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Appealed council fine rejected, Unfair parking charge
Abzg2k19
post Thu, 9 Jan 2020 - 13:12
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Hi,
My father recieved a council parking charge for not parking correctly in bay/markings.
My father only popped out for 5-6 minutes to drop his daughter of to her carer.
The problem was that the vehicle was more then half in the road markings bay and he had his daughter blue badge as he was going to drop his daughter off up town the blue badge can be seen but the clock couldn't as my dad thought he's in the bay and not on double yellows.
There were no signs saying u have to be in a bay to avoid a fine.
I have appealed the fine but they have rejected it,
Any help will be highly appreciated

https://postimg.cc/mc2YH1WP
https://postimg.cc/jCG4FjP1
https://postimg.cc/9rhq9wGc

This one you can see blue badge on display.
https://postimg.cc/NLw16nth
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post Thu, 9 Jan 2020 - 13:12
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hcandersen
post Thu, 9 Jan 2020 - 13:18
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The PCN pl and the location.

The challenge and their response pl.
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Abzg2k19
post Thu, 9 Jan 2020 - 13:38
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am writing to formally challenge the above PCN.

On 18 / 12 / 2019 my vehicle was issued with the parking ticket above for the following reason: 24, Not parked properly in a marking of the bay or space.

I am challenging this parking ticket because My father who was the driver only poped out for 5-6 mins to drop his daughter who is mentally disabled to her aunty who was at QD right opposite the road, she is the carer for her and as my dads daughter has a blue badge and as there was no other spaces, as you can see in the picture your parking attendent took.

The vehicle was more then half in, as you know its the busiest time of the year so parking in and around town is a nightmare for blue badges and pay and display its very difficult to find a parking space any time let alone near Christmas, the car is also a mobility car so its quite a big vehicle if it was a normal size vehicle it might of fitted within the bay, my father thought he was in the bay and as he was only going to be about 5 mins and in a hurry he didnt realise that he was behind the bay line.

Even if it was parked not within the bay lines he was allowed to park on the double yelllow lines if he displayed his clock but in a hurry and thinking he be in and out as he's just dropping his daughter of to her carer and he also belived he was in the bay. I believe it was just a honest/genuine mistake which anyone could of made.
my dad was out in time to talk to the parking attendant but it was too late as he had taken the pics and wrote the ticket but didn't put it on windscreen so my dad waited until he did

Under the Equality Act 2010, the driver has 'Protected Characteristics' which extends to them the unequivocal right to use any 'reasonable adjustment' provided by any landholder/client/operator when visiting a customer-facing environment, including car parks. 


Please find enclosed evidence to this effect and I also ask that you freeze any early payment discount I'm entitled to, pending the outcome of this appeal.

For this reason, I look forward to receiving notification within 28 days that the PCN has been cancelled.

Many Thanks

This is my appeal i sent them.
Below is what i received back from them,
The pcn place is railway street in Aylesbury,
HP20 1RF

https://postimg.cc/FdkSQ2LZ
https://postimg.cc/gnzvxBFY
https://postimg.cc/4HJhhn08
https://postimg.cc/cgzVv86W

This post has been edited by Abzg2k19: Thu, 9 Jan 2020 - 13:40
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stamfordman
post Thu, 9 Jan 2020 - 13:50
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It's a lower level penalty at least. Their rejection though does not admit that what you were doing is an exemption,* and you did not make explicit that your activity was exempt.

They say that had you been completely on the double yellow with the clock that would have been OK.

So I think you have good grounds to go for formal reps for your father.


*Alighting/boarding and also loading are exemptions for code 24.

Also I've just seen that they saying a previous PCN was cancelled. Each PCN must be considered on its merits.

This post has been edited by stamfordman: Thu, 9 Jan 2020 - 14:02
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hcandersen
post Thu, 9 Jan 2020 - 14:08
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couldn't as my dad thought he's in the bay and not on double yellows.
There were no signs saying u have to be in a bay to avoid a fine.


On the second point, don't go there. No traffic signs include this provision, neither may they: it is not a prescribed or variant wording, neither is it a permitted parking expression.

On the first point, if your father was attempting to park in and thought he was in a parking place, was he actually permitted to park there simply by displaying a BB but no clock?

To be honest, the photos do not suggest he could have parked wholly within the bay and therefore what would an adjudicator infer? I think you need to be clear on what he was trying to do. Don't fudge it. If he thought that whether wholly within or wholly outside the bay was permissible but just got flustered, then say so.
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Abzg2k19
post Thu, 9 Jan 2020 - 16:35
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The other pcn got cancelled because he was parked properly in a disabled bay but forgot to put out the bb for the civil enforcement officer to read properly but they could see there was a blue badge there. On that basis they cancelled it but this is for not parking correctly in a bay which are 2 different things so i don't know how they can just say we appealed before so they can't cancel it this time , that's what it sounds to me.

