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Fish out of water
Hi! Would be grateful for some help and advice on this.

Parked in a PbP bay just before Christmas and paid my fee as normal. On arrival it was dark, snow and ice on ground so demarkation of bays totally unclear. This was a row of bays in a street and all I could see was one space in the middle of a row, with a lorry parked on one side and a car on the other. I was familiar with this row having parked there before so there was nothing to suggest anything was different than normal.

On my return I had a ticket, surprised, I looked to see why and found I was supposedly in a suspended bay. On looking around I found that the lorry behind me was blocking a sign with a suspended bay sign on it which, on closer inspection said two bays outside building No 8. Building No 8 was further along the road to where I was parked and the sign to which I had gone and used for my PbP was actually at the front of my car, nearer to it than the suspended bay sign which is why I never saw it (apart from the lorry). I took photos of all of this and immediately wrote in to Westminster.

I got a response saying they rejected my reasoning and had photographic evidence from the CEO. Their letter did not seem to take any of my reasoning into consideration so I again wrote back. Once again they have responded refusing my arguments and not cancelling the PCN. The photographs they have produced from the CEO seem to have been taken at a time when the lorry had moved however they are very blurred and do not show the number plate of my car from the back view. The front view does not capture the suspended bay notice and frankly could be any street anywhere.

I have insisted that my car could have been parked in any part/ bay as it was not clearly defined due to the snow blocking the road markings so everyone had parked obscurely. The suspended bay notice was misleading because the bays were not outside building No 8 as indicated but further down the road and I genuinely had no idea the bay was suspended.

I have uploaded the photos so that you can see them and also if you google the street you will get the photo of 8 Harewood Row by toggling along the street view. Here are Westminster's photos



These are my images showing how dark it is, the snow and the lamp-post that I got my info from when I phoned in. Also the lorry blocking the signage.




I would appreciate if I could have some advice as to how I can word this back to them as regard these photos and if I have any chance of defending this given the circumstances. Thanks.



Whoops! Not sure why the photos didnt come out as links! Sorry about that!!
Dive 1082
Hi There,

I would take photographs of the bay,s (x2) outside number 8 and the bay you parked in (if different). I would then send them along with A COPY of your P&D ticket and explain exactly what you have said here as your grounds for appeal.
dave-o
The non-prescribed suspension sign will be your biggest angle IMO.

To get the ball rolling, contact the DfT and ask them to confirm whether WM have had special authorisation to use any non-prescribed temporary suspension signs.
Fish out of water
QUOTE (dave-o @ Tue, 18 Jan 2011 - 18:14) *
The non-prescribed suspension sign will be your biggest angle IMO.

To get the ball rolling, contact the DfT and ask them to confirm whether WM have had special authorisation to use any non-prescribed temporary suspension signs.


Thanks dave - I will do that tomorrow. In the mean time can you explain what "non- prescribed" means? I have an idea but it would be nice to know from the educated.
hcandersen
PCN; your challenge and their response pl - actual docs.

Need to look at location as stated on PCN - clearly, only 2 bays were suspended, so does the PCN make it clear that you were in one of these?

And, how does 12 metre (2 bays) o/s no. 8 translate into reality - 6 metres either way; 12 metres one way, none the other?

Were there other signs which did not carry the information on suspension?

HCA

Fish out of water
QUOTE (hcandersen @ Tue, 18 Jan 2011 - 20:05) *
PCN; your challenge and their response pl - actual docs.

Need to look at location as stated on PCN - clearly, only 2 bays were suspended, so does the PCN make it clear that you were in one of these?

And, how does 12 metre (2 bays) o/s no. 8 translate into reality - 6 metres either way; 12 metres one way, none the other?

Were there other signs which did not carry the information on suspension?

HCA


The PCN has been issued under code 21U and states "Parked in a suspended bay or space or part of bay or space - mobile phone parking". The location on the PCN states "Harewood Row [b10]" It then gives the date and time with the CEO Number.

