Thursday, 21 September 2017

London Tribunals - June 17

A mobile dunny
In the month of June 2017 the adjudicators decided 182 Appeals in favour of the motorist i.e. their PCNs were cancelled. They refused 96 and asked the council to think again about 3 with a view to cancelling them. That is a win rate of 64%. That is not the full story though. Of the 281 Appeals which were started Barnet Council did not contest 129 of them so they became motorist wins by default. That is an amazing 46% of all Appeals that month. Whilst that may have been a one off due to staff holidays or some other reason it is still the case that Barnet Council rejected formal representations 129 times and then those motorists who persisted were rewarded with a cancellation. If everyone who had their formal representations rejected were to go to Appeal Barnet Council would implode.

There were 12 cases of particular interest and the adjudication decisions and case reference numbers are reproduced below:

6 minutes to PayByPhone - ok - 2170193070

The Appellant, whom I have heard in person in some detail, parked his vehicle in a pay by phone bay and immediately began the process of making payment by means of the app shown, as I accept, on the Council’s signage. Unfortunately there was a delay in finding a signal to enable the app to work successfully and by the time payment was made something of the order of six minutes had elapsed. During this time the vehicle was observed without any record of payment having been made and, unsurprisingly a PCN was issued.

On parking a vehicle a motorist is of necessity permitted a reasonable time to do whatever is necessary to validate the parking. Certainly the time in question will normally be fairly brief and the motorist must act promptly. In the present case six minutes is a fairly substantial time. However although on these facts the case is perhaps close to the borderline, it does seem to me that the time involved was not so long as to be unreasonable. The Appellant was, as I am satisfied, attempting to make payment throughout that time, and in the case of payment by means of an app in this way it is inevitable that minor delays of this type occasionally occur, Naturally the point will eventually be reached when the motorist has to accept that payment cannot be made promptly, and must then remove the vehicle or pay by some other means. However on the facts of this case I am not satisfied that point had quite been reached. It follows that, as it transpires, the vehicle was not in contravention and the PCN was incorrectly issued.

Representations wrongly rejected - 2170205690 (a council must not fetter the exercise of its discretion)

The Appellant said that he pulled over because his 4 year old daughter was in distress, apparently choking on water. He turned round in his seat to help her regulate her breathing.
The Authority's response in the Notice of Rejection was that there is no exemption that permits the Appellant to stop as no evidence has been produced to suggest it was a medical emergency.

The exception as stated in Schedule 7, Part 6, paragraph 4 (2)(b) in the Traffic Signs Regulations and General Directions 2016 applies to a vehicle "which is prevented from proceeding by circumstances beyond the driver’s control or which has to be stopped in order to avoid injury or damage to persons or property".

A medical emergency is likely to satisfy the above, but the exception goes beyond a medical emergency, and is applicable to the Appellant's case. The Authority is entitled to challenge the authenticity of the account, it is not entitled to reject the representations on the basis that the account cannot give rise to an exception.

There has been a procedural impropriety. I allow the appeal.

Delivering school meals to a school - 217017400A

I accept the Appellants’ evidence that the vehicle was there in order to deliver school meals. It is not entirely clear whether the delivery was to be made from that position or whether the driver was simply in the process of obtaining the key to gain access to an off-road delivery area. However whichever is the case there is no exemption in the Regulations (Schedule 7 Part 6 Traffic Signs Regulations and General Directions 2016) for loading/unloading, or for parking whilst gaining access to premises. The keep clear markings, in place for the safety of school children, are effectively a no-go area for motor vehicles, even vehicles having official business with the school in question. The vehicle was in contravention and the PCN was lawfully issued.

(No doubt if the Appellants were able to persuade the Council that there is no realistic alternative way to deliver this essential service some sort of formal dispensation would be granted, but in the absence of any such dispensation the vehicle cannot lawfully park there).

Unsigned PCN - not necessary - 2170225166

Mr. Halibard appeals on two bases, the first of which has two limbs. The first ground of appeal is that there was a procedural impropriety by the Enforcement Authority (EA) in that it a) implicitly misled him as to the effect of the Penalty Charge Notice (PCN) not having been signed by the Enforcement Officer (EO) and b) failed to have regard, in considering his representations following the issuance of the notice to owner (NTO), to evidence submitted by him after the service of the PCN but before the issuance of the NTO. The second, substantive ground of appeal is that the contravention did not occur because Mr. Halibard was at the relevant time engaged in loading of the vehicle in question, such as to bring him within the exemption (contained in Article 22(1)(h)) to the prohibitions imposed by the Council of the London Borough of Barnet Traffic Management Order 2015 (“the TMO”).

The EA’s case does not expressly address the first of the two procedural impropriety points raised by Mr. Halibard; the EA’s case, which is correct in law, as is accepted by Mr. Halibard, is that the PCN did not need to be signed. That is not quite the point that Mr. Halibard makes; he says the EA should not have asked him to provide the PCN in response to his representation on that point when, as they well knew, it would not have made a jot of difference. The EA also rather misses Mr. Halibard’s second point too. The EA’s case is that it does not accept the evidence, namely a letter from a grocery store from which Mr. Halibard says he was loading substantial quantities of fruit and vegetables. The EA is wrong to say that the letter was only provided at the appeal stage; Mr. Halibard’s e-mail of 13 February 2017 attaches it in his ‘representations’ prior to the issuance of the NTO. It was also provided again after his representations against the NTO were rejected. The EA’s case on the ‘loading’ issue is that they do not accept that sufficient evidence has been adduced to support Mr. Halibard’s case and that, in any event, the items were not sufficiently bulky or heavy that they could not reasonably be carried by hand.