Had he parked on double yellow and displayed a clock he would have been allowed to park there but as he thought he was in a bay and he was only going for 5 mins, he didn't realise he was behind the bay line as you can see its prob like a meter he's behind and if he was fully in the bay lines he could just park there with just the bb and didn't had to display clock but as he was a meter behind he had to display the clock to not get a pcn.

Please can you tell me who to appeal to as this is my 1st time actually using this site and what grounds can i appeal for. I was thinking going to the council office to speak to them as i heard sometimes they do cancel them if you pop in to see them.
Thanks
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Mad Mick V
post Thu, 9 Jan 2020 - 16:55
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OP --- forget about the DYL and concentrate on the actual contravention.

A Code 24 has a number of exemptions including:-

H. 1. A vehicle displaying a disabled person’s badge;
H. 2. A vehicle displaying a disabled person’s badge and clock.

If the CEO's photos show a Blue Badge then the Council should cancel due to Exemption H 1. That is all you have to concentrate on.

Make sure the owner gives you permission to appeal and copy this to the Council.

Mick

This post has been edited by Mad Mick V: Thu, 9 Jan 2020 - 16:59
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cp8759
post Thu, 9 Jan 2020 - 19:23
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@Mad Mick V I've not been able to find any reference to the H1 exemption apart from Camden's policy?

However the CEO Handbook for Buckinghamshire here http://bit.ly/2FmLQV0 lists exemptions for Code 24 which include:

For as long as is necessary to pick up or set down passengers. The driver should
remain with the vehicle unless evidence of assisting young or disabled passengers


Page 27 of the PCN processing manual http://bit.ly/2ZGAp2x also supports this and the exemption seems spot on for the circumstances described by the OP.

Therefore based on the council's own policy, the PCN must be cancelled.


--------------------
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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Mad Mick V
post Thu, 9 Jan 2020 - 20:46
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I got that reference from the London Councils CEO Handbook on the basis that the Codes are issued by London Councils for the whole of England.

Perhaps some exemptions are not mandatory o/s London?

Mick
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hcandersen
post Thu, 9 Jan 2020 - 20:52
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There is no exemption to the contravention of parking other than wholly within bay markings.

If the driver was permitted to park either wholly in the bay or on the DYL then NSL's response can be attacked in reps.
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Abzg2k19
post Thu, 9 Jan 2020 - 21:49
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I refer to your recent letter i believe you have made the wrong decision on the basis of code 24.

As Code 24 has a number of excemptions including

H. 1. A vehicle displaying a disabled person’s badge;
H. 2. A vehicle displaying a disabled person’s badge and clock

Alighting/boarding and also loading are exemptions for code 24.

It also states under blue badge vehicles correctly displaying a valid Blue Badge may park on certain restrictions. The permitted period of parking can vary depending on the type of restriction.

You also mentioned about my last PCN,Each PCN must be considered on its merits. 

For that reason i hope you reconsider your decision and i look forward from hearing back from you.

Here's a draft of what I'm going to send if theres anything more i should add please let me know.
Should i go to the council and see what they can do or should i send letter or reappeal through the website
Many Thanks for the replies
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cp8759
post Thu, 9 Jan 2020 - 23:22
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QUOTE (hcandersen @ Thu, 9 Jan 2020 - 20:52) *
There is no exemption to the contravention of parking other than wholly within bay markings.

The council policy says the exact opposite?!?


--------------------
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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cp8759
post Thu, 9 Jan 2020 - 23:34
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QUOTE (Abzg2k19 @ Thu, 9 Jan 2020 - 21:49) *
Here's a draft of what I'm going to send if theres anything more i should add please let me know.

Slow down, the next step is to wait for the Notice to Owner. Forget about H1, London exemptions have no relevance in Buckighamshire. The Buckinghamshire policy says:



Full policy here: http://bit.ly/2FmLQV0

Your formal representation should focus on this because the council's policies cannot be departed from arbitrarily, see Joseph Coen v Royal Borough of Greenwich (2180251537, 25 July 2018) http://bit.ly/2OZcLMl

Also please show us the last page of the rejection letter. This case seems suspiciously similar to Eric Fosbeary v Gloucestershire County Council (GD 05067G, 08 July 2014) http://bit.ly/2JVV26S


--------------------
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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Abzg2k19
post Fri, 10 Jan 2020 - 12:06
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This is the last page
https://postimg.cc/xqpYwvJ1

Okay will wait till ntk arrives
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hcandersen
post Fri, 10 Jan 2020 - 14:03
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The council policy says the exact opposite?!?

Firstly, is it a policy i.e. approved by a competent method and published?

Secondly, at 2.12 it states clearly that 'Exemptions to the contraventions are contained within the Traffic Regulation Orders...'

Therefore nothing which follows overrides this condition.

If an exemption against this contravention is in the order, then fine. But if isn't, then IMO no amount of forensic focus on a statement without its context would avail the OP.

This post has been edited by hcandersen: Fri, 10 Jan 2020 - 14:03
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stamfordman
post Fri, 10 Jan 2020 - 14:18
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"Setting down and/or picking up of passengers, or to load or unload any personal luggage" are standard exemptions for a lot of contraventions, including code 24.

