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Advice Please - Contravention Code 62 - Enfield Council - SEE PHOTOS!, A ticket issued under Contravention code 62
Kentish_
post Thu, 13 Feb 2020 - 21:34
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Hi everyone,

First time poster!

I received this PCN from Enfield Council. Contravention 62 - Parked with one or more wheels on or over a footpath or any part of a road other than a carriageway.


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I cant see that this is clearly identified as a footpath hence I have parked here many times over an (approx) 4 month period, only to receive a ticket on this occurrence. It looks to me as if the pavement or pathway stops where the kerb stops. I always assumed this was some sort of lay-by, there is no signage to indicate anything either. The lay-by is also made of a different material to the pavement and naturally didnt think anything of it.

What advice do you have based on the photographs? I'm open to appealing against it and I was genuinely shocked that I had received a ticket. I just wouldnt know what the basis of appeal is in order to potentially overturn the PCN.

Thanks in advance, all comments welcomed! πŸ˜πŸ‘πŸ»


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post Thu, 13 Feb 2020 - 21:34
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Incandescent
post Thu, 13 Feb 2020 - 23:02
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Well, I'll tell you now, you will struggle to overturn this. You have parked on what was the entrance to premises, but is not part of the carriageway, and your PCN (please post it), is for parking off the carriageway. This has been an offence in London since the 70s and no signs or lines are needed.

On the other hand, you could have an appeal based on "legitimate expectation" having parked there many times in the past 4 months without getting a PCN. The bad news on that, is that councils won't accept this argument, so you'd have to take them all the way and risk the full PCN penalty, the discount option will have gone. Are you the owner of the vehicle and is your V5 up-to-date ?
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Mad Mick V
post Fri, 14 Feb 2020 - 07:56
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+1 on legitimate expectation but it would be difficult to get a positive result.

This one will explain why:-

2190295608 (Extract)



The photographic evidence shows clearly enough the location where the vehicle was parked. The β€œroad” in question, Lansdowne Way, extends to the very clearly defined building line of concrete buildings, leaving a wide footway between the buildings and the carriageway. The vehicle is parked on an extended length of that footway which has been clearly lowered to facilitate vehicular access to the adjoining premises, the large metal gates. However lowering a footway for that purpose does not turn it into a part of the carriageway (as no public vehicular right of passage is thereby created). A dropped footway remains a footway, and vehicles may not park there irrespective of any question of obstruction. Vehicles parked in front of the gates are therefore parked other than on the carriageway of the road, which is, by statute, in the absence of some legal exemption, a contravention throughout London. It is not surprising that a PCN was issued.
---------------
Mick
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Kentish_
post Fri, 14 Feb 2020 - 09:10
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QUOTE (Incandescent @ Thu, 13 Feb 2020 - 23:02) *
Well, I'll tell you now, you will struggle to overturn this. You have parked on what was the entrance to premises, but is not part of the carriageway, and your PCN (please post it), is for parking off the carriageway. This has been an offence in London since the 70s and no signs or lines are needed.

On the other hand, you could have an appeal based on "legitimate expectation" having parked there many times in the past 4 months without getting a PCN. The bad news on that, is that councils won't accept this argument, so you'd have to take them all the way and risk the full PCN penalty, the discount option will have gone. Are you the owner of the vehicle and is your V5 up-to-date ?


Where I had parked is not an entrance to the premises, I double checked and the blue metal railings are permanent fixtures and the entrance is further along Jeffreys Road. I posted the PCN above its for - Contravention 62 - Parked with one or more wheels on or over a footpath or any part of a road other than a carriageway. My LTD company owns the vehicle and the V5 is up to date.
In the appeal I may even mention that approx 2 weeks to this occurrence, I was parking here and a Civil Enforcement Officer was nearby and as he was looking straight at me and at my van, I asked 'Am I ok to park here?' and he said 'I dont know I will have to ask them.' I then asked 'Do I need to move the Van?' and he replied 'No, I'm not issuing a ticket' and never did.

QUOTE (Mad Mick V @ Fri, 14 Feb 2020 - 07:56) *
+1 on legitimate expectation but it would be difficult to get a positive result.

