Wednesday, 19 March 2014

PATAS - week of 10 March - Frosty

Last week at PATAS was more like they use to be. There were still nine applications to the TEC to take the process back to the beginning, mostly wrongly so they didn't do any good.

There were 4 cases in which PATAS recommended that the council cancel the parking ticket even though legally issued and then there were 70 run of the mill cases of which 43 (that is 61% of them) led to the PCN being cancelled.

It is still well worth putting your appeal in if you have missed the discount period.

Cases where the PCN was cancelled included:

- The Saracens zone. Every PCN in this zone should be taken to PATAS.
- 2 bus lane PCN in one minute. Technically each of the bus lanes are separate but 2 PCN in one minute for what looks like one long bus lane on the A5 will not be allowed; the first one will be upheld though.
- Delivering bread.
- Obtaining a visitor voucher.
- One car over-heated and another with a blown fuse (These must not be regular faults or due to poor maintenance otherwise they are foreseeable events. Always good to have a proper invoice for the repair as well).
- In Dollis Road the pavement parking areas are unclear.
- The sign was not where the traffic warden said it was.

The final case I want to you about was one that was lost i.e. the PCN has to be paid. In this case the car had a frost screen on it. This is what the adjudicator said:

The contemporaneous photographic evidence leads me to conclude that a valid permit was not visible because of the frost shield.

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. 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 to permits and badges.

The issue is whether the officer was under a duty to remove the frost shield to ascertain whether or not a valid permit was on display. I believe not.

I find that in the circumstances the officer was entitled to issue the penalty notice because no permit was visible in the circumstances, with which he was confronted.

The question of unreasonableness is not for an Adjudicator. This is more the province of a High Court Judge.

An Adjudicator must look at the evidence to ascertain if there has been a contravention and if there is an exemption to it.

In this instance I find that the circumstance are mitigating circumstances or extenuating factors. They do not amount to a ground of appeal.

The local authority has clearly considered the relevant circumstances but has chosen not to exercise their discretion in the appellant's favour. Mitigation is the province of the local authority. In the Court of Appeal case of R (Walmsley) v. Lane, the judges stated that an Adjudicator may only cancel a penalty charge notice if a ground of appeal has been established and that an Adjudicator may not exercise their discretion and cancel a penalty notice when mitigating circumstances and not a ground of appeal has been established. Mitigation is for the local authority. An Adjudicator is not permitted to mitigate a fixed penalty, a penalty fixed by law.

I have to find that the penalty notice was properly issued.

In those circumstances, as I find that no ground of appeal has been established, I have to refuse the appeal.

This at first looks like a surprising result but it was one that the adjudicator was bound to come to as he has to apply the law. If he had evidence that a permit did exist for the vehicle he could have recommended that the council cancel the PCN but as they had already exercised their discretion against cancelling he probably couldn't see any compelling reason and nor can I. The conditions of your permit includes:

The permit must be displayed on the front windscreen of the vehicle so that the details are clearly visible from outside the vehicle.

so if you then cover it you are contravening the conditions. If snow falls or the windscreen frosts over, then you have not failed to comply with the conditions, it is an outside force that has acted and commonsense should prevail in those cases.

Another question is whether a traffic warden should have removed the cover (or if they should scrape snow or ice away). They do have the legal right to uncover a number plate but are not empowered to do anything else and would be at risk of a claim for damages if they did so.

What should you do? I think I would cut a hole in the cover where the permit sits even though it will then be frosted over and still not clear.

Of course the council should, if a valid permit existed for the vehicle, have cancelled the PCN but that would be to fail to satisfy their voracious appetite for revenue raised from parking tickets instead of through council tax.

Keep on appealing.

Yours appealingly

Miss Feezance

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