Monday, 11 April 2016

London Tribunals - October 15: extraordinary

October 15 was a bad month for motorists. They won 34 out of 80 Appeals which is only 42% and below the norm of 50%. Must try harder.

Some of the cases the council lost were extra-ordinary. I repeat some of the text of the decisions here.

Never under-estimate the ability of the council to be truly horrible to you in your hour of need.

This is one of sixteen cases before me today which raise identical issues and this decision therefore covers all of them. I have heard the Appellant Mr R (on his own and his wife’s behalf) in considerable detail over two hearings; and at today’s hearing the Council was represented by its officer Mr Stone.

The essential facts are as follows. Mr R and family were rehoused by the Council at 24 hours’ notice. Mr R realised immediately that he would need a permit in order to park his vehicle and made considerable efforts to do what was necessary to obtain one; however before a permit was issued the vehicle was regularly parked in a permit bay with no permit on display. As a result a series of PCNs were issued over the end of December and in January of which the present group is only a selection.

Mr R’s case is, in summary, that he did everything he possibly could to obtain a permit and that there was nowhere else at all to park his vehicle in the meantime, bearing in mind he was at the time suffering from a disability which prevented him from walking any great distance. He states that he called the permit department Council on a number of occasions but was told that without the logbook to show the vehicle registered to the new address no permit could be issued. Mr R sent off the log book for change without delay. He also provided a copy of the tenancy agreement as proof of residence, though this should hardly have been necessary as the Council, having moved him, was well aware of his address. During the time he was awaiting the return of the logbook, PCNs were issued.

I had initially considered whether this was not a case of a Council seeking to enforce penalties for a failure to display a document which it had itself unreasonably failed to provide - a situation which might well be said to be the equivalent of an abuse of process and therefore one of those rare cases where an appeal can fall to be allowed on the basis of what is known as a collateral challenge. However having considered the matter carefully in the light of the evidence provided by Mr Stone and his submissions I am not persuaded that this exceptional stage has quite been reached. The position is that all that was required to be provided in order to obtain a temporary permit was a copy of the tenancy agreement (to prove residence) and a copy of the insurance document (to show the vehicle lived at that address) – in the absence of the log book showing the vehicle registered there. I am satisfied that this was not made sufficiently clear to the Appellant over the telephone; however it is made perfectly clear on the Council’s website which the Appeal, who I note has a smartphone, could easily have checked. It has to be said that one would naturally expect some delay in changing the details on the insurance and receiving confirmation of that, especially over the Christmas period. Nevertheless it seems to me the Appellant could have contacted his insurers and pushed them a little harder to provide the documentation he so urgently needed.

It follows that the vehicle was in contravention on each of these occasions and that it cannot be said the PCNs were issued anything other than lawfully. This is a case of mitigation rather than exemption and I am satisfied the circumstances taken as a whole amount to compelling reasons for the exercise of discretion by the Council (as I understand it has done in a number of other cases). This is a case of a resident who was, in general terms, allowed to park there as the eventual issue of the permit shows. This is not a case of a “foreign” vehicle intruding into valuable parking space intended for the residents. The Appellant was not in a position to provide the required documentation immediately and clearly went to a great deal of effort to try to obtain the permit. In doing so he was not greatly assisted by the Council (or its representatives). I am pleased to note that Mr Stone, having now heard the full story from Mr R for the first time, has very sensibly indicated that the Council would follow a recommendation for the exercise of discretion, which I now make in each of these cases. (For the avoidance of doubt a formal response to the recommendation within the statutory time limit is required, though I see no reason why a single response covering in terms all the cases would not suffice).

3 almost simultaneous Bus Lane PCN

The Appellant attended before me today to explain his contention personally.

There is no dispute as to the whereabouts of the vehicle, at the relevant time, on the material date.

The Enforcement Authority assert that the said vehicle, not being of the specified class, was driven at a location restricted for use by vehicles of a specific class only.

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

The Enforcement Authority who assert that the said vehicle was so parked/driven 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 to substantiate the assertion comprises the certified copy Penalty Charge Notice, and extracts of governing Traffic Management Order provisions, together with photographic evidence: still frames taken from CCTV footage showing the said vehicle in situ.

No evidence is adduced of the applicable signage implementing the restriction and notifying motorists of its times of operation.

The Enforcement Authority also adduce a map/plan dated 'Dec2009'; this is of limited evidential value since it sets out the proposed 'final layout' of signs, camera positions and carriageway markings only and does not provide an evidential record of what was present and visible to the motorist on the date in question.

Evidentially I cannot be satisfied that this contravention occurred.

I am concerned by the Enforcement Authority's reference to 'consecutive bus lanes' contraventions in the Case Summary for 2 reasons:-

Firstly, a break in a stretch of designated lane does not, of itself, create a different restriction if it is a continuous bus lane as per the Traffic Management Order.

Secondly, the Appellant drew my attention to the fact that he had paid a Penalty (within 14 days of receipt of the same) for an alleged Bus Lane transgression at on 9th May 2015 at 09:40 a.m., after which the current Enforcement Notice, issued on 1st June 2015, was received in respect of the exact same date at the exact same time as that which had been discharged.

Further the Appellant bought to the Hearing another Enforcement Notice, issued on 8th July 2015 relating to Penalty Charge Notice AG********, in respect of the exact same date at the exact same time.

I find it inconceivable that a vehicle can be in 3 separate bus lane locations at the same minute.

As regards the latter, despite endeavours to have both that and the present Penalty Charge Notice dealt with together, the Appellant informs that he has received no response to representations in the latter's regard yet Charge Certificates have been received for both. I note that the issue date of the Charge Certificate for this Penalty Charge Notice was after notification of this Appeal.

Evidentially I do not find that a contravention occurred, accordingly I allow this Appeal.

