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debbiefromharrow
On 2/6/11 I came out of my house to see Parking Attendant for Harrow Council affixing PCN to car. I asked why and he gestured towards suspended bay sign. I was unaware of these signs and my car had been parked since 1/6 at about 1pm. He said signs were put up on 1/6. I believe my car was parked already before signs were posted. The suspension period was 1/6-3/6 so came into effect immediately.
I immediately phoned council and spoke to ParkingEnforcement who could not confirm what time the signs were erected, they started off saying as the job had come in on 31/5 it was probably carried out that day too and only conceded that they may have not actually have gone up until 1/6 when I told him what the Parking Attendant had said. He suggested I write to council.

I wrote to them on 2/6 explaining the above (unfortunately I was too honest and said I had been parked there since 1pm) and got a letter back dated 13/6 saying that as I was parked in suspended bay I had to pay fine. I phoned callcentre 14/6 and explained that I was not disputing the fact that I was parked ina suspended bay but querying when the suspension notices had been erected. The operator put me on hold while she tried to get the information from Parking Enforcement who were still unable to verify date and time suspension notices erected. She advised me to email the council again explaining that I believed my car was already parked when notices were posted.

I emailed on 14/6 and received letter dated 21/6 saying it had now been confirmed by the parking team that the notices had gone up on 1/6 at 11:45 therefore PCN had been issued correctly. I do not agree with this as the suspension signs are big and appear to conform to regs and I feel sure I would have seen them when parking car.

I went to the civic centre on 24/6 to ask where this information had come from and how it had only just come to light after me repeatedly asking for it. The lady I saw in the one stop shop called Parking Enforcement who were unable to tell her where they had got this information from. she had lots of photos taken by Enforcement Officer of me and my car when ticket was issued but admitted there was nothing on system showing date and time of posting of suspension notices. I spent an hour there while she tried to find out where the info had suddenly come from but Parking were unable to tell her. She advised me to take it to Notice to Owner stage as council had dealt with query informally and would now only deal with case formally. I felt I had good case as the council were unable to provide photographic proof of what time their notice was put up and that my car was not already parked there.

This has now been rejected, the council is saying the signs went up on 1/6 11:45 and that the restriction was not enforced til 2/6 and that as they explained this in tlheir letter of 21/6 I have now lost opportunity to pay at reduced rate.

Does anyone know what proof council have to provide to show when the suspension signs were erected? There are loads of pics of the susp sign and my car from 2/6 when notice issued but no photos showing date and time sign went up and what cars were parked at the time. Is it worth me taking it to appeal with PATAS? Wish I'd known about this site at beginning of this sorry saga.
Bogsy
Continue to appeal on the grounds you argue above and then tag the text below on to your appeal for an extra angle. Keep any text formatting for emphasis.

It is necessary to bring to the adjudicator's attention that the sign used to convey the parking place suspension is not prescribed by regulations.

A traffic order obtains its power to suspend a parking place by authority of the Road Traffic Regulation Act 1984. A traffic order is therefore secondary to the primary 1984 Act and remains subject to it. Section 68(2) of the 1984 Act clearly indicates that a “traffic sign” that accords with section 64 of the 1984 Act be placed in connection with any traffic order made. In addition, a similar obligation is imposed upon an authority by regulation 18 of the The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996. It is emphatically clear that a “traffic sign” is to be placed in connection with an order or to give effect to an order.

Section 64 of the 1984 Act defines a traffic sign as being any object or device used to regulate traffic with its form being either prescribed by regulations or authorised by the Secretary of State. The parking suspension sign used by the council is not prescribed by regulations as the Traffic Signs Regulations and General Directions 2002 do not prescribe any traffic signs for the purpose of conveying a parking place suspension. This fact is endorsed by the DfT under paragraph 7.53 within the Traffic Sign Manual Chapter 3;

7.53 Where it is required to suspend a parking or
loading bay, e.g. to enable works to be carried out,
a temporary sign should be provided. These are not
prescribed by the Regulations
, other than for parking
meters (see para 6.30), and guidance should
therefore be sought from the Department


It is clear that where a sign is required to suspend a parking place that a council cannot simply produce one by volition but is expected to consult with the DfT. This consultation is no doubt requisite so that the Secretary of State can authorise the use of a suspension sign. Thus satisfying section 64 of the 1984 Act and allowing the sign to be used in connection with a traffic order.

