Tuesday, 26 November 2013

PATAS - w/c 18 November - 99 appeals

I am fond of Mr Whippy ice creams, 99's especially
So what a week, not the busiest of the year but pretty busy all the same. 99 appeals of which 52 were won, 44 lost and 3 subject to recommendations.
A glazier was loading glass and so had his PCN cancelled. The van really does need to be close to the shop. Another occasion saw 32 minutes without any loading taking place. That case was lost by the glazier.
The notes of the traffic warden said the tax disc was unclear but it was clear and so this cast doubt on the rest of his evidence and the PCN was cancelled.
There was a failure to send a PATAS form when issuing the Notice of Rejection of Representations. This was a procedural impropriety (as stifling an appeal is an unfairness) and the PCN was cancelled.
A loading bay and pay-to-park bays were not clearly demarcated one form the other and this meant the PCN was cancelled as it was easy to slip from one kind of bay into the other without noticing.
Someone delivering toys to Sue Ryder was held to be unloading and their PCN was cancelled.
A PCN that was being issued by a traffic warden who was not in uniform, who turned up in a private car, and was subsequently served by post was cancelled. The traffic warden does not have to wear a hat but the prescribed uniform must be visible and at the very least the words "Barnet Council" and CEO numbers on epaulets should be visible.
A PCN was cancelled for a kind person who was helping an elderly person to get into their car. The NSL appeal clerks must be so heartless that this sort of case gets to PATAS.
Another June 11 PCN was cancelled due to the Human Rights breach occasioned by the delay as was one from August 11.
A nurse unloading equipment for use of a patient at home had her PCN cancelled. Again you wonder if the appeal system is fit for purpose?
The next case is one where it looks to me like Barnet council / NSL tried to craftily hang on to a payment in doubtful circumstances and the adjudicator wasn't having any of it. Here is what the adjudicator said:
The local authority has not sent any evidence and I therefore find that no contravention is proved and the appeal is allowed.
I point out that the local authority sent a Request Form to this Tribunal on 16th  May 2013 seeking a de-registration of the appeal.
Mr Y. was not asked to make submissions upon the application. The appeal was closed on 16th  May 2013.
It was in my view  manifestly in the interests of justice to review that decision at Mr Y's subsequent request and the appeal was scheduled on 6th September  2013. The local authority made no further submissions upon receipt of the scheduling report.
My Clerk reminded the local authority by letter of 7th October 2013 that the appeal was pending.
As no evidence has been provided I allow the appeal

For the sake of clarification I point out that it was manifestly clear from the timetable of events here that Mr Y had made a payment notwithstanding a clearly expressed intention to appeal. There had been a delay in the scheduling of the appeal and the local authority had in the meantime sent  a Charge Certificate. I infer from these events that Mr Y. made the payment of £165 because he was under the apprehension that the penalty would keep rising whilst he appealed.
In my judgment the local authority's subsequent application was inappropriate and should not have been made. Once the case was scheduled the local authority would have readily seen that the appeal intention preceded the payment and that the payment was because of the intimidatory nature of the Charge Certificate. The local authority was not acting unlawfully in issuing the Charge Certificate without knowledge of the appeal. Nevertheless its officials ought to have understood the position once the Charge Certificate was voided by the scheduling of the appeal.
There is nothing in either the Traffic Management Act 2004 or the subordinate Regulations which expressly deny a right of appeal to an appellant simply because a payment has been made. The validity of any subsequent appeal form depends upon the perceived purpose and intention of such a payment.
In a case where the driver drove away it was held that the traffic warden had not begun to prepare the PCN. There are a lot of cases like this at the moment with traffic wardens arriving on scooters and saying they have issued a PCN when really they are still observing. One case I know about was 38 seconds from the warden arriving to the car leaving.
There was a second case where Barnet Council / NSL tried to hang on to £165 and lost (and also burnt the £40 cost of the appeal) and the notes are as follows:
The appellant has not attended at the Angel today.  The Council was not represented.
The  Council has not sent in a file of evidence as required under the rules this adjudication.
That would normally result in me simply allowing the appeal without detailed consideration of appeal points made.
An unusual characteristic to this present case however is the correspondence with Barnet and in particular the request it made to retain the £165 without the dispute proceeding to adjudication.
I have seen in connection with this the Tribunal's response (Mr Reeve's  letter dated 18 November 2013)  which I accept correctly informed Barnet to proceed with the submission of  a case summary etc. in the usual way.
As it has not done so I am now recording this appeal as allowed.
I am directing the refund is the sum of £165 if it has not already done so.
The Saracens Event Day zone was not proven for the umpteenth time. The adjudicator's notes show that the residents of Hendale Avenue had petitioned against the signage (I presume against its inadequacy).
An evidence pack sent to the wrong address was enough for a PCN to be cancelled.
In their case summary Barnet Council / NSL said both that a motorist "did not pay" and that they had "paid late". That doubt left no doubt about the fate of the PCN, it was cancelled.
A motorist who was only a minute going to collect a visitor voucher and then driving away because the householder didn't have one had his PCN cancelled as the time spent was reasonable.
A Charge Certificate issued after the PATAS appeal had been filed led to the PCN being cancelled as it is, in the circumstances, an unlawful demand for money.
A motorist who was unloading £300 of goods from IKEA (too heavy for me to lift) had their PCN cancelled under the unloading exemption.
The location of 2 suspended places was unclear and as ever ambiguity is construed against the instigator i.e. the council's PCN was cancelled.
An enquiry was treated as representations thus depriving the motorist of the possibility of making formal representations. The council has now been deprived of the PCN income.
A single wheel only partly over a bay line in a car park was held to be "de minimis" i.e trivial and the PCN was torn up.
One of my favourites. The council claimed that when it wrote that the PCN "was attached to windscreen" when they were claiming service by some other method was a "grammatical error". Adjudicators are all solicitors and barristers and don't stand such nonsense. The PCN was cancelled.
What a lovely week. Well done everyone. Keep those appeals rolling in.

