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Sammy P
Hi, yesterday I parked on Gladstone road wimbledon on single yellow line. There was disabled badge and I thought I can park for an hour on yellow line with the badge. There were no parking spaces available and parking board mentioned 2pm to 6pm on Sunday. I was issued notice at 1.34pm. It mentions Parking contravention code 27. I don't understand why I got PCN for this code. I am attaching pictures. Can you please tell me what is wrong. I don't normally park on yellow line but it was unfamiliar area and quite busy Sunday. Do I have any chance of fightback? Thanks.
stamfordman
It's for parking next to a dropped kerb - here I reckon:

https://www.google.com/maps/@51.4187348,-0....6384!8i8192

I guess that strip outside the houses counts as private parking but you couldn't drive straight in.

Post the PCN.
DancingDad
Looks like here, on the right.
https://www.google.co.uk/maps/@51.4188182,-...6384!8i8192
Contravention is for parking adjacent to a dropped kerb.
BB is not an exemption for that.
My query is whether the DK is there for one of the statutory purposes (vehicle crossing?) and if so, whether clear and whether yellow line could be accepted as misleading.
Sammy P
QUOTE (stamfordman @ Mon, 22 Oct 2018 - 10:31) *
It's for parking next to a dropped kerb - here I reckon:

https://www.google.com/maps/@51.4187348,-0....6384!8i8192

I guess that strip outside the houses counts as private parking but you couldn't drive straight in.

Post the PCN.

Hi PCN is MT68432180. You are right about google map location. That is exactly where I parked. Thanks for time and efforts
Incandescent
For dropped kerbs giving access to property, a complaint has to be made by the resident.
PASTMYBEST
QUOTE (DancingDad @ Mon, 22 Oct 2018 - 10:33) *
Looks like here, on the right.
https://www.google.co.uk/maps/@51.4188182,-...6384!8i8192
Contravention is for parking adjacent to a dropped kerb.
BB is not an exemption for that.
My query is whether the DK is there for one of the statutory purposes (vehicle crossing?) and if so, whether clear and whether yellow line could be accepted as misleading.



All three can be argued and have had success, but it will be at adjudication I would suggest a conciliatory tone in initial challenge.

Dear Mr parking

I write in challenge to PCN number XXXXXXXX and ask that you consider all the circumstances that lead to the issue of this PCN and use the power you have to cancel it.

I am a blue badge holder and as such may park on a yellow line with the badge correctly displayed for the exempted period. I would never intentionally park across a driveway or lowered pedestrian crossway, This location did not look to be either


access to the adjacent property would need to be effected from the lowered kerb behind where I parked. The pavement where I parked is in poor repair, not one adapted for disabled pedestrian use looking more that it had sunk due to neglect rather than being purposely lowered. and a yellow line give the impression that outside of restricted hours parking is allowed.


All these thing together gave me to believe that parking as I did fell within the exemption afforded to a BB holder so I would ask that you cancel this PCN
cp8759
QUOTE (Incandescent @ Mon, 22 Oct 2018 - 11:39) *
For dropped kerbs giving access to property, a complaint has to be made by the resident.

That's no longer the case.
stamfordman
Well I can't see how you'd deduce it was a DK for vehicular access at that point. There is a clear ramp a bit further down.

But one of the council pics does show the two cars there at the time.




DancingDad
QUOTE (cp8759 @ Mon, 22 Oct 2018 - 13:49) *
QUOTE (Incandescent @ Mon, 22 Oct 2018 - 11:39) *
For dropped kerbs giving access to property, a complaint has to be made by the resident.

That's no longer the case.

While not a requirement under TMA2004, most councils have a policy of not enforcing domestic DKs without a complaint.
Whether that applies here, dunno.
cp8759
QUOTE (stamfordman @ Mon, 22 Oct 2018 - 13:54) *
Well I can't see how you'd deduce it was a DK for vehicular access at that point. There is a clear ramp a bit further down.

But one of the council pics does show the two cars there at the time.





The kerb doesn't look flush with the road, it might be worth measuring it's height
Sammy P
Hi all, I appealed to council and it was rejected with below comment .

"You were given a Penalty Charge Notice (PCN) for parking at a point where
the pavement slopes down to meet the road. These points allow easy access
onto, and off, the road (for example to reach a garage) and so need to be kept
clear. This rule applies to disabled badge holders too; it is not a situation
where you may use your disabled badge.
Whilst we note there is a single yellow line at the property, on this occasion
you were park outside a property which is not permitted. The dropped kerb at
this location is not a disabled tactile kerb.
So whilst I note it was not your intention to park in contravention of the
restrictions in force, I am satisfied that the PCN has been issued correctly and
that there are no grounds on which to cancel the charge."