Dealing with the first aspect of Mr. Halibard’s appeal, the EA should not have asked Mr. Halibard to provide the PCN when that was a document a copy of which was in its hands in any event and, further, when it knew that whether it was signed or not was immaterial. It should also, in my opinion, have had regard in evaluating Mr. Halibard’s representations to evidence which he had already submitted after he received the PCN but before the NTO was issued. The attached letter was probably received; the EA’s response of 20 February 2017 does not state ‘we did not receive your attachment’. The matter was perhaps complicated because on 22 February 2017 when he responded, Mr. Halibard did not re-attach the letter but a witness statement in an unrelated matter. In any event, Mr. Halibard did not re-send the letter in his formal representations against the NTO on 22 March 2017. I have to decide, however, whether there has been a procedural impropriety within the meaning of Regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as explained in London Borough of Camden v. Parking Adjudicator [2011] EWHC 295 (Admin). In my judgment, notwithstanding the above errors by the EA, there was no failure on its part to observe the requirements imposed upon it by the prevailing Regulations and the Traffic Management Act 2004. There was, therefore, no procedural impropriety within the meaning of regulation 4(5).

I do, however, uphold Mr. Halibard’s appeal on his second, substantive ground. I found his evidence to be credible and compelling. Mr. Halibard explained how he needed assistance from the shopkeeper to load the 4-5 heavy bags of fruit and vegetables he purchased for his family into the vehicle he then needed to drive them at least half a mile to his house. It would, I accept, be wholly impracticable to carry them home. He parked immediately adjacent to the shop for that purpose. The vehicle was only observed in that location for 2 minutes. The letter from Yarok grocery shop corroborates that evidence; although unfortunately undated it is signed. The EA’s point that there is no VAT number on the letter is misconceived; by virtue of Schedule 8 to the VAT Act 1994 there is no VAT payable on fruit and vegetables. Mr. Halibard falls within the exception in Article 22(1)(h) and the contravention did not occur. The appeal is therefore allowed. I would further observe that although the prohibition on parking outside the limits of bays may be on the EA’s website, it is not displayed at all on the sign at the relevant location.

Text sent = payment made - 2170232117

It is common ground that the Appellant attempted to pay by text. It is equally clear that, as it transpired, payment was not in fact made. The Council’s position is that unless and until payment is “confirmed” the motorist cannot assume that the payment has been made and accepted.

It seems to me that the onus is on the Council providing a pay by text system to explain to the motorist how the system works and what is required. I note the Council’s evidence of the instructions on the reverse of the timeplate “when paying by text etc...” However this seems to me to fall short of the clear warning necessary to the effect that until a confirmation text has been received payment has not been made – something that I do not regard as self-evident. It seems to me that the Appellant was entitled to assume that his payment had been made in the absence of any indication from the system to tell him otherwise. The Appeal is therefore allowed.

Saracens zone repeater signs - 2170233710

The Appellant said that she entered Engel park via Bittacy Rise. She accepts that there is signage indicating event day restrictions on Bittacy Rise but she had not thought that it would apply to another road.

The sign does say permit holders parking only past this point so the Appellant's understanding was incorrect. However, where there is a turn into another road after the sign, I would say that repeater signs are required.

I am not satisfied that the signage was adequate. I allow the appeal.

Suspension sign white not yellow - 2170233233

The Appellant was due to attend for a person or appeal before me this morning, but has not done so. No explanation has been received by the tribunal for the appellants absence. In the circumstances I consider it just and proportionate to determine her appeal on the information before me in the absence of the Appellant.

The Council's case is that the Appellant's vehicle was parked in a suspended bay in Cornwall Avenue on 15 December 2016. A penalty charge notice was issued at 1914.

The Appellant states that there was no signage on the side of the road where she parked. She adds that it was dark and that there was no sign of any works being carried out and that the period of suspension was unreasonable.

The Council rely upon the evidence of their civil enforcement officer. This includes a series of photographs of the vehicle and two of a close-up of a suspension sign. In answer to what appears to be a pre-populated question on his handheld device as to "distance to the nearest signing metres?", The answer is given as 4 m. I assume that this refers to the distance between the sign and the vehicle. The Council has also produced some location photographs, annotated with the position of the sign and the Appellant's vehicle.

I have considered the suspension sign and note that although there are no prescribed regulations as to the form or colour, it is white, as opposed to the more usual yellow suspension signs, that there is no "no parking" roundel on it, and that it is the same colour as the time plate on the post.

In all the circumstances I am not persuaded that the Council has established that the sign was adequate to convey the suspension to the motorist and therefore the appeal is allowed.

Kara Way - confusing signs - 2170212856

The Appellant, whom I have heard in person parked his vehicle on s single yellow line on a Sunday within what was a correctly signed Controlled Parking Zone. The Appellant saw the CPZ signs on entering the road and noted the operational hours; however he believed that those hours would not apply on a Sunday.

Had the case amounted to no more than this, the Appeal would inevitably have been refused. As the Council points out, if a sign is silent at to the days of operation the restriction applies on all days. However the Appellant examined the signs relating to adjacent designated parking places which gave the operational days as Monday to Sunday (i.e. every day of the week). On the basis of this he assumed that if the CPZ hours similarly operated Monday to Sundays (i.e. every day of the week) day the CPZ sign would have been similarly worded.

Having considered the matter carefully it seems to me that his assumption was a not unreasonable one. Motorists can reasonably expect there to be some consistency in signage within a small area. In my view this falls to be treated as one of those rare cases where the clarity of what is otherwise clear and correct signage is undermined by the presence of other ( equally correct ) signage. On the very particular facts of this case I am not satisfied that the signage was adequate to indicate to the Appellant sufficiently clearly that the yellow line operated on a Sunday; and it follows that , as it transpires, the PCN was incorrectly issued.

Cloned - council to prove their case - 2170150147

The issue in the case is whether the Appellant's was in contravention of restrictions.
The EA case is that the Appellant's vehicle was seen making a prohibited right turn, in contravention of restrictions, and so a PCN was issued to the vehicle.

The EA rely on contemporaneous footage.

The Appellant's case is that his vehicle registration plate having been cloned; he first became aware of this problem, when the Police telephoned him in respect of diesel not paid for at a petrol station, and the Appellant was provided with a Police reference number. He remarks that his vehicle is in fact petrol. He then received this PCN and another from EA's in areas that he has no need to travel.

The Appellant has submitted photographs of his vehicle, and has undertaken a "spot" the difference; which is as to the European mark on his plate, but not the photographs seen in the picture, and also a child's sticker in his vehicle which is not seen in the other vehicle.

