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

Monday, 20 February 2017

Tribunal Appeals - Jan 17


Richmond Rd, the trap awaits as you turn in
Gosh, here we are, bang up to date with my tribunal decision reporting.
 
In January 2017 there were 300 Appeals heard of which 161, a lovely 54%, went the way of the motorist. It really is worth the effort to complete that orange Appeal form and post it off to Nottingham, as you have a more than even chance of then paying nothing for your PCN, and you lose nothing if the discount option had gone.
 
There are 8 decisions for which you can now read the adjudicator's decision although I take out the name of the motorist even though it is published on the tribunal register.
 
Redundant dropped kerb since 2003
 
Mr B has appeared in person, supported by his father, Mr DB.
 
This PCN was issued at 10.43am on 4 July 2016 for the alleged contravention of being parked in a special enforcement area in Colin Gardens adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.
 
It is not in dispute that Mr B's car was parked next to a dropped footway. Mr Beeltah tells me that the dropped footway originally provided vehicular access to garages for 9 and 11 Colin Gardens. Mr Beeltah has been a resident of Colin Gardens since 1997. Mr B explains that, in around 2003, the Council gave permission for the garages to be removed and for the garage areas to be converted into part of the properties. He says that, since 2003, there has been no vehicular access with the garages gone. Images submitted in evidence show that the area is no longer used for vehicular access. Mr B says that he has parked his car across the dropped footway since the garages were removed.
 
I find Mr B to be an honest witness and I accept his evidence.
 
Since the footway has long since ceased to be lowered for the purpose of assisting vehicular access from the carriage way, I find that the prohibition in Section 86(1)(a)(iii) of The Traffic Management Act 2004 does not apply. I interpret the wording of the provision purposively so that the purpose for which the footway is lowered is to be read as a continuing purpose. The prohibition cannot continue to apply where an entrance way has effectively been blocked off and the purpose for which the footway was lowered has long since ceased to exist.
 
Zig zags - U turn if you want to.
 
Barnet council provide a very short section of CCTV footage taken on 19 October 2016 at 08:46. It shows Mrs D’s car, manoeuvring backwards and forwards in Whitings Road. As part of that manoeuvre, it is captured being momentarily stationary on a school crossing.
 
Mrs D’s account is that she was simply manoeuvring to pass congestion ahead while she decided the best way in which to proceed to work. In the event, she made a U turn, although the CCTV footage is far too short to demonstrate that.
 
It is entirely appropriate that enforcement authorities should look to enforce school entrance restrictions, and they are entitled to do so by camera. However, they do still have to provide sufficient evidence of a contravention. I do not find that they have done so in this case. As noted above, the CCTV footage shows the car stopped only as part of a driving manoeuvre. The footage confirms at least part of Mrs D’s account that there is congestion ahead, and her activities are entirely consistent with her account of attempting to manoeuvre past those.
 
The CCTV footage is in fact so brief that it unfairly does not show the whole of the incident that could support Mrs D’s version of events.
 
In any event, on the evidence provided, I am satisfied that the evidence shows nothing more than Mrs D carrying out a driving manoeuvre and being forced to stop as part of that manoeuvre. That is insufficient to demonstrate a “parking” or even a “stopping” contravention.
 
As the contravention is not proved I allow the appeal.
 
Overnight waiting ban - not adequately signed
 
The Appellant did not attend this hearing.
 
The Appellant argues that the signage for this restriction is inadequate and he refers to the Signs Manual which states as follows:
 
6.19 The sign [640.2A] is used either as a repeater sign within a controlled parking zone that applies only to commercial vehicles (see paras 12.15 to 12.18) or as the only sign on roads not forming part of a zone. In both cases, road markings are not used and enforcement depends on the upright signs only. At the start or end of any restriction that is not within a zone, the sign should include an arrow indicating the length of road to which the restriction applies. On other signs the arrow is omitted. In a zone, the Regulations require that at least one sign is provided on each side of every road. For roads not within a zone, additional signs might be required as there is no zone entry sign. In this case, the aim should be to provide signs at approximately 60 m intervals on each side of the road.
 