This one will explain why:-

2190295608 (Extract)



The photographic evidence shows clearly enough the location where the vehicle was parked. The β€œroad” in question, Lansdowne Way, extends to the very clearly defined building line of concrete buildings, leaving a wide footway between the buildings and the carriageway. The vehicle is parked on an extended length of that footway which has been clearly lowered to facilitate vehicular access to the adjoining premises, the large metal gates. However lowering a footway for that purpose does not turn it into a part of the carriageway (as no public vehicular right of passage is thereby created). A dropped footway remains a footway, and vehicles may not park there irrespective of any question of obstruction. Vehicles parked in front of the gates are therefore parked other than on the carriageway of the road, which is, by statute, in the absence of some legal exemption, a contravention throughout London. It is not surprising that a PCN was issued.
---------------
Mick


Thanks for your reply. I think as Incandescent says it was probably once an entrance to premises which no longer exists. Its very confusing as it appears to be a lay-by as there is no entrance there- Just permanently fixed railings. So when looking at it, it looks like a lay-by to allow to vehicles to park and to also allow large lorrys to pass the narrow road. I'm happy to pay if I'm in the wrong of course!

Thanks again
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mickR
post Fri, 14 Feb 2020 - 09:12
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You havent Posted pics of the actual pcn. Please post front and back, with your details redacted. We need to see the wording.
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Neil B
post Fri, 14 Feb 2020 - 09:34
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My take on legitimate expectation is that you cannot hold such a belief where parking would
clearly be ridiculous; perhaps 'unrealistic' is a better term. You simply can't expect it to be allowed.

The contravention is as written and as you quote but you talk about 'footway' in your opening post.
That footway is immediately in front and behind you. It doesn't disappear just because of a change of surface.
Neither do the pedestrians using it have the ability to walk through solid objects.

Paying the discount looks best imho.

This post has been edited by Neil B: Fri, 14 Feb 2020 - 09:48


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

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hcandersen
post Fri, 14 Feb 2020 - 10:38
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Well done Neil B.

'Legitimate expectation' is overused and misused.

This is a small extract from the ETA key case:

In circumstances in which a car owner accepts a contravention of the parking regulation, if he alleges that it would be improper for the authority to rely upon that admitted breach to pursue a penalty, then the burden of showing that rests on him. That burden is a heavy one.


Too heavy in this case!

Legitimate expectation is not that a motorist knows they've repeatedly parked where they should not but managed to escape a PCN for reasons they do not know!

But the OP should still make reps.

IMO, they should approach this on a purely factual basis.

I parked; I know I cannot park on the footway but was unclear whether given the local road layout this was part of a carriageway which originally went into the adjacent premises. I have parked here before, as well as at other places on the carriageway along this road - I work there/regularly visit or whatever - but to date without any issue.

The PCN on this occasion resolves any doubt in my mind regarding the authority's view of this location and I'm now wiser and clearly will not park there again. On this occasion, I would ask that the authority treat the PCN as a shot across my bows, and cancel given my undertaking not to re-offend, as opposed to a full broadside.

Would be my take.
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Mad Mick V
post Fri, 14 Feb 2020 - 10:59
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I take Neil's point on board that a claim of legitimate expectation could be without merit due to the nature of the parking position.

However, if the OP had parked his vehicle for >4 months at this location without enforcement then a legitimate expectation has been established in law-----FACT.

We all agree that the contravention is correct so perhaps, over the 4 months, he got lucky and, as mentioned, he would have difficulty in proving that a legitimate expectation exists anyway.

We all have opinions on this case but let's not forget the legal position.

Mick

This post has been edited by Mad Mick V: Fri, 14 Feb 2020 - 11:04
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Incandescent
post Fri, 14 Feb 2020 - 12:05
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QUOTE (Mad Mick V @ Fri, 14 Feb 2020 - 10:59) *
I take Neil's point on board that a claim of legitimate expectation could be without merit due to the nature of the parking position.

However, if the OP had parked his vehicle for >4 months at this location without enforcement then a legitimate expectation has been established in law-----FACT.

We all agree that the contravention is correct so perhaps, over the 4 months, he got lucky and, as mentioned, he would have difficulty in proving that a legitimate expectation exists anyway.

We all have opinions on this case but let's not forget the legal position.