I consider that the Appellant has provided a straightforward account of how he became aware of this, a Police reference number, photographs in support. The burden remains on the EA to show that the vehicle in contravention is the Appellant's vehicle; in the circumstances, in light of the points made, I am not satisfied that the EA have discharged this liability.

I therefore allow the appeal.

Alongside school entrance markings - 2170246585

The contravention alleged on the PCN is that this vehicle 'stopped in a restricted area outside a school . . . . .when prohibited'.

Signage at the location indicates that stopping is prohibited on entrance markings.

On the evidence before me the appellant's vehicle did not stop on such markings but to the side of them.

Upon that point being raised by the appellant although this prohibition on stopping applies to the whole of the length and breadth of the carriageway at this location that is not made clear on signage the prohibition as stated thereon applying to stopping on entrance markings only and I am not satisfied for that reason that this signage gives adequate indication of the ambit of the prohibition the council seeks to enforce.

The contravention has not accordingly I find been proved.

Greater than 50cm from kerb but passenger alighting - 2170250527

This PCN was issued for the alleged contravention of being parked in a special enforcement area more than 50cms from the edge of the carriageway and not within a designated parking place. The alleged contravention occurred in Hillview Gardens at 12.11am on 8 January 2017.

The alleged contravention arises by virtue of Section 85 of the Traffic Management Act 2004. Section 85(1) provides that, in a special enforcement area, a vehicle must not be parked on the carriageway in such a way that no part of the vehicle is within 50 cms of the edge of the carriageway.

Section 85(7) provides that "parking" for the purpose of this contravention does not include stopping to drop off or pick up a passenger where the vehicle is stopped for no longer than is necessary for that purpose.

I accept the evidence of Rabbi David that the car was stopped while he dropped off his 6 year old grandchild to 51 Hillview Gardens. There was only a one minute observation period before the issue of the PCN and it is, therefore, unsurprising that the CEO did not see the driver of the vehicle. The setting down exemption allows for a driver to leave the vehicle and to provide assistance to a passenger in reaching their destination where the passenger requires such assistance. I therefore find that the vehicle was not parked for the purposes of Section 85 and that the alleged contravention did not occur.

Disabled person needing the toilet - 2170252737

The appellant seeks to dispute liability for the charge on the ground that he is severely disabled he giving evidence as to his medical condition a consequence of which being that he frequently needs to use the toilet he on this occasion being 'caught short' he parking as he did because it was close to toilet facilities.

I acknowledge what is said but, on the assumption that I am being provided by the appellant with a truthful account of this incident, other than in the case of a medical emergency, which I am not persuaded on the appellant's case unsupported as it is by any medical evidence this was, there is no exemption that allows a motorist to park where restrictions are in force for the toilet to be used.

I note on the officer's photographs that a disabled badge and time clock were on display in the vehicle but the benefit of the disabled badge holder exemption may not be claimed where, as here, loading restrictions are in force.

I am satisfied against this background that the contravention occurred and am not satisfied that any exemption applies.

The appeal is refused.

Keep those Appeals coming. It is worth the effort.

Yours appealingly

Miss Feezance

Monday, 21 August 2017

London Tribunals - May 17

During the month of May 2017 there were 130 Appeals decided upon by experienced legally qualified adjudicators at London Tribunals. On 80 occasions they cancelled the PCN which is a run rate of 62% and above the usual average of 50%. Well done motorists.

A few decisions are worth replicating. The numbers are the tribunal references.

2170161201 - Richmond Road

There seems to me no doubt the Council received the Appellant’s informal representations sent by e-mail within the statutory time limit. It acknowledged receipt in the email of the 10th February produced in evidence by the Appellant. It should therefore have offered the Appellant a further opportunity to pay at the discounted rate when rejecting those representations; and had it been necessary I would certainly have directed the Council to do so.

In the event that is not necessary, since I am not satisfied the contravention itself is made out. The Appellant has provided very detailed evidence that he stopped only to allow a vehicle ahead to manoeuvre and to allow a pedestrian to cross. The very brief CCTV footage provided no evidence inconsistent with that account; indeed the position of the vehicle a little way out on the markings suggests a vehicle stopping briefly in the ordinary course of driving rather than for any other purpose. There is a statutory exception to the stopping provision for vehicles which have to be stropped to avoid damage persons or property (Traffic Signs Regulations and General Directions 2016 Schedule 7 Part 6 para 4(2)); and this covers a case where a vehicle has to stop on the basis that if it continued to proceed it might run into another vehicle or a pedestrian. On balance I am satisfied the vehicle was not in contravention and that as it transpires the PCN was incorrectly issued.

2170172911 - Clovelly Avenue

The appellant attended on 15 May accompanied by her mother but it was she alone who presented the appeal and gave evidence to me.

The Council did not send a representative to the hearing.

We watched the CCTV clip together. The appellant described quite complicated arrangements regarding family school runs for the two children attending the school shown on the clip at the end of the cul-de-sac.

The appellant described why her father was driving her to the school on the occasion concerned.

The appellant remarked about the way in which the yellow plate for the zigzags was positioned. I could not see a well founded appeal point on that issue. Although a cul-de-sac it was correct for the plate to be aligned with the kerb line. Furthermore given the position of the appellant as a parent there can be little excuse for not knowing and not remembering the operational hours of the school zigzags. That position accorded with ministerially approved practice for this type of sign.

I could see the appellant car in the CCTV clip after it had reversed. I could see a few seconds of it being stopped before it moved on. The CCTV footage itself did not show any boarding or alighting from the appellant vehicle. I decided after viewing the CCTV footage and on hearing from the appellant that the evidence shown on the clip was inconclusive, that is to say it was ambiguous whether what was shown was an unlawful halt for the purpose of boarding or alighting, or simply to permit the progress of the black car also shown in the clip. On that basis I have decided there is insufficient evidence to uphold the penalty charge on this occasion and I have recorded the appeal as allowed.

2170104398 - Hampstead Way

This is an appeal against a Penalty Charge Notice issued to the vehicle whilst it was parked in Hampstead Way in a bay that was for the sole use of loading and unloading. The bay was clearly marked on the road surface plus sign on the pole indicating it was reserved for goods vehicles.

