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PCN 62 - parked with one or more wheels on or over a footpath or any part of a road other than a carriageway
LilCats
post Wed, 12 Feb 2020 - 20:45
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Hi All

First post here. I got a PCN. Searched for appeal tips, and got directed to this forum. I hope I can get some advice on what I can put in the appeal against the PCN.

Contravention code: 62

Parked with one or more wheels on or over a footpath or any part of a road other than a carriageway.


I do not believe I was parked across a footpath. But maybe it's the 'any part of a road other than a carriageway' where I got caught out. I believe where I was parked was private land, in front of gates into a parking facility for a company. Given the time of the PCN, I do not believe the land owner called the warden out.

It not an ideal parking spot, but cars (including me) have parked there before in the nighttime and I have never seen an PCN issued on any car parked there. Even when I can see a warden has been around.

Any help would be appreciated.

This happened in London. Links to photos below, the photos taken by the warden aren't that clear. So now seeing them, I wonder if I should not upload any of my own with the appeal?

Han happy.gif

PCN
https://ibb.co/3MjnbYs

Council photos
https://ibb.co/SdnwMCL
https://ibb.co/3TZp28t
https://ibb.co/0hkr4dj

My photo of car (when PCN was issued)
https://ibb.co/LRNPTT2

My photo of car & footpath (when PCN was issued)
https://ibb.co/gTFY0vf

Google street view

This post has been edited by LilCats: Thu, 13 Feb 2020 - 10:33
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post Wed, 12 Feb 2020 - 20:45
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stamfordman
post Wed, 12 Feb 2020 - 20:55
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Post the PCN, council pics and a street level live view.

Put pics on https://imgbb.com or such like as space on forum is limited.
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LilCats
post Thu, 13 Feb 2020 - 10:34
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QUOTE (stamfordman @ Wed, 12 Feb 2020 - 20:55) *
Post the PCN, council pics and a street level live view.

Put pics on https://imgbb.com or such like as space on forum is limited.


Done! Thanks for the help happy.gif
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cp8759
post Fri, 14 Feb 2020 - 22:09
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Who owns the land is irrelevant, what counts is whether the public has access to it, as per the Court of Appeal decision in Dawood, R (On the Application Of) v Parking & Traffic Appeals Service & Anor [2009] EWCA Civ 1411 https://www.bailii.org/ew/cases/EWCA/Civ/2009/1411.html

Unfortunately I don't see a way out of this one. You could make a plea for discretion but considering this is Newham, you'd likely be wasting your time.


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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, 14 Feb 2020 - 22:58
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?

The OP's car is parked beyond the back of the footway - as marked by the surface treatment and location of street lighting columns.

No way is this part of a road.

IMO, there's no right of way here for the public because there's nowhere to access.

The crossover is the first part which extends to the back of the footway, the rest is the premises to which this crossover gives access. That this premises comprises a narrow entrance is neither here nor there IMO.

I'd be prepared to take this all the way.
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Mad Mick V
post Sat, 15 Feb 2020 - 08:23
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This might help:-

Footway parking, the definition of road and what comprises public land

2170551476

Dr. Osment appeals against a penalty charge notice (PCN) issued in respect of an alleged contravention of the prohibition on parking a vehicle “in or on any urban road in Greater London … so that one or more of its wheels is resting on—

(a) any footway;

(b) any land (not being a footway) which is situated between two carriageways in any such road; or

© any grass verge, garden or space not falling within the foregoing paragraph (a) or (b)”, to quote from the relevant legislation, namely s.15(1) of the Greater London Council (General Powers) Act 1974.

The definition of a road is to be found in s.192 of the Road Traffic Act 1988. It is defined as a “highway and any other road to which the public has access”. Accordingly, whether a vehicle’s wheel or wheels are resting on any of the spaces in paragraphs (a) to © of s.15(1) only falls to be considered if the vehicle is parked “in or on” a road as defined in s.192 of the 1988 Act. Whether a given place is a road is a matter of fact, in accordance with the principles in Clark v. General Accident [1998] 1 WLR 1647.

