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Hardrivejack
Hi All

I've today received a parking ticket for parking on double yellow lines.

I had a call to say a family member had been in an accident and taken to hospital. I didn't have enough change for the pay & display in the hospital so parked on a nearby road. I didn't notice any signs and the gutter was full of wet leaves so the lines were obscured.

I came back to the car and the leaves at the front and rear tyres had been cleared and the yellow lines were now visible. I've taken photo's which clearly show the lines have been cleared, although they have not been cleared under the car.

Please can you advise the best course of action.






SchoolRunMum
I agree that the slushy leaves have been cleared in front of and behind your wheels - you can see the piles/clumps of leaves!

Well as they will re-offer the discount if you appeal in time, you should appeal of course. Just a simple appeal asap so that they receive it before day 14.

When they reject (!) come back and show us the rejection letter and we can help further. It's your call, your money, but I would appeal it all the way to adjudication if it were me, as under the car it's clear that the slush completely obliterated the DYL. Can't see anything wrong with the PCN BTW.
Hardrivejack
I've today recived the following email;

"Mr XXXXX


Thank you for contacting Parking Services.

In order to enable us to give further consideration to the circumstances relating to the above Penalty Charge Notice, would you please let us have a postal address within the next 7 days to where correspondence can be sent to you.



Please note that in the absence of a response, the Penalty Charge Notice will be enforced.



Regards

Parking Services"

I may be wrong but I suspect this is a fishing expedition on their part to obtain my address and for no other reason. They have the photo's I'd taken, along with a copy of the PCN so as far as I can see they have all the information they need. I intend to reply to this effect and that there is no reason (as they have communicated by email) they can not continue to do so.

Can anybody offer any further advice or guidance ?

Thanks







Hardrivejack
Can anybody offer any advice ?
SchoolRunMum
Yep - give them the address which should have been included in your email anyway.
Hardrivejack
Reply received and they have rejected my dispute. My email to them was quite harsh and in hindsite I probably should have gone for a nice approach first so it may have put their back up. The photo's they have sent have not turned out too clear on the scan but they do show the lines go back further and are more prominent. Can see this is going to be my word against theirs but the lines were definately covered with leaves when I parked and were not visible.






Can anybody advise what my next course of action should (preferably not pay - but if thats the advice then I'll have to bite the bullet).

SchoolRunMum
It's up to you as always, as it's your money. But the rejection letter tells you the choices.

Either wait for the NTO and formally appeal with your photos which IMHO do show that someone has very recently cleared the slush in front of and behind your car (but could not reach in between the wheels and underneath). And base your continued appeal on the fact that there were no DYL visible at all when you parked. If you do this then it's an all or nothing gamble (full penalty or nothing) but no extra costs for adjudication. Not sure whether the adj would find for you or not, TBH, depends on his/her view of you as an honest and reliable witness as well as whether he/she agrees that there were likely no lines to be seen.

Or - pay now at the discount.
Hardrivejack
Is the adjudication an in person event or via written communication. Reason I ask is I may struggle to get time off from work at the minute and if it can be done in writing then I can carry on fighting. If its in person I'm wary of landing with the full bill just because I can't make attend the adjudication in person.
SchoolRunMum
QUOTE (Hardrivejack @ Mon, 21 Nov 2011 - 16:45) *
Is the adjudication an in person event or via written communication. Reason I ask is I may struggle to get time off from work at the minute and if it can be done in writing then I can carry on fighting. If its in person I'm wary of landing with the full bill just because I can't make attend the adjudication in person.




You can opt for a personal or written hearing - or in some cases a telephone hearing which may suit you if it's offered. Why not check the Council website to see if they explain the options for adjudication - if not then email/phone them to clarify so you know where you stand.
Hardrivejack
NTO received, can anybody offer any advice on how to respond please.






