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NeverSayYes
Hi all

I received a PCN yesterday (Sunday) on my car in Manor Park, Newham in front of a dropped kerb. The kerb is in front of my flat and the road also has a single yellow line in front of that kerb. People normally always park there, this is the first time I've seen anybody getting a fine in this location on a Sunday. Plus, the observation time was zero (if observation time is used in this scenario).
Please see attached images - PCN and location


Please advise whether I should fight this or give up and pay....?

http://i66.tinypic.com/ofsetz.jpg
hcandersen
This is the prohibition:

(1)In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or


The authority's burden is to show which of these apply.

You will see that the criteria fall into 2 distinct groups: those assisting in entering or leaving the carriageway and the one which applies to crossing the carriageway.

You will also see that there is no corresponding dropped footway on the opposite side of the road.

We can rule out (ii) and (iii) as regards entering or leaving the carriageway because there is no vehicle crossover here, neither is there any practical opportunity for cyclists to leave the carriageway without impeding pedestrians or to travel on and enter the carriageway at this point.



So, we're left with (i). But this fails because the parking place on the opposite side of the carriageway makes it impossible for pedestrians to cross the carriageway let alone leave it without the assistance of a corresponding dropped footway.

You would win at adjudication because the obduracy of this authority is matched only by their stupidity.
NeverSayYes
Thank you for this hcandersen.

But does the fact that the observation time of 11:16 and contravention time of 11:16 also invalidate the contravention? And also, since I live in that apartment, is there a leeway since the dropped footway is designed in such a way that people walking from inside the apartment would use it rather than people walking on the pavements across.

I am looking at this thread: http://www.pepipoo.com/forums/lofiversion/...php/t70804.html
Similar issue to mine, highlighting on the fact that the dropped footway is behind a single Yellow Line - could that be an other ground for challenge in my case too?

And, I cannot see the photographs taken by the CEO on the Newham Website though it shows a couple of photograph thumbnails and the URLs do point to images (404 - File or directory not found.
The resource you are looking for might have been removed, had its name changed, or is temporarily unavailable.)

Please let me know if these are all possible grounds of appeal?


QUOTE (hcandersen @ Mon, 2 Nov 2015 - 18:28) *
This is the prohibition:

(1)In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or


The authority's burden is to show which of these apply.

You will see that the criteria fall into 2 distinct groups: those assisting in entering or leaving the carriageway and the one which applies to crossing the carriageway.

You will also see that there is no corresponding dropped footway on the opposite side of the road.

We can rule out (ii) and (iii) as regards entering or leaving the carriageway because there is no vehicle crossover here, neither is there any practical opportunity for cyclists to leave the carriageway without impeding pedestrians or to travel on and enter the carriageway at this point.



So, we're left with (i). But this fails because the parking place on the opposite side of the carriageway makes it impossible for pedestrians to cross the carriageway let alone leave it without the assistance of a corresponding dropped footway.

You would win at adjudication because the obduracy of this authority is matched only by their stupidity.
hcandersen
As it's not a dropped footway, exceptions to the contravention don't actually come into play😏

But add all strands. The exception as regards unloading is:

5)The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.

Your argument would be that whether unloading was taking place or not, the CEO should not have issued the PCN until a proper assessment had been made as to whether this exception might have applied.

But IMO this is not your primary argument.

We really must get authorities to understand that because the prohibition does not need to be signed, then they must be absolutely clear and certain about what is a 'dropped footway'. Not every lowered footway is a 'dropped footway'
NeverSayYes
I am sending this to the council today. Please let me know your thoughts!


The location of the alleged contravention consists of a Single Yellow Line adjacent to a lowered footway. There is no clear indication of restrictions of use/stopping at the location nor is the footway there for purposes cited in the PCN. Following the issue of this penalty, there is serious ambiguity as to which enforcements are in place at this location as the Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours.
In accordance with the Road Traffic Act 1991 and Traffic Management Act 2004, my contest is on the basis that the contravention did not occur with respect to the following reasons:
1. Unenforceable location of the PCN/Invalid PCN
According to Section 86(1) of the Road Traffic Management Act 2004 as shown below:
In a special enforcement area, a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

This prohibition is not enforceable at this location because it does not meet any of the above conditions with respect to the following grounds:
(A) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting pedestrians crossing the carriageway. However, there is no corresponding lowered footway on the opposite side of the road which would suggest pedestrians are not able to use it to cross the carriageway. Additionally, the parking space/bay on the opposite side of the road makes it impossible for pedestrians to cross the carriageway from this point.
(B) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting cyclists entering or leaving the carriageway. However there is no practical opportunity for cyclists to enter or leave the carriageway without impeding pedestrians at this point nor is there a cycle track immediately adjacent to the lowered footway, cycle track or verge.
© The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting vehicles entering or leaving the carriageway. However, there is no practical access for vehicles through the lowered footway in terms of a garage or a drive or indeed a road. Additionally, the size of the lowered footway would not accommodate a vehicle neither would the fact that there is a door (black metal door) immediately at the front of the lowered footway.
This suggests that the PCN is invalid because none of the conditions of ‘Prohibition of Parking at Dropped footways’ are valid at this location.
2. Resident at location
As explained previously, I am a resident in the block of flats which is accessible via the black metal door which is adjacent to the lowered footway. In accordance with Section 86 (3) of the Road Traffic Management Act 2004:
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
This exception does not apply in the case of a shared driveway.
As an occupier of the premises and considering the fact that this is not a shared driveway, I stopped my car at this location to unload and drop luggage and walk my elderly father who has walking difficulties following a stroke into my house. The PCN is invalid on these grounds.

3. Loading/Unloading at location
As explained previously, I was unloading heavy luggage from my car into my house. In accordance with Section 86 (5) of the Road Traffic Management Act 2004:
The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.
My car was used to unload my luggage in to my house using the lowered footway which helped me carry my luggage from my car on the carriageway onto the footway and into the apartment yard via the black metal door. This process took no longer than 20 minutes.


4. Ambiguous Single Yellow Line Enforcements
There are no waiting restriction signs which indicate that the street is restricted at certain hours. According to the Traffic Signs Regulations and General Directions 2002, a single yellow line outside a controlled zone requires an accompanying sign detailing the hours of restriction. There is no such sign in this location, hence this restriction does not comply with the Traffic Signs Regulations and General Directions 2002. It is therefore unenforceable and the PCN is invalid.

5. Violation of the Code of Practice on Civil Parking and Traffic Enforcement – Single Yellow Line
The PCN specifies that the CEO started observation at 11:16 and the contravention occurred at 11:16. Therefore, the CEO did not carry out any observation as there was a ZERO observation time and proceeded with producing the PCN. This is in violation of the Code of Practice on Civil Parking and Traffic Enforcement in regards to the Single Yellow Line. According to paragraph 47 of the Code of Practice on Civil Parking and Traffic Enforcement:

The CEO did not allow the minimum of 5 minutes of observation before assigning the PCN although I was in the process of unloading a heavy item from my car on the carriageway onto the footway and into the apartment yard via the black metal door.
6. Violation of Road Traffic Management Act 2004 – Lowered Footway, Cycle Track or Verge
The ZERO observation time also suggests that the CEO did not carry out a proper assessment as to whether unloading was taking place or not before deciding if the contravention took place, considering the lowered footway. This is clearly in violation of Section 86(5) of the Road Traffic Management Act 2004 where, if this was a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the carriageway as stated by the CEO on the PCN, the CEO should have carried out a proper assessment ensuring parts (a), (b) and © of Section 86 (5) of the Road Traffic Management Act 2004 are satisfied before producing a PCN.
NeverSayYes
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As expected, the council refused my informal appeal and sent me a Notice to Owner last week. I am in the process of writing the formal representations up.
Any help please?
PASTMYBEST
Post the rejection and what you sent to them
DancingDad
Could you confirm what you wrote for the informal and post up a copy of the rejection pls.
And a copy of the NTO.
Given dates, there is a possible added challenge on time delays being unfair under their common law duty.
Not out of time but....
And always with Newham that they totally failed to consider and simply relied on a standard template rejection.
NeverSayYes
The refusal to my informal appeal:







The Notice to Owner:









Dear Sir/Madam,
I am hereby making representations to the council against the above-mentioned penalty charge following the receipt of a Notice to Owner dated 25/02/2016, on 27/02/2016.
On the 1st of November 2015, my vehicle was issued with a Penalty Charge Notice for the reason of Contravention Code 27 with reason: ‘Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.’
The car was parked on The Warren, adjacent to the rear entrance to the block of flats. The car was stopped at the location because I was unloading heavy luggage from my car and also helping my elderly father who has difficulties walking following a major stroke, alight from the car. This location was the most convenient for my father to walk out of the car and onto the pavements smoothly. I stopped the car at the location which had a Single Yellow Line across the full length of the alleged lowered kerb.
I parked my car at the location because there were no signs to the contrary and nothing about its appearance suggested that it was a dropped kerb, as defined in section 86 of the Traffic Management Act.
I refer to a picture of the location below and you will see that this is an area of footway of somewhat haphazard construction, intended for some bygone purpose; it is not wide enough for a vehicle and the uneven nature of the granite sets would provide more of a hazard than assistance to anyone trying to enter or leave the carriageway, especially people with prams or wheelchairs, not to mention the absence of any corresponding dropped kerb on the other side of the carriageway. As well as not being clearly dropped for the purposes of aiding pedestrians, this area of pavement has no tactile paving as is habitually used in the area at a dropped footway/cycle track or verge.

As the picture above also shows, the location of the alleged contravention consists of a Single Yellow Line adjacent to the lowered footway which has no significant purpose. Since the Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours (0900-1700 Monday – Saturday) and the dropped kerb which has nothing about its appearance or purpose suggesting that it is a dropped kerb as defined in Section 86 of the Traffic Management Act 2004, and the lack of any signs to the contrary, all lead me to understand that parking is allowed at the location at the time of the PCN.
There is no clear indication of restrictions of use/stopping at the location nor is the footway there for purposes cited in the PCN.
In your response to my informal appeal, dated 08 December 2015, you have provided two separate and bog-standard paragraphs, one for the lowered kerb and one for the single yellow line, in regards to the issues I have raised.
You have told me I was given this Penalty Charge Notice ‘”for parking against a stretch of lowered, sloping kerb.”
However you have failed to explain to me why you have placed a single yellow line, which allows parking on the day the PCN was issued, in front of a dropped kerb. This causes serious ambiguity to me and any other driver, on the restrictions being applied at the location.

In accordance with the Road Traffic Act 1991 and Traffic Management Act 2004, my contest is on the following grounds:
A. The alleged contravention did not occur.
1. Ambiguous Enforcements - Single Line Adjacent to Dropped Footway/Verge/Cycle Track
The image below shows the Single Yellow Line is adjacent to the dropped footway/verge/cycle track.