I only got couple of days before I have to pay £55 to avoid double charge. Should I skip the payment and wait for "Notice to Owner form" and make official challenge to PCN. I will received "Notice to Owner form" automatically after 28 days if I don't pay.

I know, it is my decision to make, but just want to check what are the chances of winning a challenge for parking at dropped kerb. Any previous experiences with DK?
Please help.
PASTMYBEST
Post the rejection letter in full not a transcript. Did you send exactly the draft I gave or did you edit it?
Sammy P
QUOTE (PASTMYBEST @ Sat, 15 Dec 2018 - 14:15) *
Post the rejection letter in full not a transcript. Did you send exactly the draft I gave or did you edit it?



I sent exactly same text that you gave me. But it was in stages - PCN appeal website is not very clear.
After you enter PCN and REG at https://parkingweb.merton.gov.uk/pcn/ it gives two options
1. Email Us 2. Pay
I used Email Us on 22nd Oct just to know what this PCN is about as I couldn't really understand initially. I didn't intend to appeal it that time.
When I called them, they said it is already being appealed.
And then I sent second email on 29th Oct saying - ignore earlier email and consider this email as appeal.

Thanks.


text from letter


Dear Mr XXXXXXXX,
Penalty Charge Notice: MT68432180
Date of Contravention: 21/10/2018 Vehicle Registration: XXXXXX
Location: GLADSTONE ROAD . SW19
Thank you for writing to us.
We have carefully considered what you say but we have decided not to cancel your Penalty Charge Notice (PCN).
You were given a Penalty Charge Notice (PCN) for parking at a point where the pavement slopes down to meet the road. These points allow easy access onto, and off, the road (for example to reach a garage) and so need to be kept clear. This rule applies to disabled badge holders too; it is not a situation where you may use your disabled badge.
Whilst we note there is a single yellow line at the property, on this occasion you were park outside a property which is not permitted. The dropped kerb at this location is not a disabled tactile kerb.
So whilst I note it was not your intention to park in contravention of the restrictions in force, I am satisfied that the PCN has been issued correctly and that there are no grounds on which to cancel the charge.
You can view photographic evidence of your case online at www.merton.gov.uk/pcn.
You have these choices:
• You can pay the discount charge of £55.00 if your payment reaches us within 14 days of the date of this letter.
• If you miss the discounted period you can pay the full charge of £110.00 within 28 days of this letter.
• You can formally challenge your PCN by using a Notice to Owner form. The vehicle's owner will automatically receive the form if the PCN has not been paid within 28 days of this letter. The form offers you the chance to formally challenge your PCN or pay the full £110.00. If you decide to formally challenge your PCN, please do not write to us again but wait until the Notice to Owner form arrives. If we reject your formal challenge you will be given the

ADDRESS


opportunity to appeal against our decision to an independent adjudicator. For more information about the traffic adjudicator please visit their website at http://www.londontribunals.gov.uk/eat/appe...ocess-explained. Please note: Should you write back in to the council before the Notice to Owner, the discounted period will not be placed on hold or reoffered.
How to pay
• Online at www.merton.gov.uk/pay
• By phone 020 8545 3518 (24 hours). Please note that we do not accept AMEX or Diner’s Club Cards.
• Post Office (cash or a debit card only) or at Pay Point Shops (cash only) using the bar code as shown on this letter or on the PCN.
• By post Please make your cheque or postal order payable to ‘London Borough of Merton’, write your PCN number (MT.........), vehicle registration and your address on the back, then send it to the address above.
• Please note London Borough of Merton does not offer payment or instalment plans for PCNs. Payment is made when it is received by the council and not from the date written on a cheque or the date payment is posted. The council cannot be held responsible for any payments that are delayed or lost by the Postal Services.
Yours sincerely
Parking Services
cp8759
Upload the letter to imgur.com and post a link.
Sammy P
QUOTE (cp8759 @ Sat, 15 Dec 2018 - 18:37) *
Upload the letter to imgur.com and post a link.

https://imgur.com/a/SMUVAwW
https://imgur.com/a/Cy9HMy3
cp8759
They've dug themselves into a hole, there is no law against parking next to the sloping part of the kerb, as per Right Contract Services LTD v London Borough of Hillingdon (case reference 2160311942:

This appeal was set down for a personal hearing at 10:00 am on 17 August 2016. Neither party attended.
The Authority says that the contravention occurred because the vehicle parked past the point where the kerb starts to slope. This is an incorrect understanding of the law.
Section 86 (1) of the Traffic Management Act 2004 provides that (In a special enforcement area) a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where the footway, cycle track or verge has been lowered to meet the level of the carriageway for one of the purposes stated in the section.
This means that the dropped kerb is the part of the kerb which meets the level of the carriageway and does not include the sloping kerbs on either side.
In misdirecting itself on the key and fundamental point of law when considering the Appellant's representations, there is a procedural impropriety on the part of the Authority.
I should say that by applying the correct test, I am satisfied that the Appellant's vehicle was just over the proper dropped kerb but it was so marginal that I find it to be de minimus.
I allow the appeal.
Sammy P
QUOTE (cp8759 @ Sun, 16 Dec 2018 - 00:03) *
They've dug themselves into a hole, there is no law against parking next to the sloping part of the kerb, as per Right Contract Services LTD v London Borough of Hillingdon (case reference 2160311942:

This appeal was set down for a personal hearing at 10:00 am on 17 August 2016. Neither party attended.
The Authority says that the contravention occurred because the vehicle parked past the point where the kerb starts to slope. This is an incorrect understanding of the law.
Section 86 (1) of the Traffic Management Act 2004 provides that (In a special enforcement area) a vehicle must not be parked on the carriageway adjacent to a footway, cycle track or verge where the footway, cycle track or verge has been lowered to meet the level of the carriageway for one of the purposes stated in the section.
This means that the dropped kerb is the part of the kerb which meets the level of the carriageway and does not include the sloping kerbs on either side.
In misdirecting itself on the key and fundamental point of law when considering the Appellant's representations, there is a procedural impropriety on the part of the Authority.
I should say that by applying the correct test, I am satisfied that the Appellant's vehicle was just over the proper dropped kerb but it was so marginal that I find it to be de minimus.
I allow the appeal.


But my vehicle was all on dropped kerb. http://forums.pepipoo.com/index.php?act=at...st&id=58935

DK in this case was too long as adjacent house had made multiple parking spaces on driveway and yellow line was repainted just for DK part. If they don't want vehicles on DK, then they could have just extended double yellow line of the junction. Pardon my understanding of nitty-gritties of yellow lines and DK. I really didn't notice DK.

What are my chances of winning an appeal in percent if someone wants to answer in one word. Sorry to divert subject, please feel free to help me with any suggestions you think appropriate.
Sammy P
QUOTE (cp8759 @ Mon, 22 Oct 2018 - 13:17) *
QUOTE (stamfordman @ Mon, 22 Oct 2018 - 13:54) *
Well I can't see how you'd deduce it was a DK for vehicular access at that point. There is a clear ramp a bit further down.

But one of the council pics does show the two cars there at the time.





The kerb doesn't look flush with the road, it might be worth measuring it's height

Thanls. What is the regulation about dropped kerb flushing with the road and what height is allowed.
hcandersen
Sloping/sloped and micrometer measurements of 'lowered to meet' are not the stuff of successful appeals IMO, even less so at this early stage of the process.
cp8759
QUOTE (hcandersen @ Sun, 16 Dec 2018 - 11:02) *
Sloping/sloped and micrometer measurements of 'lowered to meet' are not the stuff of successful appeals IMO, even less so at this early stage of the process.

But applying the wrong legal test is a PI which can win on its own.
stamfordman
I would go on with this - it's outrageous that residents can pretend they have a right to all that kerb just because they have managed to shoehorn their cars along a strip in front of the houses and from which they couldn't access it easily anyway - there is no direct vehicular ramp where you were.
Sammy P
can someone comment about discussion on http://forums.pepipoo.com/lofiversion/index.php/t70804.html

"Case Reference: 2110067442
Appellant: Mrs Patricia Abd - Almseh
Authority: Westminster
VRM: RF55FMV
PCN: WM64562084
Contravention Date: 31 Oct 2010
Contravention Time: 17:52
Contravention Location: North Audley Street
Penalty Amount: £120.00
Contravention: Parked adjacent to a dropped footway
Decision Date: 12 Apr 2011
Adjudicator: Neeti Dhanani
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The appellant does not deny parking at the location but states that she was misled by the single yellow line marked at the location into thinking that the area was subject to the single yellow line restrictions.

The Appellant states that she was misled by the single yellow line road marking alongside the dropped kerb. She states that as parking on a Sunday is permitted on the single yellow line on North Audley Street, she thought he was permitted to park at the location. The Appellant states that had the Authority marked the dropped kerb with a double yellow line as opposed to a single yellow line she would have had no doubt that parking was prohibited and would not have parked at the location.