Considering the above, unless the council can provide evidence that the suspension sign is authorised by the Secretary of State then the council should acknowledge that they have acted beyond their powers and cancel this penalty charge forthwith. Should the council doubt that their use of an unauthorised sign is ultra vires then I direct the council to the following paragraph obtained from the DfT published Traffic Signs Manual Chapter 1.

1.18 The use on Public highways of
non-prescribed signs which have not
been authorised by, or on behalf of,
the Secretary of State, is illegal
and
Authorities who so use unauthorised
signs act beyond their powers
.
Additionally, an unauthorised sign in
the highway is an obstruction.
hcandersen
Without wishing to rock the boat and with due deference, s18 is not as straightforward as it's being portrayed.

QUOTE
Traffic signs

18.—(1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—

(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;

(b)the maintenance of such signs for so long as the order remains in force; and

©in a case where the order revokes, amends or alters the application of a previous order, the removal or replacement of existing traffic signs as the authority considers requisite to avoid confusion to road users by signs being left in the wrong positions.


Suspension is not an order coming into force but a provision of an order being put into effect and whether s18 bears on this is, IMO, unclear.

IMO where you nail the council is with their traffic order which I suggest you obtain. Also, get on to their web site and find out everything you can about their procedures (by which of course they are bound, having published them in the public domain).

Where are the docs - please post them all.

HCA
Bogsy
QUOTE (hcandersen @ Thu, 25 Aug 2011 - 19:34) *
Suspension is not an order coming into force but a provision of an order being put into effect and whether s18 bears on this is, IMO, unclear.


You are right a suspension is not an order coming into force, that's why I chose my words carefully. It is though an effect of an order and every indication in law and guidance suggests that only a "traffic sign" can be used to convey any restriction controlled by an order. Paragraph 7.53 quoted above is fairly conclusive on the view taken by the DfT.

I understand your angle as you have absorbed the words of that adjudicator who tried to imply that a suspension sign is OK if it is not contrary to what the traffic order prescribes. I believe the adjudicator was wrong to hint at this and was attempting to make life easier for councils who predominantly use a suspension sign that is not a lawful "traffic sign". My text above is an attempt to thwart adjudicators taking such a stance.
debbiefromharrow
Thanks for your help

Here is a photo of the susp notice - no reason given for suspension of parking given I see


and the PCN



Not sure if I've uploaded correctly as could not find BBCode to uncheck????? as per FAQs. Pls advise if I'm going wrong.

My main complaint is
1)that no warning was given re suspension.
2) I believe I was parked when signs went up. 3 times in the 2 weeks following PCN I asked for date and time susp signs were posted and council could not provide information. When they came up with a time and date which would have meant I was not already parked there I went to council offices to query it (quite reasonably I feel given what had happened it first 2 weeks) and they still could not say where the information had come from or have photos to prove date and time susp signs went up yet I'm being asked to accept it and pay fine.
Notice to Owner appeal rejected - believe next stage is PATAS appeal
Glacier2
That won't win the day at PATAS.

Sign is unlawful is the only winner here.
Bogsy
I recommend making your points 1 and 2 above the primary appeal points and then the lawfulness of the sign as your 3rd point.
hcandersen
Agree re Bogsy's earlier post, but as the power to suspend a bay comes from a traffic order and that order will contain precedent conditions then you need the order. You'll get this anyway in their evidence pack and so I wouldn't go asking for it at this late stage.

IMO it's not "just" that the sign is unlawful, it's the legal implications of this and I remain of the opinion that the main implication is that the council have acted unlawfully under their own order and therefore their claim that the bays were suspended is bogus and without legal force.

HCA
debbiefromharrow
Thanks for Your help and advice it's good to know you're out there!!!!!
Am filling in PATAS form now and have addressed points 1 re no warning given (have scoured council website but was unable to find anything re council policy on the amount of warning they aim to give if parking is to be suspended) and point 2 re council not providing evidence of date and time suspension sign was posted
but can you help with point 3 re legality of sign?

Should I tick "The Traffic order is invalid" to cover this? Please could you help me with some words to cover this point? Does the council have to put a reason for suspending parking?

debbiefromharrow
Heh heh heh

Sent PATAS appeal form with 5 pages of appeal notes and asked for personal hearing. Appeal based on:
1) No warning of suspension given and therefore suspension in immediate effect from 1/6/11. PCN issued 2/6/11 9am
2) After 1 phone call, a letter, another phone call and email no one at Harrow could tell me when the suspension signs were put up and I believe my car was already parked when signs went up. 3 weeks after PCN issued on 2/6/11, they eventually came up with a date and time "proving" the signs were up when I parked in susp bay but they were unable to provide photos or any other evidence to back up their claim when I visited the council offices.
3) I said I was currently investigating issues re TMO and TROs and would be asking council to provide evidence that they had complied with procedures.

