Help - Search - Members - Calendar
Full Version: My vehicle is 2.3m high but not over 2.2m high
FightBack Forums > Queries > Council Parking Tickets & Clamping and Decriminalised Notices
S2k
I turned up a pebble beach car park in Gosport in my car with 3 kayaks on the roofrack. I was parking to get my son an ice cream and play in the splash park we did not remove the kayaks once parked. We'd been kayaking in the morning and stopped at the splash park on the way home.

I was too high to fit under the height restriction barrier to the main car park so parked in one of the spaces before the barrier that was marked "for vehicles over 2.2m only".

I was issued a "Parking Charge Notice" and the reason was "class of vehicle excluded from parking".

I challenged this via the online form on the councils website and the PCN was upheld. The letter back to me said:
"The signage clearly states “vehicles over 2.2 metres high only in this bay”. Your vehicle does not fit this criterion; therefore you were issued with PCN 840271. Enclosed is a copy of the photograph taken by the Enforcement Officer which clearly shows that you were parked outside a marked bay. "

I'm not sure what the "outside a marked bay" bit means, the phot shows I'm clearly in a space right in front of the sign so I'm assuming it's a cut and paste error.

When I asked to formally appeal it and then go to independent tribunal (I'd read the process on the government website) I was told

" I note your request to make a formal challenge/appeal to an independent tribunal; however this is not the correct procedure. Gosport Borough Council operates its off-street car parks under a parking order made under the Road Traffic Regulation Act 1984. This means it is a ‘criminalised’ system, rather than a system that operates under the Traffic Management Act 2004 (known as a ‘decriminalised’ system). Breaching a parking order is a criminal offence by virtue of section 35A of the Road Traffic Regulation Act 1984. "

So it looks like I need to go to court if I want to defend myself.

I was told in an email by an enforcement support officer:

"The bay you parked in is for vehicles over 2.2m, for example motor homes. The height of the vehicles does not include any attachments i.e. kayaks as they are not part of the main body of the vehicle. The signage clearly denotes this"

I don't remember seeing a sign that said this, the sign said vehicles over 2. 2m only, and the other sign was standard stuff and didnt mention height.

Apparently the correct behaviour would have been to take the kayaks off the roof and then drive under the height restriction barrier and Park the car - presumably putting the kayaks back on the roof.

Parking in the space didn't inconvenience anyone - there were lots of empty spaces, it didn't benefit me - it was the same price and slightly further away from the splash park.

I'm genuinely baffled by this ticket, I can't see how it benefits anyone for me stop at the barrier, remove kayaks from my roof, drive under the barrier and put them back on again. If anything I'd have thought that was the wrong thing to do as I'm clearly trying to get around the rules.

So I'm looking for advice on whether I should go to court to defend this and what would be the cost if I lost.

Many thanks
The Rookie
I've asked a mod' to move this to the council forum for you.

You'll need a scan/Photo of ALL the PCN just less personal details.

EDIT IGNORE I see its not a PCN sorry

You really need a photo of the signage, I presume you aren't local, maybe try google street view etc.
Jlc
...but it seems they will pursue via Mag’s court. So this might be the right part of the forum if their assertions are founded?
cp8759
You really need to show us all the documentation, a link to the location on google street view, and ideally get hold of the Traffic Regulation Order from the council. They can operate criminal enforcement, but they still need to provide adequate signage so a we also need a photo of the car park terms and conditions.
S2k
QUOTE (cp8759 @ Sat, 4 Aug 2018 - 12:11) *
You really need to show us all the documentation, a link to the location on google street view, and ideally get hold of the Traffic Regulation Order from the council. They can operate criminal enforcement, but they still need to provide adequate signage so a we also need a photo of the car park terms and conditions.


The location is here: https://goo.gl/maps/Vn2rPf3v5AH2 but street view doesn't show the height resteiction barrier. The parking I used is on the left, the main car park is on the right.

I have a friend down there taking photos of signs (I'm not in the area at the moment) so will post when I get them.