As per your response to my appeal dated 08 December 2015, you advised that “a vehicle is permitted to park in a bay or on a single yellow line for the purpose of loading or unloading”.
In addition, you claim on your website (https://www.newham.gov.uk/Pages/Services/Waiting-and-loading-restrictions-on-yellow-lines.aspx?l1=100002&l2=200072) that “Loading restrictions are marked by single or double yellow blips on the kerb. You can only park on them outside of the restricted hours. However double yellow lines mean no parking at any time. There will be time plates nearby to tell you when you can park there.”
By placing a single yellow line at this location, you have implied that it is allowed to park there outside of parking bay restriction hours, Monday to Saturday 0900 – 1700. I complied with the white parking bay sign on The Warren and I parked at the location on a Sunday at around 1115am, which is outside the parking restriction hours of that location. I find that by giving me a PCN on a Sunday for parking on Single Yellow Line which is only restricted Monday to Saturday 0900 to 1700, unfair and misleading.
In your letter dated 08 December 2015, you also said that the road adjacent to a dropped footway/verge/cycle track “must always remain clear of obstruction and there is no legal duty laid upon the council to provide signs or lines indicating the prohibition, it is expected that drivers should be aware of this restriction as per the Highway Code. It is applicable at all times.”
I am fully aware of the Highway Code Ruling 243 which makes reference to dropped kerbs. However, in this case, the dropped kerb serves none of the purposes of a dropped footway, cycle track or a verge as explained in this letter and in my informal appeal, which therefore disqualifies it to be regarded as a kerb as per ruling 243.
Nevertheless, if as per your words in your letter dated 08 December 2015, this dropped footway/verge/cycle track were to be used by pedestrians, cycles or crossing cars and if it were prohibited to park adjacent to it at all times, why, then, have you marked what you claim to be a 24/7 restriction with a single yellow line that is only in force between 0900 to 1700 Monday to Saturday?
You have mentioned in your letter dated 08 December 2015 that “there is no legal duty laid upon the council to provide signs or lines indicating the prohibition”, however you have placed a Single Yellow Line which makes the situation misleading and ambiguous for a road user to understand which restriction is being applied at this location.
Furthermore can I point you to a similar case where it was decided at a PATAS appeal that a single yellow line in front of a dropped kerb was confusing and misleading for road users, case ref 2110067442.
This is in line with my query – how should a road user know which restriction takes priority? The council is lawfully bound to provide clear road markings and signs and I believe in this instance you have failed to do so.
Also, would you kindly provide copies of the Traffic Management Order and applicable amendments that created the waiting restriction indicated by the single yellow line and justification as to how it was allowed to run past the lowered footway.



2. Unenforceable location of the PCN/Invalid PCN
You have told me in your letter dated 08 December 2015, I was given this Penalty Charge Notice ”for parking against a stretch of lowered, sloping kerb” whilst on the Penalty Charge Notice, you have specified “parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway”.
In regards to dropped footways/cycles tracks/verges, section 86(1) of the Road Traffic Management Act 2004 highlights the below:
In a special enforcement area, a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

2.1 With reference to Section 86(1)(a)(i) of the Road Traffic Management Act 2004, and according to your own words in your letter dated 08 December 2015, “to help pedestrians cross the road, especially people with prams or wheelchairs”, the footway/cycle track/verge should be dropped to assist pedestrians crossing the carriageway. Therefore, in order to assist a pedestrian, especially people with prams or wheelchairs, to cross from one side of the carriageway to the other side of the carriageway safely, there should be a lowered footway on each side of the carriageway.
Please find below the location showing both sides of The Warren.



As you can observe in the above picture, there is no corresponding dropped footway/kerb/verge for at least 30 metres to the left of the dropped footway/kerb/verge or 30 metres to the right of the dropped footway/kerb/verge which would allow a pedestrian, especially people with prams or wheelchairs, to cross the carriageway safely. There are in fact car parking bays across the opposite of the length of the carriageway which prevent pedestrians, especially people with prams or wheelchairs, to cross the carriageway. This shows that the alleged footway does not comply with regulations and guidance by the Department of Transport in Local Transport Note 2/95 – The Design of Pedestrian Crossings, sections 2.6.1 and 2.6.2 of 2.6 ‘Crossing Approach Surfaces for Footways and Carriageways’ and sections 2.7.1, 2.7.2, 2.7.3 of 2.7 ‘Facilities for Disabled Pedestrians’.
This establishes the fact that the lowered footway/verge/cycle track does not assist pedestrians crossing the carriageway, thereby not satisfying the requirements from Section 86(1)(a)(i) of the Road Traffic Management Act 2004.

2.2 With reference to Section 86(1)(a)(ii) of the Road Traffic Management Act 2004, and according to your own words in your letter dated 08 December 2015, “to allow cycles to cross from roads to cycle tracks”, the footway/kerb/verge should be dropped to assist cyclists entering or leaving the carriageway.
The picture below shows the location of the dropped footway/kerb/verge.*

As you can observe in the picture, there is no cycle track immediately adjacent to the lowered footway/cycle track/verge to suggest that cyclists could cross from road to cycle tracks. Additionally there is no practical opportunity for a cyclist to enter or leave the carriageway without impeding pedestrians at this location. This suggests that the lowered footway/verge/cycle track does not assist cyclists entering or leaving the carriageway, thereby not satisfying the requirements from Section 86(1)(a)(ii) of the Road Traffic Management Act 2004.

2.3 With reference to Section 86(1)(a)(iii) of the Road Traffic Management Act 2004, and according to your own words in your letter dated 08 December 2015, “to allow cars access to garages”, the footway/cycle track/verge should be dropped to assist vehicles entering or leaving the carriageway across the footway, cycle track or verge.
The picture below shows the location of the dropped footway/kerb/verge.

As you can observe from the picture, the entrance immediately adjacent to the dropped footway/cycle track/verge consists of a black metal door which leads to the entrance of the block of flats 12-14 Rabbits Road. The width of the entrance is not large enough to accommodate a vehicle through and additionally, there are no garages within the block of flats through that entrance.
This suggests that the lowered footway/verge/cycle track does not assist vehicles entering or leaving the carriageway across the footway, cycle track or verge, thereby not satisfying the requirements from Section 86(1)(a)(iii) of the Road Traffic Management Act 2004.

The footway/cycle track/verge, as highlighted in the PCN and as explained in your letter dated 08 December 2015, is not fit for purpose as per the requirements of Section 86(1) of the Road Traffic Management Act 2004, thus also implying that the terms footway, cycle track or verge as per Section 329 (1) of the Highways Act 1980, do not apply at this location. None of the conditions of Section 86(1) ‘Prohibition of Parking at Dropped Footways etc’ of the Road Traffic Management Act 2004 apply to this location. This establishes that the PCN is invalid and thus the contravention did not occur.

3. Resident at Location
As I highlighted in my informal appeal and above, I am a resident at XXX, whereby the location of the alleged contravention is in fact the entrance to my flat. The black door adjacent to the dropped footway/verge/cycle track as described in the PCN, is the back entrance door through which I would walk to access my flat. According to section 86(3) ‘Prohibition of Parking at Dropped Footways etc’ of the Road Traffic Management Act 2004:
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
This exception does not apply in the case of a shared driveway.
The car was parked outside the residential premise of which I am the occupier in order to help my father alight from the car and to help me unload a heavy luggage from my car onto the dropped footway and proceed towards the black door through the entrance to the flat. Additionally, the dropped footway is not a shared driveway because it is not fit for the purpose of a driveway due to its small width, the black door and lack of driveway/garage past the entrance.
This establishes that the second exception of Section 86(3) ‘Prohibition of Parking at Dropped Footways etc.’ of the Road Traffic Management Act 2004 applies in this case, thereby invalidating the PCN.
4. Loading/Unloading at location
As I explained previously in my informal appeal and also above, I was unloading a heavy luggage, which was 30kg in weight, from my car into my house. The car was stopped beside the dropped footway to, as explained above, allow my father to alight and, also to help me unload the heavy luggage from my car. The luggage was in the car boot. I pulled it out of the boot onto the tarmac immediately behind the car. I was then able to pull the luggage from the tarmac onto the dropped footway, through the black door and then inside the building to my flat which was on the second floor, two flights of stairs up (note: there are no lifts in the building). The location where I parked the car was safest for me to unload the luggage from the car as it allowed me to move the luggage easily into my premises without having to pull it across the road and/or across the pavements, thereby causing a hazard to other road users and pedestrians. According to Section 86(5) ‘Prohibition of Parking at Dropped Footways etc.’ of the Road Traffic Management Act 2004:
The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.
The vehicle was being used for the purposes of unloading a luggage. The unloading could not be safely carried out in relation to my premises without my car being parked adjacent to the dropped footway. The whole process took no longer than 20 minutes.
This establishes that the fourth exception in Section 86(5) ‘Prohibition of Parking at Dropped Footways etc’ of the Road Traffic Management Act 2004 also applies in this case, thereby invalidating the PCN.
B. There has been procedural impropriety on the part of the enforcement authority.
1. Inaccurate Contravention
The Penalty Charge Notice specifies that the penalty was given for contravention doe 27 ‘Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway’. I believe there has been procedural impropriety by the CEO in relation to the contravention mentioned in this PCN because the dropped footway does not meet the requirements of Section 86 of the Road Traffic Management Act 2004 to be qualified as a footway, cycle track or verge lowered to meet the level of the carriageway and to serve the prescribed purposes of a lowered footway, cycle track or verge.

2. Unavailable Photographic Evidence
You mentioned in your letter dated 08 December 2015 that I may view photographic evidence of my case online at www.newham.gov.uk. However, after following your instructions to the word, I find that there is no such evidence available online.

Clicking on any of the 8 thumbnails above returns the below error message:




3. Violation of Road Traffic Management Act 2004 – Lowered footway, cycle track or verge
The ZERO observation time on the PCN suggests that the CEO did not carry out a proper assessment as to whether unloading was taking place or not before deciding if the contravention took place, if it were considered the lowered footway was a lowered footway as prescribed in the Traffic Management Act 2004. This is clearly in violation of Section 86(5) of the Road Traffic Management Act 2004 where, if this was a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the carriageway as stated by the CEO on the PCN, the CEO should have carried out a proper assessment ensuring parts (a), (b) and © of Section 86 (5) of the Road Traffic Management Act 2004 are satisfied before producing a PCN.
4. Violation of the Code of Practice on Civil Parking and Traffic Enforcement – Single Yellow Line
The PCN specifies that the CEO started observation at 11:16 and the contravention occurred at 11:16. Therefore, the CEO did not carry out any observation as there was a ZERO observation time and proceeded with producing the PCN. This is in violation of the Code of Practice on Civil Parking and Traffic Enforcement in regards to the Single Yellow Line considering the fact that there was a single yellow line at the location of the contravention. According to paragraph 47 of the Code of Practice on Civil Parking and Traffic Enforcement:

The CEO did not allow the prescribed 5 minutes of observation before assigning the PCN although I was in the process of unloading a heavy item from my car on the carriageway onto the footway and into the apartment yard via the black metal door and my father who has walking difficulties was alighting from the car.
5. No consideration given to all points raised in informal appeal
Several crucial points that I raised in my informal appeal on 13/11/2015 were ignored. Reasons 1, 2 and 3 specifically from the informal appeal letter where I explained I was a resident at the location unloading and helping my father alight the car, and the dropped footway was in front of my house and also where I queried the reasoning behind why this location was termed as a dropped footway, cycle track or verge when it serves none of the purposes, were ignored and not responded to in your response letter dated 08 December 2015.
I find this PCN unfairly charged especially as my car was parked in front of my house and in the most appropriate location for my elderly father to alight from the car and for me to unload heavy luggage. I look forward to receiving notification that the Penalty Charge Notice has been cancelled within 28 days. I also hope you will agree that the CEO has made a mistake in this instance, and has been a little over-zealous in their enforcement of this specific and narrowly-defined prohibition which is ambiguous and unclear. If you reject my arguments, could you please provide reasoning beyond simply stating that this location is a 'dropped kerb' without explanation, after all, not all lowered lengths of kerb are dropped kerbs, as defined. Please also provide explanation to the queries raised in this formal representation.
Yours sincerely,


DancingDad
Whew, that lot went straight over their heads and was almost totally ignored.