Dr. Osment helpfully produced a skeleton argument. Although I rejected summarily most of the grounds, an argument raised at point 2 had real merit and warranted consideration. At point 2 he argued: “The photos clearly show that I was on a void space further on and well clear of the footway.” This was foreshadowed in his representations to the Enforcement Authority (EA), which included the following: “I was not on a footpath. I was on an area of hardstanding forming no other purpose, other than suitable for parking.” I am afraid I disagree with the second point raised there; the area on which, the photographs show, the vehicle was parked was plainly not designed, or suitable, for parking. Whether it forms part of a road, however, is a different matter. Dr. Osment argues he was not parked in or on a road at all. Rather, he says, his vehicle was parked wholly on an area of land that does not comprise part of the road. It is the EA’s case that the vehicle was parked (at least partially) on the footway of North Street and was thus in or on a road with one or more wheels on the footway.

I have not been provided with any map showing the parameters of North Street, or the road which is parallel to it. I have, however, studied the photographs in some detail. There is a footway, which I accept is part of North Street. There is a parallel road, which has parking spaces next to it. In between those two roads is a space which, to my mind, is a pleasant open space for people to enjoy, paved differently from the footway, containing trees and benches. Bearing in mind the reasoning in Clark v. General Accident [1998] 1 WLR 1647 I find that it is a place to which the public have access, but not a road. In particular, it is not an area of the road that is between two carriageways; the other road is separate and is not merely a carriageway of North Street.

I turn then to whether Dr. Osment’s vehicle was parked on the road, namely North Street, or the area that is not a road. I have looked at the photographic evidence provided. It is clear to me that no wheels of Dr. Osment’s vehicle were resting on the footway, which is paved distinctly. Rather, his vehicle was wholly within that area that I have deemed on the evidence to be public land but not a road.

It follows from that that I am not satisfied that the vehicle was parked on a road. Section 15(1) is not engaged and the contravention did not occur.

Mick
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cp8759
post Sat, 15 Feb 2020 - 15:58
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If you compare this photo:



To GSV https://www.google.com/maps/@51.5313216,-0....6384!8i8192 it is quite clear that the car was protruding onto the footpath.

At best, this line in the concrete https://www.google.com/maps/@51.5313216,-0....6384!8i8192 is where the boundary of the road could be and the car was parked beyond that.

Personally I would not risk the discount.


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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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mickR
post Sat, 15 Feb 2020 - 16:42
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I dissagree. The hordi g and gates of adjoining properties clearly deliniate the footway. The small area at the end of the boarding shows the footway and then a concrete plinth at a raised level. I think the raised part is not a footway and as the op parked considerably back from either i would argue they were nowhere near the footway.
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Mad Mick V
post Sun, 16 Feb 2020 - 09:24
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I would argue de minimis on that one.

There is a trend in these cases to fall back on the Dawood case and contend public access is paramount.

IMO once you get over the VAC (vehicle access crossing) then the area you are dealing with is consistent with a carriageway because vehicles have right of way too.

Going back to an old thread:-

"As you will be aware, the definition of Highway is not defined by the Highways Act 1980. Although such definition is generally defined by Case Law, a more recent definition has been provided by Lord Davies of Oldham, speaking in his capacity as Government Whip for the Department of Transport:

‘The carriageway is that part of a road over which there is a right of way for passage of vehicles. Together the carriageway and the footway form a highway.’ (Lords Hansard 29 June 2004 Col. 245)"

So if we look at the contravention (my bold) "Parked with one or more wheels on or over a footpath or any part of a road other than a carriageway" there is little chance of the Council enforcing if the above definition is held.

Mick
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LilCats
post Sat, 22 Feb 2020 - 10:53
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I am such a newbie, it took a while to relocate this post and realise there had been responses smile.gif

Thank you everyone for your comments and responses. I have submitted my appeal based on I wasn't parked on footpath, and was also parked upon a carriageway.

Fingers crossed. If it is rejected, I managed to send the appeal within 14 days. So I will only be liable for 50%.

Thanks again! I will update once Newham respond.

Han

This post has been edited by LilCats: Sat, 22 Feb 2020 - 12:12
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PASTMYBEST
post Sat, 22 Feb 2020 - 12:12
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QUOTE (hcandersen @ Fri, 14 Feb 2020 - 22:58) *
?

The OP's car is parked beyond the back of the footway - as marked by the surface treatment and location of street lighting columns.

No way is this part of a road.

IMO, there's no right of way here for the public because there's nowhere to access.

The crossover is the first part which extends to the back of the footway, the rest is the premises to which this crossover gives access. That this premises comprises a narrow entrance is neither here nor there IMO.

I'd be prepared to take this all the way.


+1 I don't think walking to the gate and back is right of way. Only one other date on GSV 2018 and this shows parking on that area


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