The restricted area was not within a zone where the signs were on entrance points to the zone (no evidence of such zonal signage has been provided) . The council in their summary state:
 
The Council would reiterate that the restriction is a borough wide ban and that signage meets statutory requirements. The Council would further advise that whilst signage indicating the overnight waiting ban is required on every street within the borough, it is not required on either side of the street in the borough. Annotated maps in evidence type H shows that the vehicle was parked within 100 metres distance from the time plate indicating the restrictions.
 
In fact the Manual recommends signs on each side of the road at intervals of 60 meters; this was not in place. Chapter 3 of the Manual sets out the relationship between it and the Traffic Signs Regulations & General Directions 2002 in these terms:
 
1.1 The Traffic Signs Manual is intended to give advice to traffic authorities and their agents on the correct use of signs and road markings. Mandatory requirements are set out in the current version of the Traffic Signs Regulations and General Directions; nothing in the Manual can override these. The advice is given to assist authorities in the discharge of their duties under section 122 of the Road Traffic Regulation Act 1984 and Part 2 of the Traffic Management Act 2004. Subject always to compliance with the Directions, which, except in Northern Ireland, are mandatory (see para 1.4), it is for traffic authorities to determine what signing is necessary to meet those duties, although failure to follow the Manual's guidance without good reason might well lead to enforcement difficulties. In particular, adjudicators might consider such failure to be evidence that the signing was unclear. Traffic authorities should always remember that the purpose of regulatory signs is to ensure that drivers clearly understand what restrictions or prohibitions are in force.
 
The council have given no reason, good or otherwise, why they have not followed the Manual’s guidance/recommendations and therefor I find that the signage in place was inadequate.
 
Yellow box junction - car cuts in from the side
 
The appellant attended the hearing.

The issue of this appeal is whether the said vehicle stopped within the box junction there owing to the presence of another stationary vehicle. It is a contravention if a person causes their vehicle to enter a box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles.

I find that when the appellant made his move to enter the box junction there was enough space on the other side for his vehicle to clear the box junction.

The space was however taken by another vehicle entering the box junction from the other side.
Effectively the appellant's vehicle was, "Cut up."
I will therefore allow the appeal
 
Richmond Road school zig zags - a known trap spot
 
The appellant attended. Together we looked at the on-line footage.

He told me and I believed him that as he drove along this road there was a "Stand-off" between two vehicles out of camera vision.

Neither vehicle would give way, then one started reversing in the appellant's direction. Due to the fact that there were parked cars along the road the carriageway was narrow. That is why the appellant reversed-to allow the reversing "Stand-off" vehicle to come by. The on-line footage is too short in duration to confirm this but I accept it as fact.

I find that the appellant stopped in circumstances beyond his control.

I will therefore allow the appeal.
 
Richmond Road school zig zags - again
 
Mr R attended today. He was the driver on 9th November 2016. His wife, Julie R is the registered keeper of the car.
 
Mr R does not dispute that the car was stopped in a restricted area outside a school. Mr R states that his car was stopped for only so long as necessary to allow oncoming traffic to proceed. Mr R lives in Richmond Road a short distance from the school. He was no his way home having taken his own children to school. The children do not go to the school in Richmond Road. Mr R states that he would have no reason to stop the car in Richmond Road other than to wait for oncoming traffic as he was going home and he could park the car on the drive to his property.
 
I have seen the CCTV footage. The car stops at 08:45:00. At 08:45:12 the camera focuses on the timeplate at the location. The footage ends at 08:45:16. The footage shows a car parked in front of the appellant’s car. There is no evidence of any oncoming vehicle on the footage however I accept the appellant’s evidence that the only reason he had for stopping was to wait for traffic. Mr R explains that sometimes approaching cars stop to park to drop off children at the school.
 
I allow this appeal because I find that the reason that the car was stopped to wait for oncoming traffic.
 
I allow this appeal.
 
