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jaredm
Hi everyone, I found a PCN on my vehicle whilst parked in Camden on a single yellow line on a quiet street. The contravention is 'parked in a special enforcement area adjacent to a dropped footway'.

I have parked on the corners of side-streets many times previously without a problem so this particular PCN caught me by surprise. I never park on large foot ways on busy roads and junctions. What is a special enforcement area and do they need to be marked as such?

I meant to write representations to the PCN but didn't get around to it before the NTO arrived. To my shock its impossible to make out anything from the photos but they seem to have somehow enhanced my registration number (which I have blacked out in the pictures below).

Am I best off just paying the NTO or can I write back telling them that the pictures do not show any form of contravention and that I am unaware that I was in a 'special enforcement area' since it was not marked anywhere?


Thanks,

NTO Front side:



NTO Rear side:



clark_kent
The whole of Greater London is a Special Enforcement Area.
jaredm
QUOTE (clark_kent @ Mon, 30 Mar 2009 - 14:11) *
The whole of Greater London is a Special Enforcement Area.

So if they can make an entire 'region' special what makes it special then?
clark_kent
QUOTE (jaredm @ Mon, 30 Mar 2009 - 13:21) *
QUOTE (clark_kent @ Mon, 30 Mar 2009 - 14:11) *
The whole of Greater London is a Special Enforcement Area.

So if they can make an entire 'region' special what makes it special then?



http://www.opsi.gov.uk/acts/acts2004/ukpga_20040018_en_1
jaredm
So... does the NTO look compliant? Is there anything I can do to fight it (and have a reasonable chance of winning)? Does it matter that the picture is largely a blur?
Anorak
I have an argument that I fully recommend you include in any appeal you submit. It will take a bit of digesting but I believe it is a good argument and puts the onus on the authority to defend and provide the evidence rather than you.

Within the TMA 2004, (other than sections 85 and 86) it is section 73 and schedule 7 that detail the contraventions subject to civil enforcement. These contain no reference to dropped footways and importantly no reference to the London Local Authorities & Transport for London Act 2003 which under section 14(3) prohibits parking adjacent to a dropped footway and under section 14(5) advises that the contravention does not require the placing of traffic signs in connection with the prohibition.

http://www.statutelaw.gov.uk/legResults.as...amp;SortAlpha=0

Therefore, as the TMA 2004 does not use the London Local Authorities & Transport for London Act 2003 to enforce parking adjacent to a dropped footway, we must turn our attention to section 86(1) of the TMA 2004 which also prohibits parking adjacent to a dropped footway. Section 86(9) informs that this prohibition is enforceable as if imposed by an order made under section 6 of the RTRA 1984.

http://www.statutelaw.gov.uk/legResults.as...amp;SortAlpha=0

With regard to Greater London, it is Schedule 7 Part 1 section 2 of the TMA 2004 that provides the only reference to enforcing parking contraventions made by order under section 6 of the RTRA 1984 and this only relates to enforcing “parking places”. Obviously, as parking adjacent to a dropped footway is prohibited under section 86 of the TMA 2004, it cannot reasonably be considered as a parking place as vehicles are not permitted to wait. Therefore it is solely section 86 of the TMA 2004 that contains the provisions relating to the contravention of parking adjacent to a dropped footway.

Unlike section 14 of the London Local Authorities & Transport for London Act 2003, section 86 of the TMA 2004 does not provide a clause stating that traffic signs need not be placed in connection with the prohibition. Therefore it is reasonable to argue, particularly as we are advised that the prohibition is enforceable as if imposed by order under section 6 of the RTRA 1984 that the contravention should be duly signed and without the appropriate signage the contravention is unenforceable.

Regulation 18(1) of The Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996 directs that where orders have been made (such as under section 6 RTRA 1984) relating to any road, that traffic signs should be placed.

http://www.statutelaw.gov.uk/content.aspx?...p;filesize=2699

If an authority insists signage is not required, I would ask them to confirm the specific legislation that supports their claim and contradicts regulation 18(1) of the 1996 Regulations and ask why then did the LLA&TfL Act 2003 need to contain a specific clause to negate the need for signage and why are the DfT currently looking at introducing legislation to enforce dropped footways nationwide without the need for signage.
bama
well put together !

the TMA omitted exemption laid bare. the BPA and all the council have known about this for a LONG time (and yes I have proof that they have known)
jaredm
Thanks Anorak, I've digested what you've written and it sounds interesting but there may be a couple of flaws:

TMA 2004 86(1) states: '...vehicle must not be parked on the carriageway adjacent to a footway...'.
TMA 2004 86(7) states: 'In this section “carriageway”, “cycle track” and “footway” have the meanings given by section 329(1) of the Highways Act 1980 (c. 66).'