The Authority relies on the copy Penalty Charge Notice and the civil enforcement officer's contemporaneous notes and photographs.

It is the Authority's case that there is no legal requirement for a dropped kerb to be signed. The Authority is of the view that as there is no legal obligation to indicate a dropped kerb with any sign or road marking the fact that they marked the area with a single yellow line is irrelevant.

I adjourned the appeal with a request that the Authority provide an explanation as to why it has chosen to mark the area with a single yellow line as opposed to a double yellow line when as a result of the dropped kerb parking is prohibited at all times. The Authority has responded by simply reiterating its view that as there is no obligation on them to sign the prohibition it is irrelevant that the area is marked by a single yellow line.

I accept that there is no requirement to sign the prohibition against parking adjacent to a dropped kerb. However the Authority in this case has chosen to extend the single yellow line to the area of the carriageway adjacent to the dropped kerb. Having done so the Authority is open to the criticism advanced by the Appellant as to the use of single yellow lines as opposed to double yellow lines. The use of a single yellow line is misleading as it indicates that the waiting of vehicles is prohibited for specified times and not at all times. It is a nonsense to state that as there is no legal obligation to indicate that prohibition "it makes no difference as to whether a single or double yellow line marks the area". If the Authority decides to mark the prohibition it is under a duty to ensure that the road marking is adequate and indicates the prohibition clearly so that the motorist is informed of what is required in order to park in accordance with the prevailing prohibition. I find the single yellow line road marking by a dropped kerb to be confusing and misleading. Accordingly I allow the appeal. "
cp8759
We've seen tribunal decisions go either way, and I think more of the recent ones were favourable to the enforcement authorities.
PASTMYBEST
It is a case that supports one of your arguments made There are others that support the appearance of the kerb and that the kerb and something can be made re their response to your challenge.

One I would fight, but you must choose If you are going to continue then nothing to do but have a nice xmas and wait for the NTO
Sammy P
Thank you all. I think I will take my chances and fight it. Wish you all Merry Christmas.
Sammy P
https://www.trafficpenaltytribunal.gov.uk/d...t_2008_2010.pdf
" In SL05457C the presence of a single yellow line outside its hours of operation was found to have given cause for
confusion and the appeal was allowed.". Could be same case.
Sammy P
Parking on dropped kerb with single yellow line

I already posted a topic - http://forums.pepipoo.com/index.php?&showtopic=123599
So not repeating it here. I just want to know experience of people who took their fight till independent adjudicator/tribunal.
What was the result - did you succeed or failed.
Did you gave reference of - Case Reference: 2110067442 Appellant: Mrs Patricia Abd - Almseh

Please just tell me your result - failed (if so why?) or succeeded.
stamfordman
I have asked for a merge with your main thread.

Each case is different so you need to follow up your own case.
Sammy P
Thanks all for your help. My appeal was allowed. Got an email yesterday night.


<xxx>

-v-
London Borough of Merton

(the Enforcement Authority)

Mr <xxx> appealed against liability for the payment of the Penalty Charge in respect of:
Vehicle Registration Number xxxxx
Penalty Charge Notice - xxxxx
Full PCN Amount £ 110.00
Contravention Date 21st October 2018
Contravention Time 13:36
Contravention Location Gladstone Road
Contravention Parked in a special enforcement area
adjacent to a dropped footway
Adjudicator's Decision

The adjudicator, having considered the evidence submitted by the parties, has allowed the appeal.
The reasons for the adjudicator's decision are enclosed.
The adjudicator directs London Borough of Merton to cancel the Penalty Charge Notice.
If any penalty or fees have already been paid, the Enforcement Authority must now issue a refund
without delay. Enquiries regarding payment of the refund should be made to the Enforcement
Authority.

An independent tribunal for environment, parking and traffic penalty appeals
Environment and Traffic Adjudicators are supported by London Tribunals, a service provided by London Councils

Calls to London Tribunals may be recorded

Adjudicator's Reasons
The appellant disputes the Penalty Charge Notice stating that she was parked on a single yellow line
outside the hours of restriction.
The local authority say that notwithstanding the presence of a single yellow line the appellant was
parked adjacent to a dropped kerb which restriction supersedes the yellow line restriction.
I do not accept the local authority's representations.
Dropped kerbs do not require any signs or road markings. By placing a single yellow line adjacent to a
dropped kerb implies that parking is permitted outside the hours of restriction of the yellow line and is
therefore misleading.
In addition the local authority have not supplied evidence of a complainant as the dropped kerb was
outside residential property.
I therefore allow this appeal.