Any help is greatly appreciated.
hcandersen
You're at the NTO stage now, so there's nothing to be lost by making formal reps. You can try the same argument regarding the lines. IMO you would not succeed at adjudication because all you've got to offer as argument is that when you parked none of the lines as far as the eye could see was visible whereas the council's evidence at the time of contravention is that the lines were visible. The council can produce pics to support their case; you can't. I say "as far as the eye..." because if you saw the lines at the front and back then the adj would say that you were on warning that lines were probably under your car. Saying you were in a rush and couldn't check will IMO be interpreted as couldn't be bothered to check. But that's not to say the council would not cancel. In addition, what about mitigating circumstances regarding your rush to the hospital? IMO you'd need to offer something in your argument that could not be interpreted as "couldn't be bothered to pay the hospital car parking charges".

I also suggest you add - I refer to your letter dated **** in reply to my informal representations in which you state that the double yellow lines at the location are in force at all times and if you are not minded to cancel my penalty charge then I request that in your Notice of Rejection you provide me with the applicable reference in the Traffic Signs Regulations which defines double yellow lines as being in force at all times.


HCA

Hardrivejack
This may be a bit of stupid question but on the 'Specified Grounds' do I just choose the first option and lay my case: based on lines obscured, with possible mitigation due to family emergency ?
Hardrivejack
QUOTE
I also suggest you add - I refer to your letter dated **** in reply to my informal representations in which you state that the double yellow lines at the location are in force at all times and if you are not minded to cancel my penalty charge then I request that in your Notice of Rejection you provide me with the applicable reference in the Traffic Signs Regulations which defines double yellow lines as being in force at all times.


Can you tell me why this is important ?

Also any more last minute advice before I fire off my response.
Bogsy
I suggest you include the text below in any further appeal. Best to keep text formatting for emphasis. It's based on Rotherham's TRO definitions. An example can be viewed here.

The alleged contravention did not occur. The traffic regulation order fails to define what a “restricted street” is and it does not prescribe that it is a contravention to park in a restricted street during prescribed hours.

Contravention code 01 was originally devised by the London Councils and reflected the fact that London council’s traffic orders made specific reference as to what is to be considered “restricted street”. This can be seen in the example below (for reference, Schedule 1 concerned No Waiting restrictions);

“restricted street” means any street within the London Borough of Lewisham specified in Schedule 1 (hereinafter referred to as a “scheduled street”) and includes, except where the context otherwise requires, so much of every other street within that London borough which is not a scheduled street or a street specified in Schedule 4 and which joins any scheduled street as lies between the kerb line of the scheduled street and a point 18.29 metres distant therefrom and any reference in this order to any restricted street shall be construed accordingly, provided that the expression “restricted street” shall not for the purposes of this order include–

(a) any area on a highway or any place within the London Borough of Lewisham for the time being designated or described as a parking place by any order made or having effect as if made under section 6 or section 45 of the Road Traffic Regulation Act 1984;

(b) in its application to a street specified in column (2) of Schedule 5, that length of street which extends 18.29 metres measured in the direction specified in column (3) of that schedule from the kerb line of the scheduled street specified in column (4) of that schedule, and in this definition the expression “kerb line” in relation to a scheduled street shall mean that imaginary line which is the projection of the line formed by the edge of the main carriageway of the scheduled street adjacent to its junction with the side in question of any other street;

© any length of street designated as red route;


The London boroughs would not go to the trouble of taking great care to specifically define what is a “restricted street” if it served no purpose and was unnecessary. Without a traffic order defining “restricted street” then it is reasonable to apply common language. The commonplace definition of “restricted” is thus; “place limits on, confine, restrain”. Therefore, in essence, the PCN informed me that I parked in a street during hours that the street is subject to parking restraints. It does not however inform me of how the vehicle contravened a particular parking restraint or even what parking restraint was contravened. It is highly important to note that not all parking restrictions prohibit parking (eg: parking place restrictions) and so parking in a restricted street during prescribed hours is not a contravention by default since it can be lawful. It is only a contravention if the traffic order is drafted correctly in the manner exampled above. Quite simply, the ground stated on the PCN is not fit for purpose since it does not distinguish between a vehicle that is lawfully parked in a restricted street during prescribed hours and one that is not.