Mr Bernadout, the driver appeared on behalf of the registered keeper Mr Clifford. The vehicle is an electric car is used for the carrying of exams papers for Specialised Training Ltd.

Mr Bernadout attended the hearing today and explained the adaptions made by the company to this vehicle in order to allow it to collect and deliver papers from exams.

The definition of “goods carrying vehicle” means a motor vehicle which is constructed or adapted for the use for the carriage of goods or burden of any description, and is not drawing a trailer”.

Mr Bernadout has explained the vehicle has been adapted by removing the fixtures in the well area of the rear of the vehicle and the placement of a tray that prevents boxes of papers from moving around. The space can accommodate five boxers of A4 papers.

On 24 December 2016 I find the vehicle was being used for a commercial activity, which was the collection of papers. These boxes of papers come within the definition of “goods”.

Secondly there were five boxes of papers placed in adapted storage of the vehicle.

Whilst this vehicle is clearly not a constructed as a commercial vehicle it has been adapted for the use of carriage of goods. Having raised the issue of adapting the vehicle to carry goods it was for the Company to prove the adaption was for the sole use of the carriage of goods and this activity forms part of a commercial activity. Mr Bernadout has also indicated the vehicle is a company vehicle under a commercial lease and is not “returned” to its original state at any time.

When the car is registered as a private car by the DVLA, it is for the registered keeper to show on a balance of probabilities that any adaption to the vehicle was for the sole use of carriage of "goods or burden". Each case has to be considered separately on the evidence submitted of the adaptions made. Mr Bernadout has so satisfied me in this case. I am satisfied this vehicle was adapted for the carriage of goods and it was undertaking a commercial activity at the time. The appeal is allowed.

2170181402 - Bow Lane N12

This vehicle on the council's case 'stopped in a restricted area . . .. outside a school.

The sign at the location as shown in the council's cctv images states 'No stopping . . .. . on entrance markings'.

I have not been able to access the council's online footage of the incident but upon the point being raised by the appellant on the images taken therefrom the vehicle does not stop on entrance markings.

Although the restriction the council seeks to enforce extends across the length and breadth of the carriageway at this spot that is not made clear on the sign the restriction being stated thereon to apply only to entrance markings and I am not for that reason satisfied that signage is adequate to convey the restriction that is applicable.

The contravention has not I find for that reason been proved.

The appeal is allowed.

2170182267 - Montagu Road

The Appellant said that he stopped because a vehicle ahead had stopped. His daughter who was seated at the back assumed that the Appellant stopped to let her off so she exited the vehicle.

I am not sure why the Appellant's daughter (who is not a young child) would have assumed that she would be dropped off at the entrance when this would, I presume, not be a regular occurrence.

However, if another vehicle causes the Appellant to stop and his daughter takes the opportunity to exit without the Appellant's encouragement, there is not a lot the Appellant can do about that.

I am not satisfied that the contravention occurred. I allow the appeal.

2170181468 - Thorverton Road

The allegation in these proceedings is that this vehicle stopped in a restricted area outside a school.

The restriction as stated on the sign applies where a vehicle stops on 'entrance markings'

On the undisputed evidence before me this vehicle did not stop on entrance markings but in the middle of the road.

Upon the point being raised by the appellant although this restriction on stopping applies to the length and breadth of the carriageway at this location that is not I find made clear on the sign the ambit of the restriction as given thereon extending only to entrance markings and I am not for that reason satisfied that this signage, although compliant, clearly indicates the restriction that is in force.

The contravention has not I find for this reason been proved.

2170187227 - Richmond Road

The Appellant says she was stopped while waiting for oncoming traffic to pass and therefore was in effect in the course of traffic and not stopped for the purpose of this contravention.

In the cctv footage no one is seen getting in or out of the vehicle and therefore there was no apparent reason for the vehicle to stop on the zig zag lines. There are no other vehicles seen coming towards the vehicle, but the camera concentrates on close up of the vehicle and ends after some seconds before the vehicle moves off. The footage is not inconsistent with the Appellant’s claim and given that there appears to be no other reason why the vehicle is stopped I accept that it was in the course of traffic.

217018008A - Whitings Road

There is no dispute as to the whereabouts of vehicle, at the relevant time, on the material date; namely at a location subject to an operative restriction denoted by zig zag carriageway markings, such demarcation indicating a prohibition against a vehicle remaining stationary within the defined area.

The Enforcement Authority assert that the said vehicle entered the defined area and stopped.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances as stated in his written representations, which he reiterated and comprehensively detailed at the Hearing, supported by photographic capture.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, photographic evidence: CCTV footage and still frames taken there-from revealing the said vehicle in situ, and the applicable signage and carriageway markings notifying motorists of the restriction.

It is incumbent upon a motorist to consult signage and comply with carriageway/kerb indications, and to be acquainted with the nature of such restrictions/prohibitions by reference to The Highway Code.

Examination of the contemporaneous footage shows the said vehicle pull into position briefly and the move forward, again briefly before the camera capture concludes abruptly.

No boarding or alighting is discernible.

The Appellant described a scenario consistent with that stated at the outset, and supported his contention with images of the road in question [and indeed moving footage of both the whole road and bus journey] which demonstrate its dimension and the effect of parked vehicles on either side.

The Appellant's photographic capture establish that the road affords the passage of only one moving vehicle at a time to traverse between the parked vehicles; vehicles travelling in an opposite direction being caused to pull into spaces to accord precedence to the other, such situations alternating dependent upon the courtesy of respective drivers.

The Appellant maintains that at the relevant time he had pulled the said vehicle over to one side to allow an oncoming bus to pass.

I had the benefit of assessing and questioning the Appellant at the Hearing; I found the Appellant's oral evidence to be cogent and credible and I accepted it in its entirety making a finding that the said vehicle was paused in the course of a manoeuvre. I distinguish the present instance from the mischief which the restriction is designed to combat by finding that the said vehicle was paused during the course of a manoeuvre.

A balance must be made between traffic enforcement and the practicalities of motoring.

Evidentially I am not satisfied that this contravention occurred, accordingly I allow this Appeal.

That is an awful lot of school zig zag PCNs which should not have been issued. What will Barnet Council learn from these decisions?

