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Joelinit
Hello! And thanks in advance for any replies - reading through this forum has been very helpful!

I was towed two days ago for parking adjacent to a 2m stretch of dropped kerb on a residential street (Wesley Avenue) in E16, London. The avenue is approx 1km long, and is lined with parking bays, each for 5/6 cars parked end to end. Also along the avenue are pedestrian crossings with that "bumped" paving, yellow lines, red lines, zig zag white lines and signage to indicate where you can't park. Scrambling for something to appeal over, I was miffed that this small stretch of dropped kerb lies within a typical parking bay on the avenue, with no markings or signs whatsoever - unlike all other dropped kerbs along the road and in the area.

Having read threads on here and realising that I was kind of clutching at straws, I then went back and noticed that not only are there no road markings, pavement bumps or signs, but there's also no dropped kerb on the other side of the road. And there are also two massive bins perched neatly on the pavement, behind the kerb!

Based on that last point, and the below images, do I have a good case to appeal? I've read on other threads that a dropped kerb must be built for pedestrian, vehicle or cycle access - though with no dropped kerb opposite (and a pedestrian crossing 10m away!), no cycle path and clearly no vehicle access it can't possible serve for any of these? The two large bins on the pavement are surely a bit of a giveaway that it's purely for wheeling bins onto the road too?!

Would love to hear anyone's views and thanks again in advance...











Oh and just to add - I had to pay the £200 release fee at the pound, along with the £65 PCN fee, so my appeal is to reclaim the money. Hopefully that doesn't make things harder?!
MissMoneyPenny
i am no expert on here but i guess its for the bin men the dropped kerb..

whilst writing how do you upload you pics like that? i have real trouble with this stuff
John U.K.
What lies behind the grey doors? What is accessed by the access to the right of them?
Is it possible the DK was installed to facilitate either removing wheelie bins or for wheelchair access to neighbouring property?
A link to GSV will help. Also back of PCN

How can these be parking bays if there are no road markings? What is the nature of this "special enforcement are" Is there any signage? Is this a CPZ or one of the new traffic calming schemes? You may need to check the TMO.

I wonder if it was the binmen who rang parking???
Joelinit
Apologies - back of PCN below.

As I understood it from reading on this forum, a dropped kerb is only PCN enforcable if it serves for pedestrian, cycle or vehicle access. Subsequently blocking a dropped kerb that only serves as wheely bin access isn't an enforcable offence? Though I could be completely wrong if what I've read isn't correct? The TMA reads...

86Prohibition of parking at dropped footways etc.
(1)In a special enforcement area a vehicle must 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 purpose 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.

The avenue has no parking restriction signs, so effectively the parking bays are just stretches of paving, adjacent to the road that people can park in. There are no parking bay markings or restriction signs, only yellow/red lines where you can't. Could this also aid my cause? I also read on here that the council has a responsibility to "guidance" even if road markings aren't legally required.

I'm thinking the indication that they're for wheely bin use is my best case for appeal, though would love to hear your thoughts!?

Oh and MissMoneyPenny, you need to host your images on another site, then embed them on here - there's instructions on the sticky threads on the forum homepage I believe.

John U.K.
what is the definition of a vehicle? Must it be self-powered? (some wheel-chairs are) If not self-powered, is it something that has wheels that are not one behind the other and can be pushed or drawn?
If this last definition then that's quite wide - wheelchairs, wheeled bins, porters' trollies, hand-carts......

I've tried to find a legal definition online, but it looks as if each Act has its own definition.
DancingDad
You are right in the specifics of what a DK must be provided for if a contravention is to occur.

I'm not 100% that it is for the bins. The clue will be in what is behind the door. If it is access to some sort of storage or as I'm guessing, some sort of electrical distribution, I'd be guessing that the DK access is to allow vehicles to that door.
So you need to find out.
There is also the question of bays and allowed parking. While no road markings there are inset bays. This in itself may not over-ride the DK unless you can show how other DKs are marked within these bays. If they are marked to prevent parking, I think we can make a case that these are "marked out" bays and that S86(2) applies
QUOTE
(2)The first exception is where the vehicle is parked wholly within a designated parking place or any other part of the carriageway where parking is specifically authorised.
A “designated parking place” means a parking place designated by order under section 6, 9, 32(1)(b) or 45 of the Road Traffic Regulation Act 1984 (c. 27).
Barry S
It looks to me like it used to be a garage, hence the dropped kerb for access, but it has since been converted for use as an electricity substation but nobody thought to remove the DK at the time.

