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Hello all,

I'm a long time viewer and fan of this site, but now need your help appealing this to make sure I've done it correctly.

Please find attached pics of the ticket with details obscured, and a photo of my wheel position at the "sloping part" of the kerb..

I am going to appeal as the contravention did not occur, due to the sloping part not counting as meeting the highway, does anybody have a reference for this please?
I can only find an absence of the sloping kerb being mentioned in the handbook rather than explicitly stating it does not count.

Many thanks in advance, I've been told I was lucky my car wasn't towed too!!
please let me know if the attachments don't work.

http://imagizer.imageshack.us/v2/640x480q90/907/c5mLNA.jpg

http://imagizer.imageshack.us/v2/640x480q90/633/tyWpLC.jpg

http://imagizer.imageshack.us/v2/640x480q90/633/MrwwKI.jpg

PASTMYBEST
Post up all the council photos, if they are the same as the one shown then di munimis should apply
John U.K.
The definition of a Dropped Kerb is the kerb "lowered to meet the level of the carriageway"

ergo, the "sloping part" is in the process of llowering, it does not yet meet the level of the carriageway.
Incandescent
Well, I hate to say it, but from your first photo the front of your car beyond the wheel arch is adjacent to the dropped kerb. I reckon it is intruding about 12" so the contravention is plain. You could argue on de minimis, but it could go either way. If the resident had made a complaint the adjudicator may also consider this in decidin if you put the de minimis argument.

Personally I reckon you'd lose at adjudication, but see what the others say.
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Thanks for your thoughts so far,

Is there any reference for the de minimis principle? As I understand it, it is a "one wheel in contravention" rule.
But what is this based on? Should I put "using the de minimis principle" in my letter?

I've had to request their evidence by posting a letter as they don't bother using the nifty online viewing process other boroughs use (so I hear).

I'm working on my appeal letter in the mean time. Would it be a good idea to post it for your guidance?
Neil B
QUOTE (Ad-HDTV @ Thu, 14 Jan 2016 - 20:56) *
I've had to request their evidence by posting a letter as they don't bother using the nifty online viewing process other boroughs use (so I hear).


Or,
you could look first - cos they do.

(On the payments page)

Albeit they are none too sharp at getting the images up on-line.
Bogsy
I suggest you include the text below if nothing more concrete is offered.

My enquiries lead me to understand that parking adjacent to a dropped footway is only unlawful if it occurs within a Special Enforcement Area (SEA). Prior to parking my vehicle I observed no sign or notice conveying that I was within a SEA. On the evidence available I dispute that I was parked within a SEA and therefore I must ask the council to provide the evidence to prove that I was.

Under general principles of law the council has a duty to act fairly. Not all areas are SEA’s; therefore fairness requires a council to inform motorists about the presence and extent of any SEA so that they can avoid parking in contravention. I understand from enquiry that the prohibition of parking adjacent to a dropped footway does not require traffic signs but nonetheless, this does not diminish a council’s duty to act fairly. Guidance issued by the DfT advises that the prohibition be regularly and effectively communicated to the public. The statutory guidance recommends that an authority should consider the full range of media available to them when communicating with the public. In the absence of traffic signs it seems that fairness is wholly reliant upon the extent to which the council communicates with the public.

I contend that the council has not regularly and effectively communicated the extent of the SEA to enable motorists to understand that parking adjacent to a dropped footway in certain roads is a parking contravention liable to a penalty charge. The large number of PCN’s issued for this contravention is reasonable evidence of this. Unless the council can prove to the contrary, I contend that the council has failed in its statutory duty to have regard to the guidance and failed in its duty to act fairly in accordance with the general principles of law.
PASTMYBEST
what is the location, A GSV would help we can have a look around
Chaseman
Here's a reference to a previous PATAS case that may help you by reference to the distinction between the sloping and the lowered part of a Dropped Kerb and also the de minimis/overhang question.

QUOTE
I refer to PATAs Case Reference 2120316350 in which the appeal was allowed, and a quote from the adjudicator:

“Some if not most of the nearside rear wheel was adjacent to a point where the kerb has begin to drop but this is not where the prohibited area begins. The prohibited are begins when the kerb has been levelled with the carriageway. I am not satisfied that any part of the Appellant's vehicle was in the prohibited area. If there was, it would have been so slight that the de minimus principle would apply.”