Yours appealingly

Miss Feezance

Monday, 25 November 2013

PATAS - w/c 11 November - meter what meter?

This particular week was slightly quieter than other recent ones but still there were 73 cases of which 39 led to cancelled PCN i.e. a 54% success rate.
There were the usual reasons for PCN being cancelled, Barnet Council / NSL throwing in the towel, some confusion over meters, evidence packs sent to the wrong address, copy PCN being produced by Barnet Council / NSL which weren't the same as the original, poor photographs and poor notes and muddled papers.
The council / NSL didn't think there was a parking meter in the Stanhope Rd Car Park. I have seen a queue of people waiting to use their debit and credit cards at it so it must be there. Of course, the staff in Croydon who produce the evidence packs don't have a clue about Finchley, it is simply a far away place on a map. This is one price of outsourcing, the lack of local knowledge.
In a curious case the traffic warden claimed that the expiry date had been altered on a blue badge. It hadn't been.
The council / NSL appeals system is like this case: broken. Thank goodness for the commonsense that you get from the independent adjudicator.

This Penalty Charge Notice was issued because the Enforcement Authority say that the Appellant's vehicle was parked in a resident's permit bay without displaying a permit. Unless the Appellant expressly concedes that the restrictions were properly marked and signed in compliance with the relevant part of the Traffic Signs Regulations & General Directions 2002, the Enforcement Authority must first establish with evidence that they were. This is normally done by evidence from the Civil Enforcement Officer who issued the Penalty Charge Notice or the cctv footage if issued following observation by camera, or photographic evidence and/or maps/plans of the area.

The evidence supplied are the notes of the civil enforcement officer who issued this Penalty Charge Notice. The notes do not mention a sign/time plate and whilst the Enforcement Authority have produced a library photograph of the location which shows a sign what is written on it is not legible.

In these circumstances, I cannot be satisfied that this resident's permit bay was correctly signed and so must allow this appeal.

Even if the Enforcement Authority had produced evidence of the sign, I would have still allowed the appeal as I accept the Appellant's case that he could not move his vehicle because of a broken key and that he called out a locksmith to provide a replacement. There is no evidence that the broken key was the Appellant's fault and I find that the exemption that the vehicle is prevented from moving by circumstances beyond the driver's control applies.

There were the usual arguments about whether a PCN was handed to the driver or not.
Here is another adjudicator's report about a single yellow line across a dropped kerb in Rosemont Avenue which might help you at other locations:

Mr E. initially made representations on the basis that his car was parked on a single yellow line and there was a disabled badge displayed. However the Penalty Charge Notice was issued for the contravention of parking adjacent to a dropped kerb. Mr E. appeals as he states that the Penalty Charge Notice should not have been issued because there is no evidence that the occupier of the premises asked for a Penalty Charge Notice to be issued.

A Penalty Charge Notice may not be issued for this contravention when residential premises have a driveway that is not shared with other premises and the purpose of the dropped footway is to assist vehicles to enter or leave the road from or to the highway unless the Enforcement Authority is requested to do so by the occupier of the premises.

I have seen the notes made by the civil enforcement officer, photographs taken on 19th July 2013 and also a photograph from Google Street view showing the location. I find that the evidence shows that the dropped kerb was not outside a driveway to residential premises. Therefore there was no requirement for the occupier of premises to request that a Penalty Charge Notice be issued.

