulties for the respondent.

Furthermore, I draw the tribunal's attention to the third paragraph of the council's submissions, where it is asserted that my vehicle was parked dangerously on the zig-zags of a pedestrian crossing. There is simply no evidence whatsoever to support this assertion, indeed this appears to be a wholly unwarranted allegation. In the absence of any evidence whatsoever, this unwarranted allegation is wholly unreasonable: No reasonable enforcement authority would make such an allegation on the basis of the evidence available. I aver it is a procedural impropriety for the enforcement authority to advance, at such a late stage, a wholly unwarranted allegation of criminal behaviour (parking on zig-zags being a criminal offence as well as a civil contravention) and in light of this, the appeal should be allowed.

Thanks for this, very helpful. Is this something I should read out verbatim?

In terms of the process for the tribunal, am I expected to set out my case verbally?

The assertion in para 3 is complete nonsense. There are no traffic lights, zig zag lines or a busy road within 100-150 metres.

Also, in the third para, where the vehicle was parked is definitely in a section of the road where parking off-road does apply, so consistent with parking along this stretch other than two sections of double yellow lines.

In para 6, should I be ready with a response to the assertion that a resolution is not a defined term?

Paras 6-7 on page 2: is the response here that no resolution equals insufficient evidence that a contravention occurred?

Para 8, page 2: there is still sufficient space for a single bay.

Para 9, page 2: Not sure I follow their point here

Finally, would I have a reasonable case for costs? Thanks again.

[hcandersen]

I like their letter of 29 May:

Para. 3

Where an area or part of a road has an exemption from the footway-parking ban there are signs at the start and end of the exempted area....

Except we’ve now changed our minds!

We don’t need these signs (and note that they’ve not claimed anything regarding the scope of the parking place signs, only that the order is in effect a resolution) and we’ve decided that parking place signs within the marked bays will suffice.

So:
1. When did this Damascene conversion in their reasoning take place?
2. Where’s the legal basis for omitting the mandatory footway parking signs?

1 implies a procedural impropriety on their part, while 2 is a prima facie failure to comply with s15(5) of the GLC Act. In other words, even if the authority are correct in that an order equates to a resolution this does not relieve them of their duty under 15(5) to place the applicable traffic signs.

[chinmeytops]

I like their letter of 29 May:

Para. 3

Where an area or part of a road has an exemption from the footway-parking ban there are signs at the start and end of the exempted area....

Except we’ve now changed our minds!

We don’t need these signs (and note that they’ve not claimed anything regarding the scope of the parking place signs, only that the order is in effect a resolution) and we’ve decided that parking place signs within the marked bays will suffice.

So:
1. When did this Damascene conversion in their reasoning take place?
2. Where’s the legal basis for omitting the mandatory footway parking signs?

1 implies a procedural impropriety on their part, while 2 is a prima facie failure to comply with s15(5) of the GLC Act. In other words, even if the authority are correct in that an order equates to a resolution this does not relieve them of their duty under 15(5) to place the applicable traffic signs.

Thanks, yes, they have changed their minds, you're right! In their letter of 21 Sept., they are wrong to state that "Where the vehicle was parked, there are no signs allowing off-road parking". There are signs.

Surely, for an order to equate to a resolution, it would at very least have to reference Section 15(4) of the Greater London Council (General Powers) Act 1974?

[hcandersen]

cp8759 has covered that aspect, I’ve just added more to your argument from a different direction.

Even if an order made under a completely different act satisfied the council’s legal duty to pass a resolution - which it doesn’t, cue cp8759- then this still does not relieve the authority of their duty to place the necessary signs, which duty they acknowledged in their letter of 29 May but then chose to ignore in their submission to the adjudicator in addition to not erecting at the location.

This post has been edited by hcandersen: Tue, 25 Sep 2018 - 21:08

[chinmeytops]

Apologies, I am being really dim, but what is the crucial point regarding the signs, which currently are situated to mark the start and end of the stretch of the road where vehicles may park in marked bays?

The council is literally correct to say there are no signs (in the precise position ) where the vehicle was parked but not correct in that where the vehicle was parked is within the relevant stretch of road marked by signs.

Thanks.

[chinmeytops]

I attended the hearing today. I attempted to put my case as clearly as possible, citing the two pertinent appeals. The adjudicator was keen that I explain why I thought the council's assertion that their TMO could be regarded as a resolution was incorrect, given that "resolution" is not defined. I stated that the TMO did not reference the GLC (General Powers) Act 1974, which per the council's letter of 29 May was the basis of the alleged contravention. To that end, I said how can one tell that the TMO is disappyling section 15(1) of the GLC (General Powers) Act 1974.

Although he complimented me on the way in which I put my case, being able to cite the relevant legislation and previous appeals etc. - a big thank you to cp8759 and hcandersen for your expertise and support - he found in favour of the authority.