I'd send the same for the NTO and add Procedural Impropriety.
Many points were raised within previous challenge against the PCN, many were ignored within the rejection letter. As all were salient, a bland statement "...we have carefully considered..." cannot be relied on to show that consideration. Given that there is a specific duty for any enforcement authority to consider representations and that this duty has clearly been ignored, this is a procedural impropriety and reason alone to cancel the PCN.


Don't tell them which but IMO, loading and that you are the occupier are the two most solid points.
Loading they touched on but simply that the CEO saw no evidence, which isn't good enough.
Totally ignored the occupier part.
ford poplar
Phew, that explanation took longer to read/decipher than most Statutes. KISS.
DD, not sure if the occupier defence you refer to has validity. The exempt you refer to is for crossover DKs allowing vehicle access to a single residential drive and does not apply for shared drives; but this is neither, it is a DK for pedestrians/cyclists to access/depart flats, The best approach may be to show there is no DK directly opposite this one.

OP please provide GSV link for this location.
hcandersen
???

That's not what the OP sent as their challenge because it refers in para. 1 to having received the NTO!

It's overblown, lacks focus, quotes irrelevant legislation, tails off a bit in the middle and the less said about the ending the better.

IMO, your reps should be short and focus on the contravention and their reply to your challenge which clearly sets out the criteria which the authority believe need to be met in order for this location to be considered a 'dropped footway'. The authority therefore agree that if none of these is met that the location is not a dropped kerb and that therefore the contravention did not occur.

I refer to paragraph 1 of your letter:
a. 'To allow cycles to cross from roads to cycle tracks'
There are no cycle tracks at the location, please see attached GSV shot.

b. 'To allow cars access to garages'
There are no garages adjacent to or in the vicinity of the location neither is the footway wide enough to accommodate vehicles or constructed to the highway authority's standards for a vehicle crossover, please see GSV shot and authority's photos.

c. 'To help pedestrians cross the road especially people with plans or wheelchairs'
In order for the location to facilitate this aid there must be a corresponding dropped kerb on the opposite side of the carriageway in the vicinity. There isn't, please see GSV shots.

Given that none of the criteria is met and in light of the authority's position as stated in their letter they must cancel the PCN.

..and whatever else...
PASTMYBEST
QUOTE (hcandersen @ Mon, 14 Mar 2016 - 07:26) *
???

That's not what the OP sent as their challenge because it refers in para. 1 to having received the NTO!

It's overblown, lacks focus, quotes irrelevant legislation, tails off a bit in the middle and the less said about the ending the better.

IMO, your reps should be short and focus on the contravention and their reply to your challenge which clearly sets out the criteria which the authority believe need to be met in order for this location to be considered a 'dropped footway'. The authority therefore agree that if none of these is met that the location is not a dropped kerb and that therefore the contravention did not occur.

I refer to paragraph 1 of your letter:
a. 'To allow cycles to cross from roads to cycle tracks'
There are no cycle tracks at the location, please see attached GSV shot.

b. 'To allow cars access to garages'
There are no garages adjacent to or in the vicinity of the location neither is the footway wide enough to accommodate vehicles or constructed to the highway authority's standards for a vehicle crossover, please see GSV shot and authority's photos.

c. 'To help pedestrians cross the road especially people with plans or wheelchairs'
In order for the location to facilitate this aid there must be a corresponding dropped kerb on the opposite side of the carriageway in the vicinity. There isn't, please see GSV shots.

Given that none of the criteria is met and in light of the authority's position as stated in their letter they must cancel the PCN.

..and whatever else...


I would add a sentence re the loading, that it was being done, no more, and IMO more importantly, the assisted alighting. There is no caveat to that exemption
Neil B
QUOTE (hcandersen @ Mon, 14 Mar 2016 - 07:26) *
That's not what the OP sent as their challenge

Thankfully!

The original challenge wasn't much shorter.

I hope he/she takes the advice.

@Never.
The one piece of legislation you've mentioned that is relevant is the
Traffic Management Act 2004. Most of us, I think, would abbreviate to TMA 2004
after first mention when writing.
There is no "Road".


QUOTE (ford poplar @ Mon, 14 Mar 2016 - 02:59) *
it is a DK for pedestrians/cyclists to access/depart flats,

Bins I think.

https://www.google.co.uk/maps/@51.5533848,0...3312!8i6656

DancingDad
QUOTE (ford poplar @ Mon, 14 Mar 2016 - 02:59) *
..DD, not sure if the occupier defence you refer to has validity. The exempt you refer to is for crossover DKs allowing vehicle access ..........


Not what S86 says
QUOTE
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
.
This exception does not apply in the case of a shared driveway.


There is a counter argument that as this is a communal gate it can be classed as a shared driveway but council need to say that, not ignore.....

I misread the reps though....thought that was what had been sent, not a draft for the formal ?

Neil B
I'm hoping it's a draft, not sent.

Challenge was in #5
hcandersen
In which the OP states that 'it is not a shared drive way..'!
NeverSayYes
Thank you for your responses so far.

So, in short:

The letter for Formal Rep is too long.
There are too many points raised - but, correct me I am wrong, all of them are in relation to the PCN?

First things first, that SYL in front of a kerb is confusing and I am inclined to think this is a very valid point as I thought of the SYL before parking there.
FYI, I used to see cars parked at the same spot every Sunday, now since I got the PCN, not a single car has parked there!

2nd point is the fact that they based the PCN on a dropped kerb but the dropped kerb in question does not satisfy the criteria of a kerb as per TMA 2004.

3rd point is they just don't care about the fact that I am a resident there and I personally use that doorway to walk into my house.


What do you think I should remove from my draft formal rep letter?

QUOTE (DancingDad @ Mon, 14 Mar 2016 - 11:09) *
QUOTE (ford poplar @ Mon, 14 Mar 2016 - 02:59) *
..DD, not sure if the occupier defence you refer to has validity. The exempt you refer to is for crossover DKs allowing vehicle access ..........


Not what S86 says
QUOTE
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
.
This exception does not apply in the case of a shared driveway.


There is a counter argument that as this is a communal gate it can be classed as a shared driveway but council need to say that, not ignore.....

I misread the reps though....thought that was what had been sent, not a draft for the formal ?



Let's assume communal gate is considered, which in itself is not a driveway as per TMA 2004, why the SYL in front of the kerb? Thats what causes the confusion... and landed me with an unfair PCN mellow.gif
hcandersen
Wrong order.

You start with it's not a dropped kerb because all other matters are secondary and only arguments which need to be put if they consider that it is a dropped kerb.

Then comes any statutory exemption e.g. loading etc.

Next comes the yellow line.
NeverSayYes
Hi, thank you for helping me this far. I followed your advice and I did the changes. and I posted it to the council. I have, since then, been waiting impatiently for a response from the council, regularly checking my letter box.

Yesterday I finally received a response from them and needless to say, it was a Notice of Rejection. Maybe I should have been expecting that especially looking at the previous responses.

Typical bog standard answer, they did not explain why there was the yellow line nor how does the kerb fit in the criteria as per TMA 2004 (kerb one one side and no kerb on other side, etc).

In one part of the letter, they say my vehicle should not be parked where it was parked unless loading/unloading and in another part of the letter, they say it is prohibited to park there according a statutory prohibition in the Highway Code.

Very confusing.

Plus they also told me they have reduced the charge to £65 for 14 days - I thought once you get the Notice of Rejection, the reduced rate is no more available.

Please share your thoughts on this...
Incandescent
Please post up their letter. How many days since you sent the appeal, and them replying ? Rejections to formal appeals under the TMA 2004 must be within 56 days of the council receiving it.
NeverSayYes
Page 1:




Page 2:



They replied within 56 days. Posted on 17 March 2016, received NOR yesterday.
DancingDad
Let's have the rest of the NOR please.
And please confirm what you sent to them as a formal challenge as there was a bit of toing and froing in the discussions.

Methinks it is time for adjudication..... but this time, keep it simple.
Neil B
Can I ask why you obscure the name of the rejecting officer?
NeverSayYes
QUOTE (Neil B @ Sat, 30 Apr 2016 - 11:18) *
Can I ask why you obscure the name of the rejecting officer?



Since this is a public platform and photo is hosted on a 3rd party server, I feel it would be unfair on the 'Processing Officer' to let their name un-blurred. laugh.gif

QUOTE (DancingDad @ Sat, 30 Apr 2016 - 09:52) *
Let's have the rest of the NOR please.
And please confirm what you sent to them as a formal challenge as there was a bit of toing and froing in the discussions.

Methinks it is time for adjudication..... but this time, keep it simple.




The NOR came with all of the below:

Notice of Rejection Page 1
http://postimg.org/image/y0klsyj69/


Notice of Rejection Page 2
http://postimg.org/image/ybx08ltap/


London Tribunal Appeal form page 1



London Tribunal Appeal form page 2



London Tribunal Appeal form page 3



London Tribunal Appeal form page 4



NeverSayYes
Please can somebody help?
I need to post my appeal by 07 May 2016.

Please help me.
PASTMYBEST
QUOTE (NeverSayYes @ Fri, 13 Nov 2015 - 13:03) *
I am sending this to the council today. Please let me know your thoughts!


The location of the alleged contravention consists of a Single Yellow Line adjacent to a lowered footway. There is no clear indication of restrictions of use/stopping at the location nor is the footway there for purposes cited in the PCN. Following the issue of this penalty, there is serious ambiguity as to which enforcements are in place at this location as the Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours.
In accordance with the Road Traffic Act 1991 and Traffic Management Act 2004, my contest is on the basis that the contravention did not occur with respect to the following reasons:
1. Unenforceable location of the PCN/Invalid PCN
According to Section 86(1) of the Road Traffic Management Act 2004 as shown below:
In a special enforcement area, a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

This prohibition is not enforceable at this location because it does not meet any of the above conditions with respect to the following grounds:
(A) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting pedestrians crossing the carriageway. However, there is no corresponding lowered footway on the opposite side of the road which would suggest pedestrians are not able to use it to cross the carriageway. Additionally, the parking space/bay on the opposite side of the road makes it impossible for pedestrians to cross the carriageway from this point.
(B) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting cyclists entering or leaving the carriageway. However there is no practical opportunity for cyclists to enter or leave the carriageway without impeding pedestrians at this point nor is there a cycle track immediately adjacent to the lowered footway, cycle track or verge.
© The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting vehicles entering or leaving the carriageway. However, there is no practical access for vehicles through the lowered footway in terms of a garage or a drive or indeed a road. Additionally, the size of the lowered footway would not accommodate a vehicle neither would the fact that there is a door (black metal door) immediately at the front of the lowered footway.
This suggests that the PCN is invalid because none of the conditions of ‘Prohibition of Parking at Dropped footways’ are valid at this location.
2. Resident at location
As explained previously, I am a resident in the block of flats which is accessible via the black metal door which is adjacent to the lowered footway. In accordance with Section 86 (3) of the Road Traffic Management Act 2004:
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
This exception does not apply in the case of a shared driveway.
As an occupier of the premises and considering the fact that this is not a shared driveway, I stopped my car at this location to unload and drop luggage and walk my elderly father who has walking difficulties following a stroke into my house. The PCN is invalid on these grounds.