Here's the photo I have of the ticket I can't get to the full ticket for another 10 days as I'm away.
Click to view attachment
Jlc
You'd have thought common sense would prevail but alas some councils are 'happy' to prosecute. I may have been tempted to pay the early charge to avoid a prosecution but it all hinges on the signage and order as noted above. (Strictly, adding height to the vehicle doesn't change its class which is why they issued the ticket)

We've seen some ECN's become rather expensive at court.
S2k
I've now got photos of the signs at the car park.

Click to view attachment

Click to view attachment

Nothing that suggest that "vehicle" doesn't include things on your roof.

Would anyone defend this in court or should I just accept that the magistrate may decide that technically my vehicle is below 2.2m and I should have known the legal definition of vehicle?

It just seems stupid to me and everyone I've spoken to but I've never been to a magistrates Court so don't know how much common sense they apply.
cp8759
Ask the council for the Traffic Regulation Order, the offence is contravening the order so we need to know exactly what it says.

edit: cancel that, the orders are at https://www.gosport.gov.uk/sections/environ...ks/regulations/
S2k
So it's article 18 I'm foul of and it says that spaces have been marked for use be vehicles of a "specified class or description" then I must be of that class or description.

So for me the question is would people describe my vehicle as over 2.2m?

I don't see how I'm supposed to know the definition of vehicle height doesn't include kayaks on my roof.

If your definition of vehicle description doesn't include things on the roof then I agree my vehicle isnt 2.2m high. But I bet if you asked 100 people to describe my vehicle in the photo they'd say "the blue car with kayaks on the roof".

My problem is I don't know how a magistrate would describe it, and what the cost would be if they agreed with the ticket.

cp8759
Well the order doesn't include a definition of vehicle height so it's not very helpful. It's a principle of English law that where there are two equally plausible interpretations of a criminal law, the interpretation most favourable to the accused must be adopted. Whether this would sway the magistrates is another matter. If you are convicted the fine is likely to be around something between £100 and £220 (depending on your income) + victim surcharge, and the council will apply for prosecution costs, in a CPS case the costs for a trial would be in the region of £620 but the court will normally award costs that are proportional to the circumstances of the case.
S2k
QUOTE (cp8759 @ Sat, 4 Aug 2018 - 21:26) *
If you are convicted the fine is likely to be around something between £100 and £220 (depending on your income) + victim surcharge, and the council will apply for prosecution costs, in a CPS case the costs for a trial would be in the region of £620 but the court will normally award costs that are proportional to the circumstances of the case.


That's really useful information thank you.

As much as it pains me I think I'm going to pay the fine - the whole thing is so ridiculous, no-one is going to read all the regulations to understand the exact definition of a word. They'll look at their car and think "it won't fit under the barrier, oh look there are spaces for cars that are too high, I'll park there."

Incandescent
Yet another council that prefer to hide under the magistrates skirts rather than be like the rest and operate a scheme under the Traffic Management Act. However, there is nothing to stop you challenging the issue of this notice before you pay it. You never know, they may cancel, but I suspect they are just as venal and rapacious as the rest.
DancingDad
The nasty thing about ECNs is that the "crime" that you end up in court over is not about parking but about failing to pay the ECN.
S24 of the order refers to exactly that.
It means that if the magistrates stick to the letter and allow no discussion on why the ECN was served or whether this was justified, the crime is simply failing to pay and the answer rather black or white.
Not saying it cannot be defended but there is a significant risk of being found guilty, criminal and a hefty fine/costs.
For this reason the normal advice on ECNs is pay, the risk is simply not worth the potential end result.
S2k
QUOTE (DancingDad @ Sat, 4 Aug 2018 - 22:12) *
The nasty thing about ECNs is that the "crime" that you end up in court over is not about parking but about failing to pay the ECN.
S24 of the order refers to exactly that.
It means that if the magistrates stick to the letter and allow no discussion on why the ECN was served or whether this was justified, the crime is simply failing to pay and the answer rather black or white.


Really appreciate you pointing that out, seems really unjust.
cp8759
QUOTE (S2k @ Sat, 4 Aug 2018 - 23:55) *
QUOTE (DancingDad @ Sat, 4 Aug 2018 - 22:12) *
The nasty thing about ECNs is that the "crime" that you end up in court over is not about parking but about failing to pay the ECN.
S24 of the order refers to exactly that.
It means that if the magistrates stick to the letter and allow no discussion on why the ECN was served or whether this was justified, the crime is simply failing to pay and the answer rather black or white.