Saracens Event day zone not proven to be adequately signed
 
Mr S was scheduled for a personal hearing today but he was unable to attend and he has requested that the hearing proceed in his absence.
 
This PCN was issued for the alleged contravention of being parked in a permit space or zone in Longfield Avenue at 3.32pm on 9 October 2016 without clearly displaying a valid permit.
 
The Council says in its case summary that there was a permit holder only restriction between 1pm and 6pm on Event Days in the location where Mr S's car was parked.
 
I have looked at the CEO's images. They show no signage of any restrictions where the vehicle was parked. The Council submits a google image showing two parking signs at the entrance to Longfield Avenue. I am unable to see what is written on these signs even with the benefit of magnification.
 
Further, the images from the CEO show that there were no bay markings where Mr S's car was parked. The car was parked some distance into Longfield Avenue. This means that there was nothing at, or near to, the place of parking to alert the motorist to look for parking restrictions. A single yellow line will alert the motorist to look for CPZ restrictions where there is no signage in a particular street. A marked bay will similarly alert a motorist to look for parking restrictions.
 
I am not satisfied for these reasons that any restrictions were properly or adequately signed.
 
Yellow Box Junction - 3 lanes make situation impossible (case 2160497090)
 
The contravention is set out in the Traffic Signs Regulations and General Directions 2016 (TSRGD).
 
The yellow box junction conveys the prohibition that:
 
"... no person shall cause a vehicle to enter the box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles."
 
The prohibition has the following elements:
i. Causing a vehicle to enter the box junction,
ii. Stopping within the box junction, and
iii. That stopping being due to the presence of stationary vehicles.
 
There is always a risk that the traffic ahead will stop for one reason or another. The Highway Code accordingly advises motorists as follows: "you must not enter the box until your exit road or lane is clear".
 
It is not unlawful for a motorist to enter a box junction in a line of traffic or before there is a receiving space for his vehicle beyond the junction. While the Highway Code advice is simply that - advice, it is a reasonable interpretation of how a contravention can occur. A motorist who follows it cannot commit this contravention. A motorists who does not follow the advice is likely to find himself or herself in contravention.
 
In this case, the junction is quite large. At the material time, there are three entrances to one exit and all three entrances have vehicles waiting to enter the junction. None of the entrances are controlled by traffic signals. The High Code Advice cannot be adhered to. Each motorist must depend on at least two other motorists not moving into the junction. This begs the question as to what decides which motorist can enter the junction first when one receiving space becomes available. I have asked the Authority this question. It was either unable or unwilling to respond.
 
Under the above condition, I am not satisfied that the contravention has occurred.
 
I am refusing the appeal. (a typing error, it was allowed)
 
Such fun, all these Appeals. Go on, give it a go.
 
Yours appealingly
 
Miss Feezance

Saturday, 18 February 2017

Tribunal Appeals - school report 2016 - Barnet Council

The chart above shows the fluctuations in the number of Appeals being decided each month. Generally the Appeal is heard one month after it is lodged. Looking at the last 4 months alone is interesting. Since moving traffic contraventions started in earnest in the summer the number of Appeals has surged forward (January 17 sees a slight drop but probably as the tribunal was closed for 10 days for Xmas & New Year holidays).

Overall PCN issue figures are in the chart below, with comparatives for 2015.

Type
2015
2016
Bus lane
         11,601
           6,642
Moving traffic
                  -  
         39,150
Parking
       141,114
       149,168
Totals
       154,730
       196,976

It is very pleasing to see bus lane figures coming down despite the introduction of automatic cameras which miss almost nothing. Motorists have perhaps finally realised that they will be caught so had best stay out of the bus lane. Some people never enter a bus lane as a matter of policy and that may not be a bad policy. If the bus lane is not in operation there probably won't be a queue in the all traffic lane in any event so there is nothing to gain by using the bus lane.
 
Moving traffic (yellow box junctions, banned turns, school zig-zags etc) are the new real money spinner for Barnet Council. The figures are for less than a full year.



