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Andina

Hi everyone, I've been following the forum for a while.

My father received a penalty charge notice from Transport for London for "Contravention code 62: Parked with one or more wheels on or over a footpath or any other part of a road other than a carriageway".

He is a private hire driver and had a pre-booked journey. The client lives a building with a parking.
To go in the parking you need to stop at the barrier, go in and ask the security to let you in. There is not enough space to stop perpendicular to the barrier (as the back of the car would stick out over the bus lane on the road. For that reason my dad stopped the car parallel to the barrier.
Anyhow the security refused to let him in and in total, my dad was parked there for 30 seconds!
You can see the two pictures are taken 15 seconds apart: at 08:32:29 and 08:32:44
I can't see any video evidence or additional pictures without paying £10 and they would be sent by post!

I need your help please. On what ground should I make my representations - "contravention did not occur" or "mitigating circumstances" . Can I use the de minimis rule.

I am concerned that this is not even a footpath, but part of a "driveway" leading to the barrier of a building parking.

I recently won a council fine for a prohibited left turn on grounds of procedural impropriety on the part of the enforcement authority. I appealed to an external adjudicator and the council withdrew their penalty charge. In this case however I do not see any procedural impropriety.

Please help guys! Thank you.


PCN images below:


http://postimg.org/gallery/i7j5zgv6/

DastardlyDick
TfL have stated at PaTAS/London Tribunals that they do not charge for evidential DVDs, so you need to hold them to this.

On the face of it, your best/only defence is - as you say - de minimis, but I strongly suspect you'll end up at adjudication with the full £130 at stake.
Mad Mick V
https://www.google.co.uk/maps/@51.4818654,-...3312!8i6656

Have a look at my last post in the sticky thread--ask where you can go to view the video.

Mick
DancingDad
QUOTE (Mad Mick V @ Sun, 22 May 2016 - 16:16) *
https://www.google.co.uk/maps/@51.4818654,-...3312!8i6656

Have a look at my last post in the sticky thread--ask where you can go to view the video.

Mick


Plus one.
Better yet, put a request to view, preferably at an office close to you, otherwise wherever suitable, in writing.

Uhm,while this is on a red route, what are TFL doing serving CCTV PCNs for footway parking ?

Contravention did not occur as Dad was seeking to gain entry via the gate.
Attached copy of call/pick up log showing location and time.
But see video first.
If 15 seconds and move on, easy win, even a minute or two can be seen as necessary.




DastardlyDick
QUOTE (DancingDad @ Sun, 22 May 2016 - 17:50) *
QUOTE (Mad Mick V @ Sun, 22 May 2016 - 16:16) *
https://www.google.co.uk/maps/@51.4818654,-...3312!8i6656

Have a look at my last post in the sticky thread--ask where you can go to view the video.

Mick


Uhm,while this is on a red route, what are TFL doing serving CCTV PCNs for footway parking?




Why can't they? Red Routes are exempt from the ban on CCTV enforcement.

Totally agree with your (and MMVs) other points. biggrin.gif
chichi
I know that place, I parked in the exact same spot before to get to concierge office to gain access to under ground car park and did not have any problems.
DancingDad
QUOTE (DastardlyDick @ Sun, 22 May 2016 - 22:51) *
QUOTE (DancingDad @ Sun, 22 May 2016 - 17:50) *
QUOTE (Mad Mick V @ Sun, 22 May 2016 - 16:16) *
https://www.google.co.uk/maps/@51.4818654,-...3312!8i6656

Have a look at my last post in the sticky thread--ask where you can go to view the video.

Mick


Uhm,while this is on a red route, what are TFL doing serving CCTV PCNs for footway parking?




Why can't they? Red Routes are exempt from the ban on CCTV enforcement.

Totally agree with your (and MMVs) other points. biggrin.gif

Not saying they can't.
But never seen anything from TFL on parking except code 46, stopping where prohibited.
Which they could have served here and would have less defence.
hcandersen
Have you posted the page of the PCN which refers to viewing the video and obtaining still photos which establish the contravention?
Mad Mick V
Bottom of post 1. It's on second page.

Mick
hcandersen
Thanks.

I'd request the photos.

And if all they do is to show the car stationary for no more than 15 seconds - as in the PCN - then I'd make reps on the grounds that the driver went to contact security regarding gaining access for the reasons you set out and that it is permissible for the car to be stationary in these circumstances for the period shown in the photos.