Really appreciate you pointing that out, seems really unjust.

I think there's more to it than that, it cannot be an offence to fail to pay a wrongly issued ECN, or a council with budget issues could just issue ECNs to every car parked on the street until they raise the required revenue. The real issue here is that your chances of acquittal are maybe 50/50, but the downside risks if you lose could be fines and costs totalling hundreds of pounds.
Mr Mustard
I would approach a national newspaper as the situation is ridiculous & a message needs to go to other councils not to be so silly.
hcandersen
The height of a vehicle refers to the ‘structure of the vehicle’, not suitcases or whatever strapped on top.

Therefore height refers to distance between ground and point on the vehicle

This is not a case of plausible alternative interpretations.

IMO, pay or risk increased charges and costs.
S2k
QUOTE (hcandersen @ Sun, 5 Aug 2018 - 07:59) *
The height of a vehicle refers to the ‘structure of the vehicle’, not suitcases or whatever strapped on top.

Therefore height refers to distance between ground and point on the vehicle

This is not a case a plausible alternative interpretations.

IMO, pay or risk increased charges and costs.


Where does that definition come from? I haven't found anything that's as clear as that.

I understand their argument but when you turn up at a car park - see a height barrier that you can't get under and see spaces for high vehicles are genuinely telling me that you think - oh they use the word "vehicle" and by that they mean not the roof top box, so what the correct behaviour is to remove the rooftop box and drive under the barrier to the main car park then put the box back on.
hcandersen
Construction and Use Regulations.
DancingDad
It is certainly one where common sense ought to prevail.
If a vehicle will not fit under a height barrier it cannot use the car park. That's a given, doesn't matter if it is a roof box, kayaks or the vehicle itself.
Common sense then says, if there are spaces outside specifically for overheight vehicles, they are there for vehicles that don't fit under the barrier.
Unfortunately, common sense and councils often do not appear in the same sentence.

This is one where I would not risk ending up in court but that does not mean you cannot fight on.
I would pay but with a strong note that payment is only under duress and against the threat of court action that may only consider non payment and not the underlying parking issue.
Then raise an official complaint with the council against the issue of an ECN that flies in the face of common sense, progress it through the escalation stages right through to local government Ombudsman should it be needed.... ask for resolution of repayment of the charge and assurance that signage is improved so it is clear what vehicle height means in relation to the external bays.
Plus local press/media.
hcandersen
Sadly we’re past the common-sense stage and the OP has the procedural options to pay or go to court.

Yes, there is a whole range of extra-procedural options, but our advice based on the law and what evidence we have is...?

IMO, pay and if you want to continue to dispute, then do it in parallel, not instead of.
Mad Mick V
+1 with DD

I would try the LA Ombudsman.

The decriminalised parking regime in Hampshire is so piecemeal that one wonders if the County Council took any interest in it or just allowed the subsidiary Councils to do their own thing.

Mick
hcandersen
I don’t understand why there’s a belief that if this is referred to the council as a complaint then it could ultimately be referred to
the LGSCO. The latter’s remit is set by law, not the scope of a council’s complaints procedure.

From their website:


I have received a penalty charge notice relating to a parking contravention. Can the Ombudsman help me?

Where a council does not operate civil parking enforcement, it is the police - and not the council - who enforce parking restrictions on the street, so we would not get involved. Councils may issue excess charge certificates in places such as council-operated car parks. Documents in such cases will refer to the Road Traffic Regulation Act 1984. These are criminal matters and can ultimately be defended in the magistrates' court.
DancingDad
Apologies if I am in error.
However I still stand by the risk of magistrates and the sense of paying to avoid.

It does seem strange that council raise the order, council employ enforcement officers and indeed say they are responsible.
https://www.gosport.gov.uk/transport-and-st...-who-does-what/
But LGO says tis the police.