As you can see from the photograph the sign just says 2 bays but does not specify the bays except to say outside entrance to No 8. As you can see there are no bays outside the entrance to No 8 they are to the left (looking at the entrance). Looking at their photo of the vehicle it is clear to see that it is closer to the unmarked lamp-post than the suspended notice lamp-post. If you go to google maps and type in 8 Harewood Row you can clearly pan the street and see this building and see the parking bays and see that the second bay is well away from the entrance to No 8.

Part of my argument is that there should have been another sign on the other lamp-post where I went to get my location info to phone in with.

Here is the correspondence between us to date the last of which was received from them today. I have not responded back yet hence my post here. I will try and post it in order.

Click to view attachment Click to view attachment Click to view attachment Click to view attachment

I will speak with the DofT tomorrow. Thanks for help so far.

dave-o
A prescribed sign would be one that is listed in in the TSRGD. A non-prescribed one would need special authorisation from the DfT. Get the ball rolling ASAP as this will be a potential winner.
Fish out of water
QUOTE (dave-o @ Wed, 19 Jan 2011 - 14:01) *
A prescribed sign would be one that is listed in in the TSRGD. A non-prescribed one would need special authorisation from the DfT. Get the ball rolling ASAP as this will be a potential winner.


In which case Dave I am very happy to oblige. I called the DofT this morning and asked the question. Apparently they give these for whole Boroughs not just for specific streets. When I repeated it was for Westminster she said she would do a search starting in 1999. I thought I had mis-heard her and so repeated it was for 2010. She repeated that she would do the search from 1999 to date! She responded by saying that she could find none on the data base she was searching on but if I gave her my email she would search further an email me back with the result. This is the email I got back this afternoon.

"Thank you for your email. I have checked our records from 1999 to date and I can confirm that this Department has not issued an authorisation to the London Borough of Westminster for temporary parking bay suspension signs."

Given the above, and the photograph that the CEO took that was out of focus, etc can you advise what suitable wording I can now write back to Westminster or is there still other things I should be doing?
Fish out of water
Additionally, I have just been reading the Campbell V Camden case (attached here) Click to view attachment From what I can understand it has some relevance.

I think I am right in saying that the relevance is that Westminster has not got permission from DofT for the layout of any of their temporary suspension signs. Which means that as in this case the signs may be perfectly clear but they are not compliant? Is this correct? Errr.....Am I missing something here? Can't be this simple can it?
dave-o
We knew that WM haven't got permission, but we wanted that in writing from the DfT. It makes it a pretty solid appeal now, as i'm sure you can see!
hcandersen
QUOTE (Fish out of water @ Wed, 19 Jan 2011 - 23:34) *
Additionally, I have just been reading the Campbell V Camden case (attached here) Click to view attachment From what I can understand it has some relevance.

I think I am right in saying that the relevance is that Westminster has not got permission from DofT for the layout of any of their temporary suspension signs. Which means that as in this case the signs may be perfectly clear but they are not compliant? Is this correct? Errr.....Am I missing something here? Can't be this simple can it?


The reason Campbell v Camden carries such weight is explained in the adj's finding which is slightly different from your point. The "non-compliance" of the signs relates to the the council's traffic order that permits bays to be suspended but which makes it a precedent condition that the council places approved or authorised signs. Therefore, no lawful signs = no contravention because the council didn't comply with its own traffic order.


HCA



Fish out of water
QUOTE (dave-o @ Thu, 20 Jan 2011 - 11:25) *
We knew that WM haven't got permission, but we wanted that in writing from the DfT. It makes it a pretty solid appeal now, as i'm sure you can see!


As far as wording in the appeal is concerned. Of course I will attach the email from the DfT and make reference to it. I have also got a template letter which was on another forum which is very comprehensive (almost comically so) attached here Click to view attachment Would this be the correct legislation to be quoting to them in my case?

I know it has to be topped and tailed to personalise but generally speaking am I quoting the right stuff? If not what should I quote?
dave-o
No to template appeals.

YOur appeal should be along the lines of

Suspension sign is not a prescribed design and DfT has confirmed that you do not have special authorisation to use a non-prescribe one
If the rep is not accepted you require them to state on any rejection:
a) Which TSRGD diagram the sign conforms to
or
b) A copy of the document supplied by the DfT that authorises them to use a non-prescribed sign.
Don't mess me about or i will take it to adjudication and claim costs

Have a go at drafting one and post it here.