Got hearing date of 22/11/11.

Yesterday got letter from PATAS saying Harrow Council will not contest my appeal and hearing has been cancelled, I'm not liable for any charges etc.

So pleased to have beaten them but so angry that they pushed it this far and tried to bully me into paying a fine when they knew they did not have evidence to back up their case.

Here is text of my letter I hope it helps someone else -it's long and wordy but these people have wasted enough of my time and I wanted to give them something to do. . . .plus it's always nice to quote the enforcement guidance back at them!!!
biggrin.gif biggrin.gif
A BIG THANKS TO PEPIPOO this fabulous site gave me the confidence to carry on with my appeal and searching the forum and PATAS website gave me lots of information.

"What happenedOn 1/6/11 around 1pm I parked the car in a shared pay and display/CPZ residents parking bay at the end of XXXXX road. I did not see any suspended parking signs. I am unable to see this area from my house and did not leave the house again until 9am 2/6.

At 9am on 2/6 I came out to the car to see a Parking Attendant issuing a ticket. I asked why and he gestured at a suspension of parking sign. I asked when the sign was put up and he said 1/6. When I said I was unaware of the suspension he said I would have to write to the council about it. He took several photos of me, the car and suspension sign.

Immediately I phoned the number shown on the suspension sign and spoke to XXXXXX in the council’s parking department. He said he didn’t know when the signs went up and had no information to say when it had happened. He looked at the jobsheet and said that as the “job” came in on 31/5 he assumed it had probably been done then. When I challenged this and told him the Parking Attendant told me the signs were put up 1/6 he conceded this may have been the case. The suspension period was from 1/6 to 3/6 so the suspension was immediately effective and no warning had been given.
I checked the area at 10:30am on 1/6/11 when I left the same parking bays and there were no suspension or warning of suspension signs then. Less than24 hrs later I had been issued a PCN. The signs were erected sometime on 1/6/11. I believe the signs were put up after my car was already parked in the bay and as no advance warning was given I could not have been aware of the suspension.

On 2/6/11 I wrote to the council explaining what had happened and got a standard reply which did not address my queries and saying simply that as I was parked in a suspended bay I had to pay a fine.

On 14/6/11 I rang the council and spoke to XXXXXX in the customer service dept. I explained that I believe the suspension signs were put up after I was parked and I needed to know the exact date and time parking was suspended. She was unable to supply the information from details on the computer system so put me on hold while she spoke to Parking Department who were again unable to give any date or time. XXXXXX advised that I email the council and explain my concerns again. She said she felt that without this information the council would not be able to uphold PCN ticket. I sent an email to the address she gave me.

On 24/6/11 I received a letter advising that suspension signs were put up at 11:45 on 1/6. I wanted to query this as I was sure parking was not suspended when I parked there and wanted to be sure this information was correct and not a time it “probably” went up according to some jobsheet. I attended the Civic Centre that day and saw XXXXXX in the 1 Stop Shop. I asked:
• how the 1/6/11 11:45 stated in the letter had been come by after all this time as this information had not been available the 3 times previously I’d asked for it;
• to see photos taken when the suspension signs were put up and details of vehicles parked in the area at that time;
• Photos of advance warning signs re parking suspension
XXXXXXX said there was nothing on the system to say when the suspension notices were posted, or where the 1/6/11 11:45 stated in their letter had come from. The photos she showed me on the computer system were all taken by the Parking Attendant on 2/6 when PCN issued. There were no photos of when the suspension sign was first put up or showing vehicles parked at the time. She called the Parking Department and asked them for information about where the 11:45 time had come from, photos taken when the suspension signs were put up and details of vehicles parked at the time. Parking were unable to tell her this information and said they didn’t know how the 11:45 time had been arrived at but would continue to look for it and ring her back. I waited while XXXXXXX saw another customer and called Parking back. They were still unable to provide photos, reg numbers, say where the 11:45 time had been taken from or any other info regarding the case. I spent 1 hour at the Council trying to resolve this issue which is surely a simple admin matter.
XXXXXX understood my frustration but advised me that as the council had “dealt” with the matter informally they would not enter into any further correspondence and said that if I was sure I was in the right I should take the case to formal Notice to Owner stage. This I did albeit reluctantly as it meant I lost the chance to pay at the reduced rate if found to be at fault.