Do keep the Appeals coming.

Yours appealingly

Miss Feezance

Sunday, 25 June 2017

London Tribunals - April 2017

In April 2017 there were 100 Appeals which were won by the motorist, 80 which were lost and 3 where the adjudicator recommended that the council cancel the PCN although the motorist had contravened.
This means that the motorist won 55% of the time which is better than the usual London wide result of 50%. Appeals to the tribunal seem to be dropping across London and if this month is typical that is 1.3% of PCN which go to Appeal. Nowhere near enough. Motorists need to be more combative.
I have 5 tribunal reports which I have copied for you, and given you the tribunal reference, you can find the original reports here; in the first 4 cases the motorist won and in the final one he lost but the reason was original.
2170124690 Universal service provider - Royal Mail
Royal Mail Group Plc says that the driver was delivering mail. It seeks to rely on a universal service provider exemption. There is no such exemption in the Traffic Management Order but there is an exemption for essentially the collection and delivery of postal packets.
The Appellant says that it does not keep records of such activities. I think that I will need to be persuaded that the postman is delivering mail at 4:36 pm. To say that there are no such records is not good enough.
On the other hand, the Authority seemed to be confused about the Appellant's case. It refused the representation without any suggestion that it had considered the exemption claimed. This confusion carried on at the appeal stage when the Authority asserted that exemption did not apply where there is a loading restriction. The loading/unloading exemption is different to the mail delivery exemption. The former does not apply at the location but the latter does.
I am not satisfied that the Authority considered the representations in any meaningful way if at all. This is a procedural impropriety. I allow the appeal.
2170100648 Motorcycle bays not defined in car park rules
The Penalty Charge Notice was issued on the basis that the appellant’s car was parked in a bay in a car park that was for motorcycles only.
Mrs A states that she parked her car and paid to park for about 2 hours. She states that she did not see any signs to indicate that the bay was for motorcycles only.
Article 22 of the Traffic Management Order states that a Penalty Charge Notice can be issued for failing to comply with the requirements of Articles 4, 5 and 6 of for failing to display a pay and display ticket or displaying an expired pay and display ticket.
Article 4 states that no vehicles other than those displaying a disabled badge can park in a bay that is marked that it is for disabled persons’ vehicles.
Article 5 states that vehicles cannot wait in a parking place other than in a parking bay and not in a suspended bay.
Article 6 states that vehicles must park so that every part of the vehicle is within the parking bay.
The Traffic Management Order does not appear to create a contravention of parking in a car park or area not designated for that class of vehicle.
I allow this appeal.
2170117119 Just 18 seconds to end of restrictions
This PCN was issued for the alleged contravention of being stopped in a restricted area outside a school in Richmond Road at 4.14pm on 31 January 2017.
I have looked at the CCTV footage and also the site images submitted by the Council. These show that the vehicle pulled up just short of the sign next to the school entrance markings with the driver appearing to inspect the signage before reversing and pulling up on the markings at 4:14:42.
The sign next to the entrance markings warned motorists that there was no stopping on the markings between 8am and 9.30amd and between 2.45pm and 4.15pm Mondays to Fridays. A motorist looking at a standard time piece at 4:14:42 would be likely to read the time as 4.15pm and reasonably conclude that the restriction on stopping had expired. A standard watch will not show that there is 18 seconds until expiry of the controlled period. One person's time piece may also differ from another's by a small margin and there needs to be a common sense approach. I find from the evidence that the alleged contravention did not occur.
2170119249 New Years Day
The administrative practicalities of the parking scheme require a vehicle’s owner, at all times it waits in a bay or space, to pay for that time and display proof of that by way of a ticket or voucher or meter reading or to display a permit or to have paid for a virtual permit.

The Scheme imposes owner liability.

That implies that the owner may be liable even if he did not know about the contravention, which in turn implies liability without fault. An Adjudicator must balance any decision between fairness and administrative practicality.

Sometimes the latter overrides the former.

A Scheme requires that parked vehicles pay for their waiting time and that the payment is visibly displayed. Should either requirement be absent then a contravention occurs.

I find that this principle also applies equally to permits and badges. The document whatever it is must be visibly displayed and must be correct-it must cover the time and date and place in question and must clearly express all the required details.

The evidence leads me to conclude that the vehicle was in a business permit space without displaying a valid business permit.

The issue however is whether the local authority's web site is misleading. I find that it is. I find that the appellant was misled by it.

I have read the local authority's comments but I find that further clarification on the authority's web site was needed when, in this case, New Year's day falls on a Sunday.

The web site according to the evidence clearly states that New year's Day is a Bank Holiday. Without further clarification I find this is misleading.

I will therefore allow the appeal.
2170148305 Divorce
The Appellant attended in person.
The Appellant said that he did not see the signage indicating that he could not turn left. He said that he had just been informed by his wife that she wanted a divorce.
While there is a mitigating background to this matter, a motorist has a responsibility to concentrate on his or her driving. The signs are there to be seen.
I am satisfied that the contravention occurred. I refuse the appeal. 

If you get an Appeal form along with a Notice of Rejection is it is a simple 5 minute job to create an Appeal on line. Do it as you have nothing to lose.