Mamta Parekh
Adjudicator
28th May 2019
Sammy P
Hi,
I recently won an appeal at Environment and Traffic Tribunal for parking on dropped kerb.

"Adjudicator's Reasons
The appellant disputes the Penalty Charge Notice stating that she was parked on a single yellow line
outside the hours of restriction.
The local authority say that notwithstanding the presence of a single yellow line the appellant was
parked adjacent to a dropped kerb which restriction supersedes the yellow line restriction.
I do not accept the local authority's representations.
Dropped kerbs do not require any signs or road markings. By placing a single yellow line adjacent to a
dropped kerb implies that parking is permitted outside the hours of restriction of the yellow line and is
therefore misleading.
In addition the local authority have not supplied evidence of a complainant as the dropped kerb was
outside residential property.
I therefore allow this appeal"


But council has requested for review of the decision based on below grounds


"Request for Review
London Borough of Merton
Case No xxxxx
PCN xxxxxx
Appellant xxxx
Reasons
I refer to the adjudicator’s reasons for allowing the above case and request a review of this decision
under the grounds that the Interest of Justice requires a review.
It is believed that the adjudicator has made a misjudgement with the facts recorded in his decision
reason.
The adjudicator states that the placing of a single yellow line adjacent to a dropped kerb implies that
parking is permitted outside the hours of restriction of the yellow line and is therefore misleading.
In response to this, I would highlight that a yellow line running through a dropped kerb area does not
supersede the restrictions surrounding parking across a dropped kerb, irrespective of the vehicle
being parked outside of the times of the yellow line restrictions.
The photographic evidence clearly shows the vehicle parked outside a residential property. It is
accepted and understood that, providing no other restrictions apply, a vehicle may be parked in front
of the drop kerb access to a single property, but only if the motorist has the permission of the
resident to do so.
It is the London Borough of Mertons policy that enforcement at residential drop kerb locations will
only take place at the request of the resident.
The adjudicator has stated that the local authority have not supplied evidence of a complainant as
the dropped kerb was outside residential property.
In response to this, I would advise that the only evidence that the local authority can provide of this
with such appeals, is a copy of the issuing officer’s notes provided under section ‘EVIDENCE FORM
C’, which clearly states ‘Site visit’.
Providing any further details of the origination or details of the enforcement request to a third party,
particularly in this instance as it would also form part of an evidence pack, a copy of which is
provided to the appellant, would be deemed a breach of data protection.
In previous similar appeals, the issuing officer’s recording has been accepted as sufficient evidence
of an enforcement request and has therefore been deemed sufficient evidence of a complaint.
Given the above, I would like the decision reviewed.
Mrs R. Dooley
Acting Processing and Debt Registration Manager
Parking Services"


Can council do that. And what happens at the review?
Mad Mick V
Yes, the Council can ask for a review and your money is still at risk.

Did the PCN specify the Traffic Management Act 2004 or the London Local Authorities Act 2003? This is important as regards a residents complaint.

Probably wise to let us see the documents and any council photos.

Mick



DancingDad
Cannot guarantee but I cannot see the review being granted.
There is no interest in justice, no clarification of law needed, simply a decision relative to this case alone as to whether or not the signs misled.

The adjudicator made a decision that they were allowed to in law, ie that the yellow line could (did) mislead.
That a resident did or didn't make a complaint is only relevant if the case was brought under LLAA 2003 and I would be surprised if the PCN is headed with that.


What exactly have the tribunal sent you?
Are they asking that you respond or comment on the request or what ?
Sammy P
QUOTE (DancingDad @ Sun, 2 Jun 2019 - 11:44) *
Cannot guarantee but I cannot see the review being granted.
There is no interest in justice, no clarification of law needed, simply a decision relative to this case alone as to whether or not the signs misled.

The adjudicator made a decision that they were allowed to in law, ie that the yellow line could (did) mislead.
That a resident did or didn't make a complaint is only relevant if the case was brought under LLAA 2003 and I would be surprised if the PCN is headed with that.


What exactly have the tribunal sent you?
Are they asking that you respond or comment on the request or what ?


This is the email I received from tribunal yesterday night.