Additionally, in the two appeal cases cited, the adjudicator (I think) felt that, in neither case, had the authority provided anything by way of resolution, whereas in this case the authority had provided the TMO and were claiming that it represented a resolution.

I will post the written outcome once I receive it.

This post has been edited by chinmeytops: Wed, 26 Sep 2018 - 13:59

[hcandersen]

The mind boggles.

It’s the adjudicator’s task to apply the law. If they were uncertain as to the procedures to be followed to pass a resolution then that’s their shortcoming, not yours.

But let’s first see their decision and full reasoning.

[PASTMYBEST]

The mind boggles.

It’s the adjudicator’s task to apply the law. If they were uncertain as to the procedures to be followed to pass a resolution then that’s their shortcoming, not yours.

But let’s first see their decision and full reasoning.

HCA what are the procedures for the passing of a resolution? and who has the authority to pass such? If you do not want to put it on the forum will you PM me please

[cp8759]

PASTMYBEST however the resolution is passed, this would need to be evidenced by something in writing that records that "the council resolved that bla bla bla..."

Otherwise there is no evidence that the council resoled anything at all.

[PASTMYBEST]

PASTMYBEST however the resolution is passed, this would need to be evidenced by something in writing that records that "the council resolved that bla bla bla..."

Otherwise there is no evidence that the council resoled anything at all.

perhaps I am not being clear or misunderstand. A TMO is effectively a bye law and I think can be delegated to a sub committee or perhaps even a council officer. A resolution is a decision not to apply statute. My feeling is that this can only be taken by the full council not delegated. This is not the first case we have seen where an adjudicator accepts a TMO as enough, Perhaps we need to show it is not

[cp8759]

PASTMYBEST however the resolution is passed, this would need to be evidenced by something in writing that records that "the council resolved that bla bla bla..."

Otherwise there is no evidence that the council resoled anything at all.

perhaps I am not being clear or misunderstand. A TMO is effectively a bye law and I think can be delegated to a sub committee or perhaps even a council officer. A resolution is a decision not to apply statute. My feeling is that this can only be taken by the full council not delegated. This is not the first case we have seen where an adjudicator accepts a TMO as enough, Perhaps we need to show it is not

If the TMO referenced the Greater London Council (General Powers) Act 1974, or purported to lift the footway parking prohibition, the council might have an arguable (but still IMO wrong) case. But the TMO does nothing of the sort, so IMO the council's case is not even arguable.

[PASTMYBEST]

PASTMYBEST however the resolution is passed, this would need to be evidenced by something in writing that records that "the council resolved that bla bla bla..."

Otherwise there is no evidence that the council resoled anything at all.

perhaps I am not being clear or misunderstand. A TMO is effectively a bye law and I think can be delegated to a sub committee or perhaps even a council officer. A resolution is a decision not to apply statute. My feeling is that this can only be taken by the full council not delegated. This is not the first case we have seen where an adjudicator accepts a TMO as enough, Perhaps we need to show it is not

If the TMO referenced the Greater London Council (General Powers) Act 1974, or purported to lift the footway parking prohibition, the council might have an arguable (but still IMO wrong) case. But the TMO does nothing of the sort, so IMO the council's case is not even arguable.

My take on it would be that the council would need to make a resolution (full council) then the parking bods could make a TMO that included bays on the footpath . That is why I posed the question to HCA he has inside knowledge regarding the powers of a council and we probably need to start including something describing the differences between a resolution and a TMO in appeals

[chinmeytops]

The mind boggles.

It’s the adjudicator’s task to apply the law. If they were uncertain as to the procedures to be followed to pass a resolution then that’s their shortcoming, not yours.

But let’s first see their decision and full reasoning.

Decision attached below.

[chinmeytops]

I would really appreciate your feedback on the adjudicator's decision above. Many thanks.

[chinmeytops]

Just spotted this successful appeal:

" 2180260651


The Appellant advances his appeal on the validity of the Penalty Charge Notice (PCN), which has inflated the time for payment of the reduced amount from 14 to 21 days and has added time for service for both the payment timescales.

I have read the decision of Adjudicator Mr J Walsh case number 2180111742 and I agree with its reasoning, and I find that this PCN was not sufficiently compliant with the relevant statute and accordingly invalid.

The appeal is allowed."

My PCN seems to refer to a timescale with reference to date of service rather than date of notice.

Thanks for this - how detailed do the representations need to be? Did you ever receive a copy of the resolution under the FOI request you made?

For formal reps I would make it reasonably detailed but without going OTT, post a draft for comment before sending. The council has not provided anything under FOI yet, although they tell me they are chasing the relevant department. If they haven't provided it in a week, I'll escalate it to the ICO.

Did you ever receive anything in terms of a resolution under the FOI request? Thanks.