It will take a while for the penny to drop that a banned turn, like at Tilling Rd near Brent Cross, which you have been wrongly doing for 20 years, will now cost you £130 a time. Once people realise the numbers will fall a little. New cameras are springing up at every possible location though, as this cash cow is one to be milked, so the numbers may rise before they fall.
 
The biggest problem (success in the eyes of the council) is with yellow box junctions.

 
There needs to be a wholesale change with the way that people drive, so as to avoid PCN, and it will lead to slower journey times across the borough if everyone takes the cautious and correct approach of waiting until the box is clear before they enter it. How to do it is explained on the TfL page here. Note the sparse London traffic a la 1950.
 
School zig zag PCN's are remarkably low. 
 
 
 
24 locations are monitored, so ignoring August (one unlucky person when the school was closed and so Barnet choose not to enforce as no harm is being done) and April as that was when the scheme was just warming up, we have 7 month's data and this equates to a single contravention every 2 days per school. This is hardly a rate of contravention that calls for a six figure sum to be spent on cameras. Those stories of carmaggedon at school drop off and pick up time look likely to have been false news.
 
Remember that a PCN is not a personal attack on you, it is simply an attempt to open your wallet or purse. Officially these are all issued for traffic management purposes. Poppycock.

Appeal results

I nearly forgot.

Of the 2,202 Appeal heard in the year, the motorist won 1,193 of them which is 54% of them against a norm of 48% across London.

966 went the way of the council and 41 were the subject of a request by the adjudicator to just drop it even though the council was legally correct but there was compelling mitigation which an adjudicator cannot allow an Appeal on the basis of, only the council can.

Yours appealingly

Miss Feezance

Wednesday, 15 February 2017

London Tribunals - Dec 16 - Bunns fights

 
The month of December turned out, despite hearings finishing on 23 December, to be the busiest month of the whole year. There were a massive 321 hearings. Of those 174 were won which is 54% and a better result for motorists than the average across London (actually 48% won by motorists across London in the year ended 31 March 16). Well done everyone who went to the tribunal.
 
There are 5 cases for which I copy the words of the adjudicators (after changing people's names although they are published on the tribunal website).
 
Loading at 2 a.m.

The vehicle was parked on a double yellow line indicating a waiting restriction in operation 24 hours a day. The vehicle was therefore in contravention unless the Appellant is able to establish, on balance, that some exemption applied. He relies on the familiar exemption for loading, stating that he was picking up heavy kitchen equipment from his café.
 
Loading is in law essentially the process of transferring heavy or bulky goods from premises to a vehicle. The CEO saw no evidence of items being moved; however this is hardly surprising as he issued the PCN virtually instantaneously, recording an observation period of only one minute, at the end of which the Appellant had returned to the vehicle. In the absence of any evidence to suggest that he had some other purpose in bringing his vehicle to his café at 2.00 in the morning it seems to me overwhelmingly probable that the Appellant is correct and that the vehicle was there to be loaded.
 
The only real point to consider is whether the two or three minutes described by the Appellant during which he was checking the premises fall to be counted as “loading”. It seems to me that they are, on the basis that securing premises after loading goods is in my judgement a reasonably necessary part of the loading process, certainly if it is done immediately and without any undue delay.
 
It follows that, as it transpires, the vehicle was not in contravention and the PCN was incorrectly issued.
 
It is therefore unnecessary to consider the Appellant’s submissions regarding the subsequent procedures and correspondence
 
'Cut up' in a Yellow Box Junction
 
The appellant attended the hearing.

The issue of this appeal is whether the said vehicle stopped within the box junction there owing to the presence of another stationary vehicle. It is a contravention if a person causes their vehicle to enter a box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles.

To stop means to come to a stand as in the course of a journey, to halt or to cease moving.

I looked at the on-line evidence.

I am satisfied that the appellant's vehicle could have cleared the box junction. It was the vehicle on the off-side threatening to take the appellant's vehicle space that caused the appellant's vehicle to have stopped.

It was the vehicle on the off-side, threatening to "Cut up" the appellant's vehicle, which otherwise would have cleared the box junction that causes me to allow the appeal.
 