And if they were to reject these and claim that the video shows that the car was stationary for much longer then I would appeal on the grounds of procedural impropriety because these photos are required to establish the contravention - see (5)(b) - they are not simply 'still images of the contravention' which is the shifty change of words used in the PCN. So if the recording shows the driver exiting and being away from the vehicle for an extended period and if the authority's argument in rejecting your reps was based on that extended period which was not in evidence in the photos, then IMO this is a procedural impropriety.

But it would all depend on what their photos showed.

See what others think.
Mad Mick V
+1

Given that this a private hire vehicle I would probably quote the Makda case which allowed much more time.

https://www.google.co.uk/url?sa=t&rct=j...f4w&cad=rja

In general terms, I endorse the concerns of others who question the authority of TfL to use cameras for a Code 62 because the road is a red route. A step too far IMO. If the vehicle is wholly on the footway how the hell is the free passage of a red route affected?

Mick
Neil B
QUOTE (DancingDad @ Sun, 22 May 2016 - 23:04) *
QUOTE (DastardlyDick @ Sun, 22 May 2016 - 22:51) *
QUOTE (DancingDad @ Sun, 22 May 2016 - 17:50) *
QUOTE (Mad Mick V @ Sun, 22 May 2016 - 16:16) *
https://www.google.co.uk/maps/@51.4818654,-...3312!8i6656

Have a look at my last post in the sticky thread--ask where you can go to view the video.

Mick


Uhm,while this is on a red route, what are TFL doing serving CCTV PCNs for footway parking?




Why can't they? Red Routes are exempt from the ban on CCTV enforcement.

Totally agree with your (and MMVs) other points. biggrin.gif

Not saying they can't.
But never seen anything from TFL on parking except code 46, stopping where prohibited.
Which they could have served here and would have less defence.

It seems wholly at odds with that historic bee you had in your bonnet about blanket use of 46.
If, as we all had to accept, the contravention could only ever be 46 on a Red Route then I can't see they can use 62.

A theory >
A mini cab driver recently posted in another case that he understood he was able to stop to pick up/set down, for up to 5 mins
on RRs and in bus lanes. I don't know if this is so or whether written into RR Orders or a less formal undertaking from TfL?

If it is allowed then perhaps that's why they've resorted to 62.

I can't see how they can though: As CCTV enforcement remains allowed on RRs then surely it can only be for
contraventions of the RR.
Can anyone link the legislation/amendment that made the changes to CCTV enforcement?
hcandersen
http://www.legislation.gov.uk/uksi/2015/10...gulation/2/made

'Red routes' are exempted and defined at 9A(7) which refers to 'road' and as the offence relates to parking on a road I think the use of CCTV is permitted.
Neil B
I had just found it, read and concluded the opposite.
I'll read again.
Neil B
Ok, it's open to interpretation and needs a ruling as to meaning.

Here's an interpretation >

(6) The circumstances referred to in regulation 9A(3)© are that a vehicle is stationary in a civil enforcement area on—

(a)a bus lane; Specific contravention.

(b)a bus stop clearway or bus stand clearway; Specific contravention.


©a carriageway outside a school entrance which is marked in accordance with diagram 1027.1 of Schedule 6 and diagram 642.2A of Schedule 2 to the Traffic Signs Regulations; Specific contravention.

or

(d)a red route.
Reads as only RR contravention to me?
hcandersen
Can't agree.

The vehicle was stationary on a road, that's not in dispute and captures everything which follows.

'On a red route' is clear as is the meaning of 'red route' which is defined.

I would not take this to adjudication on its own, it would surely fail.

As a further point regarding rationale, it is parliamentary convention that whenever an act or regs places an unavoidable financial burden on an authority, that authority is compensated financially from central taxpayers' funds. IMO, to rule out the use of CCTV for red routes would place a financial burden on TfL and as govt. wanted this change to be cost neutral then red routes were exempted. This did not apply to authorities who were simply misusing a power which was never envisaged by parliament in the first place.
A full impact assessment was not made in parallel with the regs, but I'm certain that TfL would have made the point I've set out above.
PASTMYBEST
As I read it, the use of CCTV it's self is not forbidden. Only the manner of service of the PCN, so if service by post is allowed for RR then the pcn would be valid
in it's service
DancingDad
Got to agree with HCA.
My first thought was "they can't do that with the CCTV ban" but while the underlying may be to allow PCNs on places where stopping is prohibited, this is not spelt out, simply that CCTV enforcement on red routes is allowed.