I suspect the OP may need to go all the way to PATAS to have a chance of succeeding, as the Council are unlikely to fold.
Joelinit
Thanks very much for all your replies and info. It does seem it's a slightly dubious DK, what with the lack of a DK opposite, the clear and constant presence of bins and the complete lack of signage or road markings differentiating it within the parking bay. And likewise, with all other DKs along the avenue having yellow or red lines, or the bumped paving slabs where it's a clear pedestrian crossing, as per my 4th image in the original post.

Regardless, I can't deny parking infront of it, though purely because I hadn't seen it. Isn't there a responsibility for the council to offer guidance of some sort, so that people do see it's a special enforcement area?

Re: appealing and/or PATAS, can anyone offer some guidance as to how best to approach an appeal and with what ammunition? Presumably I should try the council first too, then approach PATAS if I'm not successful? Should I find out what the DK is for to begin with?

Should I attack with definitions, and citing the TMA's definition of an enforcable DK etc, or take a less aggressive approach and plead for empathy(!) based on the ambiguity of this DK?

And lastly, put me out of my misery - am I still clutching at straws here or does it seem remotely possible I've got some kind of case?! £265 seems too much money to just dismiss without trying!

Thanks again in advance...

(and thanks DD for your point about S86(2) - is hopefully another angle.)
DancingDad
Clutching at straws maybe but it is a no brainer to appeal any removal. You can pay no more and may get some if not all back.

Procedure is that you need to send a formal challenge to Newham before the end of the 28th day beginning with the day you got your motor back or rather when you got the forms advising how to appeal, which should be one and the same time.
As this is Newham, they do not accept email so plan on posting with plenty of time to spare and getting a certificate of posting (not recorded)
They will (or at least are likely to) reject. This Notice of Rejection will most likely say things like preventing access for pedestrians and that signs are not needed. The NOR will also inform you of your right to appeal to adjudicators (PATAS) and include the relevant forms.
I'm reasonable hopeful (no guarantees of winning) that we can put forward a strong enough case based on what we know at present for an adjudicator to find in your favour.

My thoughts for the basic challenge are:-
Not a prescribed DK as not for pedestrians or cycles and though large enough for vehicles, there is nowhere for them to go. Include belief that it is for the purpose of bin removal and that this is not a prescribed function.
That the DK is adjacent to a designated parking space and that your vehicle was parked wholly within that parking place.
That there were no signs advising that parking was prohibited (don't mention that others are marked at this stage)
That considering that there was no contravention the removal was unjustified and un-proportional in the circumstances.

Good chance that Bogsy will be along with one of his specials as well.
Keep it relatively simple at this stage without legislation, they are the "experts" and should be au fait so let them consider.

Post up the paperwork you got when you recovered your motor pls and a streetview link if it is up to date.

Bogsy
Are the inlets designated as parking places? e.g. permit holders.
Joelinit
Thanks so much again for your replies DD and Bogsy and apologies for my slow reply - am currently away with work but am hoping I'll be able to put together my appeal on Friday with this advice and any more that you can offer! Bogsy, there is no signage at all with regards to the parking spaces. They aren't reserved for permit holders, nor are there any road markings.

This is a link to the street view...
https://www.google.co.uk/maps/@51.5047398,0...82ZJPgg!2e0

And here's the paperwork I had to sign to recover the car from the pound...
DancingDad
That it, nothing else like how to appeal paperwork?

Newham often stick a label Authority to remove on motor.
Was that there ?
Joelinit
Ah yep indeed, the front of this paperwork was the appeal instructions I believe - I can post that up here when I'm back home on Friday too. I just had this image on my phone already.

I had parked up at about 7am, and didn't get back to the place I'd parked until about 8pm, so am not sure if they put a removal notice on it prior. I did get a ticket too however. Lovely how you have to pay that as well as the removal fee!!!
Mad Mick V
Newham's parking protocols (Feb 2013) are here:-

http://www.newham.gov.uk/Documents/Transpo...-procedures.pdf

Appendix D gives the Removal Policy. Members will note Priority Two (iv) Parked obstructing a dropped footway (on a resident’s request)(my bold).