Yours appealingly

Miss Feezance

Tuesday, 11 April 2017

London Tribunals - March 17

Oxford Avenue, N14
In March 2017 there were 120 Appeals which were won out of 231 which were heard which means that the motorist won 52% of the time, a slightly better than average result.
The following eight decisions, including two which were lost, are worthy of note.
Adjudicator refuses through gritted teeth.
The CEO’s photographs show sufficiently clearly that, as the driver (whom I have heard in person) does not dispute , the vehicle was observed in the early hours of the morning parked other than with all its wheels on the carriageway.
Parking a vehicle other than on the carriageway is unlawful throughout London (save at those locations where the Local Authority has exercised its powers to permit it and signed the exemption accordingly The prohibition is imposed by statute ( s15 Greater London Council (General Powers) Act 1974 as amended), and no signs are therefore required. As in many other areas of activity motorists are presumed to know the law, and are bound by it whether they are aware of it or not. It is referred to in the Highway Code with which all motorists should be familiar. It is irrelevant in law that no actual obstruction was caused to pedestrians, who are in any event legally entitled to access to the entire footway, not merely that part of it which a motorist may consider sufficient for their needs. It is never a defence to footway parking to say that had the vehicle been parked entirely on the carriageway danger or obstruction might have been caused. If this is the case at a particular location the vehicle must simply be parked safely elsewhere.
Whist it might certainly seem a little peculiar that the Council is expending its resources enforcing what is, at this type of location and at this time of night, a minor example of the contravention in question, I am unable to find that the PCN was issued anything other than lawfully and the Appeal must therefore be refused. (2170052895)
Dot matrix = self evidently inadequate signage (heads you win...)
Mr S.  appeared before me at a Personal Hearing on 10th March 2017, to represent his Wife, the Appellant [as registered keeper], to explain the contention personally. Mr S. also attended on behalf of his Daughter who was the driver at the relevant time.
The Enforcement Authority assert the whereabouts of the vehicle, at the relevant time, on the material date, to be at a location subject to an 'event' restriction, during which vehicles are obliged to display of an applicable and valid permit, and assert the absence of such permit display in respect of the said vehicle.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances and challenge as stated in the written representations (supported by photographic capture) which Mr S. reiterated and comprehensively detailed at the Hearing.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.
The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, signage Authorization and notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ, and an image of the adjacent signage notifying motorists of the restriction.
The Enforcement Authority adduce annotated maps/plans and undated images; these are of limited evidential value since the knowledge of the annotator is not known and it is not possible to correlate some images to the position of the said vehicle.
No evidence is adduced of the event or any event day signs advertising the material date as an event day.
Of crucial importance in an 'event' operative restricted area is the inclusion of clear and unambiguous information for the motorist regarding the 'event' triggering the operation of the same.