*EDIT*
Having actually read that template appeal though, it is pretty good. Up to you which way you want to play it. They'll probably bluff you to adjudication either way.
Fish out of water
QUOTE (hcandersen @ Thu, 20 Jan 2011 - 11:51) *
QUOTE (Fish out of water @ Wed, 19 Jan 2011 - 23:34) *
Additionally, I have just been reading the Campbell V Camden case (attached here) Click to view attachment From what I can understand it has some relevance.

I think I am right in saying that the relevance is that Westminster has not got permission from DofT for the layout of any of their temporary suspension signs. Which means that as in this case the signs may be perfectly clear but they are not compliant? Is this correct? Errr.....Am I missing something here? Can't be this simple can it?


The reason Campbell v Camden carries such weight is explained in the adj's finding which is slightly different from your point. The "non-compliance" of the signs relates to the the council's traffic order that permits bays to be suspended but which makes it a precedent condition that the council places approved or authorised signs. Therefore, no lawful signs = no contravention because the council didn't comply with its own traffic order.


HCA
I understand that Camden didnt comply with their own traffic order BUT isnt it still the case that the point they were not compliant was because they did not get them approved by the DfT first and the adj made great stock of the fact that they were given every opportunity to do that and hadn't? In fact he made a warning to other councils of this fact.
hcandersen
The signs were not compliant and therefore the contravention did not occur by virtue of the council's failure to establish the restriction which they relied upon to issue the PCN because the condition precedent to establish that restriction were not met.

Compliance of signs is normally fought on the battleground of the Local Authorities etc. Procedures Order, which has a test of substantial compliance which is a subjective test. The traffic order test is pass/fail.

HCA
Fish out of water
QUOTE (hcandersen @ Thu, 20 Jan 2011 - 15:18) *
The signs were not compliant and therefore the contravention did not occur by virtue of the council's failure to establish the restriction which they relied upon to issue the PCN because the condition precedent to establish that restriction were not met.

Compliance of signs is normally fought on the battleground of the Local Authorities etc. Procedures Order, which has a test of substantial compliance which is a subjective test. The traffic order test is pass/fail.

HCA


Oh God..I read all that and it went in and straight out!! I get the first bit.......until we get to "because the condition precedent to establish that restriction were not met" - thats what I am having difficulty with...sorry am I being thick, does that not mean that they did not get permission to establish compliant signs and by not doing so the restriction to park was not met?

My conversation with the DfT was that compliance of signs is laid out by them. Councils have every opportunity to comply with them by submitting their proposals for scrutiny. Providing they meet the required standards they should be passed. However it seems they fail to even submit them for approval. I am slightly confused as to where the local authorities come in and Procedure Orders with the test. Is this in addition to the Dft requirement?
DancingDad
It doesn't
It means that a condition in the Traffic order should be that signs used comply with TSRGD2002 or a specifically authorised. And if they aren't, the TMO conditions aren't met so no contravention can occur.
Some councils, Camden is one of them, that tries to argue that as the TMO doesn't specify TSRGD the signs don't need authorisation.
And IIRC, HCA has the logic for why that is wrong.


IMO When you draft up (and post here) include the reasoning for not seeing the signs as you did earlier...with comments on the photos etc as you've made here.
IT shows consistency to an adjudicator and he can find for you purely on there being doubt that even fully compliant signs weren't clearly placed, let alone none compliant.
hcandersen
So what if the council didn't have complaint signs, what's the effect of this? In general, adjudicators and judges look at other issues and do not apply an absolute test of total compliance.

But Camden took this decision making from the adj who had no choice but to find that no contravention had occurred. Why? Because the council's lawful order said that unless it did place traffic signs any suspension would not be lawful. This took the rug from underneath the adj's feet. Read the end of C v C, he has some sympathy with the council but he was hamstrung because he could not apply his (and other adjudicators') more liberal approach to signs as the order did not allow any latitude in deciding whether signs were complaint. If they were not in the regs and if the SoS had not approved, then that was it.