Mick

And even more if he had discussed the parking with a CEO !
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Kentish_
post Fri, 14 Feb 2020 - 12:06
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QUOTE (Neil B @ Fri, 14 Feb 2020 - 09:34) *
My take on legitimate expectation is that you cannot hold such a belief where parking would
clearly be ridiculous; perhaps 'unrealistic' is a better term. You simply can't expect it to be allowed.

The contravention is as written and as you quote but you talk about 'footway' in your opening post.
That footway is immediately in front and behind you. It doesn't disappear just because of a change of surface.
Neither do the pedestrians using it have the ability to walk through solid objects.

Paying the discount looks best imho.


I don't believe I mentioned 'footway' but the contravention refers to 'footpath'. The confusion to me is both the change of surface but also the kerb at each end of the pavement. Am I correct in thinking that a dropped kerb would be for access purposes - but this wouldn't be classed as a dropped kerb as there is no through access to any building or premises. Should the council update the road layout to reflect this and avoid confusion?
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Kentish_
post Fri, 14 Feb 2020 - 12:49
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QUOTE (Incandescent @ Fri, 14 Feb 2020 - 12:05) *
QUOTE (Mad Mick V @ Fri, 14 Feb 2020 - 10:59) *
I take Neil's point on board that a claim of legitimate expectation could be without merit due to the nature of the parking position.

However, if the OP had parked his vehicle for >4 months at this location without enforcement then a legitimate expectation has been established in law-----FACT.

We all agree that the contravention is correct so perhaps, over the 4 months, he got lucky and, as mentioned, he would have difficulty in proving that a legitimate expectation exists anyway.

We all have opinions on this case but let's not forget the legal position.

Mick

And even more if he had discussed the parking with a CEO !


This was on a previous, separate occasion. Went into the site for the duration of the day and no ticket was issued as the CEO had mentioned.
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hcandersen
post Fri, 14 Feb 2020 - 12:57
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However, if the OP had parked his vehicle for >4 months at this location without enforcement then a legitimate expectation has been established in law-----FACT.

No it does not as Neil B observed and the key case reaffirms. I suggest the key case is revisited:

https://www.londontribunals.gov.uk/sites/de...s/beatt15_0.pdf

Far too simplistic an approach IMO.

The prohibition is statutory.
None of the required signs to permit parking on the footway is present.

Therefore there can be no realistic expectation that such parking is lawful. A motorist's lack of knowledge - as in this case - does not change matters. Neither, in the absence of any other indicators e.g. conversations or correspondence with competent officials etc, does their good fortune in not being penalised create 'expectation'.

In the context of the detailed analysis set out in the key case - which was a second review - LE is a non-runner IMO.

OP, as regards your questions:
I don't believe I mentioned 'footway'.


Except here: I cant see that this is clearly identified as a footpath hence I have parked here many times...

A footway is defined in highways legislation and its meaning is imported into the parking prohibition. In this context, there are only two ways in a road: carriageway and footway.

A footway does not end simply because the surface treatment changes.
As I posted, your only explanation(whether it amounts to a defence would be for the adj) is that you mistook where you were for a carriageway either part of the one parallel to your vehicle, in which case a type of lay-by, or a carriageway at right-angles into whatever pre-existed the fence. In either case, your thoughts were informed by the radiused kerb edging in the photos.

OP, among your problems are that you can get radiused edging for vehicle crossovers which, as the name implies, are simply crossovers for the sole purpose of giving vehicle access to the occupier(and invitees) of the property served. A crossover does not create a public right of way for any other vehicles (which would create a carriageway) and therefore the area remains footway.

And you were on it.
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mummyof3
post Fri, 14 Feb 2020 - 13:28
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https://www.google.com/maps/@51.6503925,-0....6384!8i8192


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"Stupid is as stupid does" - Forrest Gump
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Mad Mick V
post Fri, 14 Feb 2020 - 13:30
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This is going nowhere.
Parking doesn't have to be lawful to claim legitimate expectation:-
2120134353

The Appellants do not deny that there vehicle was parked with two wheels on the pavement, but say that given the narrowness of the road they have been parking in this way for over 18 years as their neighbours and visitors have. In effect, they are arguing that pavement parking at this location has been tolerated over a number of years and the Enforcement Authority have not given any warning that that toleration is coming to an end; a legitimate expectation of non enforcement has arisen.