I also quote section 8 of the Civil Enforcement Handbook, entitled ‘Issuing a PCN where only a minor infringement is occurring’:
“a) Vehicle overhang - A CEO should only issue a PCN if the vehicle is parked incorrectly to the extent that at least one wheel is wholly in contravention, for example a wheel being wholly outside the parking bay or wholly on a yellow line. If all of the wheels are within the confines of the bay but the vehicle is large and overhangs the bay to such an extent that it causes an obstruction equal to a normally-sized vehicle with one wheel wholly in contravention, then a PCN can also be issued. CEOs must use their judgement on this, and record any evidence (especially photographic) that proves the contravention.”

I believe this covers the minor overhang from the bumper which may cross the dropped kerb.

In addition, the notice of rejection from the council states that:

“You were given a Penalty Charge Notice for parking against a stretch of lowered, sloping kerb.”

Whereas the Civil Enforcement Handbook, in its description of code 27 states:

“The contravention occurs when a vehicle waits on the carriageway, adjacent to the footway where the footway, cycle track or verge has been lowered to meet the level of the carriageway.”

Indicating that only parking against the section lowered to meet the level of the carriageway could be in contravention, not the sloping section as the council seem to indicate.
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Thank you all, this is a great help!

Neil b, I'll look again, I did try but obviously not on the payment page.

Would it be conflicting to put both defenses of "this is only enforceable in a special enforcement area" (I will go back tomorrow and look for signs) and that the offense did not place as the de minimis principle? I love the fact I can now reference a case! I'm sure I could involve both.
I'll get a GSV for it, the drop kerb was a good 6 metres long and there is another the opposite side of the road. My bumper wouldn't stop a wheelchair or pram crossing with those dimensions, I remember considering that when parking.

Neil B
QUOTE (Ad-HDTV @ Thu, 14 Jan 2016 - 22:36) *
Would it be conflicting to put both defenses of "this is only enforceable in a special enforcement area" (I will go back tomorrow and look for signs)

Drop that.

All of London is an SEA.
For that matter, anywhere that decrim enforcement takes place (I think)
Incandescent
It seems to me that clause in the Civil Enforcement Handbook gives a good argument on vehicle overhang as is the case with your car, where the wheel is not by the dropped kerb. Essentially, it is describing the de minimis situation and no harm in quoting it in any appeal. However it is only a handbook not a legal definition, so an adjudicator could decide against you and would not have erred in law, as part of your vehicle is plainly in contravention. As I see it, your only credible argument is de minimis as I said earlier.
Grant Urismo
QUOTE (Neil B @ Thu, 14 Jan 2016 - 22:41) *
All of London is an SEA.


Just a thought... wouldn't this still need to be signposted, and if so, is it?
Neil B
QUOTE (Grant Urismo @ Thu, 14 Jan 2016 - 23:16) *
QUOTE (Neil B @ Thu, 14 Jan 2016 - 22:41) *
All of London is an SEA.


Just a thought... wouldn't this still need to be signposted, and if so, is it?

No and hence no.

The term really just refers to Councils having applied for and been granted authority to enforce under
the decriminalised system.

Most of the most populated areas of the Country are now covered.
Bogsy
The thing is it's only a contravention within a civil enforcement area (CEA), there are still many areas in the UK that are outside of a CEA. No signage is needed so how is a person to know whether or not they are parking within a CEA? This leads back to what I posted in post #7.

To stand a chance the public needs to be reasonably informed and hence the guidance I refer to in post 7. Most if not all councils that operate a CEA only advertised the fact of a CEA when it was first introduced so there is nothing regular nor effective about it that accords with the guidance. I say use the guidance to expose a council's failing to comply with guidance that was specifically produced for them to follow.
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evening all, your continuing help is appreciated in this.

I've tried to get some GSV shots, one of the drop kerb part, the sloping kerb marked in black in the pic, with the levelled part havng a red line, a decent 6 meters I reckon.
another of the opposite side, yet another immense levelled section.
and another of down the road, in case it helps.

the unadvertised SEA is an interesting point, I had little idea they existed,if they were want/require special parking enforcement areas then they should be advertised as such to help us and them!

but what do I know.
PASTMYBEST
from the one photo you have shown, your best chance is Di Mimimis. We don't know if we can advise on other avenues as you won't give the location
Neil B
In front on the right, just before the bridge.