Since I am still drying off from a DD dousing I'll leave this for views.

Mick
DancingDad
You safe with this one MMV, doubt they can produce a resident's request, though electricity board may have asked.

Looking around on streetview it is clear that all pedestrian dropped kerbs are well defined along the street (though not seeing the red lines, white lines spoke of in first post?) This one is really out of step so doubt that it is pedestrian access.
Not really wide enough for a vehicle, ie car, lorry or van as could be expected if access was needed for the sub station.
Was a little worried about the change in brick pattern by the DK but these seem "random" along the street, not only at crossing points.
No cycle track so not for pushbikes.
And in a designated parking space. I do take Bogsy's point that to be "designated" in a legal sense you would expect marked bays but the lovely decorative scheme includes these inset bays all along the street. Obviously meant to be spaces for parking so a reasonable interpretation and a place where if the council did not want people to park, they should have clearly marked it.
Include Newham's policy and that they should have had regard if not absolutely followed it, I reckon it's looking quite good.
Joelinit
Thanks once again for your replies. DD, I hadn't spotted that on the street view there are no road markings, though in fact there are now - I'll post photos when home tomorrow. Does this add/remove any weight to my appeal, as it perhaps communicates the council's recognition of the need for better guidance?

And MMV, apologies for my ignorance(!) but what is the implication of their removal policy? Is it that they can only remove a vehicle after a request? And subsequently is that something I should ask to see/question?

I really appreciate everyone's help with this! Looking forward to getting stuck into an appeal letter tomorrow, which I'll post up here prior to sending.

Thanks again...
nosferatu1001
Yes, that is what it means - they are allowed to remove only after a request by a resident. If they cannot produce one from a RESIDENT - not a gas board, electric board man, etc - then they had no authority to remove.
DancingDad
Any lines not on streetview that do show dropped kerbs are marked to prevent/inhibit parking will be very useful.

Normal situation with DKs is that they need no signs or lines, that the shape and function is sufficient. So not marked/signed is not normally a defence.
But this is a street with some quite fancy, decorative features, like brick paving and obvious parking bays instead of normal signs and lines on plain tarmac.
Then, it seems, that they go out of their way to mark features such as DKs to say "Do Not Park Here"
But not this one. The only inference could be that this DK is not a prescribed one.
We need those photos.

When a council set a policy for removals, they must follow it. They can justify special cases, exeptions but cannot ignore it. As they publish a policy that says vehicles will only be removed from vehicle DKs if the resident asks (or at least is a lower priority then other cases) we can and should ask how this removal accords with their policy and what proof they have to justify that. Don't ask for resident's request, let them offer it.
Joelinit
Thanks for all the clarifications - I'm going to go through this thread and put an appeal together. Will hopefully be able to post it here in a short while for feedback! Here are the images of the double yellows that aren't on street view, but have since been painted...








And here's the front page of the appeals form they gave me...
DancingDad
Being devils advocate, some of those double yellows seem as though they are restrictions that happen to cross a DK rather then restrictions to mark a DK.
For any argument on dks being marked to succeed, we need the latter and wide enough photos to show that
hcandersen
Where are the authority's photos? I'm overdosing on street view shots of limited significance.

If the OP has reason to believe that the removal was not in accordance with the authority's policies, and therefore unlawful, and/or directed by an officer who was not authorised to exercise this power, then make reps to this effect. It's the authority's task to investigate and reply, with sound reasoning and evidence.
Hoenzel
That drain in front of the dropped kerb is a danger to wheelchairs.
Joelinit
Hey all - thanks for all your help so far with this. I've now complied my appeal and will get it sent tomorrow. Any pointers/suggestions welcome! It reads as follows...

To whom it may concern,

Having researched your policies, the TMA and the legal prescriptions for use of a dropped kerb, I am appealing the removal of my vehicle as detailed on this form.