Despite making the point both in their original representations and the notice of appeal, the Enforcement Authority have not addressed it and so I must assume that they do not dispute the claim of toleration over at least 18 years.

There is a line of authorities that do sustain the proposition concerning a legitimate expectation, in particular the decision quoted on PATAS web site under the heading legitimate expectation, Beatt -v- London Borough of Wandsworth case no. 1950092219.
--------------------------------
As I said, the OP has little chance of succeeding with this ground and should consider the discount.
Mick

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Neil B
post Fri, 14 Feb 2020 - 13:39
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Well no; I'm quite prepared to temper my view.

You can, as Mick says, form a legitimate expectation based on the absence of enforcement alone, no
matter how daft the parking.

But the suggestion that there has been no enforcement can only be conjecture on the OPs part.
That you haven't seen anything doesn't mean it hasn't happened.

and.
QUOTE (Incandescent @ Fri, 14 Feb 2020 - 12:05) *
And even more if he had discussed the parking with a CEO !

Which he has no way of proving?

And the idea that it isn't enforced is debunked by 2190098924 (Jeffreys Road)

The Appellant is appealing a Penalty Charge Notice issued in respect of footway parking at the above location.

The Enforcement Authority relies upon the contemporaneous evidence of the Civil Enforcement Officer.

The Appellant contends that he was given specific instructions to park as alleged.

I have carefully considered all the evidence in this matter.

The Enforcement Authority's case is that the Appellant's vehicle was parked in breach of the prohibition against "footway parking". Under Section 15(1) of the Greater London Council (General Powers) Act 1974 as amended, a contravention occurs if a vehicle is parked anywhere in Greater London with one or more wheels on or over any part of a road other than a carriageway or on or over a footpath, unless an exemption applies.

Thus, when a vehicle is parked anywhere in Greater London with one or more wheels on or over: any part of a road other than carriageway or
a footpath or any part of a footpath, a contravention occurs. There is no requirement for any signs. There are a number of exceptions to this general rule but on the evidence before me, I do not find that any apply in this case.

Rule 244 of the current edition of the Official Highway Code states:
"You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it. Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs."

The Appellant contends that he was given "specific instructions" to park on the footway. He does not set out who gave these instructions although it seems that he is suggesting that it was his company - who would have had no authority to do so - who so instructed him. However, the fact that the Appellant was instructed to park as alleged, and the fact that other drivers may also have done so, is mitigation only and the Court of Appeal has made it clear that I may not take this into account. It is incumbent upon the roaduser to be aware of, and comply with, the legislation relating to footway parking.

I am satisfied that a contravention took place as alleged and accordingly I must refuse this Appeal.




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

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hcandersen
post Fri, 14 Feb 2020 - 13:41
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And absence of enforcement = good fortune in not being caught!

I prefer the equation:
Key case = as near as you'll get to a consensus view.

Anyway, the OP must form a view.

They either think they have a statutory defence and pursue the matter to the bitter end with the full penalty in play or submit a more humble and apologetic challenge and be prepared to pay the discount if this fails.

OP, on the basis of what we know, be prepared to pay the discount.

This post has been edited by hcandersen: Fri, 14 Feb 2020 - 15:14
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Kentish_
post Fri, 14 Feb 2020 - 13:51
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QUOTE (hcandersen @ Fri, 14 Feb 2020 - 13:41) *
And absence of enforcement = good fortune in not being caught!

I prefer the equation:
Key case = as near as you'll get to a consensus view.

Anyway, the OP must form a view.

They either think they gave a statutory defense and pursue the matter to the bitter end with the full penalty in play or submit a more humble and apologetic challenge and be prepared to pay the discount if this fails.

OP, on the basis of what we know, be prepared to pay the discount.


I think I would be prepared to take the humble, apologetic approach. By the sounds of it I am completely in the wrong, but to my defense I was genuinely unaware and mistook the road layout. A lesson learnt either way.

How would be best to present the appeal? I will definitely mention the fact - I did have a discussion with a CEO, whether provable or not. This has added to the confusion.
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cp8759
post Yesterday, 11:58
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Post a draft on here before sending it to the council.


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