The council may be using the standard contravention codes but it should be remembered that these contravention codes have no statutory authority and cannot be relied upon as a defence as made clear in the key adjudication case between Metrick v Camden (Case no 207034396A).

I find the ground of “parked in a restricted street during prescribed hours” to be unsupported as a parking contravention prescribed by the traffic order. The order may prohibit waiting in certain lengths of road at certain times but the order does not define and correlate waiting restrictions with being "restricted street" nor does it define and correlate what is considered "prescribed hours". It is critical to remember that the purpose of a PCN is to encourage people to park lawfully, so it stands to reason that a person needs to know precisely what they did wrong in order to avoid doing so again. The ground given on the PCN is ineffective in conveying what I allegedly did wrong and as such it does not satisfy paragraph 1(e) contained within the Schedule to “The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and the penalty charge should be cancelled forthwith rather than drag this matter to adjudication.
Hardrivejack
Bogsy, that is fantastic. i'm not the brightest bulb but I think I understand it.

Should I also include anything regarding the lines being obscured ? I thought lines had to be visible and unbroken for it to be enforceable. If so is there any specific law or guidelines I should refer to ?
Hardrivejack
On their original rejection letter they advise that double yellow lines do not require additional signs as they convey to the driver no parking at any time.

Does this mean they don't have to specify prescribed hours ?

Also I found this on Direct.gov.uk website
QUOTE
Double yellow lines indicate a prohibition of waiting at any time even if there are no upright signs.


Apologies if I'm being a bit dense.
Bogsy
QUOTE (Hardrivejack @ Tue, 20 Dec 2011 - 11:44) *
Bogsy, that is fantastic. i'm not the brightest bulb but I think I understand it.

Should I also include anything regarding the lines being obscured ? I thought lines had to be visible and unbroken for it to be enforceable. If so is there any specific law or guidelines I should refer to ?


Yes you may as well make that point your opening paragraph. Just advise that the law requires a council to place traffic signs that adequately convey the effect of any traffic order and to maintain such signs so that they continue to be adequate. Due to the the lines being fully obscured by fallen leaves at the time of parking the effect of the traffic order was not adequately conveyed and so the council should cancelhe penalty charge.
Hardrivejack
Notice of rejection letter received today. Next step to the adjudicators. Copy of letter attached, can anybody offer any suggestions or advice ?

http://i1089.photobucket.com/albums/i353/h...ts/PCNRej01.jpg
http://i1089.photobucket.com/albums/i353/h...ts/PCNRej02.jpg
http://i1089.photobucket.com/albums/i353/h...ts/PCNRej03.jpg
Bogsy
When you appeal to the adjudicator you need to assert that however visible the lines were when the CEO took the photographs, this was not the case at the time of parking. At the time of parking there was sufficient number of leaves obscurring the yellow line whereby the yellow line was not clearly visible and had it been you would not have parked as you did. Obviously when the CEO took the photographs the wind had by then dispersed many of the leaves. If you have no previous PCN's then make it known that you are not in the habit of parking unlawfully and therefore why can't the council accept that on the balance of probability you are being truthful. I suggest you seek a personal or telephone hearing to give it the human touch and so the adjudicator can see that you are a credible witness.

The "restricted street" argument went completely over their heads. Their only defence is that Rotherham is not London. In your appeal to the adjudicator refer him to your formal representations for the core of the argument but add further that no where does Rotherham's TRO make it a contravention to park in a restricted street during prescribed hours. It may be a contravention to park on those lengths of road subject to "No Waiting" but at no time does the TRO correlate the ground stated on the PCN with No Waiting. Contend that you refered to the London Borough of Lewisham only to illustrate how a TRO must correlate "restricted street" with No Waiting for the code 01 contravention to have any legitimate meaning. If this is not done then any vehicle whether lawfully parked or not can be accused of parking in a restricted street during prescribed hours if they happen to be parked where parking is regulated by order.
hcandersen
Seems the council has dragged defeat from the jaws of victory.