3. Loading/Unloading at location
As explained previously, I was unloading heavy luggage from my car into my house. In accordance with Section 86 (5) of the Road Traffic Management Act 2004:
The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.
My car was used to unload my luggage in to my house using the lowered footway which helped me carry my luggage from my car on the carriageway onto the footway and into the apartment yard via the black metal door. This process took no longer than 20 minutes.


4. Ambiguous Single Yellow Line Enforcements
There are no waiting restriction signs which indicate that the street is restricted at certain hours. According to the Traffic Signs Regulations and General Directions 2002, a single yellow line outside a controlled zone requires an accompanying sign detailing the hours of restriction. There is no such sign in this location, hence this restriction does not comply with the Traffic Signs Regulations and General Directions 2002. It is therefore unenforceable and the PCN is invalid.

5. Violation of the Code of Practice on Civil Parking and Traffic Enforcement – Single Yellow Line
The PCN specifies that the CEO started observation at 11:16 and the contravention occurred at 11:16. Therefore, the CEO did not carry out any observation as there was a ZERO observation time and proceeded with producing the PCN. This is in violation of the Code of Practice on Civil Parking and Traffic Enforcement in regards to the Single Yellow Line. According to paragraph 47 of the Code of Practice on Civil Parking and Traffic Enforcement:

The CEO did not allow the minimum of 5 minutes of observation before assigning the PCN although I was in the process of unloading a heavy item from my car on the carriageway onto the footway and into the apartment yard via the black metal door.
6. Violation of Road Traffic Management Act 2004 – Lowered Footway, Cycle Track or Verge
The ZERO observation time also suggests that the CEO did not carry out a proper assessment as to whether unloading was taking place or not before deciding if the contravention took place, considering the lowered footway. This is clearly in violation of Section 86(5) of the Road Traffic Management Act 2004 where, if this was a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the carriageway as stated by the CEO on the PCN, the CEO should have carried out a proper assessment ensuring parts (a), (b) and © of Section 86 (5) of the Road Traffic Management Act 2004 are satisfied before producing a PCN.


Is this your informal challenge or formal representations. Whichever, can we see the other one and also the rejection of informal challenge
NeverSayYes
I thought of posting everything in chronological order to help understand my situation and grounds of my appeal.
Sorry, I know it's a long read. sad.gif
Dealing with the council is such a nightmare :'(


Penalty Charge Notice:




Informal Appeal:

Dear Sir/Madam,
I am writing to appeal the above mentioned Penalty Charge Notice.
On the 1st of November 2015, my vehicle was issued with a Penalty Charge Notice for the reason of Contravention Code 27 with reason: ‘Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.’
The car was on The Warren, adjacent to the rear entrance to the block of flats 12-14 Rabbits Road. The car was stopped at the location because I was unloading heavy luggage from my car and also helping my elderly father who has difficulties walking following a major stroke, alight from the car. This location was the most convenient for my father to walk out of the car and onto the pavements smoothly. I stopped the car at the location which had a Single Yellow Line across the full length of the alleged lowered footway/verge/cycle track.
The location of the alleged contravention consists of a Single Yellow Line adjacent to a lowered footway. There is no clear indication of restrictions of use/stopping at the location nor is the footway there for purposes cited in the PCN. Following the issue of this penalty, there is serious ambiguity as to which enforcements are in place at this location as the Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours.
In accordance with the Road Traffic Act 1991 and Traffic Management Act 2004, my contest is on the basis that the contravention did not occur with respect to the following reasons:
1. Unenforceable location of the PCN/Invalid PCN
According to Section 86(1) of the Road Traffic Management Act 2004 as shown below:
In a special enforcement area, a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

This prohibition is not enforceable at this location because it does not meet any of the above conditions with respect to the following grounds:
(A) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting pedestrians crossing the carriageway. However, there is no corresponding lowered footway on the opposite side of the road which would suggest pedestrians are not able to use it to cross the carriageway. Additionally, the parking space/bay on the opposite side of the road makes it impossible for pedestrians to cross the carriageway from this point.
(B) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting cyclists entering or leaving the carriageway. However there is no practical opportunity for cyclists to enter or leave the carriageway without impeding pedestrians at this point nor is there a cycle track immediately adjacent to the lowered footway, cycle track or verge.
© The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting vehicles entering or leaving the carriageway. However, there is no practical access for vehicles through the lowered footway in terms of a garage or a drive or indeed a road. Additionally, the size of the lowered footway would not accommodate a vehicle neither would the fact that there is a door (black metal door) immediately at the front of the lowered footway.
This suggests that the PCN is invalid because none of the conditions of ‘Prohibition of Parking at Dropped footways’ are valid at this location.
2. Resident at location
As explained previously, I am a resident in the block of flats which is accessible via the black metal door which is adjacent to the lowered footway. In accordance with Section 86 (3) of the Road Traffic Management Act 2004:
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
This exception does not apply in the case of a shared driveway.
As an occupier of the premises and considering the fact that this is not a shared driveway, I stopped my car at this location to unload and drop luggage and walk my elderly father who has walking difficulties following a stroke into my house. The PCN is invalid on these grounds.

3. Loading/Unloading at location
As explained previously, I was unloading heavy luggage from my car into my house. In accordance with Section 86 (5) of the Road Traffic Management Act 2004:
The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.
My car was used to unload my luggage in to my house using the lowered footway which helped me carry my luggage from my car on the carriageway onto the footway and into the apartment yard via the black metal door. This process took no longer than 20 minutes.

4. Ambiguous Single Yellow Line Enforcements
There are no waiting restriction signs which indicate that the street is restricted at certain hours. According to the Traffic Signs Regulations and General Directions 2002, a single yellow line outside a controlled zone requires an accompanying sign detailing the hours of restriction. There is no such sign in this location, hence this restriction does not comply with the Traffic Signs Regulations and General Directions 2002. It is therefore unenforceable and the PCN is invalid.

5. Violation of the Code of Practice on Civil Parking and Traffic Enforcement – Single Yellow Line
The PCN specifies that the CEO started observation at 11:16 and the contravention occurred at 11:16. Therefore, the CEO did not carry out any observation as there was a ZERO observation time and proceeded with producing the PCN. This is in violation of the Code of Practice on Civil Parking and Traffic Enforcement in regards to the Single Yellow Line. According to paragraph 47 of the Code of Practice on Civil Parking and Traffic Enforcement:

The CEO did not allow the minimum of 5 minutes of observation before assigning the PCN although I was in the process of unloading a heavy item from my car on the carriageway onto the footway and into the apartment yard via the black metal door.
6. Violation of Road Traffic Management Act 2004 – Lowered Footway, Cycle Track or Verge
The ZERO observation time also suggests that the CEO did not carry out a proper assessment as to whether unloading was taking place or not before deciding if the contravention took place, considering the lowered footway. This is clearly in violation of Section 86(5) of the Road Traffic Management Act 2004 where, if this was a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the carriageway as stated by the CEO on the PCN, the CEO should have carried out a proper assessment ensuring parts (a), (b) and © of Section 86 (5) of the Road Traffic Management Act 2004 are satisfied before producing a PCN.
I find this PCN unfairly charged and the enforcements at the location ambiguous. I hope you will understand my situation on this matter. I look forward to receiving notification that the Penalty Charge Notice has been cancelled within 28 days.



Informal Appeal Decision





Notice to Owner





Formal Appeal
Dear Sir/Madam,
I am hereby making representations to the council against the above-mentioned penalty charge following the receipt of a Notice to Owner dated 25/02/2016, on 27/02/2016.
On the 1st of November 2015, my vehicle was issued with a Penalty Charge Notice for the reason of Contravention Code 27 with reason: ‘Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.’
The car was parked on The Warren, adjacent to the rear entrance to the block of flats 12-14 Rabbits Road. The car was stopped at the location because I was unloading heavy luggage from my car and also helping my elderly father who has difficulties walking following a major stroke, alight from the car. This location was the most convenient for my father to walk out of the car and onto the pavements smoothly.
I stopped my car at the location at the time because there were no signs to the contrary and nothing about its appearance suggested that it was a dropped kerb, as defined in section 86 of the Traffic Management Act.
The location of the alleged contravention consists of a Single Yellow Line adjacent to a hazardous lowered footway which has no significant purpose. The Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours (0900-1700 Monday – Saturday) and the lowered footway which has nothing about its appearance or purpose suggesting that it is a dropped kerb as defined in Section 86 of the Traffic Management Act 2004 and as cited in the PCN, and the lack of any signs to the contrary, all lead me to understand that parking and unloading is allowed at the location at the time of the PCN, especially as a resident of the flat adjacent to the lowered footway in consideration.
In your response to my informal appeal, dated 08 December 2015, you have provided two bog-standard paragraphs, one for the lowered kerb and one for the single yellow line.
You have told me I was given this Penalty Charge Notice ‘”for parking against a stretch of lowered, sloping kerb.” However you have failed to explain to me why you have placed a single yellow line, which allows parking on the day the PCN was issued, in front of a dropped kerb. This causes serious ambiguity to me and any other driver, on the restrictions being applied at the location. You have also disregarded several points I have raised in my informal appeal.


In accordance with the Road Traffic Act 1991 and Traffic Management Act 2004, my contest is on the following grounds:
A. The alleged contravention did not occur.
1. Unenforceable location of the PCN/Invalid PCN
You have told me in your letter dated 08 December 2015, I was given this Penalty Charge Notice “for parking against a stretch of lowered, sloping kerb” whilst on the Penalty Charge Notice, you have specified “parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway”.
In regards to dropped footways/cycles tracks/verges, section 86(1) of the Traffic Management Act 2004 highlights the below:
In a special enforcement area, a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

As you can notice in the picture of the location of the contravention below, this is an area of footway of somewhat haphazard construction, intended for some bygone purpose; it is not wide enough for a vehicle and the uneven nature of the granite sets would provide more of a hazard than assistance to anyone trying to enter or leave the carriageway, especially people with prams or wheelchairs, not to mention the absence of any corresponding dropped kerb on the other side of the carriageway. As well as not being clearly dropped for the purposes of aiding pedestrians, this area of pavement has no tactile paving as is habitually used in the area at a dropped footway/cycle track or verge.


1.1 With reference to Section 86(1)(a)(i) of the Traffic Management Act 2004, and according to your own words in your letter dated 08 December 2015, “to help pedestrians cross the road, especially people with prams or wheelchairs”, the footway/cycle track/verge should be dropped to assist pedestrians crossing the carriageway. Therefore, in order to assist a pedestrian, especially people with prams or wheelchairs, to cross from one side of the carriageway to the other side of the carriageway safely, there should be a lowered footway on each side of the carriageway.
Please find below the location showing both sides of The Warren.

As you can observe in the above picture, there is no corresponding dropped footway/kerb/verge for at least 30 metres to the left of the dropped footway/kerb/verge or 30 metres to the right of the dropped footway/kerb/verge which would allow a pedestrian, especially people with prams or wheelchairs, to cross the carriageway safely. There are in fact car parking bays across the opposite of the length of the carriageway which prevent pedestrians, especially people with prams or wheelchairs, to cross the carriageway. It is clear that the alleged footway does not comply with regulations and guidance by the Department of Transport in Local Transport Note 2/95 – The Design of Pedestrian Crossings, sections 2.6.1 and 2.6.2 of 2.6 ‘Crossing Approach Surfaces for Footways and Carriageways’ and sections 2.7.1, 2.7.2, 2.7.3 of 2.7 ‘Facilities for Disabled Pedestrians’.
This establishes that the lowered footway/verge/cycle track does not assist pedestrians crossing the carriageway, thereby not satisfying the requirements from Section 86(1)(a)(i) of the Traffic Management Act 2004.