Further edit
RTRA1984 gives the authority to the council to enforce off street car parks.
This accords with the council's who does what page
The council are the ones who will choose to cancel, enforce or raise a summons
Cannot see why council should not be the ones to answer complaints or indeed that those complaints would not be able to be scrutinised by LGO
They may decide that it is not n their remit as the "proper place" to argue is in court but can still progress through council... don't ask, wont get.
BQ68
https://www.google.co.uk/maps/@50.783269,-1...3312!8i6656

The sign states "MAX HEADROOM 7' 3" (2.2m)" so the signage is slightly contradictory?
Mad Mick V
Got to agree with DD on the LGO route. If the Council makes the rules and don't administer them properly then they are fair game particularly, if as a result of their mistake (we can argue if there has been one), there is a punitive result.

The LGO would be in error if it stated that the Mags Court was the appropriate "Tribunal" for the reasons already outlined by DD--did you pay the penalty? No! --Guilty plus costs.

Mick
DancingDad
QUOTE (Mad Mick V @ Sun, 5 Aug 2018 - 17:31) *
Got to agree with DD on the LGO route. If the Council makes the rules and don't administer them properly then they are fair game particularly, if as a result of their mistake (we can argue if there has been one), there is a punitive result.

The LGO would be in error if it stated that the Mags Court was the appropriate "Tribunal" for the reasons already outlined by DD--did you pay the penalty? No! --Guilty plus costs.

Mick


AS far as I can work out, the only place to challenge the ECN with little risk is with the council, before any summons is raised.
If it gets to court, they will be looking at Section 24 of the TRO and RTRA84 reg 47(4)

"Where, in any proceedings in England or Wales for an offence under this section of failing to pay any charge, it is proved that the amount which has become due, or any part of that amount, has not been duly paid, the court shall order the payment of the sum not paid; and any sum ordered to be paid by virtue of this subsection shall be recoverable as a penalty."

The only wriggle room in that is whether or not the amount has become due. Council will say yes, we have given the defendant all opportunities to challenge the ECN and the reasons for it being served, given appropriate notice, here are all the relevant papers.
Which leaves me feeling a little exposed.
If any complaint is regarding the (likely) charge on the summons, ie failing to pay, then the LGO will rightly say this is for the courts.
But if the complaint is about council failings, ie signage not being clear, exercising no discretion, failing to act fairly when recipient was stuck between too tall and not tall enough etc ?
PASTMYBEST
QUOTE (DancingDad @ Sun, 5 Aug 2018 - 18:05) *
QUOTE (Mad Mick V @ Sun, 5 Aug 2018 - 17:31) *
Got to agree with DD on the LGO route. If the Council makes the rules and don't administer them properly then they are fair game particularly, if as a result of their mistake (we can argue if there has been one), there is a punitive result.

The LGO would be in error if it stated that the Mags Court was the appropriate "Tribunal" for the reasons already outlined by DD--did you pay the penalty? No! --Guilty plus costs.

Mick


AS far as I can work out, the only place to challenge the ECN with little risk is with the council, before any summons is raised.
If it gets to court, they will be looking at Section 24 of the TRO and RTRA84 reg 47(4)

"Where, in any proceedings in England or Wales for an offence under this section of failing to pay any charge, it is proved that the amount which has become due, or any part of that amount, has not been duly paid, the court shall order the payment of the sum not paid; and any sum ordered to be paid by virtue of this subsection shall be recoverable as a penalty."

The only wriggle room in that is whether or not the amount has become due. Council will say yes, we have given the defendant all opportunities to challenge the ECN and the reasons for it being served, given appropriate notice, here are all the relevant papers.
Which leaves me feeling a little exposed.
If any complaint is regarding the (likely) charge on the summons, ie failing to pay, then the LGO will rightly say this is for the courts.
But if the complaint is about council failings, ie signage not being clear, exercising no discretion, failing to act fairly when recipient was stuck between too tall and not tall enough etc ?


While accepting what DD say's I cannot reconcile with the CEO being in error so the notice not being valid with it still becoming due Can we see the back of the notice please
S2k
QUOTE (PASTMYBEST @ Sun, 5 Aug 2018 - 19:53) *
While accepting what DD say's I cannot reconcile with the CEO being in error so the notice not being valid with it still becoming due Can we see the back of the notice please

I'll post the back of the ticket but I won't be back at home for another 10 days - sorry.