Bunns Lane Car Park
Sign does not reflect the provisions of the Traffic Management Order
 
Mr NB attended today. His daughter, H B is the owner of the car. Mr B was the driver on 4th August.
 
The Penalty Charge Notice was issued for the contravention of parking without payment of the parking charge. It is not in issue that no payment was made to park in the Bunns Lane Car Park on 4th August. Mr B appeals as he states that he had sent a text to the correct number to pay to park his daughter’s car. He has an account set up with Pay by Phone and so he believed that the payment would be debited to his card.
 
Mr B provides a screen shots from his phone. I accept his evidence that a text was sent at 08:49 on 4th August. Mr B provides a photograph of the board in the car park. It provides information for existing users. The board states ‘when paying by text if you do not receive a confirmation text within five minutes of your transaction please call (a number is given) to confirm’ Mr B argues that the board does not state that if no confirmation text is received it means that the payment has not been processed. He provides evidence that in 2014 he frequently paid to park by text and did not routinely received any confirmatory text.
 
The Traffic Management Order states that the appropriate parking charge must be paid immediately on leaving the vehicle. It stated that in the case of a payment made using the telephone parking system payment of the charge shall be indicated by an indication that payment has been made using the telephone payment parking system.
 
I find that the notice in the car park does not clearly indicate to motorists the provision of the Traffic Management Order that states that the payment of the charge is indicated by an indication on the telephone. The sign on the board states only that if no text is received a phone call should be made.
I accept the appellant’s evidence that he thought that he had paid to park the car. I find that the signage in the car park does not clearly indicate that a payment is not made until an indication is received.
 
I allow this appeal.
 
Footway parking - 4 sided bay not authorised (in Cloister Rd)
 
Part of the vehicle, as seen in the photographs, is outside a marked bay which is on the road other than a carriageway, usually referred to as the pavement. The Enforcement Authority say that constitutes the contravention of parking on the pavement – one or more wheels on or over, for which no signs or markings are required. This presupposes that parking is allowed only within marked bays on the pavement rather than on the pavement area between two signs.
 
Where there is an issue as to whether or not the vehicle is in a permissible area, the Enforcement Authority must satisfy the Adjudicator as to the presence of signage and markings that show clearly what that area is and that they are both adequate and compliant.
 
The Enforcement Authority have not produced any evidence of the signs required - fig.667 Traffic Signs Regulations & General Directions 2002 and whether they include the words in marked bays.
Moreover, the Signs Manual provides at para. 8.6 - The signs described in para 8.5 [fig.667 ] may be used without any road markings. This would be appropriate where parking is allowed on a verge unsuitable for road markings or where there is no specific requirement for a designated parking place as described in section 7. Where bay markings are to be provided they must be to diagram 1028.4; no other marking is prescribed for verge or footway parking. For a bay that is wholly on the footway the three-sided version only must be used, the fourth boundary being the kerbline. The Regulations do not prescribe the four-sided marking for use wholly on the footway (i.e. remote from the kerb). This version of the marking is used for a bay that is partially on the footway and partially on the carriageway; no markings shall be omitted for that part of the bay which is on the carriageway.
The bay markings seen in the photographs are four sided contrary for which there is no provision absent any evidence of special DoT authorisation.
 
Accordingly, I cannot be satisfied that the signage or markings were compliant and/or clear and so must allow this appeal.
 
Bunns Lane Car Park - poor mobile phone signal
 
This PCN was issued for the alleged contravention of being parked in Bunns Lane Car Park at 9.56am on 19 September 2016 without payment of the parking charge.
 
It is not in dispute that a payment of £5.10 was made to park vehicle registration LT04JYR in Bunns Lane Car Park from 10.06am on 19 September 2016. It is also not in dispute that no payment had been made to park the vehicle at the time of issue of the PCN. The vehicle had been observed from 9.44am.
 