But let's move on.

HCA
Fish out of water
QUOTE (hcandersen @ Thu, 20 Jan 2011 - 22:29) *
So what if the council didn't have complaint signs, what's the effect of this? In general, adjudicators and judges look at other issues and do not apply an absolute test of total compliance.

But Camden took this decision making from the adj who had no choice but to find that no contravention had occurred. Why? Because the council's lawful order said that unless it did place traffic signs any suspension would not be lawful. This took the rug from underneath the adj's feet. Read the end of C v C, he has some sympathy with the council but he was hamstrung because he could not apply his (and other adjudicators') more liberal approach to signs as the order did not allow any latitude in deciding whether signs were complaint. If they were not in the regs and if the SoS had not approved, then that was it.

But let's move on.

HCA


"So what if they dont have compliant signs". The effect is that the reams of legislation that the DfT layout as guidance for adj and authorities to get it right and authorised are ignored, so lets all just have a free for all then! Isn't that why we have law and order in this country? You hear the saying "the law is an ass" I think it is more the people who are entrusted to uphold it! What is the point in all of this if authorities just think that they can do what they like? Sorry this is not a rant but a disbelief in the statement that an absolute test of total compliance is not applied. Its applied to us when we park in a "supposed' suspended bay....isn't that double standards?

Here is my draft, which includes the adapted to me wording from the template appeal which dave thought was good - I thought I might as well throw everything at at. Click to view attachment Comments Please! Also can somebody also comment on the relevance or not of the CEO's out of focus photograph of the car as supposed evidence. Thanks
dave-o
Bit wordy for me, but then i am a fan of snappy, concise appeals. Personal taste though.

I don't really see the point of the "de minimis" argument. There is no way the council can claim "de minimis" for using a sign that they are not allowed to use.

Meh, at the end of the day WM are going to bluff you and then drop out just before adjudication.
Fish out of water
I thought you said the template was good? I agree but reasoning was to chuck everything at them and get them so exhausted by the time they read it all in the hope I get the " Oh hell, just cancel the dam thing effect"!!

Anyone else want to add anything before I change or send as the case may be? Interested in the Photo - no one has mentioned that. Does it have relevance as I would have thought it cant be used as evidence?
Fish out of water
Sorry there has been such a big gap in communication on this post. I should first mention that Fish suffered a stroke two days after the last post but after a lengthy stay in hospital is now at home. I have permission to post on Fish's behalf.

I am attaching the response to Fish's letter to WCC which as you will see says they can put up suspension signs despite the email from the DfT. Click to view attachment

I have emailed WCC to inform them of Fish's condition and the fact that obviously Fish is in no fit state now to conduct or take care of this matter and we do not know when that will be however they are still perusing.

I would be interested to know what others think on how this should be handled given the circumstances with Fish and also the obvious discrepancy between what WCC are stating and the DofT's email. It seems to me that WCC are arguing they can suspend bays which there is no argument about BUT there is still the position that they need to get the permission from the DfT for the correct signs to put up when they do so.

Thanks.
dave-o
As he says, you need to wait for the NTO and then make another representation.

If you or Fish are unable to do this then PM me and i'll write it.

WCC are trying to bluff you.
Fish out of water
Have received the NTO. Was intending to respond to it by saying that Fish was unable to deal with the matter and had no idea when that would change and also re-send a copy of the representations already sent stating that was the case that would be presented if and when Fish is able to attend any hearing. What do you think? If not your offer of help is greatly appreciated as I really dont have a clue and am just helping Fish out.

I was interested to have your views on WCC comments on their ability to suspend bays given we know they have no permission from the DfT for their signs.

Thanks.
Fish out of water
The PCN was cancelled for compassionate reasons on appeal. A perfect way for them to not to have to address the issues.

Two weeks later a demand for payment was received.......it seems the left hand does not know what the right hand is doing! This has now been followed up with a Bailiff & Debt Recovery Agents letter! They can add up their costs as it will be very embarrassing for them if it gets to court and we produce the letter from the Strategic Director for City Management stating that no further action is going to be taken.
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