1.2 With reference to Section 86(1)(a)(ii) of the Traffic Management Act 2004, and according to your own words in your letter dated 08 December 2015, “to allow cycles to cross from roads to cycle tracks”, the footway/kerb/verge should be dropped to assist cyclists entering or leaving the carriageway.
The picture below shows the location of the dropped footway/kerb/verge.

As you can observe in the picture, there is no cycle track immediately adjacent to the lowered footway/cycle track/verge to suggest that cyclists could cross from road to cycle tracks. Additionally there is no practical opportunity for a cyclist to enter or leave the carriageway without impeding pedestrians at this location.
This establishes that the lowered footway/verge/cycle track does not assist cyclists entering or leaving the carriageway, thereby not satisfying the requirements from Section 86(1)(a)(ii) of the Traffic Management Act 2004.

1.3 With reference to Section 86(1)(a)(iii) of the Traffic Management Act 2004, and according to your own words in your letter dated 08 December 2015, “to allow cars access to garages”, the footway/cycle track/verge should be dropped to assist vehicles entering or leaving the carriageway across the footway, cycle track or verge.
The picture below shows the location of the dropped footway/kerb/verge.

As you can observe from the picture, the entrance immediately adjacent to the dropped footway/cycle track/verge consists of a black metal door which leads to the entrance of the block of flats 12-14 Rabbits Road. The width of the entrance is not large enough to accommodate a vehicle through and additionally, there are no garages within the block of flats through that entrance.
This establishes that the lowered footway/verge/cycle track does not assist vehicles entering or leaving the carriageway across the footway, cycle track or verge, thereby not satisfying the requirements from Section 86(1)(a)(iii) of the Traffic Management Act 2004.
The footway/cycle track/verge, as highlighted in the PCN and as explained in your letter dated 08 December 2015, is not fit for purpose as per the requirements of Section 86(1) of the Traffic Management Act 2004, thus also implying that the terms footway, cycle track or verge as per Section 329 (1) of the Highways Act 1980, do not apply at this location. None of the conditions of Section 86(1) ‘Prohibition of Parking at Dropped Footways etc.’ of the Traffic Management Act 2004 apply to this location. The PCN is therefore invalid and thus the contravention did not occur.

2. Resident at Location
As I highlighted in my informal appeal and above, I am a resident at XXX, whereby the location of the alleged contravention is in fact the entrance to my flat. The black door/gate adjacent to the dropped footway/verge/cycle track as described in the PCN, is the back entrance door through which I would walk to access my flat. According to section 86(3) ‘Prohibition of Parking at Dropped Footways etc’ of the Road Traffic Management Act 2004:
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
This exception does not apply in the case of a shared driveway.
The car was parked outside the residential premise of which I am the occupier in order to help my father alight from the car and to help me unload a heavy luggage from my car onto the dropped footway and proceed towards the black door/gate through the entrance to the flat. Additionally, the dropped footway is not a shared driveway because it is not fit for the purpose of a driveway due to its small width, the black door/gate and lack of driveway/garage past the entrance.
This establishes that the exception of Section 86(3) ‘Prohibition of Parking at Dropped Footways etc.’ of the Traffic Management Act 2004 applies in this case, thereby invalidating the PCN.
3. Loading/Unloading at location
As I explained previously in my informal appeal and also above, I was unloading a heavy luggage, which was 30kg in weight, from my car into my house. The car was stopped beside the dropped footway to, as explained above, allow my father to alight and, also to help me unload the heavy luggage from my car. The luggage was in the car boot. I pulled it out of the boot onto the tarmac immediately behind the car. I was then able to pull the luggage from the tarmac onto the dropped footway, through the black door/gate and then inside the building to my flat which was on the xxx floor, xxxx flights of stairs up (note: there are no lifts in the building). The location where I parked the car was safest for me to unload the luggage from the car as it allowed me to move the luggage easily into my premises without having to pull it across the road and/or across the pavements, thereby causing a hazard to other road users and pedestrians. According to Section 86(5) ‘Prohibition of Parking at Dropped Footways etc.’ of the Road Traffic Management Act 2004:
The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.
The vehicle was being used for the purposes of unloading a luggage. The unloading could not be safely carried out in relation to my premises without my car being parked adjacent to the dropped footway. The whole process took no longer than 20 minutes.
This establishes that the fourth exception in Section 86(5) ‘Prohibition of Parking at Dropped Footways etc.’ of the Traffic Management Act 2004 also applies in this case, thereby invalidating the PCN.

4. Ambiguous Enforcements - Single Line Adjacent to Dropped Footway/Verge/Cycle Track
The image below shows the Single Yellow Line is adjacent to the dropped footway/verge/cycle track.

As per your response to my appeal dated 08 December 2015, you advised that “a vehicle is permitted to park in a bay or on a single yellow line for the purpose of loading or unloading”.
In addition, you claim on your website (https://www.newham.gov.uk/Pages/Services/Waiting-and-loading-restrictions-on-yellow-lines.aspx?l1=100002&l2=200072) that “Loading restrictions are marked by single or double yellow blips on the kerb. You can only park on them outside of the restricted hours. However double yellow lines mean no parking at any time. There will be time plates nearby to tell you when you can park there.”
By placing a single yellow line at this location, you have implied that it is allowed to park there outside of parking bay restriction hours which is Monday to Saturday 0900 – 1700 at this location. I complied with the white parking bay sign on The Warren and I parked at the location on a Sunday at around 1115am, which is outside the parking restriction hours of that location. I find that by giving me a PCN on a Sunday for parking on Single Yellow Line which is only restricted Mondays to Saturdays 0900 to 1700, wrong and misleading.
In your letter dated 08 December 2015, you also advised that the road adjacent to a dropped footway/verge/cycle track “must always remain clear of obstruction and there is no legal duty laid upon the council to provide signs or lines indicating the prohibition, it is expected that drivers should be aware of this restriction as per the Highway Code. It is applicable at all times.”
Why, then, have you marked what you claim to be a 24/7 restriction with a single yellow line that is only in force between 0900 to 1700, Mondays to Saturdays?
You have mentioned in your letter dated 08 December 2015 that “there is no legal duty laid upon the council to provide signs or lines indicating the prohibition”, however you have placed a Single Yellow Line which makes the situation misleading and ambiguous for me to understand which restriction is being applied at this location.
Furthermore can I point you to a similar case where it was decided at a PATAS appeal that a single yellow line in front of a dropped kerb was confusing and misleading for road users, case ref 2110067442.
This is in line with my query – how should a road user know which restriction takes priority? The council is lawfully bound to provide clear road markings and signs and I believe in this instance you have failed to do so.
Along with your response to my queries above, would you kindly provide copies of the Traffic Management Order and applicable amendments that created the waiting restriction indicated by the single yellow line and justification as to how it was allowed to run past the alleged lowered footway.

B. There has been procedural impropriety on the part of the enforcement authority.
1. Inaccurate Contravention
The Penalty Charge Notice specifies that the penalty was given for contravention doe 27 ‘Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway’. I believe there has been procedural impropriety by the CEO in relation to the contravention mentioned in this PCN because the dropped footway does not meet the requirements of Section 86 of the Road Traffic Management Act 2004 to be qualified as a footway, cycle track or verge lowered to meet the level of the carriageway and to serve the prescribed purposes of a lowered footway, cycle track or verge. This therefore invalidates the contravention.
2. Unavailable Photographic Evidence
You mentioned in your letter dated 08 December 2015 that I may view photographic evidence of my case online at www.newham.gov.uk. However, after following your instructions to the word, I find that there is no such evidence available online.

Clicking on any of the 8 thumbnails above returns the below error message:


3. Violation of Road Traffic Management Act 2004 – Lowered footway, cycle track or verge
The ZERO observation time on the PCN suggests that the CEO did not carry out a proper assessment as to whether unloading was taking place or not before deciding if the contravention took place, if it were considered the lowered footway was a lowered footway as prescribed in the Traffic Management Act 2004. This is clearly in violation of Section 86(5) of the Road Traffic Management Act 2004 where, if this was a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the carriageway as stated by the CEO on the PCN, the CEO should have carried out a proper assessment ensuring parts (a), (b) and © of Section 86 (5) of the Road Traffic Management Act 2004 are satisfied before producing a PCN.
4. Violation of the Code of Practice on Civil Parking and Traffic Enforcement – Single Yellow Line
The PCN specifies that the CEO started observation at 11:16 and the contravention occurred at 11:16. Therefore, the CEO did not carry out any observation as there was a ZERO observation time and proceeded with producing the PCN. This is in violation of the Code of Practice on Civil Parking and Traffic Enforcement in regards to the Single Yellow Line considering the fact that there was a single yellow line at the location of the contravention. According to paragraph 47 of the Code of Practice on Civil Parking and Traffic Enforcement:

The CEO did not allow the prescribed 5 minutes of observation or the minimum 2 minutes of observation (as per Newham Council policy) before assigning the PCN although I was in the process of unloading a heavy item from my car on the carriageway onto the footway and into the apartment yard via the black metal door/gate and my father who has walking difficulties was alighting from the car.

5. No consideration given to all points raised in informal appeal
Several crucial points that I raised in my informal appeal on 13/11/2015 were ignored. Reasons 1, 2 and 3 specifically from the informal appeal letter where I explained I was a resident at the location unloading and helping my father alight the car, and the dropped footway was in front of my house and also where I queried the reasoning behind why this location was termed as a dropped footway, cycle track or verge when it serves none of the purposes, were ignored and not responded to in your letter dated 08 December 2015.
I find this PCN unfairly charged especially as my car was parked in front of my house and in the most appropriate location for my elderly father to alight from the car and for me to unload heavy luggage. I look forward to receiving notification that the Penalty Charge Notice has been cancelled within 28 days. I also hope you will agree that the CEO has made a mistake in this instance, and has been a little over-zealous in their enforcement of this specific and narrowly-defined prohibition which is ambiguous and unclear. If you reject my arguments, could you please provide reasoning beyond simply stating that this location is a 'dropped kerb' without explanation, after all, not all lowered lengths of kerb are dropped kerbs, as defined. Please also provide explanation to the ALL queries raised in this formal representation.



Notice of Rejection




London Tribunals Appeal Form

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QUOTE (PASTMYBEST @ Tue, 3 May 2016 - 10:26) *
QUOTE (NeverSayYes @ Fri, 13 Nov 2015 - 13:03) *
I am sending this to the council today. Please let me know your thoughts!


The location of the alleged contravention consists of a Single Yellow Line adjacent to a lowered footway. There is no clear indication of restrictions of use/stopping at the location nor is the footway there for purposes cited in the PCN. Following the issue of this penalty, there is serious ambiguity as to which enforcements are in place at this location as the Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours.
In accordance with the Road Traffic Act 1991 and Traffic Management Act 2004, my contest is on the basis that the contravention did not occur with respect to the following reasons:
1. Unenforceable location of the PCN/Invalid PCN
According to Section 86(1) of the Road Traffic Management Act 2004 as shown below:
In a special enforcement area, a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where—
(a)the footway, cycle track or verge has been lowered to meet the level of the carriageway for the purpose of—
(i)assisting pedestrians crossing the carriageway,
(ii)assisting cyclists entering or leaving the carriageway, or
(iii)assisting vehicles entering or leaving the carriageway across the footway, cycle track or verge; or
(b)the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge.