Mr E. refers to Parking and Traffic Appeals Service case 2110067442. In that case an Adjudicator found that it was misleading to mark a location with a single yellow line and a dropped kerb on the basis that as parking adjacent to a dropped kerb is prohibited at all times if the location is also marked with a yellow line it should be with a double yellow line and not a single yellow line.

I am not bound by the decision of another Adjudicator. However the appellant has clearly raised the issue of the appropriateness of marking a location where parking is prohibited at all times with a single yellow line where restrictions are in operation only part of the time. The local authority has referred to this in its case summary but in my opinion has not adequately answered the issues raised.

I find that in the particular circumstances of this case the presence of a single yellow line at a location where there was also a dropped kerb was misleading.

I allow this appeal.
There was the usual case of someone getting a PCN in the minute that they were collecting a Visitor Voucher. The PCN is no more.
A delivery in the course of business was another exemption that was applied and the PCN cancelled. I ask myself why NSL don't cancel PCN when the obvious owner of a business appeals on this basis. The time of business owners is precious and this sort of behaviour could be the final straw that drives them out of the borough.
In a drive away case it was held that the traffic warden had not begun to prepare the PCN so was not prevented from serving it. There is currently an epidemic of traffic wardens issuing PCN in a hurry with them arriving by post.
Here is a case to do with paying your PCN on-line. This has ramifications for anyone who has chosen to pay up in the first 14 days.
Mr J. accepts that the contravention occurred. He believes he made payment of £55 the following day via the council's website. He produced a confirmation printed on 15 May 2013. The authority's position is that they did not receive any payment. Mr J. accepts his account was not debited.

The Authority is only obliged to accept payment of the discounted penalty if payment is made within 14 days of service of the Penalty Charge Notice. The amount is paid when it is received. The full amount becomes payable thereafter. That is the legal position. The authority does have discretion to extend that period.

In this case, payment was not taken because Mr J. had to press the "confirm" button before the transaction could be authorised. The heading on the form stating "Payment Confirmation" is confusing and does lead users to believe that payment has in fact gone through. The authority would be well advised to change this heading to avoid such situations arising in future. Mr J. was clearly not intending to avoid payment and the wording is not helpful. I would therefore strongly recommend that the authority now accept payment of £55 for this Penalty Charge Notice.
Barnet Council / NSL haven't thought about this long and hard as they have already rejected the recommendation which was only made on 16 November. I think they have to tell Mr J. why and doubtless the ambiguity in their system will all be his fault!
Next week, 99 PCN are appealed. You can do your bit to make it 100 a week by appealing every PCN you receive.
Yours appealingly
Miss Feezance 

Tuesday, 12 November 2013

PATAS - w/c 4 November - be prepared

well prepared
This week was busier than the one before with 58 PCN cancelled, 37 upheld and 4 the subject of recommendations to cancel. So a definite 61% cancelled.
There were PCN from 20 July 11, 26 July 11, 19 July 11, 13 July 11, 3 June 11, 17 June 11, 19 April 11 and 21 June 11 all of which were cancelled. At some point the council are going to realise that an old case at PATAS is a waste of £40 (so these 8 appeals lost the council £320) and might just start cancelling them at the formal stage. I think the council have perhaps done a cost benefit analysis and are still making more from old PCN that the motorist pays in a panic when they get a document which is actually well out of time than they are losing at PATAS but that break even point may soon be harder to achieve. If you have a 2011 PCN going to PATAS make sure you appeal on the grounds of a breach of Article 6 of Human Rights Act, right to a fair trial, as you can't remember what you were doing on that day in 2011.
The road markings in Stanhope Rd were too worn to enforce so appeal any ticket you get there if the marking you are on are not substantially compliant i.e. you can't make them out properly.
The photographs put in evidence of signs were too blurred to discern any details from so that PCN was cancelled so always look at the photos on the council website before you pay up.
Where post is left in a communal hallway the presumption of good service of documents is rebutted. The PCN was cancelled.
The council put forward inaccurate and irrelevant points so the PCN was cancelled as that was evidence of the council failing to properly consider representations. They do this all the time so make sure you list all the points you can think of and then when the council fail to properly consider one of them that might be enough to sway the adjudicator.
There were two cases on the question of PCN sent by post after a driver leaves the scene without getting the PCN in his hand or on the windscreen. The question of whether or not a traffic warden had begun to prepare the PCN was considered because he should make some observations first, things like wheel valve positions, the tax disc etc, and the other case held that driving away was not "prevention of service". If a warden looks like he is going to ticket you I would scarper sharpish and argue later.
The bay markings on the footpath in Brunswick Park Rd were in poor condition so the PCN was cancelled.
A description of High Rd was not adequate for a PCN that was not received. When you get the next document, the Notice to owner, you should be able to work out whereabouts you were parked without further enquiry. High Rd is miles long.
Another barely noticeable yellow line, this time in Hodford Rd, led to another cancelled PCN. My readers are getting really very good at these arguments now.
There is something funny with the bays in Wilberforce Rd which are split for no reason. That would be your reason to appeal if you get caught there.
A man came home to find someone else's builders had parked in his drive. Whilst he was getting them out he got ticketed. The council and NSL must have rejected his argument. PATAS didn't.
An estate agent delivering keys (hard to know who to boo the most, the traffic warden or his victim) was held to be delivering, probably because it was part of his job. Dropping keys off at your nan's probably wouldn't be unloading for a private individual.
The Saracens zone got another mauling with the adjudicator saying the council were all at sea. I haven't seen a Saracens PCN survive the adjudicator yet.
I am sure you have the idea if you read this blog. Appeal that parking ticket and do it on time.
Yours appealingly
Miss Feezance