I paid the fine, so will now look to make a complaint to the council and include local press, mp etc.
cp8759
QUOTE (DancingDad @ Sun, 5 Aug 2018 - 18:05) *
The only wriggle room in that is whether or not the amount has become due. Council will say yes, we have given the defendant all opportunities to challenge the ECN and the reasons for it being served, given appropriate notice, here are all the relevant papers.
Which leaves me feeling a little exposed.

I disagree, whether the sum has become due depends on whether the ECN was properly issued based on the relevant facts and law. Otherwise any council with a budget problem could just arbitrarily issue ECNs whether justified or not till they raise the required revenue, and motorists would just have to cough up.
DancingDad
QUOTE (cp8759 @ Mon, 6 Aug 2018 - 00:58) *
QUOTE (DancingDad @ Sun, 5 Aug 2018 - 18:05) *
The only wriggle room in that is whether or not the amount has become due. Council will say yes, we have given the defendant all opportunities to challenge the ECN and the reasons for it being served, given appropriate notice, here are all the relevant papers.
Which leaves me feeling a little exposed.

I disagree, whether the sum has become due depends on whether the ECN was properly issued based on the relevant facts and law. Otherwise any council with a budget problem could just arbitrarily issue ECNs whether justified or not till they raise the required revenue, and motorists would just have to cough up.

What, disagree with me feeling a little exposed ? smile.gif
Perhaps I am being too pessimistic but it is a gamble that I would not take.

I fully agree that the ECN reasons should be a part of any court proceedings.
If only to ascertain that the excess charge is due.
And may well be fully explored by magistrates who accept a defendant going all Perry Mason in the courtroom.
Or may be brushed aside with little consideration in preference to the more binary charge of failing to pay.
Pot luck on who you get on the bench.
I cannot in good conscience advise anyone to fight one of these in magistrates because of the implications on costs and criminal conviction.
Perhaps if it was more cut and dried on that the ECN was issued incorrectly.
But this case hinges more on the apparent conflict between height limits and if strictly interpreted, comes down to was the vehicle allowed to park where it was.

Please forgive me for being cynical about councils using parking penalties to raise cash.
We only have to look at the way many treat the decrim system to know that they do.
Far too many treat the challenge system as opportunities to persuade the punter to pay up, not to fairly consider as they are duty bound to.
cp8759
QUOTE (DancingDad @ Mon, 6 Aug 2018 - 09:24) *
QUOTE (cp8759 @ Mon, 6 Aug 2018 - 00:58) *
QUOTE (DancingDad @ Sun, 5 Aug 2018 - 18:05) *
The only wriggle room in that is whether or not the amount has become due. Council will say yes, we have given the defendant all opportunities to challenge the ECN and the reasons for it being served, given appropriate notice, here are all the relevant papers.
Which leaves me feeling a little exposed.

I disagree, whether the sum has become due depends on whether the ECN was properly issued based on the relevant facts and law. Otherwise any council with a budget problem could just arbitrarily issue ECNs whether justified or not till they raise the required revenue, and motorists would just have to cough up.

What, disagree with me feeling a little exposed ? smile.gif
Perhaps I am being too pessimistic but it is a gamble that I would not take.

I fully agree that the ECN reasons should be a part of any court proceedings.
If only to ascertain that the excess charge is due.
And may well be fully explored by magistrates who accept a defendant going all Perry Mason in the courtroom.
Or may be brushed aside with little consideration in preference to the more binary charge of failing to pay.
Pot luck on who you get on the bench.

At the first hearing if a no guilty plea is entered, the parties then identify the "issues in the case" and at that point you bring up that the merits of the ECN are an issue the defence and prosecution disagree upon, and it's then an issue for the court to decide (See CPS -v- Danny Cipriani)

But this case IMO was hopeless and paying the ECN was the right call.
This is a "lo-fi" version of our main content. To view the full version with more information, formatting and images, please click here.
Invision Power Board © 2001-2018 Invision Power Services, Inc.