If link comes up as I have it orientated.

https://www.google.co.uk/maps/@51.5203633,-...3312!8i6656

Possibly disused vehicle entry to previous premises? Hence width (both sides).
PASTMYBEST
More than likely to help pedestrians cross. Use the patas case given by chaseman to start your challenge on the grounds that no contravention occurred as the car was adjacent the sloping kerbstone. If there was any incursion then it was so minor that the Di Minimis principal applies. then follow that with the signage is insufficient to convey a restriction re bogsys text.

Be aware that there is no specific signage needed to warn of a dropped kerb and it applies 24/7
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ok, here is what I have done so far, I want to add a fact about how wide the crossing is and the overhang would not impeded any one wishing to cross but this seems like it should do?

If you can spare a few more minutes, I would appreciate your opinion. many thanks once again.

Sir/Madam

I am appealing PCN notice number XXXXXX on the basis that the contravention did not occur because of the following facts.
Firstly, the code 27 "parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway" should be used with the Civil Enforcement Handbook, the section giving guidance for this states "The contravention occurs when a vehicle waits on the carriageway, adjacent to the footway where the footway, cycle track or verge has been lowered to meet the level of the carriageway". This translates to the sloping kerb not being counted as the dropped kerb, only the portion that "meet the level of the carriageway". This fact is well established and can be reinforced using PATAS appeal precedents.
I refer you to PATAs case reference 2120237425
In which the appeal was allowed, a quote from the adjudicator highlights and re-enforces the CEO handbook definition of the sloping kerbstone versus the levelled part meeting the highway.
“The crucial officer photos show the usual type of inclined granite (or similar) setts as kerbstones.” “I have decided this case on the basis that the extent of dropped footway does not include these, does not include the inclined setts themselves.”

I further refer you to PATAs case reference 2120316350 in which the appeal was allowed, and a quote from the adjudicator re-enforcing both the definition of the prohibited area and the de minimus principle.
“Some if not most of the nearside rear wheel was adjacent to a point where the kerb has begun to drop but this is not where the prohibited area begins. The prohibited area begins when the kerb has been levelled with the carriageway. I am not satisfied that any part of the appellant’s vehicle was in the prohibited area. If there was, it would have been so slight that the de minimus principle would apply.”


Secondly the CEO handbook gives further guidelines in issuing PCN's, to quote section 8 entitled "issuing a PCN where only a minor infringement is occuring"
“a) Vehicle overhang - A CEO should only issue a PCN if the vehicle is parked incorrectly to the extent that at least one wheel is wholly in contravention, for example a wheel being wholly outside the parking bay or wholly on a yellow line. If all of the wheels are within the confines of the bay but the vehicle is large and overhangs the bay to such an extent that it causes an obstruction equal to a normally-sized vehicle with one wheel wholly in contravention, then a PCN can also be issued.”

I refer you to PATAs case reference 211026505A in which the appeal was allowed, a quote from the adjudicator re enforces the overhang principle outlined in the CEO handbook further defining there must be an entire wheel wholly in contravention.
“The statement produced is strong evidence as to the location of the vehicle. However, as with most contraventions, at least one wheel must be adjacent to the dropped kerb for the contravention to occur, even though a bonnet or boot may well overhang the prohibited area.”

We have photographic evidence to prove the wheel most definitely NOT "wholly in contravention", and even your CEO’s photographic evidence proves there is NOT a wheel “wholly in contravention” and certainly no boot or bonnet overhanging to the equivalent “to such an extent that it causes an obstruction equal to a normally-sized vehicle with one wheel wholly in contravention”.

This is sufficient reason for the PCN to be cancelled proving the contravention did not occur, I would be grateful for your cancelling this PCN and supplying written evidence of that fact.

Regards
Steve_999
QUOTE (Neil B @ Fri, 15 Jan 2016 - 22:47) *
In front on the right, just before the bridge.

If link comes up as I have it orientated.

https://www.google.co.uk/maps/@51.5203633,-...3312!8i6656

Possibly disused vehicle entry to previous premises? Hence width (both sides).


Interesting as the width of the lowered kerb is far in excess of that which would usually be provided for pedestrian access. Possibly worth challenging on the purpose of the dropped kerb(s)?
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That is a good point steve, if it has been lowered to help pedestrians, prams, cyclists etc, it is excessive as there is no real need for anyone to cross there. If it was at a busy road to a train station or something, but it is just across a road on a trading estate, from one side to another.
I believe the dropped kerbs were installed for entrances to buildings or other roads on the estate that were never built. There is a power station and storage type yard down a bit from there with the same size drop kerb.
I imagine it will be prohibitively difficult to get the planning details for why these were installed, if pointing this out doesn't help, then it shouldn't hinder an appeal?