Dear Mr XXXX
XXX XXXX
-v London Borough of Merton

(The Enforcement Authority)
Vehicle Registration Number: XXXXXX
Penalty Charge Notice(s): XXXXXXXX
Having considered your correspondence, the adjudicator has decided that your case should be listed
as an application for review.
Your case will enter the list for a decision on 1st July 2019 and will be considered by an adjudicator as
soon as possible after that date.
If, on considering the application, the adjudicator decides that the previous decision should be
reviewed, the review may be conducted immediately or scheduled to be heard at a later date.
Case Management Team


I saw more details I gave earlier only when I logged into online portal of appeals. Adjudicator had a word in her decision "misleading". So it is not a question of law. And council can only request for review when there is a question of wrong interpretation of law. Probably council worried about this case being used as a precedent. Otherwise they wouldn't spend so much time on this.


@Mad Mick V , It us under Traffic management act 2004. I had different thread for same issue with photos - http://forums.pepipoo.com/index.php?showtopic=123599
Now moderators will be too eager to merge two threads.
Sammy P
After the decision has been made
There is no automatic right of appeal against the adjudicator's decision. However, in limited circumstances a decision can be reviewed.

The grounds for review are:

1. The decision was wrongly made because of an error by our administrative staff;
2. You failed to appear or be represented at a hearing for some good reason;
3. There is new evidence, the existence of which could not have been reasonably known of or foreseen before the decision; or
4. The interests of justice require a review. You should note that an adjudicator's findings of fact are normally regarded as final and will only be overturned if they are plainly incompatible with the evidence that was before the adjudicator. The mere fact that you disagree with these findings is not a ground for review.
A review will only be granted if an adjudicator is satisfied that one or more of these applies. A review is NOT simply an opportunity for you to appeal again. You will not be granted a review just because you disagree with the adjudicator's decision.

The only point valid I can see is 4. But at online portal I see review request registered as "new evidence". There is no new evidence. And even point 4 - "The interests of justice require a review" - it is quite vague and broad.
stamfordman
This was original thread.

http://forums.pepipoo.com/index.php?showto...123599&st=0

In my view the case is missing the fact that the OP was not adjacent to a kerb where a car could drive in and out.
DancingDad
QUOTE (stamfordman @ Sun, 2 Jun 2019 - 14:41) *
This was original thread.

http://forums.pepipoo.com/index.php?showto...123599&st=0

In my view the case is missing the fact that the OP was not adjacent to a kerb where a car could drive in and out.


I've asked a mod to merge, best keep to one thread so we don't start going over old ground again.


I cannot see what a review would be allowed but what concerns me is if the tribunal is expecting a response/comment from you.
They are unlikely to go to a full review hearing without giving you chance to comment though.


Any comments should be directed to the reason for review or "new evidence", neither party in a review can simply use it as an excuse to rehash old ground.
To me, unless the council have produced new evidence (of worth, I don't count CEO notes that are non conclusive) all they are doing is asking for a second bite with the same argument.

cp8759
This:

Providing any further details of the origination or details of the enforcement request to a third party,
particularly in this instance as it would also form part of an evidence pack, a copy of which is
provided to the appellant, would be deemed a breach of data protection.


Is utter bollocks. Schedule 11 of the Data Protection Act 2018 specifies at paragraphs 1(1) and 3(3):

In this Schedule, “the listed provisions” means—

(a) Chapter 2 of Part 4 (the data protection principles), except section 86(1)(a) and (2) and Schedules 9 and 10;

(b) Chapter 3 of Part 4 (rights of data subjects);

(с) in Chapter 4 of Part 4 , section 108 (communication of personal data breach to the Commissioner).

...
(3)The listed provisions do not apply to personal data where disclosure of the data—

(a) is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),

(b) is necessary for the purpose of obtaining legal advice, or

(с) is otherwise necessary for the purposes of establishing, exercising or defending legal rights,

to the extent that the application of the listed provisions would prevent the controller from making the disclosure.


In any case while I do believe the adjudicator's decision was wrong in law, nothing the council has been able to articulate amounts to more than a mere disagreement with the original adjudicator.
Sammy P
QUOTE (DancingDad @ Sun, 2 Jun 2019 - 14:59) *
QUOTE (stamfordman @ Sun, 2 Jun 2019 - 14:41) *
This was original thread.

http://forums.pepipoo.com/index.php?showto...123599&st=0

In my view the case is missing the fact that the OP was not adjacent to a kerb where a car could drive in and out.


I've asked a mod to merge, best keep to one thread so we don't start going over old ground again.


I cannot see what a review would be allowed but what concerns me is if the tribunal is expecting a response/comment from you.
They are unlikely to go to a full review hearing without giving you chance to comment though.