Doesn't this take precedence over the 'parking places' argument? Or is it unenforceable because, as you say, enforcement must be according to TMA 2004 86(9)(a)?

Also, could it be relevant that TMA 2004 86(8)(b) allows people to board or alight?
southpaw82
The point is that signs are required to enforce this restriction (if I follow Anorak's argument).
Anorak
SP is correct. The argument is that there is a legal requirement to erect signage to convey to the motorist the "parking adjacent to a dropped footway" restriction.

Prior to the TMA 2004 the LLA&TfL Act 2003 was used to enforce the prohibition but the TMA 2004 does not include the 2003 Act as an empowering legislation but simply uses it's own section 86 to enforce dropped footway parking. As section 86 failed to include a clause similar to that in the 2003 Act negating the need for signage, it must follow that the need for signage remains.

You can copy and paste my above post (with a little editing) into your appeal. Basically, winning an appeal against this contravention is very difficult but by arguing what I have the authority must in any rejection confirm why signage is not required. If they fail to confirm in any rejection it would suggest they cannot but they will bluff you anyway and hope you don't take it to adjudication.

As Bama said, the DfT and council bigwigs are aware of this oversight but have hushed it up.
Teufel
hmmm.. vv interesting - i will revert
jaredm
Anorak, thanks for all your help. I hope you don't mind but I borrowed a lot of your stuff but here is my draft representation:

To Whom It May Concern,

I am making a representation to the Notice To Owner issued to me under the Traffic Management Act 2004 on 23/03/2009 with a Penalty Charge Notice Number of CUxxxxxxxx.

I have examined your notice and believe that I have not committed the contravention alleged. The contravention is stated as 'Parked in a special enforcement area adjacent to a dropped footway'.

TMA 2004 86(9) states: "The prohibition in this section is enforceable as if imposed... in Greater London, by an order under section 6 of the Road Traffic Regulation Act 1984 (c. 27)".

I was not aware that I was in a 'special enforcement area' and traffic signage to this effect would have been helpful. Regulation 18(1) of The Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996 directs that where orders have been made (such as under section 6 RTRA 1984) relating to any road, that traffic signs should be placed.

I have noticed that the Section 14 of the London Local Authorities & Transport for London Act 2003 (LLA&TfL 2003) states that signage is not required for dropped footways. However, the LLA&TfL 2003 is unconnected to the TMA 2004 so it is not relevant to this representation other than to say, if that piece of legislation specifically exempted the requirement for signage (presumably to deal with Section 18(1) of the 1996 Act), then it is fairly obvious that signage would be required under the TMA 2004 Act which has no specific clauses exempting signage.

In the interests of completeness, I did consider that TMA 2004 Schedule 7(1)(2) of the order may apply in my case but I do not believe it does since it only relates to 'parking places'. I hope you will agree with me that parking adjacent to a dropped footway is not a 'parking place' as vehicles are not permitted to park there.

In summary, I hold the belief that signs should have been appropriately placed according to the legislation that is in force and they were not. For this reason I respectfully ask you to accept my representation and cancel this Notice To Owner.
southpaw82
QUOTE
I was not aware that I was in a 'special enforcement area' and traffic signage to this effect would have been helpful.


Whilst it might be helpful it doesn't have to be signed. I feel this detracts from the point you're trying to make.

QUOTE
that traffic signs should be placed.


Must be placed wink.gif

QUOTE
TMA 2004 Act


TMA 2004 = Traffic Management Act 2004. The final "Act" is superfluous.
bama
"The regulations for Dropped footways and double parking contain an oversight. TMA does not include the exemption previously allowed for enforcement without signage. They have left in place the legislation but this could be challenged by a clever lawyer. Reference to Signage Department of the DfT is recommended. Steps are being taken to correct this. (Take care about making this generally available)"

Bold empahsis as in the original text - from January 2008.

some more from July 2008 :-

=======
Q. What is a ‘dropped footway’ or
dropped kerb’?