Friday, 8 November 2013

PATAS - w/c 28 October 13 - so stale

If you have ever wondered how you get caught when you are tucked away somewhere taking a chance this video showing traffic wardens going about their business in Wandsworth should give you a good idea of how much ground they can cover in a very short time. How the wardens don't all get into crashes given the careless way in which they are riding is very hard to comprehend.
Now back to PATAS. There were 86 appeals in this week and 46 of them resulted in cancelled PCN (parking tickets) which is 53%.
A lady paid to park in the Lodge Lane Car park using the credit/debit card meter (wise lady) but it did not issue her with a little ticket to put in her windscreen. The paper must have run out. She made a note of how long she had and came back in time. She had a PCN. She appealed on the grounds that she had paid and produced her bank statement and a letter from the bank. The council rejected her bank statement as it didn't show the time of payment (well they aren't meant to) but failed to notice that the time of payment was in a letter from the bank which the adjudicator read more carefully than the council or NSL did. Anyone would think they read things just looking for grounds to deny an appeal. The PCN is now cancelled.
The signage for the Saracens zone was again found to be inadequate so another PCN bit the dust.
In a very interesting case, where the PCN was served by post because the driver left the scene the council failed to put into evidence the original PCN that they were supposedly prevented from affixing to the vehicle. That failure to produce the original Regulation 9 PCN (one produced at the scene) meant that the Regulation 10 PCN (sent in the post) was cancelled. A friend is about to use this defence.
The council said parking restrictions operated from 8 until 6.30 but the motorist proved it was only from 11 -12 so the PCN was cancelled. I'm not sure that all traffic wardens know the rules about CPZs.
In respect of a PCN from 13 September 2011 the adjudicator said that proceedings were so stale that a fair hearing wasn't possible and cancelled the PCN. If the adjudicator's attention is drawn to delays of 6 months or more they always cancel the PCN.
An even older PCN from 2 June 2011 led the adjudicator to say that the motorist's Human Rights came first and due to the delay he cancelled the PCN.
A PCN from 13 June 2011 was held not to have been served. The delay was not explicitly mentioned but the adjudicator may well have had it in mind. I suppose that they have internal circulars of what problems are coming up in appeals and Barnet must have had a mention for Saracens Zone and 2011 PCN.
The actions of the council in not promptly issuing a resident's permit counted against them, it not being fair to thus issue a PCN.
A van on the pavement so as to more easily clear a blocked drain had its ticket cancelled.
Two PCN from July 2011 became history and were cancelled.
Someone paid for 90 minutes but didn't get it. I have seen this problem before.
A PCN being chased from July 2011 was held to be an abuse of process.
Something odd happened to a case which Barnet asked to withdraw and permission was refused. There was some doubt about the legitimacy of the appeal form but the PCN got cancelled all the same.
Someone in a bus stop wasn't served. They were lucky to get away with that one.
Someone dropping off a cat, which has since been put down, had their PCN cancelled due to the loading and unloading exemption.
Another busy week for NSL and Barnet Council. Why not make them busier? Remember for a PCN on your car you can appeal 3 times
firstly - within 28 days of the PCN being put on your car
secondly - after you receiver the Notice to Owner (again within 28 days)
thirdly - to the independent adjudicator at PATAS within 28 days of having your last argument rejected for which you receive a notice of rejection.
It is at the third stage that you have the best chance of winning so it is worth it to flog through the other 2 stages. You don't have to respond at the first stage but you must respond to the Notice to Owner.
The third stage costs the council £40 so they probably hate it but they should allow more second stage appeals if they want fewer third stage ones.
Yours appealingly
Miss Feezance