Mr R appeals because he is a regular user of the car park and he says that the network coverage for the area is very poor so that it is often not possible to make an immediate connection for payment of the parking charge. He says that he made the payment as soon as he had the connection. The Council says that 22 minutes from the time of parking is excessive.
 
I would normally agree with the Council that a period of 22 minutes is in excess of the time that would be permitted for a motorist to make a payment to park. However, each case must be considered on its own facts as there is no law which states that payment must be made within a specific period from the time of parking.
 
A motorist is allowed a reasonable period upon parking to make the payment to park. This will normally be no longer than a few minutes where a ticket is being purchased from a machine and a payment by phone can generally be made within a similar time frame. However, there will be occasions where there is no coverage or connection and a longer period for payment is required. I am satisfied from Mr R's evidence that this was one such occasion. Mr R clearly had every intention of making payment and was prevented from making an immediate payment through no fault of his own. I find in the circumstances that the alleged contravention did not occur.
 
The Council's suggestion in its case summary that it is a requirement that payment is made prior to leaving the vehicle cannot be correct. Where there is a connection issue as there was in this situation, it is likely to be the case that payment can only be made by leaving the vehicle.
 
Well done everyone, even if you lost the council had to pay a £30 tribunal fee that they cannot recover from you.

Yours appealingly

Miss Feezance

Monday, 6 February 2017

London Tribunals - November 2016


The number of Appeals rocketed in November 2016. There were 253 in November for Barnet Council which exceeded the previous high figure of 210 for July with the lowest monthly total being in March when a mere 111 Appeals were considered.
 
In November motorists won their Appeal on 146 occasions. That is 58% and so a good month (50% is the pan-London norm) but amazingly 81 of those wins were by a walkover with the council not offering any evidence. That is, yes, 81 cases out of 253 or 32% or almost 1 in 3. Well worth filing your Appeal even if you think you will lose as the council may throw in the towel and it also costs them close to £30 each time in tribunal fees.
 
Yellow box junctions were bad news for the motorist with 19 of them being lost, nearly always because they were shown to have entered the box when their exit was not clear and then had to stop due to stationary vehicles. Best start stopping at the entrance to a yellow box Barnet drivers as otherwise you will be £130 (or £65 if you cough quickly) worse off.
 
Part of the reason for the jump in Appeals is the commencement of moving traffic enforcement by cctv and so we will have to see if the number of Appeals tails off soon.
 
Here are some of the interesting decisions of the month in the words of the adjudicators (save that I anonymise the names even though they are on a public register)
 
Pay by phone text delay
 
Mr G was driver of the PHV at the time. When attending on l2 November he explained to me that he was an experienced pay-by-phone user. He explained that his proper details were long registered.
 
The Council has produced a record of relevant transactions for the day from the driver's telephone. Mr G has provided a print of a text message timed 1426.
 
Mr G explained to me that he did not see the officer responsible for the penalty charge notice. I do not believe that officer was at fault as he checked the system correctly when dealing with the vehicle here concerned.
 
Mr G explained that he was not dealing with a PHV customer at the time but doing personal shopping in the Tesco supermarket. The Council no doubt correctly claims that the relevant plate with the location number was close to his car (4 metres).
 
So far as I could identify criticism of the driver in this case this was principally that he failed to remain with the car until the pay-by-phone transaction was confirmed which is certainly the prudently required course.

He explained to me however that he had not previously encountered transaction issues as he did on this occasion despite proceeding earlier as had on the day the disputed penalty charge was imposed
 
He showed me the print of his phone screen which although not bearing the relevant date nonetheless records a message timed at "Today 14:26" which advised that the transaction had not been confirmed and encouraging the recipient to call back and ensure confirmation if wishing to park. I have accepted that that print relates to a message from the material date and time concerned.
 
Mr G repeatedly assured me that he had not previously encountered similar difficulties in transacting effectively either at this location (one that he had previously used) or indeed others and I have accepted that as true.
 
His explanation given for delay in transacting was essentially him having to start the phone transaction again and needing to refresh himself as to the location number as he said he had to check on this as he had not remembered it. I viewed that explanation as sufficiently plausible for acceptance in this particular case.
 