This prohibition is not enforceable at this location because it does not meet any of the above conditions with respect to the following grounds:
(A) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting pedestrians crossing the carriageway. However, there is no corresponding lowered footway on the opposite side of the road which would suggest pedestrians are not able to use it to cross the carriageway. Additionally, the parking space/bay on the opposite side of the road makes it impossible for pedestrians to cross the carriageway from this point.
(B) The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting cyclists entering or leaving the carriageway. However there is no practical opportunity for cyclists to enter or leave the carriageway without impeding pedestrians at this point nor is there a cycle track immediately adjacent to the lowered footway, cycle track or verge.
© The footway, cycle track or verge has allegedly been lowered to meet the level of the carriageway for the purpose of assisting vehicles entering or leaving the carriageway. However, there is no practical access for vehicles through the lowered footway in terms of a garage or a drive or indeed a road. Additionally, the size of the lowered footway would not accommodate a vehicle neither would the fact that there is a door (black metal door) immediately at the front of the lowered footway.
This suggests that the PCN is invalid because none of the conditions of ‘Prohibition of Parking at Dropped footways’ are valid at this location.
2. Resident at location
As explained previously, I am a resident in the block of flats which is accessible via the black metal door which is adjacent to the lowered footway. In accordance with Section 86 (3) of the Road Traffic Management Act 2004:
The second exception is where the vehicle is parked outside residential premises by or with the consent (but not consent given for reward) of the occupier of the premises.
This exception does not apply in the case of a shared driveway.
As an occupier of the premises and considering the fact that this is not a shared driveway, I stopped my car at this location to unload and drop luggage and walk my elderly father who has walking difficulties following a stroke into my house. The PCN is invalid on these grounds.

3. Loading/Unloading at location
As explained previously, I was unloading heavy luggage from my car into my house. In accordance with Section 86 (5) of the Road Traffic Management Act 2004:
The fourth exception is where—
(a)the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b)the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
©the vehicle is so parked for no longer than is necessary and for no more than 20 minutes.
My car was used to unload my luggage in to my house using the lowered footway which helped me carry my luggage from my car on the carriageway onto the footway and into the apartment yard via the black metal door. This process took no longer than 20 minutes.


4. Ambiguous Single Yellow Line Enforcements
There are no waiting restriction signs which indicate that the street is restricted at certain hours. According to the Traffic Signs Regulations and General Directions 2002, a single yellow line outside a controlled zone requires an accompanying sign detailing the hours of restriction. There is no such sign in this location, hence this restriction does not comply with the Traffic Signs Regulations and General Directions 2002. It is therefore unenforceable and the PCN is invalid.

5. Violation of the Code of Practice on Civil Parking and Traffic Enforcement – Single Yellow Line
The PCN specifies that the CEO started observation at 11:16 and the contravention occurred at 11:16. Therefore, the CEO did not carry out any observation as there was a ZERO observation time and proceeded with producing the PCN. This is in violation of the Code of Practice on Civil Parking and Traffic Enforcement in regards to the Single Yellow Line. According to paragraph 47 of the Code of Practice on Civil Parking and Traffic Enforcement:

The CEO did not allow the minimum of 5 minutes of observation before assigning the PCN although I was in the process of unloading a heavy item from my car on the carriageway onto the footway and into the apartment yard via the black metal door.
6. Violation of Road Traffic Management Act 2004 – Lowered Footway, Cycle Track or Verge
The ZERO observation time also suggests that the CEO did not carry out a proper assessment as to whether unloading was taking place or not before deciding if the contravention took place, considering the lowered footway. This is clearly in violation of Section 86(5) of the Road Traffic Management Act 2004 where, if this was a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the carriageway as stated by the CEO on the PCN, the CEO should have carried out a proper assessment ensuring parts (a), (b) and © of Section 86 (5) of the Road Traffic Management Act 2004 are satisfied before producing a PCN.


Is this your informal challenge or formal representations. Whichever, can we see the other one and also the rejection of informal challenge



Hi mate,
I've attached everything in chronological order. Please see previous post.

QUOTE (DancingDad @ Sat, 30 Apr 2016 - 09:52) *
Let's have the rest of the NOR please.
And please confirm what you sent to them as a formal challenge as there was a bit of toing and froing in the discussions.

Methinks it is time for adjudication..... but this time, keep it simple.



Hi Dancing Dad, thank you for your response. Please see my previous post, I have included everything/communications since the dreaded day!
What do you advise?
PASTMYBEST
You have until the 26th May to register your appeal so no rush yet.

Points of appeal

1 contravention did not occur. DK not for any of the reasons at 86 of TMA 2004

2 contravention did not occur assisted Boarding/alighting

3 contravention did not occur Loading/unloading

4 contravention did not occur. SYL through the DK Caused confusion

5 Procedural impropriety. The authority failed in it's duty to consider your informal challenge and formal reps

Forget all the ancillary issues like observation times they are not a statutory requirement and are not usual for DK.

Have a look at the sticky at the top of the forum, file of cases to assist arguments, you will find PATAS cases that support your arguments

NeverSayYes
QUOTE (PASTMYBEST @ Tue, 3 May 2016 - 20:31) *
You have until the 26th May to register your appeal so no rush yet.

Points of appeal

1 contravention did not occur. DK not for any of the reasons at 86 of TMA 2004

2 contravention did not occur assisted Boarding/alighting

3 contravention did not occur Loading/unloading

4 contravention did not occur. SYL through the DK Caused confusion

5 Procedural impropriety. The authority failed in it's duty to consider your informal challenge and formal reps

Forget all the ancillary issues like observation times they are not a statutory requirement and are not usual for DK.

Have a look at the sticky at the top of the forum, file of cases to assist arguments, you will find PATAS cases that support your arguments



Thanks for the response PMB. So, should I also include their misleading guidance where once they said I can only park where I parked if I was loading but then, in the same letter, they said I am prohibited to park there according to Highway Code 243?
Neil B
QUOTE (NeverSayYes @ Wed, 4 May 2016 - 00:53) *
Thanks for the response PMB. So, should I also include their misleading guidance where once they said I can only park where I parked if I was loading but then, in the same letter, they said I am prohibited to park there according to Highway Code 243?

That would come under his point 5. P.I. i.e. that you do not understand why the Council refer to being allowed to park while unloading when you had explained you were doing exactly that.

BUT do you see how that is very much a reserve issue that detracts from the main points, which are 1-4 and basically the same as HCA in post #19.

Now, if you intend to proceed, all you need do is register your appeal with LT. Details can follow.
But in those details you really musn't write another War & Peace.
Little more, if any more at all, than the simple sentences you've been given.
NeverSayYes
QUOTE (Neil B @ Wed, 4 May 2016 - 00:31) *
QUOTE (NeverSayYes @ Wed, 4 May 2016 - 00:53) *
Thanks for the response PMB. So, should I also include their misleading guidance where once they said I can only park where I parked if I was loading but then, in the same letter, they said I am prohibited to park there according to Highway Code 243?

That would come under his point 5. P.I. i.e. that you do not understand why the Council refer to being allowed to park while unloading when you had explained you were doing exactly that.

BUT do you see how that is very much a reserve issue that detracts from the main points, which are 1-4 and basically the same as HCA in post #19.

Now, if you intend to proceed, all you need do is register your appeal with LT. Details can follow.
But in those details you really musn't write another War & Peace.
Little more, if any more at all, than the simple sentences you've been given.



Thank you for the response Neil. I'm on it, hopefully will come up with a shorter letter smile.gif
PS: How much of a chance do I stand to succeed at Tribunals? Are the grounds of appeal valid and strong enough?
Neil B
That's a tough question: We can't promise anything.

But, based on various previous cases, yes, stronger than a lot we see.
hcandersen
OP, don't mistake weight of evidence for length of appeal.

IM, your primary grounds of appeal under the heading 'contravention did not occur' are that the location does not meet any of the criteria set out explicitly in the Traffic Management Act. Not the RTA or the Road Traffic Management Act, it's the Traffic Management Act. In support of this you described what exists at the site in your representations and the authority have NOT disputed this in their NOR. Instead they've just described these criteria and not argued which, if any, the location meets. By way of example I would refer to this aspect from their NOR, the last para. on page 1 refers:

'A dropped kerb is put in place to assist pedestrians, wheel chair users and people with buggies to cross the road. It also allows vehicles to enter or leave the road across the footway or verge, hence it must always remain clear of obstruction..'

No it doesn't and isn't. The criteria are exclusive e.g. it either assists pedestrians or it provides for vehicles to cross the footway. It would be a strange and dangerous dropped kerb that helped pedestrians by risking them colliding with vehicles entering the road.

This response by the authority ignores the actual purpose of the location, which your reps challenged in detail, and just lists what a dropped kerb must do in order to be considered as such and not what function this one actually fulfils.



IMO, do NOT list the other aspects of your appeal as if they carry equal weight, they don't and your appeal starts to resemble a trawl of disconnected points obtained, an adj might believe, from goodness knows where.

By all means include them, but in a subsidiary way and not as if they carry the same weight.

NeverSayYes
QUOTE (hcandersen @ Wed, 4 May 2016 - 20:59) *
OP, don't mistake weight of evidence for length of appeal.

IM, your primary grounds of appeal under the heading 'contravention did not occur' are that the location does not meet any of the criteria set out explicitly in the Traffic Management Act. Not the RTA or the Road Traffic Management Act, it's the Traffic Management Act. In support of this you described what exists at the site in your representations and the authority have NOT disputed this in their NOR. Instead they've just described these criteria and not argued which, if any, the location meets. By way of example I would refer to this aspect from their NOR, the last para. on page 1 refers:

'A dropped kerb is put in place to assist pedestrians, wheel chair users and people with buggies to cross the road. It also allows vehicles to enter or leave the road across the footway or verge, hence it must always remain clear of obstruction..'

No it doesn't and isn't. The criteria are exclusive e.g. it either assists pedestrians or it provides for vehicles to cross the footway. It would be a strange and dangerous dropped kerb that helped pedestrians by risking them colliding with vehicles entering the road.

This response by the authority ignores the actual purpose of the location, which your reps challenged in detail, and just lists what a dropped kerb must do in order to be considered as such and not what function this one actually fulfils.



IMO, do NOT list the other aspects of your appeal as if they carry equal weight, they don't and your appeal starts to resemble a trawl of disconnected points obtained, an adj might believe, from goodness knows where.

By all means include them, but in a subsidiary way and not as if they carry the same weight.