Any comments should be directed to the reason for review or "new evidence", neither party in a review can simply use it as an excuse to rehash old ground.
To me, unless the council have produced new evidence (of worth, I don't count CEO notes that are non conclusive) all they are doing is asking for a second bite with the same argument.


Letter doesn't mention that they expecting my input.

"Your case will enter the list for a decision on 1st July 2019 and will be considered by an adjudicator as
soon as possible after that date.
If, on considering the application, the adjudicator decides that the previous decision should be
reviewed, the review may be conducted immediately or scheduled to be heard at a later date."
Nowhere it mentions that I get a chance to provide my inputs.
hcandersen
On looking at the thread, I tend to agree with the adjudicator. There have been similar decisions.

The adj has rather condensed their thinking in the written decision, but I think their reasoning was along the lines ( laugh.gif ) that the council have chosen to terminate DYL at exactly the location where a dropped kerb begins and, but for a metre or two, continues to a parking place. That they have chosen to not continue the DYL but to substitute a SYL with only a part-time restriction against a 24/7 DK prohibition is, IMO, misleading. Merton have taken the point as applying generally to all situations, but this would be foolish as each case turns on its own facts.

And IMO their policy of only enforcing on complaint is b******s and ultra vires. They have a DUTY to enforce prohibitions, this may not be ignored merely because an occupier ( I do wish they'd use the correct term) complains because this makes it a lottery.

cp8759
QUOTE (hcandersen @ Sun, 2 Jun 2019 - 22:26) *
And IMO their policy of only enforcing on complaint is b******s and ultra vires. They have a DUTY to enforce prohibitions, this may not be ignored merely because an occupier ( I do wish they'd use the correct term) complains because this makes it a lottery.

You imply that it would be ultra-vires for a council to have a policy of using discretion not to enforce dropped kerbs which provide access to a residential property unless a complaint is received. In a judicial review application that would be a very brave submission indeed, given that there are rather obvious public policy reasons which one can think of to justify such a policy, and the legislation gives the council a discretionary power to enforce, it does not impose any duty to enforce at all.
PASTMYBEST
The adjudicator was entitled to find that the SYL caused confusion. It was not an unreasonable decision nor an error in law so a review would be wrong. I can't see it happening
hcandersen
You imply that it would be ultra-vires for a council to have a policy of using discretion not to enforce dropped kerbs which provide access to a residential property unless a complaint is received.

No implication, a statement!

I'm not talking about this case specifically, although it applies. IMO, the law is clear. It cannot be the exercise of discretion to not act based on the facts of parking at a DK other than on a complaint, because the authority are not exercising discretion, they're ignoring. De facto the decision-maker is the occupier when de jure this is the authority who are therefore acting ultra vires by abrogating their duty. The LLA, which has been repealed anyway, did not provide for this, instead it did not give the power until a complaint had been received, which is not the same thing at all - still a lottery from the driver's side, but there we are.
cp8759
QUOTE (hcandersen @ Mon, 3 Jun 2019 - 08:01) *
You imply that it would be ultra-vires for a council to have a policy of using discretion not to enforce dropped kerbs which provide access to a residential property unless a complaint is received.

No implication, a statement!

Many councils have a similar policy and if you were to challenge its legality I suspect you'd be sorely disappointed. The enforcement authority is not under a duty to enforce anything, where Parliament imposes a duty on a council to do something it uses clear words to that effect, as is the case in RTRA 1984 section 85. With the greatest possible respect, unless you can quote some authority to support it, I suggest you stop asserting that the council has a duty to enforce.

In this case it hardly matters but in another case it could lead to someone making representations or an appeal which is legally flawed.
Sammy P
QUOTE (cp8759 @ Sun, 2 Jun 2019 - 21:32) *
QUOTE (hcandersen @ Sun, 2 Jun 2019 - 22:26) *
And IMO their policy of only enforcing on complaint is b******s and ultra vires. They have a DUTY to enforce prohibitions, this may not be ignored merely because an occupier ( I do wish they'd use the correct term) complains because this makes it a lottery.

You imply that it would be ultra-vires for a council to have a policy of using discretion not to enforce dropped kerbs which provide access to a residential property unless a complaint is received. In a judicial review application that would be a very brave submission indeed, given that there are rather obvious public policy reasons which one can think of to justify such a policy, and the legislation gives the council a discretionary power to enforce, it does not impose any duty to enforce at all.