Mr S. indicated that there was a distinct lack of event signage in the vicinity, and challenged the notion that any such signage was adequate by submitting photographic capture showing the use of supplemental portable notification devices (dot matrix signs). (2170061692)
Evidentially I cannot be satisfied that a contravention occurred, accordingly I allow this Appeal.
Don't park on double yellows to buy a newspaper (a schoolboy error)
The appellant attended the personal hearing on the 11th March 2017.
He disputed the PCN on the basis that the CEO had indicated that he was open to a bribe and had himself parked in contravention.
The appellant stated that he only stopped to buy his elderly mother a newspaper and was away from the vehicle less than a few minutes when he saw the CEO who held out his hand to the appellant and said he had already issued the PCN but could help the appellant appeal which the appellant clearly interpreted to be an invitation for a bribe. In addition the appellant noticed the CEO parked in front of him on the same double yellow lines in an unmarked vehicle and remaining there for a period of time after the appellant moved away.
The allegations made by the appellant relate to the alleged behaviour of the CEO which is a matter for the local authority to consider and investigate.
The issue for me to decide is whether or not the alleged contravention did occur and whether there is any valid exemption available to the appellant.
The photographs taken by the CEO clearly show the appellant's vehicle parked on double yellow lines which is an instant contravention. Purchasing a newspaper does not amount to a loading/unloading activity which requires the use of a car in order to fall within the loading and unloading exemption.
Considering the evidence carefully I am satisfied that the contravention did occur and can find no valid grounds for this appeal. I am also satisfied that the enforcement officer was entitled to stop on the double yellow lines in order to issue the appellant with a PCN as part of his powers of enforcement and there was nowhere else nearby where he could have legally stopped in order to carry out his duties. I therefore do not find there to have been any procedural impropriety which affects the validity of this PCN.
Appeal refused. (2170020935)
Don't fall over & then expect the council to show any compassion
Mr G, the Appellant, appeared before me accompanied by his son, Mr N G.
The Appellant accepted that at the time the penalty charge notice was issued his disabled badge was not displayed. However, he explained that there was a very good reason for this. He has difficulty walking and uses an elbow crutch. He had exited from the vehicle to make sure that it was parked fully within the disabled bay, before displaying his badge. Unfortunately, in the course of doing this he fell over. He was assisted by a passerby – a Mr Joseph – who has provided a signed witness statement confirming these facts. The passerby took Mr G to a wall nearby where he could sit down and Mr N G was telephoned to come to his father's assistance. While this occurred, the officer issued the penalty charge notice (quite properly) to the vehicle but out of eyeshot of the Appellant.
I accept this evidence as true. It does not amount to a defence to the contravention, but I do consider it to be compelling mitigation. I strongly recommend that the Council on this occasion exercise their discretion not to enforce the penalty in the light of my findings of fact. (2170053559) (Why the heck did the council not cancel this PCN before the tribunal stage?)
Paid but not paid, by phone.
Mr Q appeals against the issue of a Penalty Charge Notice to his vehicle for parking on 10 October 2016 in the High Street.
Mr Q attended the hearing. He explained he is a frequent user of the pay by phone system and also uses the other systems operated by other Authorities throughout London.
When he parked his vehicle Mr Q used the App on his telephone to pay for parking. He is registered with the pay by phone company and all details are held by them for the two vehicles he uses. His payment card is also registered with the company. On making the “payment” by entering the details and the CVV number of his card he left the vehicle. Half way through the time he purchased he checked on his phone and using the screenshot sent by the company and saw he had a number of minutes left.
On returning to the vehicle he noted the Penalty Charge Notice. He informed the Enforcement Authority of his payment and initially he was advised there was no trace of his using the system on the day. However later the company accepted he had been on the system but claimed the CVV was not entered so payment was not made. However neither the Enforcement Authority or the Company have offered any explanation as to how Mr Q received the countdown screen shot if the CVV number had not been entered and a payment made.
As Mr Q had not previously had any difficulty with the system he did not take a photograph of the screenshot he relied on 10 October 2016. That is a perfectly reasonable position to take.
Mr Q is a reliable witness and is very conversant with the pay by phone system. I have no reason to doubt his account of what happened. I find he did all that was required of him to make the payment and for some technical reason the company failed to take the payment. He was entitled to rely on the screen shot he was sent by the company to show he had paid to park. I see no reason why Mr Q should pay the Penalty Charge for a technical fault with the system he used. Neither the operating company or the Enforcement Authority have any valid explanation for the screen shot being sent if the steps taken by Mr Q were incomplete. It is logical that the screenshot can only be created and sent following completion of the information required to take a payment or indeed a payment taken.
I am satisfied the error lies with the pay by phone company and not Mr Q. The appeal is allowed. (2170069504)
Council want to enforce on private land, or is it?
The Appellant is represented by Mr R.
The Appellant's case is that the vehicle was outside no 26 Oxford Avenue. It is private and the Authority has no jurisdiction to issue a Penalty Charge Notice.
Both parties have made extensive submissions as to whether the road was adopted. There is no conclusive evidence from either side. The evidence is not particular persuasive either way.
The Authority says that the map it supplied proves that Oxford Avenue is adopted. I do not see why or how. As Mr R points out, he has never said that the whole of Oxford Avenue is not adopted. He is saying that the adoption stopped short of the Appellant's address. He drew my attention n to the yellow line stopping short of the Appellant's address. There is also a strip of paving across the carriageway. There is no apparent purpose for this save to separate one part of Oxford Avenue from another. Mr R asks a not unreasonable question - why can the Authority not produce primary documentation of the adoption?
On the other hand, Mr R has been engaged with what appeared to be lengthy discussions with the management company of the estate some time before 2010 to the point that the latter has informed him that there would been discussion. If the relevant section of Oxford Avenue has not been adopted since 2015, I would have thought that the Appellant would have received bills for maintenance and certainly bills for street lighting. Mr R says that there are none.
I think that one has to start from basics. The contravention occurs when any person causes or permits any vehicle to be parked in Greater London with one or more wheels on or over any part of a road other than a carriageway or on or over a footpath.
A road means, according to section 142 (1) of the he Road Traffic Regulations Act 1984, any length of highway or of any other road to which the public has access, and includes bridges over which a road passes. It is irrelevant whether the road is privately owned or maintained by the public, see R on the application of Dawood v the Parking Adjudicator PATAS and another [2009] EWCA Civ 1411.
Oxford Avenue is clearly a road in that it is a definable way of passage between two points. The issue is therefore whether the general public, and not merely a special class of the general public, has access to the road and that the public has access at least by tolerance of the owner of the road.
In Deacon v AT (A Minor) [1976] RTR 244, the Court held that the prosecutor seeking to prove that there is public access to the road must prove the general public used the road. It is not sufficient to prove that a restricted class of the public e.g. the residents and visitors of an estate has access to the road.
In this case, there is no evidence of any level of use of the section of Oxford Avenue save by residents or visitors. It is therefore not a road to which the public has access. There is there no restriction on footway parking at the location. I allow the appeal. (2170061863)
Payment for the other side of the road is OK
The Appellant attended in person.
The facts are not in dispute. The Appellant parked his car in Brent Street and sought to pay for his parking by app. It turned out that the location number selected was for the other side of the street. The Appellant does not dispute that the sign for the bay in which he parked showed a different location number but he had not seen this when he was using his app in his car.
The Authority submits that it is permissible to have two location numbers on the same street because different tariffs may apply. It is therefore the driver's responsibility to ascertain and use the correct location code.
I do not disagree with the above as a general principle. However, not only is there no difference in tariff between the two sides of the road, and this is well known to local residents, the Authority does not challenge the Appellant's assertion that one can purchase a ticket from one side of the road and use it on the other.
The Traffic Management Order requires the payment by inserting money into a ticket meter for "that parking place". It follows that if machines on both sides of the road can be used, both sides of the road is the same "parking place". The Authority has not drawn my attention to anything in the TMO that says that payment by phone or app should be treated differently.
Even if the Authority is somehow saying that the two sides of the road are in fact different "parking places", I would say that it is incumbent upon the Authority to make this clear.
The Appellant also makes the point that the app refers to Brent Street. It does not offer a choice as to where in Brent Street.
I am not satisfied that the contravention occurred. I allow appeal. (2170081805)
Safety is motorist's first priority, revenue raising is the council's?
The appellant, who appeared before me today, said that his hearing aid batteries had failed as he was driving he being unable to continue with his journey in safety without being able to hear sound he stopping in this bay close to an opticians to replace his batteries.
The appellant had I noted provided this explanation to the issuing officer and he supplied supporting evidence from the optician concerned.
I was satisfied as to the evidence given and adduced by the appellant as to this incident and found as a fact that he had been prevented from proceeding by circumstances beyond his control the exemption in that regard being applicable. (2170093473)
Just to remind you that decisions by an adjudicator are not legally binding, not even on themselves. They are persuasive so claim their support but don't poke the adjudicator in the eye with them, adjudicators like to make their own decisions so just mention the decision exists and leave it at that.
I have given you the tribunal references so you can look at the original decisions if you wish, and print them, form here.
If you want to look at all contraventions which have taken place in, say, Oxford Avenue, then you can search the register by completing at least 2 fields. Type BARN in the Enforcing Authority box and you can then select Barnet Council, type OXFORD% in the location box and you will get all road names which start with Oxford and perhaps put 1/1/16 in the from box so you don't get too many results. Have fun.
Yours appealingly
Miss Feezance