A. A dropped footway is defined in s.86 of the 2004
Traffic Management Act on the basis that:
‘a vehicle may 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
purposes 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

Comments:
Remember that when a council
chooses to enforce an optional
contravention it must ensure that
motorists are aware of the
existence of the restriction.
All traffic signs used on roads must
comply with the Traffic Signs
Regulations and General Directions
2002 or have special authorisation
issued by DfT or WAG.
There is no authorised sign for this
situation in Traffic Signs
Regulations and General Directions
2002; DfT is reviewing the position.
It is also wise to concentrate on the
conversation of existing
enforcement regimes to the TMA
2004 requirements first and to
introduce additional kinds of
enforcement at a later date.
There are a number of exceptions,
particularly where the vehicle is
parked wholly within a designated
parking place or other part of the
carriageway where parking is
specifically authorised, and where
the vehicle is parked outside
residential premises by or with the
consent of the owner (but not
consent given for reward) of the
occupier of the premises This
exception does not apply in the
case of a shared driveway.


Q. Will councils be able to enforce
obstruction of dropped kerbs?
And how will this be done?

A. decide whether to introduce this contravention in
their area and enforce accordingly. See also
‘Signage’ questions.
The TMA enables authorities with CPE power to
enforce in a Special Enforcement Area (SEA)
prohibitions of double parking and parking at
dropped footways as if they had been introduced
using a Traffic Regulations Order (Traffic
Management Order in London).
Any Special Parking Area that existed before
commencement of the TMA 2004 automatically
becomes an SEA and the restrictions need to be
indicated with traffic signs or road markings.
Authorities should make sure that the public are
aware of the new restrictions before starting
enforcement.
The vehicle does not have to be parallel to the
carriageway to receive a PCN. Obstruction is not
relevant as there are no grounds for issuing a PCN
for obstruction
Current draft Operational Guidance suggests that
the enforcement be by vehicle removal or relocation
only and then only on the request of the
householder whose access is being denied.
Councils are recommended NOT to adopt this
optional enforcement provision until the advertising
and signage requirements have been clarified by
DfT.

Comment:
The resources and costs of such
enforcement will need to be
carefully considered before an
authority elects to enforce this
contravention. This is one area
where authorities may face an
expectation for enforcement action
when they are contacted by a
resident with an obstructed dropped
kerb It is for each authority to
determine the extent of the problem
and make value judgements
accordingly.
Remember that when a council
chooses to enforce an optional
contravention it must ensure that
motorists are aware of the
existence of the restriction.
All traffic signs used on roads must
comply with the Traffic Signs
Regulations and General Directions
2002 or have special authorisation
issued by DfT or WAG.
There is no authorised sign for this
situation in Traffic Signs
Regulations and General Directions
2002; DfT is reviewing the position.
It is also wise to concentrate on the
conversion of existing enforcement
regimes to the TMA 2004
requirements first and to introduce
additional kinds of enforcement at a
later date.
====


FOI to DfT ? ?
jaredm
Bama what is the source of the text you've pasted?

I've sent the representation off through their online system... time to wait and see what happens next!
bama
made available to me by a kind anonymous soul.

If I had to guess I would say it was the BPA - over two hundred councils are members...

have attached an adjudication that also speaks to this aspect. I will delete this after a while so download it in the next couple of weeks if you want to copy it as I will trim it to save space after a while.





Anorak
QUOTE (jaredm @ Mon, 6 Apr 2009 - 23:43) *
I've sent the representation off through their online system... time to wait and see what happens next!



You have understood the legal argument well. The only thing I would have done different would have been to put the onus on them to refute the claim and to require them to answer with specific detail.

Do not be surprised if they reject you as the person who will consider your appeal is unlikely to fully understand the seriousness of the legal point you are making.
jaredm
Well Anorak, you were absolutely right... they rejected it sad.gif I am annoyed. I think councils should have to pay people when they lose at PATAS, that way they'd take more care with representations.