It seems to me that the outcome of this adjudication hinges chiefly upon whether the failure to complete the transaction effectively with valid confirmation was a result of system difficulties over equipment including software that the operator was using, or whether it was a motorist based fault as would generally be the case where any delay over a successfully completed transaction had arisen because the motorist had for example dropped mobile reception because of entering a shop. That latter situation would generally incline me to view delay over payment as lying with the motorist and doing so in a manner justifying the penalty charge being upheld.

Taking the evidence overall I have however decided to decide this case in the appellant's favour. I have been prepared to accept on this occasion that the delay more probably arose essentially from temporary glitching over pay by phone software or equipment rather than any other cause.
I have decided on that basis there is insufficient evidence to uphold this particular penalty charge.
 
I have recorded the appeal as allowed.
 
Council duplicitous in their production of evidence
 
The appellant attended.
 
There are two allegations: one on 2nd May 2016, AG04****** and the other on 30th May 2016, AG 03******.

the allegations are at the same place but the allegations are different because different restrictions applied at the different times.

The issue is that the appellant was compelled to park there on both days because on both occasions his inhaler had run out. He had to return home to obtain his spare inhaler. He had an asthma attack; he struggled to control his breathing; his hands were hurting. He kkeps one inhaler in his car and the other in his flat.

He said that he was unable to park elsewhere because there were no other spaces available nearby.

He told me that the stress this brings on, causes him to become confused about the signage.

In the proceedings for the first allegation of 2nd May 2016, the appellant made representations on 4th May, 20th May and 28th July 2016.

The thrust of the appellant's representations were that he was ill and that he parked in order to got to his flat.

The local authority's notice of rejection stated that it was unclear from the representations whether this was a routine stop or an emergency stop; the appellant had not provided any evidence.
With regard to the allegation of 30th May 2016, the appellant made representations on 2nd June 2016, in which he only mentioned signage.

The local authority has included evidence of two different, separate representations by the appellant in this case, one for AG04666120 and the other for AG0345695A, both dated 28th July 2016 but both separate. This is confusing. I find it duplicitous and will allow the appeal for case, 2160416940 (AG0345695A).
 
(Funny this one as councils always say each case is dealt with on its own merits and yet they wanted the adjudicator to know there were two PCN thus implying the motorist was a habitual defaulter).
 
Evidence not forthcoming
 
The appellant attended the hearing.

The appellant told me and I believed him that he had tried 20 times to access the on-line footage expressed on the penalty notice and was unable to do so.

I also accept that he telephoned on 3 or 4 occasions and was told that if he wrote in he would be sent a hard copy of the alleged contravention.

I accept that he did so but nothing was ever sent to him.

The only time he received the evidence was when he received the evidence bundle.

The issue of this appeal is whether the appellant was given authority to do so by way of a positive assertion from the civil enforcement officer acting on behalf of the local authority.

I have to make a decision based upon the evidence available to me and that decision must be on a balance of probabilities. The test is whether the public body has issued a promise or adopted a practice, which represents how it proposes to act. The law requires it to be honoured. It takes its place alongside a fair trial. In the High Court case of Fivepounds.co.uk Mr. Justice Bean stated that a legitimate expectation must be a representation, which may include a regular practice and a course of dealing, whereby a public body may create an expectation from which it would be an abuse of power to resile. The representation must be clear, unambiguous and unqualified.

I am just sufficiently persuaded that the appellant was given a legitimate expectation that he would be able to view this evidence and was not able to through no fault of his own.

I am also persuaded that he was given a legitimate expectation that he would receive the evidence if he wrote in, which he did but nothing was sent to him.

I will therefore allow the appeal.
 
Markings, what markings do you mean?
 
This PCN was issued for the alleged contravention 24 not parked correctly within the markings.
 
The Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 sets out the contents required by the Regulations for a valid PCN served under Regulation 9.
 
Among other things, the PCN is required to state the grounds on which the enforcement authority believes that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to properly understand the nature of the alleged contravention.
 