Notice to Owner appeal lodged on 29/7/11

Letter received dated 23/8/11 NTO appeal rejected

Grounds for appeal
Grounds for appeal 1) No advance warning given of parking suspension – I believe it is usual to provide a few days advance warning of parking suspensions but was unable to find Harrow’s policy regarding warning residents of such works on their website (although it does say “Suspensions cannot be provided on demand and take a minimum of 5 working days to be issued”. I understand for emergency work it may not always be possible to give notice. Roadworks involving temporary traffic lights were being carried out on the Pinner Road further up near XXXXXX Road but these had been ongoing for several days before the suspension of parking notice went up. No reason was given on sign for the suspension. No roadworks appear to have been done in XXXXX Road at anytime during suspension period.
In its letter the council says the suspension was not enforced until 2/6 giving residents a chance to move their cars – this is not a substitute for advance warning especially where residents park their cars overnight for longer than short shopping trips to local shops and especially when a suspension comes into immediate effect. I am aware of the need to check signs daily as set out in the notes accompanying my CPZ permit and make a point of checking so I know no suspension or warning of such was in effect when I left the parking bays at around 10:30am on 1/6. I do not believe the suspension of parking signs were in place when I returned 3hrs later and I next checked the signs on 2/6 9am – daily should be sufficient, I cannot reasonably be expected to check more frequently. No letters or phone calls about the parking suspension were received. The council could not provide evidence of advance warning when I visited the Civic centre on 24/6.

Grounds for appeal 2) Evidence I believe the suspended parking signs were put up after I was already parked in the bay on 1/6. After phoning on 2/6, writing on 3/6, phoning on 14/6 no one could give me the date and time suspension signs were put up. Then when 1/6/11 11:45am was given as the time, I visited Council Offices to query it but they were unable to supply any evidence to back up their claim. In the same way I can examine photographic evidence taken by the parking attendant that I was indeed parked in a suspended bay on 2/6, I should be able to examine evidence proving what time the signs went up and what cars were parked there at the time. While looking for information re council policy on advance warning of parking suspension, a link on their website led me to the London Councils website – in the Code of Practice on Civil Parking and Traffic Enforcement the main duties of CEOs are set out and section 16 suggests further useful duties of CEOs:

“ Parking attendants have a primary duty to enforce parking regulations efficiently, effectively and fairly and they should not become involved in issues that do not concern them (e.g. stray dogs, defective footways, street lighting or lost property) if such activities unduly distract them from their primary function and so lead to ineffectual enforcement. Further activities related to stationary vehicles in the SPA which could easily be added to the parking attendants' duties are as follows:
a) issue information leaflets. If authorities consider that issuing a PCN in every instance is not the most appropriate way of dealing with a particular contravention, issue a warning notice. Or leave notices on vehicles warning of an imminent suspension, particularly if there is only time for a short notice period;b) make a note of any invalid tax discs seen and report to base or the appropriate office that deals with untaxed vehicles if untaxed vehicles are seen. Any activity of this kind will help to keep DVLA records up to date and reduce future difficulties in tracing owners;
c) report suspected abandoned vehicles. As well as collecting PCNs that may not be recoverable,these may prevent other drivers using a parking space;
d) report on changes in parking patterns to complement the authority's monitoring surveys. These could form part of regular reviews of enforcement/compliance and support policy changes;
e) put up notices giving advanced warning of, or announcing the commencement of, suspensions of parking places. When appropriate, they should also record registration numbers of cars in position when the advanced warning notices are out up or the suspension starts. This may be needed when later considering cancellation of any PCNs or the refund of clamping or removal costs;”
16a) may have been appropriate in my case and the duties set out in 16e) do not appear to have been adopted by Harrow Council leading to a loss of important evidence.

The council apologises that I was not given the relevant information in relation to my case but still does not provide evidence of advance warning signs, dates and times etc. The photos enclosed with the Notice of Rejection letter are the same as those shown to me by XXXXXX on the council computer system and were taken by the Parking Attendant when the PCN was issued on 2/6 and are not evidence that the parking suspension signs were in place when I parked.