Firstly I would like to question your efforts in guiding the public of the presence of any parking restriction. All other dropped kerbs on Wesley Avenue clearly display parking restrictions in the way of yellow lines and/or “bumpy” paving to serve as a pedestrian crossing. This is the only stretch of restricted parking in the area with no markings, signage or public guidance.

I also note that the road markings are not present on Google’s street view of the road - presumably when the road markings were painted, this specific dropped kerb was left unpainted for a reason? Could you explain those reasons to me?

Futhermore, this stretch of restricted parking lies in one of the avenue’s uniform parking bays, in which I was parked fully. I’d suggest that with all the above in mind, the council’s efforts in guiding the public of this particular parking restriction are inadequate.

I have noticed the two industrial bins are always present at the dropped kerb. There is no dropped kerb at the opposite pavement, no driveway or vehicle access and no cycle path. As I understand it from section 86 of the TMA a dropped kerb needs to serve vehicle, pedestrian or cycle access and cannot simply serve as access for bins.

In researching your authority to remove my vehicle, I read your Parking Policy & Procedures (2013) and paid particular attention to your removal policy (Appendix D). I was interested to read Priority Two (iv) that suggests a resident must have requested the removal of my vehicle?

Considering the above factors, I feel strongly that the removal of my vehicle was unjust and subsequently request repayment of the fines I have incurred. If my appeal is unsuccessful I will raise it to PATAS.

Regards
DancingDad
Needs work, hold fire a day or two and I'll find some time, bump it to remind me if not done something by Sat Evening.
It wants to be in post by early next week to be safe before deadline. Little later if you have access to a fax machine.
With Newham it would do no harm to send it both ways anyway, just in case.
Joelinit
I can't thank you enough DD! Very kind of you to help like this. Yes, deadline is 28th though as that's a Sunday I'm considering next Friday as my target.

I've used custom ROMs on my phone before and the programmers often leave a "Buy me a beer" PayPal link or the likes - is there a similar way I can thank people on this forum?!

(*Ooops, I mean deadline is 2nd Nov! Regardless, next Friday is my target)
ford poplar
It appears to me the DK is for a medical storage unit, ( linked to a Pharmacy)? and access required for unloading/loading
Joelinit
Bump as requested DD! Any thoughts?
DancingDad
QUOTE (Joelinit @ Sun, 26 Oct 2014 - 12:34) *
Bump as requested DD! Any thoughts?

Yeah, life keeps getting in the way of my hobbies.

Hopefully I will have time to put my thoughts on your problem online this evening.
DancingDad
Dear Sirs
PCN ???? and subsequent removal.

The contravention did not occur.
Dropped Kerbs are restricted when they fall into well defined categories.
The dropped kerb in question is not for access for Cycles, there are no cycle paths either on or off the carriageway.
It is not for vehicles, it is not wide enough nor is there anywhere, such as a parking space or garage, for vehicles to go.
This leaves only pedestrians and as this dropped kerb has none of the signs that are used locally, within the same road and near to the dropped kerb in question, pedestrian access can only be a secondary not prime reason for the facility.
I believe that it is solely for access to the wheeled rubbish bins that are stored alongside but as this is not a protected use cannot be used to penalise a motorist who may inadvertently park adjacent to the dropped kerb.

The Contravention did not Occur
Being as this dropped kerb is within a well defined and clear parking space there is an exemption that should have been applied and still should be.

The removal was unauthorised.
As the removal policy published by Newham requires that removals from residential dropped kerbs only take place following complaints from a resident, the complaint must be provided or Newham have failed to comply with their own policies and the inherent duty that creating a policy implies.

Hugs and Kisses

See what others think, I believe keeping it clear and simple at this stage is the better option and is likely to allow appeals to the adjudicator to include failing to consider.
Joelinit
Thanks for your input again DD - I'll compile my appeal and post today. If anyone else has any comment or suggestion beforehand, please let me know!

Will report back with any update.

Thanks again...
DancingDad
Post up what you intend to send before sending, cut and paste mine and send it with pleasure, there are traps within that the muppets who often consider this council's rejections are quite likely to fall into. I am looking towards the notion that no matter what is sent now, it will come to an appeal to adjudicator so may as well prepare the ground.
Joelinit
Hey DD - apologies, I've only just seen your last message. I took your reply and restructured mine completely, based around that. So this is what I sent - let me know what you think...