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hcandersen
post Fri, 10 Jan 2020 - 16:49
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If it's in the order, then fine.

It's pointless us debating because the order is the order and as there is no superior legislation which requires such an exemption to be included in an order and as we cannot see the order all the person with the PCN can do is assert that this exemption exists and prove their entitlement.

This post has been edited by hcandersen: Sat, 11 Jan 2020 - 20:29
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cp8759
post Sat, 11 Jan 2020 - 20:19
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QUOTE (hcandersen @ Fri, 10 Jan 2020 - 16:49) *
If it's in the order, then fine.

That's not what you said earlier:
QUOTE (hcandersen @ Thu, 9 Jan 2020 - 20:52) *
There is no exemption to the contravention of parking other than wholly within bay markings.

You gave a rather unequivocal statement that, if taken at face value, could have materially mislead and some OPs might have paid the discount based on that advice. It might have been more prudent to say that such an exemption is not normally allowed by most authorities, which is probably right (BCC seems to be an exception).

In any event it turns out that there does appear to be an exemption, the relevant order would appear to be The Buckinghamshire County Council (Aylesbury Vale District) (Consolidation) Order 2010 https://tro.trafficpenaltytribunal.gov.uk/T...n-Order-v-4.pdf and it says on page 24:

Exemptions to restriction on parking by a vehicle in a parking place
73. Notwithstanding for foregoing provisions of this Order any vehicle may be parked
during the permitted hours in any part of a parking place if the use of that part has
not been suspended and if:
(a) the vehicle is parked for so long as may be necessary for the purpose of
enabling any person to board or alight from a vehicle or for loading;
...
(f) the vehicle is displaying in the relevant position a valid disabled persons
badge provided that the vehicle is being used in accordance with the
conditions applying to the said badge.


This matches what the council's CEO handbook says (as for approval / publication, the council has told me this is what it follows and disclosures under FOI are to the world at large, so anyone can rely on it). So we have two arguable exemptions: boarding & alighting and the BB badge (which the CEO clearly saw and photographed, note there is no provision for a parking disc to be displayed).

On top of that, we have a clear failure to consider as the authorised officer seems to have either disregarded, or more likely acted in complete ignorance of, both the council's CEO handbook and the relevant TRO. And let's not forget that if the "authorised officer" works for NSL rather than the council, then we also have an impermissible delegation of a quasi-judicial function, just as the cherry on top.

By the way Abzg2k19 it's Notice to Owner for council PCNs.

This post has been edited by cp8759: Sat, 11 Jan 2020 - 20:20


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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 Sat, 11 Jan 2020 - 20:44
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You do like to take snippets out of context.

Of course parking in a parking place DOES NOT either explicitly or implicitly include parking with only part of the car in the parking place, frankly this is a nonsense.

You have to take the holistic view, which includes at least looking at the Schedules to see whether there is a prescribed Manner of Standing.

Your view is that if, say, only the front wheel is within the parking place then the vehicle is parked within the parking place and therefore the exemption applies. There is a case in which judges used the phrase 'would drive a coach and horses through the intended purpose of the provision', and this is what you are trying to do here.

I would not bet my money on an adjudicator agreeing with you.

So OP, just to be clear on this poster's view:

As we now seem to have seen the order, there is no exemption to the alleged contravention, but you are free to assert what you wish.
If you had been wholly within, then the exemption would apply - but you have to prove your entitlement, not just state it - and if you had been parked wholly outside then the exemption would apply. So in fairness, is it really that different when one is half and half?
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cp8759
post Sun, 12 Jan 2020 - 17:25
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hcandersen I don't know what to make of you, I assume this is down to sloppiness rather than deliberate trolling but others might have doubts. You obviously haven't bothered to read the order and maybe you expect me to clog up the entire thread by quoting the whole thing, but here you go:

The TRO says at 66:

Manner of standing in a parking place

66. Unless indicated otherwise by markings on the carriageway, each vehicle parked in
a limited waiting, pay and display, disabled person’s or permit parking place in
accordance with the provisions of this Order shall stand:
...
(iv) so that every part of the vehicle is within the limits of the parking place as
marked on the highway.


And then this is dis-applyed by article 73:

Exemptions to restriction on parking by a vehicle in a parking place
73. Notwithstanding for foregoing provisions of this Order any vehicle may be parked
during the permitted hours in any part of a parking place if the use of that part has
not been suspended and if:
(a) the vehicle is parked for so long as may be necessary for the purpose of
enabling any person to board or alight from a vehicle or for loading;
...
(f) the vehicle is displaying in the relevant position a valid disabled persons
badge provided that the vehicle is being used in accordance with the
conditions applying to the said badge.


The notwithstanding provision of Article 73 means that the manner of standing article does not apply so yes, if only the front wheel is within the parking place then the vehicle is parked within the parking place and therefore the exemption to Article 66 applies.

hcandersen it's somewhat disheartening that I have to put this much effort into rebutting nonsensical arguments from you. Next time, actually read the order please.


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