Procedural Impropriety
The NOR fails to comply with regulation 6 of the Appeals Regulations and as this is an obligation placed on the authority by the Act or the regulations it constitutes a procedural impropriety, as defined, which is grounds for appeal.

The regulations state:
Rejection of representations against notice to owner

6.—(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a)state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—
(i)the penalty charge is paid; or
(ii)the person on whom the notice is served appeals to an adjudicator against the penalty charge;
(b)indicate the nature of an adjudicator’s power to award costs


Whereas, the NOR states in respect of both payment and appeal that either is required to be made "within 28 days of the date of this letter".

The effect of this departure is as follows:
The letter (NOR) is dated Thursday 5 January 2012.
The NOR is deemed served under the General Regulations on Mon. 9 Jan.
Under the Appeals Regs the 28-day period elapses on 5 Feb;
Under the council's NOR the period elapses on 2 Feb.

The council is seeking to reduce the prescribed period by 3 days in either case and this in unlawful.

HCA
Bogsy
QUOTE (hcandersen @ Fri, 13 Jan 2012 - 10:32) *
Seems the council has dragged defeat from the jaws of victory.

Procedural Impropriety
The NOR fails to comply with regulation 6 of the Appeals Regulations and as this is an obligation placed on the authority by the Act or the regulations it constitutes a procedural impropriety, as defined, which is grounds for appeal.

The regulations state:
Rejection of representations against notice to owner

6.—(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a)state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—
(i)the penalty charge is paid; or
(ii)the person on whom the notice is served appeals to an adjudicator against the penalty charge;
(b)indicate the nature of an adjudicator’s power to award costs


Whereas, the NOR states in respect of both payment and appeal that either is required to be made "within 28 days of the date of this letter".

The effect of this departure is as follows:
The letter (NOR) is dated Thursday 5 January 2012.
The NOR is deemed served under the General Regulations on Mon. 9 Jan.
Under the Appeals Regs the 28-day period elapses on 5 Feb;
Under the council's NOR the period elapses on 2 Feb.

The council is seeking to reduce the prescribed period by 3 days in either case and this in unlawful.

HCA


Good spot HCA. That should do the trick and give the adjudicator an easy option.
bama
good spot indeed.


but will he/she take the easy single PCN specific option ? ..

take taking e-bets on that one . . .
Hardrivejack
QUOTE (bama ) *
good spot indeed.
but will he/she take the easy single PCN specific
option ? ..
take taking e-bets on that one . . .


Before I make that decision what are possible ramifications ?
bama
adjudicator can find for you on this quick easy non contentious issue and keep the lid on wider ranging matters that would cause the council no end of grief
so in that event you win (the adjudication) and the council wins by virtue of their dirty linen not being aired in public.


the crappy TRO goes unfixed, the council keeps issuing tickets on it like yours and many will just pay up. believe it or not thats business as usual for many of our public servants despite them having a duty to only act lawfully.
Hardrivejack
ok if I go for the contentious issue what would I need to do? is it just a case of filling in the form or is more involved? what are the potential cost implications, same as adjudication going against me?
bama
its up to you.
I would not rely on just the using the one easy find point as that is putting all your eggs in one basket and a perverse decision may still happen.
putting the easy win point first then adding the contentious stuff (but written as facts not opinion) may help focus the decision on the first easy win point.

costs only get awarded if you have been vexatious or wholly unreasonable - and thats very rare.
all that is 'in play' is the NTO amount.
post up a draft on here for tuning/comment is best.
if it gets to adjudication it will you there not us so the args need be by your hand (enough) and understood (enough) by you so that you can swim on the day and not sink.
but ts not a court, its just an administrative tribunal and so is quite chatty, no pomp or ritual or 'weird language' that you get in court. some regular posters even enjoy going to adjudications or so I am told.
Hardrivejack
Family emergency made me completely forget about deadline so now rushing to get appeal in. Draft below and coppied an pasted quite a bit so any suggestions for tweaking would be gratefully recieved.