Page 1:

 

Page 2:






Anorak
I note that they failed to explain exactly what legislation says there is no need for signage. This is why I advocated putting the onus on them to be specific as to what legislation permits this. They are playing bluff with you and hoping you will buckle before adjudication. They have nothing to lose while you do. Not a very fair process is it?
jaredm
Here is the letter I sent to PATAS on 11 May 09:

Details of Appeal

The Authority has rejected my representations against the PCN whilst entirely ignoring a primary aspect of it.

The Traffic Management Act of 2004 states 86(9) "The prohibition in this section is enforceable as if imposed... in Greater London, by an order under section 6 of the Road Traffic Regulation Act 1984 (c. 27)".

I pointed out to the Authority that Regulation 18(1) of The Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996 directs that where orders have been made (such as under section 6 RTRA 1984) relating to any road, that traffic signs MUST be placed.

The Adjudicator has previously recognised that signage is required when Authorities seek to enforce a penalty under the Road Traffic Regulation Act 1984 - in case 207018528A (Jeremy Obano v the London Borough of Newham).

In my representations I pointed out that while the Authority that the London Local Authorities & Transport for London Act 2003 specifically states that signage is not required, the TMA 2004 is unconnected with that Act.

I also considered that Schedule 7(1)(2) may apply but concluded that it cannot since I was not parked in a ‘parking place’.

I expected the Authority to explain why signage is not required but the failed to do so in their letter of rejection.

I would like to ask the Adjudicator to consider my appeal based on the information sent in my representations to the Authority which are summarised above. Further, I have received information that the Authority may have had this matter brought to their attention but may be ignoring the relevance of it. If this is the case then they would be serving PCNs unlawfully and I would ask the Adjudicator to consider this matter in so far as its powers allow it to do so.

Included in my appeal are the Notice of Rejection from Camden, a copy of the Notice to Owner and also the details of the representations I made to them.


And on 28 May I received a defence bundle from Camden.

Interestingly they have admitted that there is a discrepancy in the time of the PCN and that of the 5 pictures taken, one isn't even of my car and all the others are blurred (nothing to do with the time, the CEO just couldn't hold his camera steady!).

So do I need to write anything further to PATAS?

Page1:


Page 2:


Page 3:
bama
now FOI the DfT about their consultations with the BPA on this matter.
if you need ammo for it PM me an email address
jaredm
One more thing, Camden have stated:
QUOTE
The appellant believes the LLA is not applicable under the TMA but this is incorrect. The Traffic Management Act 2004 (Commencement No. 5 and Transitional Provisions) (England) (Amendment) Order 2008 amends the LLA removing RTA enforcement protocol and substituting with that of the TMA


According to http://www.opsi.gov.uk/si/si2008/uksi_20080757_en_1 they seem to be correct. Have I missed something or have they worded something very creatively?
Anorak
The commencement No 5 amendment prevented certain repeals of the LLA 2003 (and others) that were due to commence. If you read the end matter it will summarise.

http://www.statutelaw.gov.uk/SearchResults...All+Legislation


One of the repeals put on ice is section 14 of the LLA 2003 meaning that dropped footways can still be enforced under the LLA 2003 without the need for signage. However, your PCN was issued under the TMA 2004 and the commencement No5 amendment as far as I can tell does not amend the TMA 2004 to allow enforcement of dropped footways using the LLA 2003.
bama
sounds to me like Camden have made an effort to respond at a higher level than back office drone - whose reponses are often lamentable.
Good, the higher levels should be involved as for sure they know about this.
You could ask them for:-

Minutes of London Regional Group Meeting,
LB Camden; St Pancras Town Hall
Thursday, 10 January 2008 at 10.00 am

Where, so I am informed, this TMA signage flaw was discussed and minuted - and the DfT was present, M Waldron I believe.
I am informed that it is item 12 on the minutes

"The regulations for Dropped footways and double parking contain an oversight. TMA does not include the exemption previously allowed for enforcement without signage. They have left in place the legislation but this could be challenged by a clever lawyer. Reference to Signage Department of the DfT is recommended. Steps are being taken to correct this. (Take care about making this generally available)"

Their emphasis.
silversquirrel01
Jaredm,

What was the result of this? Did the case go to PATAS?

SS
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