I really didn't understand all what is said in last few posts. Ultra vires :confused:
I will upload a document on online appeal portal listing 4 reasons for review and council's request doesn't fall into any of those type. And also tell them that it is not question of law and adjudicator clearly mentioned 'misleading' and didn't challenge the law. She is allowed under law to make that judgement etc etc.
Anything else? Thanks for help.
DancingDad
Don't get carried away in telling the adjudicator how to do their job.
Personally I would be content with a simple note thanking them for the advice that a review has been requested and that you believe that the council are simply asking for a rehash of the decision. Which you ask the reviewing adjudicator to agree with and reject.

It puts LT on notice that you would object to a review and blocks any small chance of the reviewing adjudicator allowing AND making an immediate decision to overturn.
I am still of the opinion that this will not get a review BTW.
hcandersen
OP, the adjudicator is not asking for your input, why do you think you should?

Bang....that's that hare shot!

DD is correct and I would just tweak to add to your acknowledgement to the adj, 'and is there any further action or evidence you require from me?'

We've expressed views on the matter, but as it stands no-one is asking for your input, therefore I suggest you don't presume, just ask.

Sammy P
QUOTE (hcandersen @ Tue, 4 Jun 2019 - 06:28) *
OP, the adjudicator is not asking for your input, why do you think you should?

Bang....that's that hare shot!

DD is correct and I would just tweak to add to your acknowledgement to the adj, 'and is there any further action or evidence you require from me?'

We've expressed views on the matter, but as it stands no-one is asking for your input, therefore I suggest you don't presume, just ask.

Thank you @hcandersen and @DancingDad
Sammy P
I now have decision on review. My appeal is allowed. But what amuse me is that new adjudicator has revisited entire case and held appeal on entirely different point which was not mentioned by first adjudicator - "I find that the only valid point advanced by the Appellant is the poor state of repair of the lowered footway, and I am not satisfied that it is clearly lowered throughout its length"

see below decision -

Adjudicator's Decision
This case comes before the adjudicator under Paragraph 12 of the Schedule to the Civil Enforcement
of Parking Contraventions (England) Representations and Appeals Regulations 2007 by way of an
application for review of the original decision on the appeal.
The adjudicator, having considered the evidence submitted by the parties, has determined that the
appeal against liability for the charge should be allowed.
The reasons for the adjudicator's decision are enclosed.
The adjudicator directs London Borough of Merton to cancel the Penalty Charge Notice and
the Notice to Owner.
If any penalty or fees have already been paid, the Enforcement Authority must now issue a refund
without delay. Enquiries regarding payment of the refund should be made to the Enforcement
Authority.
An independent tribunal for environment, parking and traffic penalty appeals
Environment and Traffic Adjudicators are supported by London Tribunals, a service provided by London Councils
Calls to London Tribunals may be recorded
Adjudicator's Reasons
This is an application by the Authority to review the decision in this case on the grounds that it is in the
interest of justice so to do.
I have considered the application and I find that the Authority's grounds are well founded, and that the
Appeal Adjudicator has fallen into error in relation to the reasons she allowed this appeal.
First, the Authority is correct that the presence of a single yellow line running through a dropped
footway does not supersede the restriction of parking adjacent to a dropped footway.
A dropped footway is created by statute in this case the Traffic Management Act 2004, whereas the
single yellow line is created by a Local Authority Traffic Management Order. Quite simply when the
single yellow line is no longer operational the dropped footway remains in operation by statute.
Further, it is for the motorists to prove, on a balance of probabilities, when there raise an exemption,
in this case that they had permission of the owner to park in front of their driveway.
The Authority is not obliged in law to provide the details of the complainant to the Appellant. In any
event there was evidence in the CEO's notebook that they were not on patrol but on a site visit; that is
sufficient.
In light of the above I find that it is in the interest of justice to set aside the original decision in this
case and hear it afresh.
__________________________________________________________
The Authority's case is that the Appellant's vehicle was parked adjacent to a footway lowered to meet
the level of the carriageway when in Gladstone Road on 21 October 2018 at 13.36.
The Appellant's case is that they were parked outside the operational hours of the single yellow line
and had displayed a valid blue badge.
Further, that the lowered footway was in poor repair and no evidence of a complaint by the occupier
of the property where the lowered footway exists.
Furthermore, the Appellant relies on the decision in the case of Abd-Almseh (case number
2110067442), which decided that in that case the presence of a single yellow line was confusing and
sufficient to allow an appeal.
I have considered all the evidence and I find that the only valid point advanced by the Appellant is the
poor state of repair of the lowered footway, and I am not satisfied that it is clearly lowered throughout
its length.
All other points raised by the Appellant fail.
The appeal is allowed.
Carl Teper
Adjudicator
1st July 2019
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