To whom it may concern,

Beyond highlighting your inadequate public guidance and the isolation of this dropped kerb as the only along Wesley Avenue without guidance of any sort whatsoever, I propose the following:

The contravention did not occur:
The dropped kerb in question cannot primarily serve as access for pedestrians, vehicles or cycles. There is no dropped kerb at the opposite pavement to serve as a pedestrian crossing, no driveway or vehicle access and no cycle path. There are however, two bins ever present on the payment at the dropped kerb. As bin access is not a protected use, a motorist who may inadvertently park adjacent to this dropped kerb should not be penalised.

The contravention did not occur:
This stretch of restricted parking lies in one of the avenue’s unmistakingly uniform parking bays, in which I was parked fully. Considering this, there is an exemption that should be applied.

The removal was unauthorised:
As the removal policy published by Newham requires that removals from residential dropped kerbs only take place following complaints from a resident, the complaint must be provided or Newham council have failed to comply with their own policies and the inherent duty that creating a policy implies.

Considering the above factors, I feel strongly that the removal of my vehicle was unjust and potentially unauthorised and subsequently request repayment of the fines I have incurred. If my appeal is unsuccessful I fully intend to escalate it to PATAS.

Regards,
DancingDad
It will do, traps are still there.

I tend to shy away from the confrontational with councils unless there is something absolutely solid so wouldn't have phrased the first paragraph the same way but it does put the point on the table that policies, especially when contractors are acting for the council (in Newhams case a rather "nasty" software suite does much of it's consideration) should be present, applied fairly and not used as a straightjacket.

Will run more with that I think if they reject and when we appeal to PATAS. Remind me.
Joelinit
Well, well, well!! 6 weeks later...

"I am pleased to confirm that your representations have been accepted. The penalty charge on which the enforcement action was based has been cancelled as no contravention occured"

Woohoo!!! Wasn't expecting that at all from Newham Council. Can't that you all enough for all your help and guidance. I'm now off to make a forum donation!!

Thanks again to everyone who contributed to my appeal.

Joel
DancingDad
I must admit that I thought this would be one for PATAS but also very winnable.
Obviously Newham thought the latter as well.

Nice result.

A cheque came with the acceptance?
Joelinit
In fact they reversed the payment to my credit card which has already arrived. Based on their reply, they've obviously accepted one of the first two points in my appeal - the contravention did not occur because the dropped kerb lies in a designated parking bay and/or because it doesn't serve for vehicle, pedestrian or cycle access.

I'm naturally delighted to have won the appeal, but still feel a bit of a responsibility to raise the incident (to PATAS?), as I've no doubt that Newham Council will be towing vehicles regularly and making a nice earning from this stretch that they have no right to enforce.

Any thoughts? Quit now that I've got my money back, or take it a step further?
John U.K.
QUOTE (Joelinit @ Fri, 19 Dec 2014 - 13:36) *
In fact they reversed the payment to my credit card which has already arrived. Based on their reply, they've obviously accepted one of the first two points in my appeal - the contravention did not occur because the dropped kerb lies in a designated parking bay and/or because it doesn't serve for vehicle, pedestrian or cycle access.

I'm naturally delighted to have won the appeal, but still feel a bit of a responsibility to raise the incident (to PATAS?), as I've no doubt that Newham Council will be towing vehicles regularly and making a nice earning from this stretch that they have no right to enforce.

Any thoughts? Quit now that I've got my money back, or take it a step further?

One of the problems with EAs "caving in" before adjudication is that no definitive ruling is made on the alleged contravention. A council is free at anytime in the process to withdraw/waive a PCN, without giving any reasons.

I suspect the only ways forward for you to highlight this for others are
1] either directly yourself or via a sympathetic local reporter or local councillor using a FoI request to establish how many PcNs/towaways have been issued for/made from that location
2] enlisting a sympathetic reporter on the local newspaper to highlight the issue.

As for yourself, had it gone to PaTAS, you could have lodged an application for costs, but it didn't.
Whether their letter to you (any chance of posting it up, suitably redacted?) contains sufficient admission that they were in the wrong to enable you to pursue a small claims court claim for depriving you of the use of your vehicle I am afraid I am not competent to judge.



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