Hi HCA and PMB,

I have re-written my appeal. I am sorry for it being too long. If you don't mind, please read through and critically assess it (let me know what you think I need to take out or minimise and I will do so) I tried as much to make some things sound less important than others but it might still not be the case. Please help me out mellow.gif mellow.gif :

Dear Sir/Madam,
I am hereby presenting to you, by means of this letter, my case against the penalty charge PCN number: PN12345678 issued to me on Sunday the 1st of November 2015 at 11.16 a.m. by Civil Enforcement Officer PN of Newham Council.
On the 1st of November 2015, my vehicle was issued with a Penalty Charge Notice for the reason of Contravention Code 27 with reason: ‘Parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.’
The car was parked on The Warren, adjacent to the rear entrance to the block of flats. The car was stopped at the location because I was unloading heavy luggage from my car and also helping my elderly father who has difficulties walking following a major stroke, alight from the car. This location was the most convenient for my father to walk out of the car and onto the pavements smoothly.
The location of the alleged contravention consists of a Single Yellow Line adjacent to a hazardous lowered footway which has no significant purpose. The Single Yellow Line suggests parking/stopping is allowed outside of prescribed hours (0900-1700 Monday – Saturday – Little Ilford Controlled Parking Zone L) and the lowered footway which has nothing about its appearance or purpose suggesting that it is a dropped kerb as defined in Section 86 of the Traffic Management Act 2004 and the lack of any signs to the contrary, all lead me to understand that parking and unloading is allowed at the location at the time of the PCN, especially as a resident of the flat adjacent to the lowered footway in consideration.
My contest against this PCN, with respect to reasons mentioned in my informal appeal dated 13th November 2015 and my formal appeal dated 11th March 2016 to the Enforcement Authority, is on the basis that the contravention did not occur and that there has been procedural impropriety on the part of the Enforcement Authority. By means of this letter, I am re-stating my grounds for appeal.
In accordance with the Traffic Management Act 2004, my contest is on the following grounds:

A. The alleged contravention did not occur.
1. The location does not meet any of the criteria for a dropped kerb set out explicitly in section 86 of the Traffic Management Act.
Please find below the image of the alleged location:






Please find below the location showing both sides of The Warren.







As the pictures of the location of the contravention above show, this is an area of footway of somewhat haphazard construction, intended for some bygone purpose; it is not wide enough for a vehicle to cross and the uneven nature of the granite sets are a hazard to anyone trying to enter or leave the carriageway, especially people with prams or wheelchairs, not to mention the absence of any corresponding dropped kerb on the other side of the carriageway. As well as not being clearly dropped for the purposes of aiding pedestrians, this area of pavement has no tactile paving as is habitually used in the area at a dropped footway/cycle track or verge.

1.1 “To help pedestrians cross the road, especially people with prams or wheelchairs”
With reference to Section 86(1)(a)(i) of the Traffic Management Act 2004, “to help pedestrians cross the road, especially people with prams or wheelchairs”, as footway/cycle track/verge should be dropped to assist pedestrians crossing the carriageway. Consequently, in order to assist pedestrians, especially people with prams or wheelchairs, to cross from one side of the carriageway to the other side of the carriageway safely, there should be a lowered footway on both sides of the carriageway. However, in the case of this particular location, there is no corresponding dropped footway/kerb/verge for at least 30 metres to the left of the alleged dropped footway/kerb/verge or 30 metres to the right of the alleged dropped footway/kerb/verge, which would allow a pedestrian, especially people with prams or wheelchairs, to cross the carriageway safely. There are in fact car parking bays across the opposite of the length of the carriageway which prevent pedestrians, especially people with prams or wheelchairs, to cross the carriageway.
Additionally, the alleged footway does not comply with regulations and guidance by the Department of Transport in Local Transport Note 2/95 – The Design of Pedestrian Crossings, sections 2.6.1 and 2.6.2 of 2.6 ‘Crossing Approach Surfaces for Footways and Carriageways’ and sections 2.7.1, 2.7.2, 2.7.3 of 2.7 ‘Facilities for Disabled Pedestrians’.
It is clear that the alleged lowered footway/verge/cycle track cannot help pedestrians cross the carriageway, especially people with prams or wheelchair, thereby not meeting any of the criteria as set out in Section 86(1)(a)(i) of the Traffic Management Act 2004.

1.2 “To allow cycles to cross from roads to cycle tracks”
With reference to Section 86(1)(a)(ii) of the Traffic Management Act 2004, “to allow cycles to cross from roads to cycle tracks”, a footway/kerb/verge should be dropped to assist cyclists entering or leaving the carriageway.
In the case of this particular location, there is no cycle track immediately adjacent to the alleged lowered footway/cycle track/verge to suggest that cyclists could cross from road to cycle tracks. Additionally, there is no practical opportunity for a cyclist to enter or leave the carriageway without impeding pedestrians using the pavements at this location.
It is clear that the alleged lowered footway/verge/cycle track does assist cyclists entering or leaving the carriageway, thereby not meeting any of the criteria of a dropped kerb as set out in Section 86(1)(a)(ii) of the Traffic Management Act 2004.

1.3 “To allow cars access to garages”
With reference to Section 86(1)(a)(iii) of the Traffic Management Act 2004, “to allow cars access to garages”, a footway/cycle track/verge should be dropped to assist vehicles entering or leaving the carriageway across the footway, cycle track or verge.
In the case of the particular location, the entrance immediately adjacent to the alleged dropped footway/cycle track/verge consists of a black metal door which leads to the entrance of the block of flats. The widths of the entrance and of the black metal door are not practically large enough for a vehicle to pass through. Additionally, there are no garages past the black metal door within the block of flats through that entrance.
It is clear that the alleged lowered footway/verge/cycle track cannot assist vehicles entering or leaving the carriageway across it, thereby not meeting any of the criteria of a dropped kerb as set out in Section 86(1)(a)(iii) of the Traffic Management Act 2004.
The alleged footway/cycle track/verge, as highlighted in the Penalty Charge Notice is not fit for purpose as per the requirements of Section 86(1) of the Traffic Management Act 2004, thus also implying that the terms footway, cycle track or verge as per Section 329 (1) of the Highways Act 1980, do not apply at this location. None of the conditions of Section 86(1) ‘Prohibition of Parking at Dropped Footways etc.’ of the Traffic Management Act 2004 apply to this location. Consequently, this establishes that that the contravention did not occur.

2. Boarding/Alighting at the location
I am a resident at the block of flats and the location of the alleged contravention is the entrance to my flat. The black door/gate adjacent to the alleged dropped footway/verge/cycle track is the back door entrance through which I would walk to enter my flat. The car was parked outside the residential premise of which I am the occupier in order to help my father alight from the car and to help me unload a heavy luggage from the boot of my car onto the alleged dropped footway and proceed towards the black door/gate through to the entrance to the flat. Additionally, the dropped footway is not a shared driveway because it is not fit for the purpose of a driveway due to its small width, the black door/gate and lack of driveway/garage past the entrance.
With reference to the exception set out in Section 86(3) of the Traffic Management Act 2004, and whilst considering a circumstance where the alleged dropped kerb were considered to be a dropped footway/cycle track or verge which fit the criteria set in Section 86 of the Traffic Management Act, the contravention did not occur.

3. Loading/Unloading at the location
I was unloading a heavy luggage, which was approximately 30kg in weight, from my car into my house. The car was stopped beside the dropped footway to allow my father who had suffered a major stroke and cannot walk without support, to alight and, also to help me unload the heavy luggage from my car. The luggage was in the car boot. I pulled it out of the boot onto the tarmac immediately behind the car. I was then able to pull the luggage from the tarmac onto the alleged dropped footway, through the black door/gate and then inside the building to my flat, two flights of stairs up (please note: there are no lifts in the building). The location where I parked the car was safest for me to unload the luggage from the car as it allowed me to move the luggage easily into my premises without having to pull it across the road and/or along the pavements, causing a hazard to other road users and pedestrians. My car was being used for the purposes of unloading a luggage. The unloading could not be safely carried out in relation to my premises without my car being parked adjacent to the dropped footway. The whole process took no longer than 20 minutes.
With reference to the exception set out in Section 86(5) of the Traffic Management Act 2004, and whilst considering a circumstance where the alleged dropped kerb were considered to be a dropped footway/cycle track or verge which fit the criteria set in Section 86 of the Traffic Management Act, the contravention did not occur.

4. Ambiguous and Confusing Enforcements – Single Yellow Line Adjacent to alleged Dropped Kerb
The image below shows the Single Yellow Line is adjacent to the alleged dropped footway/verge/cycle track.

The Enforcement Authority claim on their website (https://www.newham.gov.uk/Pages/Services/Waiting-and-loading-restrictions-on-yellow-lines.aspx?l1=100002&l2=200072) that “Loading restrictions are marked by single or double yellow blips on the kerb. You can only park on them outside of the restricted hours. However double yellow lines mean no parking at any time. There will be time plates nearby to tell you when you can park there.”
A single yellow line at this location implies that parking is allowed outside of parking bay restriction hours which is Monday to Saturday 0900 – 1700 at this location (Newham Controlled Parking Zone L). My car was parked at the location on a Sunday at around 1115am, which is outside the parking restriction hours of that location. However, the PCN specifies that I parked adjacent to a dropped footway/verge/cycle track. The alleged dropped kerb not only does it not meet the set criteria for a dropped footway/verge/cycle track as per Section 86 of the Traffic Management Act 2004, but it, with the enforcement of the PCN with contravention code 27, also causes confusion and contradiction as to which enforcements are in place, especially where the Single Yellow Line allows parking at the alleged location at the time on the Penalty Charge Notice.
By placing a Single Yellow Line along a dropped kerb which does not fit the criteria of the Traffic Management Act 2004, it leads me to believe that parking is allowed at the alleged location outside of the prescribed hours of Monday to Saturday 0900 – 1700. Therefore, the contravention as described in the Penalty Charge Notice did not occur.
I wish to refer to PATAS case 2110067442 in support of this where it was decided at a PATAS appeal that a single yellow line in front of a dropped kerb was confusing and misleading for road users.


B. There has been procedural impropriety on the part of the Enforcement Authority.
1. No consideration given to query in regards to validity of dropped kerb raised
The Enforcement Authority has failed to consider several crucial points that I have raised in my informal appeal as well as in my formal representations. Some of the responses by the Enforcement Authority were contradictory especially in regards to the fact that whether loading/unloading is allowed at the location whilst some responses consisted of standard paragraphs with no clear response to the actual queries I raised.
In my informal appeal under reasons 1A, 1B and 1C and in my formal representations under reasons A1.1, A1.2 and A1.3, I described in details what exists at the site and explained my case as to the validity of the contravention. In their response to my informal appeal dated 08 December 2015 in paragraph 1 on page 1 and in their Notice of Rejection dated 27 April 2016 in paragraph 1 on page 1, the Enforcement Authority specifies:
“Kerbs are built like this to allow easy access across them. They exist at different locations for different reasons: to help pedestrians cross the road, especially people with prams or wheelchairs; to allow cars access to garages; and to allow cycles to cross from roads to cycle tracks,”
In both responses, the Enforcement Authority only described the criteria of a dropped kerb instead of clearly specifying which, if any, of the criteria the location meets.
Additionally, in their Notice of Rejection in the last paragraph on page 1, the Enforcement Authority specifies:
“A dropped kerb is put in place to assist pedestrians, wheel chair users and people with buggies to cross the road. It also allows vehicles to enter or leave the road across the footway or verge, hence it must always remain clear of obstruction…”
This is incorrect because the criteria are exclusive; a dropped kerb either assists pedestrians or it provides for vehicles to cross the footway. It would be a hazardous dropped kerb that helped pedestrians by risking them colliding with vehicles entering the road.
This response by the Enforcement Authority ignores the actual purpose of the location and just lists what a dropped kerb must do in order to be considered as such and not what function this particular dropped kerb actually fulfils.