The alleged contravention cited on the PCN was not the correct wording for a code 24 contravention which is not parked correctly within the markings of a bay or space.
 
This wording is critical as it conveys to the motorist precisely the nature of the alleged contravention. The wording on the PCN in this case failed to identify what markings it was alleged that the vehicle was not parked within. The PCN was defective for failing to cite correctly the alleged contravention and the appeal is allowed for that reason.
 
What car!
 
Having heard the Appellant at length and in detail the position in this case in bare summary is as follows. The vehicle parked was B15ABC, the Appellant’s own vehicle and the vehicle for which he intended to pay. The vehicle for which payment was recorded was LJ54XYZ – a vehicle which was not and never had been the Appellant’s, but for which he had on the 11th March paid for parking by phone on a one-off basis. The Council’s position is that during that phone conversation the Appellant changed the number of the registered vehicle to LJ54XYZ - something the Appellant had no intention of doing.
 
I have listened to the recording of that conversation. Communication was clearly rather difficult and fractured. The Appellant does ask that the other vehicle be taken off and cancelled; however he understood this to mean that whatever the vehicle his friend for whom he was paying might be recorded should be changed to LJ54XYZ the vehicle now being paid for. Whist one can understand how the Council thought that LJ54 XYZ was now to be the registered vehicle it does seem to me that it was not made clear to the Appellant that his own vehicle was being removed – BY15ABC does not appear to be mentioned during that conversation.
 
This seem to me to be something of a classic communication failure, and is the sort of thing that unless great care is taken can easily occur in the operation of any pay by phone system. However it is ultimately the responsibility of the Council to ensure that these misunderstandings are avoided. The Appellant, who continued to park BY15ABC on many subsequent occasions without receiving a PCN could in my view reasonably believe that on parking BY15ABC on the 1st April he had paid for that vehicle.
 
I am therefore allowing the Appeal.
 
Type of bay should be specified
 
This PCN was issued for the alleged contravention of being parked in Station Road at 3.03pm on 25 July 2016 in a parking place or area not designated for that class of vehicle.
 
The Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 sets out the contents required by the Regulations for a valid PCN served under Regulation 9.
 
Among other things, the PCN is required to state the grounds on which the enforcement authority believes that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to properly understand the nature of the alleged contravention.
 
The Council say that the place in which vehicle registration EF16*** was parked was a goods vehicle only loading bay. In other words, the bay was designated for goods vehicles only. This is not, however, clear on the face of the PCN which states simply that the vehicle was parked in a place not designated for that class of vehicle.
 
A motorist reading the PCN would not understand from the wording the nature of the alleged contravention because there is nothing to explain the class of vehicle for which the parking place was designated. The PCN needs to identify, whether by wording or images, that the class of vehicle for which the bay is designated is goods vehicles only.
 
I therefore find that the PCN was invalid and the appeal is allowed for that reason.
 
I am also not satisfied that there was adequate signage of a goods vehicle loading only restriction. I can see no signage of this restriction in the CEO's images and the Council submits no library images of any restriction signs at this location.
 
I make no finding in relation to Mrs J's submission that this vehicle registration plate EF16ASX is cloned and that the car in the CEO's images is not her vehicle. Mrs J submits an image of the rear plate of her vehicle with the distinctive word Elms beneath the registration. She says that she doubts that this word is on the plate in the CEO's images. Unfortunately, there is no close up view of the plate in the CEO's images. There is also no correspondence from the police to confirm the crime report details given by Mrs J.
 
(In this case as the car is cloned Mrs J did not know by signage which type of bay the cloned car had been parked within hence why the PCN was issued. If you get the PCN on your car some adjudicators will refuse as you knew, even though the PCN does not say what sort of bay).
 
Usually I end my blog posts by exhorting you to file more Appeals. You have been listening, thank you. Will the short (for the tribunal) month of December be even busier. You will find out once I have found the time to read every single December decision. I will need lots of tea and the odd biscuit. Some of the decisions take those, mind.
 
Yours appealingly
 
Miss Feezance