But I still find it an oddity, after all, they could have used a code 46, as with yellow lines, red lines cover the highway from centre to boundary.

Mad Mick V
This issue has got to be taken to adjudication for a ruling as hca indicates. In dburt's case they used cameras for a code 21 (suspended bay) which is well beyond the traffic management purposes of a red route IMO. If TfL keep pushing the boundaries in this manner (for income generation only) it's an abuse of process.

That said, I don't think this is the case to beard them in their den.

Mick
DastardlyDick
QUOTE (Neil B @ Mon, 23 May 2016 - 08:48) *
QUOTE (DancingDad @ Sun, 22 May 2016 - 23:04) *
QUOTE (DastardlyDick @ Sun, 22 May 2016 - 22:51) *
QUOTE (DancingDad @ Sun, 22 May 2016 - 17:50) *
QUOTE (Mad Mick V @ Sun, 22 May 2016 - 16:16) *
https://www.google.co.uk/maps/@51.4818654,-...3312!8i6656

Have a look at my last post in the sticky thread--ask where you can go to view the video.

Mick


Uhm,while this is on a red route, what are TFL doing serving CCTV PCNs for footway parking?




Why can't they? Red Routes are exempt from the ban on CCTV enforcement.

Totally agree with your (and MMVs) other points. biggrin.gif

Not saying they can't.
But never seen anything from TFL on parking except code 46, stopping where prohibited.
Which they could have served here and would have less defence.

It seems wholly at odds with that historic bee you had in your bonnet about blanket use of 46.
If, as we all had to accept, the contravention could only ever be 46 on a Red Route then I can't see they can use 62.

A theory >
A mini cab driver recently posted in another case that he understood he was able to stop to pick up/set down, for up to 5 mins
on RRs and in bus lanes. I don't know if this is so or whether written into RR Orders or a less formal undertaking from TfL?

If it is allowed then perhaps that's why they've resorted to 62.




They do use code 62, but usually it's for PCNs issued on street, but AFAIK there's nothing in Law that prevents CCTV operators using it too.
I believe that the 5 minute concession (I've been told it's actually 3 minutes) for boarding/alighting is a concession by TfL. I understand there's a night time concession to allow people to go to the cashpoint so they can pay the cabbie.

I could be wrong, but I seem to remember a defence of waiting for a gate/barrier to be opened?

PASTMYBEST
Civil Enforcement Officers Handbook
Version 2




CODE: 62
Penalty charge level: Higher Code description: Parked with one or more wheels on or over a footpath or any part of the road other than a carriageway.
Code contravention: The contravention occurs when a vehicle waits on any part of a footpath or footway.
Extra information to be recorded: • Number of wheels on the footway • Diagram or photograph of the parking position.
Loading/unloading allowed: Yes, but only if it is essential so as not to cause an obstruction and cannot be carried out elsewhere.
Observation period: If essential as described above, then yes.

Exemptions: DNOP
Notes: A footway means a way comprised in a road which also comprises a carriageway, being a way over which the public have a right of way on foot only.
A footpath means a highway over which the public have the right of way on foot only, not being a footway.
Footway parking is allowed where signs and markings officially authorise them. Suffixes: General: j = camera enforcement
Code specific:
1 = one wheel on footway 2 = partly on footway 4 = all wheels on footway c = on vehicle crossover g = on grass verge

Exemption O

O. A vehicle waiting while a gate or barrier is opened/closed to allow access or departure to/from premises
MrChips
Certainly for Red Route Clearways, there is an exemption for circumstances such as this. I got a TMO for a RRC in Enfield on which I was served with a PCN. That quoted a specific exemption for "opening or closing a gate or other barrier at the entrance to premises to which the vehicle is being driven or from which it has emerged, if it is not reasonably practicable to cause the vehicle to stop elsewhere for the purpose".

Happy to link to this document if it would help (or else read my recent thread relating to breakdown on RRC).
Andina
Thank you so much guys for all your input and helpful advice! I really appreciate it.

I have put my representations taking into account your comments. I am not referring to any PATAS cases, as I have literally no time during the days and evenings to spend on this. I will post tomorrow, hoping the representations wouldn't fall on deaf ears,... in which case I will appeal to an adjudicator.