2. Contradictory responses by the Enforcement Authority in regards to loading/unloading at the location
In their Notice of Rejection dated 27 April 2016, the Enforcement Authority specifies:
“Vehicles, unless loading/unloading, should not be parked where your vehicle was parked.”
In the same letter in the last paragraph on page 1, the Enforcement Authority specifies:
“No signs or lines are required in order to enforce parking adjacent to dropped footways. That is because it is a statutory prohibition that is in the Highway Code. It is therefore a contravention everywhere unless otherwise stated by signs.”
The two responses are contradictory as the Enforcement Authority highlights parking is allowed whilst loading/unloading at the particular location but the Enforcement Authority then also highlights that parking is prohibited at the same location. I explained in details in my informal appeal and in my Formal Representations, that I was unloading heavy luggage from my car but the Enforcement Authority failed to consider my point.
In their response to my informal appeal dated 08 December 2015, the Enforcement Authority specifies:
“A vehicle is permitted to park in a bay or on a single yellow line for the purpose of loading or unloading.” ….. “Please kindly note that there is no observation time given for this type of contravention, and a penalty charge notice can be issued instantly if a vehicle is found in contravention.”
This is again another fundamentally misleading and confusing response from the Enforcement Authority. By specifying there is no observation time, the Enforcement Authority implies that loading/unloading cannot be performed at the location. However, looking at the response from the Notice of Rejection (quoted above previously), the Enforcement Authority specifies that loading/unloading is allowed at the location. Considering this and a zero-minute observation time, this implies that the PCN violates the Code of Practice on Civil Parking and Traffic Enforcement (a minimum of 2 minutes of observation time as per Newham Council policy).

3. Failure by the Enforcement Authority to consider points raised and questions asked
The Enforcement Authority ignored reasons 2 and 3 from the informal appeal letter where I explained I was a resident at the location unloading and helping my father alight the car, and the dropped footway was in front of my house. I re-iterated these reasons in my formal representations, however the Enforcement Authority did not consider these nor did they explain why these have been ignored from their responses.
I also queried the reasons behind why this location was termed a dropped kerb when it served none of the purposes of a dropped kerb in my formal representations under reason A.4. I also requested the Enforcement Authority to explain why they have placed a Single Yellow Line, which suggests parking is allowed outside of prescribed hours, adjacent to the dropped kerb at the location (which the Enforcement Authority specifies has a parking prohibition at all times). My questions were again ignored by the Enforcement Authority.
I requested the Enforcement Authority to provide copies of the Traffic Management Order and applicable amendments that created the waiting restriction indicated by the single yellow line and justification as to how it was allowed to run past the alleged lowered footway in order to understand the reasons behind the contravention, however, the Enforcement Authority ignored my request and did not provide any explanation in their Notice of Rejection.

4. Failure by the Enforcement Authority to respond to concern raised in regards to photographic evidence
I explained to the Enforcement Authority in my formal representations in reason B.2, that the photographs are not available to view on the website they provided when I followed their instructions, quoted below, in their response to my informal appeal:
“You can view photographic evidence of your case online at www.newham.gov.uk. Click ‘Pay it’, click ‘Parking Penalty Charge Notice’, enter the penalty charge notice number and the vehicle registration number and then click on the ‘continue’ button.”
Unfortunately, the Enforcement Authority responded with a standard template paragraph, exactly as above, in the Notice of Rejection.

I requested the Enforcement Authority, in my formal representations, to provide explanations to all the points I raised and I also raised my concern that my points were not considered. The Enforcement Authority, despite saying in their Notice of Rejection, “..[I] am happy that your points have been answered”, have not actually responded to the fundamental points I have raised.
Dealing with the Enforcement Authority has been a very stressful and frustrating experience for me. The stress and the tiredness that dealing with this issue has put upon me, especially the lack of proficiency, co-operation and fairness to my responses by the Enforcement Authority has proved very unhelpful and confusing. I have spent a lot time and money writing the appeals and having to fax them to the Enforcement Authority. Receiving a Penalty Charge Notice based on incorrect information and restricted opportunity to view evidences, and then followed by an informal appeal response letter and a Notice of Rejection, with standard template paragraphs and inaccurate and misleading information by the Enforcement Authority, is offending and upsetting.
I hope you will understand my situation and consider the circumstances under which I have been throughout this.

NeverSayYes
QUOTE (Neil B @ Wed, 4 May 2016 - 17:48) *
That's a tough question: We can't promise anything.

But, based on various previous cases, yes, stronger than a lot we see.



Hi Neil

I have posted my appeal above...could you please tell me how it is??
And what needs removing or changing?

Thank you for your time.
hcandersen
Normally I would say (as I did earlier) that this is too long, but strangely enough it has a style about it. I'd be tempted to go with it and on the day (personal hearing?) apologise to the adj for its length and occasional repetition, but you were so frustrated at the authority's actions that you didn't know when to stop writing. I think they might warm to this, hopefully enough to allow the appeal simply on the basis of your opening paragraphs and the NOR - and they wouldn't have to read the rest in detail either, which might be a relief for them😄.
Neil B
QUOTE (NeverSayYes @ Sat, 14 May 2016 - 10:45) *
Hi Neil

I have posted my appeal above...could you please tell me how it is??
And what needs removing or changing?

Opening the thread at this time I've first seen HCA's positive comments in #36.

Scrolling up to #35 suffice to say I've scrolled straight back down to reply and to say I'm
extremely grateful to HCA from preventing me getting a headache this morning.
I would be happy to trust his comments.
NeverSayYes
QUOTE (hcandersen @ Sat, 14 May 2016 - 10:20) *
Normally I would say (as I did earlier) that this is too long, but strangely enough it has a style about it. I'd be tempted to go with it and on the day (personal hearing?) apologise to the adj for its length and occasional repetition, but you were so frustrated at the authority's actions that you didn't know when to stop writing. I think they might warm to this, hopefully enough to allow the appeal simply on the basis of your opening paragraphs and the NOR - and they wouldn't have to read the rest in detail either, which might be a relief for them😄.



lol, im sorry it is quite long..I guess Im not good at summarising.
I am going to do postal hearing..time is very limited for me these days..though I have spent quite a lot of it crafting such letters to Newham Council recently. huh.gif huh.gif
So you are officially giving me the go-ahead with what I wrote for appeal...regardless of the many paragraphs, the facts still stand true for my case to be won at appeal, legally, right?

QUOTE (Neil B @ Sat, 14 May 2016 - 10:47) *
QUOTE (NeverSayYes @ Sat, 14 May 2016 - 10:45) *
Hi Neil

I have posted my appeal above...could you please tell me how it is??
And what needs removing or changing?

Opening the thread at this time I've first seen HCA's positive comments in #36.

Scrolling up to #35 suffice to say I've scrolled straight back down to reply and to say I'm
extremely grateful to HCA from preventing me getting a headache this morning.
I would be happy to trust his comments.



Scrolling up to #35 suffice to say I've scrolled straight back down to reply and to say I'm
extremely grateful to HCA from preventing me getting a headache this morning.

Ouch that hurt! laugh.gif
NeverSayYes
Hi guys

Please please please reply my last question above, I will need to post up the appeal asap. sad.gif
hcandersen
It's too late to change anything substantive now. All I can suggest is that you put a short introductory para. summarising your approach and points.

I am appealing on a number of points, but my primary grounds are that the contravention did not occur - because the lowered footway meets none of the criteria specified in the Act - and procedural impropriety regarding the serious flaws in the authority's NOR. I apologise to the adjudicator in advance for submitting an appeal at such length, but the whole process and the authority's actions have frustrated me beyond belief and my typing finger responded accordingly.

As I said, hopefully the adj would simply decide on the basis of the first para.
Neil B
Again I agree with HCA.

Get it sent.

Good luck with it.
NeverSayYes
Thank you Neil and HCA.
I've now appealed online.
Fingers crossed now. huh.gif
NeverSayYes
QUOTE (hcandersen @ Wed, 18 May 2016 - 08:27) *
It's too late to change anything substantive now. All I can suggest is that you put a short introductory para. summarising your approach and points.

I am appealing on a number of points, but my primary grounds are that the contravention did not occur - because the lowered footway meets none of the criteria specified in the Act - and procedural impropriety regarding the serious flaws in the authority's NOR. I apologise to the adjudicator in advance for submitting an appeal at such length, but the whole process and the authority's actions have frustrated me beyond belief and my typing finger responded accordingly.

As I said, hopefully the adj would simply decide on the basis of the first para.



Hi HCA & Neil

The appeal has been sent, decision to be made on 16 June 2016. The EA sent me copies of evidences they've put forward to defend their case.

After reading their Case Summary, I don't really know what to say:

"The Apellant has also stated that the dropped kerb does not have any significant purpose. It should be stated however that the dropped footway in place is directly outside a gate and the dropped kerb was very clear. A motorist should not assess whether the dropped kerb is going to be used or not. A motorist must simply adhered to a dropped kerb and not park across it. the apellant has further stated that a single yellow line is in place and therefore this indicates that a motorist can park there outside of the single yellow line controlled hours. It should be stated however that a single yellow line is a completely separate restriction. A lowered kerb does not need to be lined or sign posted at all. "


This is part of the summary that the EA have put forward, plus included pictures of my car which I never got to see from their website!
Neil B
QUOTE (NeverSayYes @ Fri, 10 Jun 2016 - 10:16) *
After reading their Case Summary, I don't really know what to say:

You could laugh?

Are you going to show us >

At least the summary.

Index

Pics.
NeverSayYes
And the most baffling bit of the case summary submitted by the EA:

"The vehicle, VEHICLE VRM, was seen parked adjacent to a multi purpose dropped footway opposite number 14 of The Warren."


Multi purpose dropped footway, that's the first time I've come across this with my communications with this EA since day 1.

wacko.gif unsure.gif wacko.gif wacko.gif

QUOTE (Neil B @ Fri, 10 Jun 2016 - 10:25) *
QUOTE (NeverSayYes @ Fri, 10 Jun 2016 - 10:16) *
After reading their Case Summary, I don't really know what to say:

You could laugh?

Are you going to show us >

At least the summary.

Index

Pics.



Thanks for the fast response Neil, I'll upload them soon.
NeverSayYes
QUOTE (Neil B @ Fri, 10 Jun 2016 - 10:25) *
QUOTE (NeverSayYes @ Fri, 10 Jun 2016 - 10:16) *
After reading their Case Summary, I don't really know what to say:

You could laugh?

Are you going to show us >

At least the summary.

Index

Pics.



Hi Neil, please see below. Apologies for the delay, i've had a hectic weekend. :/

Index:


Case Summary Page 1:


Case Summary Page 2:



CEO Notes:


Car pics given by Council in case representations:




NeverSayYes
can anybody please advise?
please.
Neil B
Nothing changes.

What is point 13 saying? CEO didn't see but they don't directly dispute the exemptions - unloading and assisted alighting.
NeverSayYes
QUOTE (Neil B @ Mon, 13 Jun 2016 - 11:53) *
Nothing changes.

What is point 13 saying? CEO didn't see but they don't directly dispute the exemptions - unloading and assisted alighting.



Thank you Neil.

What should I do now? Sit tight, fingers crossed and wait for Thursday or write up an email to add to my statement/evidence arguing the fact that they never mentioned multi-purpose dropped kerb and the EA also has not clearly explained the purpose of the dropped kerb? Should I speak to Highways Agency for an explanation on the purpose of that particular kerb?
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