1. The contravention did not occur





At the time of parking the double yellow lines were obscured by leaves in the gutter and I was therefore not aware of any parking restriction.



Photographic evidence has been supplied from RMBC in support of the PCN. These pictures show the double yellow road markings had cleared to some degree, which subsequently allowed the yellow lines to be visible. I am unable to answer how this occurred i.e. whether by natural eventn such as wind dispersing the leaves or manual intervention.



I have also supplied photographic evidence to RMBC which shows the leaves had been dispersed / cleared from the front wheel (front of tyre) and rear (rear of tyre) wheel. However, the leaves beneath the car are still clearly visible and show that the road markings were obscured.



The council has stated in their Notice of Rejection of Challenge letter:



“Double yellow lines do not require additional signs as the lines themselves communicate to the driver that there is a no waiting restriction at all times.”



Also



“that it remains the responsibility of the motorist to ensure the vehicle is parked legally before it is left unattended”



However, if road markings or signs are not visible, obscured or not displayed correctly then parking restrictions are not adequately communicated to the driver.



In my formal representations to RMBC I referred to London Borough of Lewisham to illustrate how a TRO must correlate "restricted street" with No Waiting for the code 01 contravention to have any legitimate meaning. It may be a contravention to park on those lengths of road subject to "No Waiting" but at no time does the RMBC TRO correlate the ground stated on the PCN with No Waiting. If this is not done then any vehicle whether lawfully parked or not can be accused of parking in a restricted street during prescribed hours if they happen to be parked where parking is regulated by order.



As the road markings were not visible at the time of parking I do not believe that a contravention occurred.



2. Procedural Impropriety


The NOR fails to comply with regulation 6 of the Appeals Regulations and as this is an obligation placed on the authority by the Act or the regulations it constitutes a procedural impropriety, as defined, which is grounds for appeal.

The regulations state:


Rejection of representations against notice to owner

6.—(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a)state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—
(i)the penalty charge is paid; or
(ii)the person on whom the notice is served appeals to an adjudicator against the penalty charge;
(b)indicate the nature of an adjudicator’s power to award costs


Whereas, the NOR states in respect of both payment and appeal that either is required to be made "within 28 days of the date of this letter".

The effect of this departure is as follows:



  • The letter (NOR) is dated Thursday 5 January 2012
  • The NOR is deemed served under the General Regulations on Mon. 9 Jan.
  • Under the Appeals Regs the 28-day period elapses on 5 Feb;
  • Under the council's NOR the period elapses on 2 Feb.

The council is seeking to reduce the prescribed period by 3 days in either case and this in unlawful.

qafqa
QUOTE
“Double yellow lines do not require additional signs as the lines themselves communicate to the driver that there is a no waiting restriction at all times.”

In some circumstances double yellow lines do require additional signs
according to the TSM Chapter 3 and 5.

TSM 3
6.7 The sign to diagram 637.3 is used where a
prohibition of waiting at any time applies for a
period less than 12 months of the year, but for at
least four consecutive months. Such a prohibition is
likely to be imposed where there is seasonal traffic,
for example at a holiday resort. The sign is used
with the double yellow line to diagram 1018.1.
The
Regulations do not allow the date to be omitted in
order to replicate the sign to diagram 637 described
in para 6.6, nor should the date be varied to a
twelve month period.