Wednesday, 1 March 2017

London Tribunals - February 2017

In the month of February, a shorter month, there were fewer Barnet Council PCN Appeals at London Tribunals, a mere 193 of which 113, a terrific 59%, were won by the motorist.
There were 6 cases worthy of being reproduced.
Richmond Rd (again) - 2160488646
The allegation in these proceedings was that this vehicle stopped in a restricted area outside a school.
The appellant, who appeared before me today, submitted that she had not stopped in contravention but in order to give way to oncoming traffic her evidence on that point being consistent with her written submissions.
I was not entirely convinced as to what was said but I had a doubt in this case as to whether on the appellant's evidence her vehicle had stopped in contravention and I resolved that doubt in her favour.
The appeal was accordingly allowed.
Blue badge on a double yellow - 2170012879
The Civil Enforcement Officer (CEO) noted all the details of Mrs D’s car and recorded that this Penalty Charge Notice (PCN) was issued because the car was parked on double yellow lines. A note was made that the vehicle was displaying a disabled badge and a clock set at 13:00. This implied that the car had been parked more than 3 hours earlier, which is the maximum time that a vehicle displaying a Blue Badge may park on double or single yellow lines.
Mrs D made representations on the basis that she was dealing with an emergency relating to her elderly and ill mother (whose Blue Badge I assume it was), and that in her hurry she had accidentally turned the clock to the wrong number. With her Notice of Appeal she submitted a letter from her mother, who said that it was she who had set the clock to the wrong time. Mrs D sought the Authority’s leniency in these difficult circumstances. However I do not need to decide the appeal on the basis put forward by Mrs D, for the following reasons.
Paragraph 1(e) of the Schedule to the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 requires that a PCN must state, among other things, “the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable”.The PCN in this case stated, "...the following contravention was believed to have occurred – 30(o) Parked for longer than permitted ".
The CEO’s evidence was that the car was parked on double yellow lines. That, on its face, is a contravention, unless an exemption applies. There is an exemption that allows a vehicle properly displaying a Blue Badge and clock to park for three hours. However that is an exemption (albeit a time limited one) to the prohibition on parking signed by the double yellow lines - it is not a permitted period of parking. Parking is only permitted in parking places. This is supported by the fact that the Standard PCN Codes issued by London Councils for use by Enforcement Authorities provides a number of suffixes for Code 30, indicated by the letters/number “flmnopsu1”. These translate, respectively, as free parking bay, loading place, parking meter, red route, Blue Badge holder, Pay & Display ,shared use bay, electronic payment, electric vehicles bay.
Whilst the suffix “o” refers to Blue Badge holders, it is quite clear from the context that that means that Code 30 may be used where a vehicle is parked in a parking bay designated for use by such badge holders – it does not mean that it is to be used where a vehicle is parked on double or single yellow lines.
An analogy is where a Traffic Management Order provides an exemption that allows a vehicle to park on yellow lines for up to 20 minutes for the purpose of loading or unloading; if a vehicle is seen loading or unloading, but for longer than 20 minutes, a PCN will be issued for parking in a restricted street, not for parking longer than permitted.
It follows that Mrs D’s car could not have been parking "for longer than permitted".
In these circumstances, whilst a different contravention (e.g. parked in a restricted street) may have occurred, I am not satisfied that the contravention actually alleged did occur.
I therefore allow the appeal.
Motorbike moved by road workers - 2170024867
The Appellant attended the personal hearing in this case.
The allegation in this case is that the vehicle was parked with one or more wheels on or over a footpath or any part of a road other than a carriageway. Mr. Y does not in fact dispute this but he says that he had parked his motorcycle legally with both wheels on the carriageway outside his home before going away from home for a spell. There had been no warning before he left but while he was away the road was resurfaced. He returned to find his motorcycle had been moved onto the footway and issued 2 PCNs. He later learned the motorcycle had been issued a further 2 PCNs.
The record made by the Civil Enforcement Officer merely confirms that the vehicle was parked as alleged.
The Enforcement Authority have provided evidence from their contractor of vehicles which were moved to facilitate the roadworks but these did not include this motorcycle. Nevertheless, I have had the opportunity to question Mr. Y and assess him as a witness. Having done so I am satisfied he has given a truthful and accurate account and that the vehicle was parked where it was issued the PCNs by someone who was in control of it without his consent. Accordingly I allow the appeal.
Mr. Y says that one of the remaining PCNs was cancelled by the Enforcement Authority and that he has paid the remaining 2 at the reduced amount of £55 each to save the amounts escalating. In the circumstances he may wish to ask the Enforcement Authority for a refund and to refer them to my finding of fact in this case. However, I have no power to make any order in relation to those 2 PCNs.
Council evidence vague and uncertain - 2170029102
These are civil proceedings. Both parties are under a legal duty to prove their case. They do so by way of evidence. Therefore they each have an evidential burden also.
Their evidential burden is on a balance of probabilities. Whose evidence is more probable?
Broadly construed, evidence is anything presented in support of an assertion. This support may be strong or weak.

The strongest type of evidence is that which provides direct proof of the truth of an assertion.
I find the local authority's evidence vague and uncertain. I find the appellant's evidence more persuasive.

I will therefore allow the appeal.
Legitimate expectation - 2170036571
I found the appellant, who appeared before me today, to be a credible and convincing witness.
He did not deny that he had stopped in a restricted area outside a school but said he had been doing so on a regular weekly basis for the past 6 years to set down his children he not before now receiving a PCN for doing so enforcement having only recently commenced friends of his having received warning notices for stopping as he did he however receiving a ticket. He also submitted that he had received the PCN late (at the end of December 2016) he having issues with his post.
The council appeared to accept that camera enforcement had only recently begun at this spot.
I was satisfied on the appellant's evidence due as I found to a lack of previous enforcement at this location that he had a legitimate expectation that if he stopped as he did he would not receive a PCN and I found for that reason that the contravention had not occurred.
I was not satisfied on the appellant's evidence that the PCN had been served upon him within the required 28 days statutory time period.
The appeal was for these reasons allowed.
Wrong papers - a data breach - 212003566A
The Appellant has appeared in person for today’s hearing, somewhat confused about the Enforcement Authority’s case.
This was not surprising since what the Enforcement Authority sent him relates to another case, involving another vehicle and another appellant entirely. Nothing in it relates to this present appeal.
Regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (‘the Appeal Regulations’) provides that “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the Traffic Management Act 2004, by the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 or by these Appeal Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular (a) the taking of any step, whether or not involving the service of any document, otherwise than (i) in accordance with the conditions subject to which; or (ii) at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken; and (b)in a case where an enforcement authority is seeking to recover an unpaid charge, the purported service of a charge certificate under regulation 21 of the General Regulations before the enforcement authority is authorised to serve it by those Regulations.
I will assume that this is likely to be a genuine error by the Enforcement Authority rather than anything more, but the effect is the same.
Accordingly this appeal must be allowed.
As the numbers ahve droppe dit is clearly time for you to get that Appeal lodged. You can now do it on line here, it is really easy so don't not do it.
Yours appealingly
Miss Feezance