The council may have evidence to back up its claims but chosen to withhold it. While researching this appeal I came across WESTMINSTER CITY COUNCIL vs TERENCE CHASE CASE No 1960113778 (PCN No WE44925758) APPLICATION FOR REVIEW OF THE DECISION OF THE PARKING ADJUDICATOR in the key cases section of the PATAS website. While the detail of the case is different from mine I was particularly struck by the following paragraph in the Evidence in Appeals before the Parking Adjudicator section 2:
“By Regulation 4(2) of the Regulations, upon receipt of a notice of appeal, an authority must lodge with the Parking Appeal Service a copy of:
"(a) the original representation [i.e. the representations from the appellant to the Council];
(b) a copy of the relevant charge notice (if any) [i.e. the PCN]; and
© a copy of the notice served under Section 71(6) of, or (as the case may be) paragraph
2(7) of Schedule 6 to, the [Road Traffic] Act [1991] [i.e. the Council's letter rejecting the appellant's original representation]".

The Regulations do not require the authority to submit any other evidence. However, as the Council readily accepted in this case, the burden of proof in proving the contravention (and proper issue and service of the PCN) lies upon the authority, and they are consequently bound to submit at least sufficient evidence to satisfy that burden.

And in section 6.
“There is no express duty of disclosure on either an owner or an authority.

However, where an authority has relevant evidence - particularly evidence relating to a specific issue raised by an owner - it is incumbent on that authority to disclose this to the owner. A failure to do so would lead to a patent injustice to the owner. For example, where the Parking Attendant's contemporaneous notes include relevant material - perhaps supporting the owner's case - these must be disclosed to the owner at the appropriate time. Where the owner raises a point in representations in respect of which the authority has relevant evidence, that evidence should be disclosed at that (representation) stage: it should not be withheld until any appeal is made. The reason for this is not just that for an authority to withhold evidence in such circumstances would be patently unfair: disclosure of evidence at that stage also limits the number of unnecessary appeals to the Parking Appeals Service, because an owner may be persuaded not to proceed to an appeal if he has disclosed to him cogent evidence in the hands of the authority.
Certainly, where an authority relies upon specific information in an appeal to the Parking Appeals Service (e.g. they rely upon contemporaneous notes of the parking attendant of the tax disc details, or other details concerning the vehicle), this must be disclosed to the appellant.”
Photographic evidence of the council’s claims should be produced in time for someone to be able to examine it and make a decision whether or not to pay within the reduced rate period. No evidence was available to me when I phoned 2/6/11, wrote 3/6/11 and phoned 14/6/11. When I visited the council offices on 24/6/11 and specifically asked to see evidence to support their claim no one in Parking was able to provide it.

If the Council does not have the required evidence, it has continued pursue payment of this fine contrary to the advice given in “Operational Guidance to Local Authorities: Parking Policy and Enforcement Traffic Management Act 2004” Chapter 11 Challenges, representations and appeals which states:
o “11.3 It is in the interests of the authority and the vehicle owner to resolve any dispute at the earliest possible stage. Authorities should take account of the CEO’s actions in issuing the PCN, but should always give challenges and representations a fresh and impartial consideration.
o 11.4 An authority has a discretionary power to cancel a PCN at any point throughout the CPE process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case. Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest.”

I was indeed parked in a suspended bay at 2/6/11 9am but my appeal is based on the fact that I could not reasonably have been expected to know the bay had been suspended. The events detailed in this letter show that I have tried to resolve this matter at an early stage and at every stage thereafter. If the council has evidence to support its claims why not provide it in a timely fashion enabling me to pay at the reduced rate? If it doesn’t, it has knowingly acted in an unscrupulous way to try and bully me into paying a fine.

Grounds for appeal 3) Legality of sign, Traffic Management Order – during my research it became apparent that signs used by local authorities do not always comply to legislation and that suspension of parking spaces is bound by very specific rules and procedures. I am currently investigating whether all Traffic Regulation Orders (TROs), traffic signs and road markings in my case are in compliance with legal requirements and the traffic signs and road markings are consonant with the orders. I have asked Harrow Council to provide this evidence and believe they are duty bound to provide it as part of their evidence to PATAS.

I’m sorry there is so much paperwork but I wanted to show that I have made concerted efforts to establish the facts and find a solution to this matter at every stage. "
SchoolRunMum
Well done, sounds like they may have just made up that time of 11.45 - if so then that's shocking! ONe for the Ombudsman perhaps?
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