TSM 5
20.3 The markings consist of either a single or a
double continuous yellow line laid at approximately
250 mm from the edge of the carriageway. The
double line (diagram 1018.1) indicates that waiting
of vehicles on that side of the road is prohibited at
any time during a period of at least four consecutive
months. The sign to diagram 637.3 is used only if the
time period is at least four but less than twelve
months.
Hardrivejack
sorry for being dense but can you tell me what TSM is ?
bama
Traffic
Signs
Manual

www.dft.gov.uk/pgr/roads/tss/tsmanual
qafqa
Sorry about not explaining the TSM more thoroughly Hardrivejack.
When highlighting misinformation about double yellow lines it would be best to include
reference to the actual law in addition to the paragraphs from the TSM.

Traffic Signs Manual Chapter 3
http://assets.dft.gov.uk/publications/traf...-chapter-03.pdf


Traffic Signs Manual Chapter 5
http://assets.dft.gov.uk/publications/traf...-chapter-05.pdf
Hardrivejack
No probs and thanks for the additional info.

So would you suggest I copy your post 28 and include that after the quote from their letter ?

Also do I include copies of the letters from the council and all the photos from them and me ?
hcandersen
Have you registered your appeal yet? Not made it, just registered it.

All you need to do on receipt of a NOR is to register your appeal. Fill in the form with personal details, elect for an oral hearing, tick the boxes as per your reps and Procedural Impropriety; and put in Box 5 the additional ground of Procedural Impropriety regarding failure to comply with the mandatory requirements of the Appeals Regs given in previous posts - not the detail, just the regs with which the council has not complied. This should take 5 minutes. You might even be able to do it online. That's it for now.

TPT will reply and give you a latest date for submission of your detailed appeal.

Forget about the detail for the moment, just get it registered.

HCA
Hardrivejack
No not registered. With family situation I completely forgot about hence the rush to try and get it sorted today. I have the statement as above drafted and will opt for telephone hearing. I've had too much time off work over past couple of weeks to be able to organise more.
hcandersen
Then register, do not bother with putting a full-blown appeal together, it's not necessary at this stage.

5 minutes' work is all that's required.

HCA
Hardrivejack
Just phoned to register and was told to submit appeal with cover letter explaining reason for delay in responding. Can't register online as you need a PIN code, I don't have the notice on me so not sure if I have a PIN. Will check tonight and if it has a PIN will register, in meantime appeal drafted and will include a letter detailing family issues which delayed me.
hcandersen
Phone again. You're not out of time. According to your earlier post your NOR was dated 5 Jan. Consequently, the 28-day period elapses on 5 Feb.

Take the name of whoever you speak to.

I've read the NOR you posted which does not have a PIN in the body of the letter.


HCA
Hardrivejack
Thanks HCA, I didn't get the persons name but will include a letter so if they rule against me on that point at least I have a back up. Not sure how they can go against me on that one but you never know.
Hardrivejack
Adjudication later today so will post outcome once its over.
Hardrivejack
************WON**********************

Must say I was nervous to say the least at the prospect of the hearing.
The adjudicator listened to me first and then the council rep. Considering the evidence bundle the council had sent I expected a lot stronger more forceful arguement from them.

The adjudicator ruled in my favour based on point 1 (see post 27). He didn't think I was being untruthful and the lines were not visible when I parked. He also didn't think the council or warden were being untruthful. He ruled in my favour based on the leaves having moved from parking to warden seeing my car.

Once he had made decision he asked if there were any other questions so I asked if he could comment on point 2 of my argument. He would not be drawn at all and said he had ruled on point 1 and so had no reason to comment on point 2. His tone pretty much said don't push it and accept it had gone my way, so I did.
bama
Result. not scary really was it.

Adjudicators do seem to like to find on points that limit the decision to the one case.
Findings against flawed statutory Notices sent out in thousands/tens of thousands seem very rare.
Even when the Notices are flawed.
Goodness knows why this is so, After all Adjudicators are 'independent' and the public interest has to be considered.


"By their actions you shall know them"
Hardrivejack
Not scary once it got started.

I couldn't have done it without the help from members on here !!!!!

THANK YOU !!!!!!!!!!!!!
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