Thanks,
Steve_999
The offence is parking against a kerb lowered for a specific list of reasons. If the reason no longer exists, is it an offence? I would be minded to ask the council the purpose of the lowered kerb if there is any doubt.
Neil B
Edit
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hello all, sorry to say i'm back and asking for your expert help once again.

Newham have rejected my appeal, the letter is below.

http://imagizer.imageshack.us/v2/640x480q90/921/dmvJvE.jpg

http://imagizer.imageshack.us/v2/640x480q90/922/MhLXHo.jpg

it looks like i'm going to PATAS with this one.

I think its interesting that the letter states the ticket was given for being next to a sloping kerb, when the ticket states lowered to meet the carriageway.
does this further go to say the offence did not take place as this is two different circumstances?


they also state their assumed use for the drop kerb, for wheel chairs and buggies etc. the drop kerb is so big my little bonnet wouldn't impede anyone.

I also have massive issues with the bullying tactic of "pay now, don't send any further correspondence if you want to appeal you will pay double the price".

I would value your experienced eye having a read of the letter to see any procedural improprieties etc and any advice?

many thanks,
PASTMYBEST
Forget about how wide the DK is as regards the contravention it does not matter. Forget why the DK is in place there is one
opposite and an adjudicator will almost certainly find it is legitimate.

Your case is that the car was only adjacent to a sloping kerb, hence no contravention occurred, however if it is felt that the car did exceed the S K
then any incursion is so trivial it is De minimis

Where are the photos we cannot really advise you fully without seeing them
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Thanks pastmybest,

This link should work as a photo of how far my bumper goes passed the sloping kerb.

http://imagizer.imageshack.us/v2/640x480q90/907/c5mLNA.jpg

Clearly not a wheel in contravention.

I don't suppose anyone has a patas precedent for new ham and a drop kerb de minimus to hand?
I'll start trawling PATAS website and post here in the meantime.


PASTMYBEST

Case reference
2150160079

Appellant
Chioma Ejiofor

Authority
London Borough of Newham

VRM
MD04JUK




PCN Details


PCN
PN11789990

Contravention date
16 Feb 2015

Contravention time
08:25:00

Contravention location
Parker Street

Penalty amount
GBP 130.00

Contravention
Parked adjacent to a dropped footway


Decision date
08 Jun 2015

Adjudicator
Neeti Haria

Appeal decision
PCN appeal allowed

Direction
cancel the Penalty Charge Notice and the Notice to Owner.

Reasons
The appellant admits his vehicle was at the location but denies the contravention. The Authority relies upon the copy Penalty Charge Notice and the Civil Enforcement Officer's contemporaneous notes and photographs. Parking adjacent to a dropped footway is prohibited by virtue of Part 6 Section 86 of the Traffic Management Act 2004. The relevant provision of the Traffic Management Act 2004 provides: "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." The civil enforcement officer upon issuing the Penalty Charge Notice took several photographs. Unfortunately because of the angle at which the photographs have been taken it is not possible to be certain as to how much if any of the vehicle is parked adjacent to the lowered footway. It seems that at the most the rear bumper of the vehicle is adjacent to the lowered section of the footway, the wheel is certainly not adjacent to the lowered footway. This to me is such a minor encroachment that it ought not to be enforced. The diagram drawn buy the civil enforcement officer is an over exaggeration of the position of the vehicle in relation to the lowered footway. It seems to me that the photographs show that although the vehicle was parked adjacent to the part of the footway which is sloped and therefore being lowered, it was not parked adjacent to the part of the footway which had been lowered. Since there is a parked car either side of the lowered footway and the lowered section of the footway is not very wide, it might be unadvisable for a pedestrian to use this to cross the carriageway but it is still possible for a pedestrian to use the lowered part of the footway to cross the carriageway. I find the contravention did not occur and so I allow the appeal.
Neil B
Can we have docs the right way up.
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brilliant, thanks pastmybest!

apologies for wrong way up docs, this should be rotated

http://imagizer.imageshack.us/v2/640x480q90/923/tSRoKv.jpg
http://imagizer.imageshack.us/v2/640x480q90/923/Mkl2iH.jpg
Neil B
The only time I recall seeing a baby buggy with abreast seating for sextuplets was on
a TV comedy.
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ha! I like this! perhaps for illustrative purposes I could mock up exactly how many buggies wide could fit across!

or perhaps how many Benny Hill nurses could cross at the same time?
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