My draft representations below:

Dear Sirs,

I refer to your Penalty Charge Notice dated 17th May 2016 and the alleged contravention No 62 "Parked with one or more wheels on or over a foothpath or any part of road other than a carriageway".

I represent the driver, who is my father and a private hire driver.

On the day of the alleged contravention he had a prebooked journey at (full address). I attach evidence showing the date, address and booking number of the journey. The time shown - 09:56 is the actual time of arrival at the client's desired destination - ...............

The client was to be picked up at the address shown above from a building with underground parking. As visible in the stills shown on the Penalty Charge Notice, access to the parking is through a driveway with a barrier.

I would like to stress, there were neither buttons, nor an intercom at the barrier. To be allowed through the barrier a driver must stop on the driveway at the barrier, disembark the vehicle and go to the concierge office to ask for the barrier to be lifted.

Since there was not enough space to stop the vehicle perpendicularly to the barrier, as the rear of the vehicle would hang out on the road and cause obstruction, my father stopped parallel. He went to contact the concierge office regarding gaining access to the car park, however they refused to let him through. My father then returned to his vehicle and drove-off.

The entire event took less than a minute.

The stills are taken 15 seconds apart - at 08:32:29 and 08:32:44 on 13th May 2016, which supports our representations.

Since my father's intention never was to park in this spot, but only to gain access to the underground parking of the building he was picking up the passenger from, it is permissible for the car to be stationary in these circumstances for the period shown in the pictures of the Penalty Charge Notice.

I refer to the Civil Enforcement Officers Handbook (Version 2) Code 62, where an exemption is made for a " vehicle waiting while a gate or barrier is opened/closed to allow access or departure to/from premises".

In light of the above we believe this PCN should be cancelled as no contravention has occurred.

To that effect I would like to view video evidence of the alleged contravention.

Please contact me with instructions on when and where this can be obtained.

Sincerely,

.........................


Let me know what you think and thank you again, you've all been great!
DancingDad
Last line
Make.... Please advise at which of your offices it may be viewed or supply a copy on DVD.

Get your father to sign a brief note authorising you to act on his behalf ref PCN no ??? and include it.

Send by post from post office and get a free certificate of posting.
After you attempt to challenge on line and discover that the web portal isn't working. And get screen prints of your attempt.

Both video request and online attempt will provide more points to add to an appeal should it be needed.
Online challenge is out f order and likely to be for some time but TFL don't bother telling anyone. Which can cause issues on meeting deadlines
Neil B
2120527822

It is not disputed that the vehicle was stopped on this double red line. However, the Appellants rely on the exemption getting or closing a gate or other barrier at the entrance to premises to which the vehicle is being driven…. . Mr Gray explained that the vehicle was delivery items to a secure construction site and he produced the delivery documents; the gate was closed, he showed me photographs of the site and gate, and the driver had to report to security to gain access and while he was doing that, the vehicle was caught on camera. Without any reference to the exemption or why the Enforcement Authority feel it does not apply, they simply say that a vehicle cannot stop on a double red route. I am satisfied that the exemption does apply and so must allow this appeal.

and on the other matter -

211046700A

The allegation on the Penalty Charge Notice is that this vehicle was parked in contravention of the footway parking ban. The Authority makes reference however in its Case Summary to red route restrictions at this location providing a red route Traffic Management Order and a map of the area showing the red route in support. The Appellants do not face an allegation that they contravened a red route prohibition on stopping and by apparently conflating these two different contraventions the Authority I find potentially prejudices the Appellants in the conduct of his case. Enforcement may not for this reason be pursued. I accordingly allow the appeal.

and
2120054174

I am satisfied that the authority in its case summary has sought to conflate the contravention alleged in this case - stopping on a red route where prohibited - with that which occurs when a vehicle parks on the footway potentially prejudicing the appellant I find in the conduct of her case. I am not satisfied in the absence of any site check report or library photographs that the authority has properly addressed the submissions made by the appellant as to red route carriageway markings being confusing and am not satisfied on the evidence before me that the prohibition is marked in accordance with the legal requirements. I am not satisfied against this background that the contravention occurred. I accordingly allow the appeal.

Respects to 'I need help' and the much missed 'qafka'.
Andina
Thank you for your help on this! I have sent the representations with slight amendments to include the exemption made in one of the cases above.

I will keep you posted.

Thanks again!

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