Do you suppose the council offices were open and full of workers on Easter Sunday?

This matter was listed as a personal hearing before me. Late notification was received that the appellant was unable to attend. However, by then I had already looked at the papers and as I was able to decide the case in the appellant's favour without hearing from her in person, there was no need to adjourn the case.

The appellant parked in pay by phone bay on an Easter Sunday. The instructions at the bay indicated that parking on bank holidays and public holidays is free. The authority's case is that Easter Sunday is not a public holiday.

Technically this may be true. However, I have no doubt whatsoever that almost any member of the public, if asked, would understand that Easter Day is a public holiday. If the authority is intent on penalising motorists on Easter Day then this should be made clear on the tariff notice. I have to say I find it quite extraordinary that the bays should be free on a Bank Holiday Monday but not on Easter Day. I imagine that the appellant believed likewise.

This appeal is thus allowed.

The reason this PCN was issued in the first place was because there restricted hours in bays in Golders  Green on Sundays.

Are you being served?

This PCN was issued for the alleged contravention of being parked in a special enforcement area adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.

Mr C appeals because he says that his car was not parked where there was a dropped kerb that meets the level of the carriageway. I have looked at the images taken by the CEO. It is unclear to me from these images whether or not the vehicle was parked next to a dropped footway and I am therefore not satisfied that the alleged contravention occurred.

I am also allowing the appeal because I am not satisfied that the PCN was correctly issued. The PCN was served by post under Regulation 10 (1)(c) of The Civil Enforcement of Parking Contraventions (England) Regulations 2007 on the basis that the CEO had begun to prepare the PCN for service under Regulation 9 by handing it to the driver or affixing it to the vehicle but the vehicle was driven away before the CEO had finished preparing the notice or been able to serve it in accordance with Regulation 9.

The CEO's notes state that the CEO explained the contravention to the driver who then "refused the PCN". Mr C says that the CEO spoke to him and then scrunched up the PCN, placing it into his pocket. It seems to me clear from the evidence that the PCN had been completed and I can see no reason why the CEO could not have served the PCN by attaching it to the windscreen, especially bearing in mind that Mr C is an elderly and disabled gentleman.

My experience is that traffic wardens tell porkies about service all the time.

Taxi drivers - stop helping your passengers!

The Appellant says in his appeal form that he is a taxi driver and was assisting an elderly lady passenger with her belongings to his vehicle. In earlier representations he says he was helping the lady to where she was going and the civil enforcement officer recorded that: awc,nbbs,syl,pt,atv
ic2 male,glasses,long haired driver returned said he was dropping of mop taxi driver.
elderly lady needed help walking

The alighting exemption provides;

Nothing in Article 5 of this Order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load thereon or unload therefrom his personal luggage.

Provided that, except where the said person is suffering from any disability or injury which seriously impairs his ability to walk, or who is blind, no vehicle may so wait In the same place for a period of more then two minutes in any part of any street in the London Borough of Bamet specified in Schedule 5 which is a restricted street and is also a street specified in Schedule 2 during the restricted hours relating to that street in so far as the same fall between the hours of 7am and 10am and between the hours of 4pm and 7pm.

It is for the Appellant claiming the exemption to prove it and in the absence of any supporting written document ( confirmation of the fare/booking) he must provide details that are clear and consistent and here they are neither – e.g. was he picking up or dropping off a passenger?

The Enforcement Authority are wrong when they say that drivers must not leave their vehicles unattended at any point in order to qualify under the 'passengers alighting/boarding' exemption.

There is nothing in the wording of the exemption that states this and in certain circumstances a driver may leave his vehicle to assist passengers with luggage if they need or indeed escort children or disabled persons to and from premises.

One day the people who currently refuse perfectly valid challenges will be elderly and may need help with their luggage. I hope they will then be ashamed of their former behaviour.

Procedural impropriety

I heard at some length from the apellant on 26 October. My early view of the case was the the officer was not at fault in recording the vehicle where it was during the hour of restriction and issuing a penalty charge.

The appellant is principal carer for a son aged 22 who has a rare genetic condition which has been described in the medical report brought to the hearing.

On the day in question the appellant had been obliged to collect him and accompany him for an official interview near Finchley Central. It was important to arrive and arrive on time. The appellant described the sense of stress and frustration about not being able to park near his own house as he would normally have preferred.

The appellant is in what can only be an unfortunate position of living just beyond the edge of a boundary of a zone with an hourly restriction which is aimed at deterring commuters parking en route to the local station. The appellant's street becomes very congested and he is not entitled to a permit for the adjoining zone. He does not have off-street parking.

As I sought to explain at the hearing, the boundary is of necessity an arbitrary line and permit entitlement is a matter for the Council. Dissatisfaction as to where it lies and non-eligibility for a permit do not give grounds for a successful appeal.

Looked at broadly I was however sympathetic to the personal and family circumstances described to me, especially for the important day in question, and although the appellant made the wrong decision in parking where recorded, I could identify powerful mitigation rather than a legal defence.

I rejected the appellant complaint about the notice of rejection suggesting an appeal could be made electronically when in fact that facility had not yet come about.

When I scrutinised the timetable of events after the appeal being lodged with the Tribunal on 28 September and the Council being notified electronically on 29 September, I could see that the Council had been at fault in permitting the matter to proceed through to registration, and indeed the production for despatch of a TE (Order for Recovery) form on 2 October.

I could not identify special reasons why the case had progressed in this fashion when I believe it should not have done, and I have been prepared to record the appeal as allowed on that basis. In the particular circumstances of the case I have accepted that the documents sent out after lodging the appeal did cause actual distress to the appellant.

In any event I have now recorded this appeal as allowed.

Adjudicators have to apply the law but when they feel sympathy for the motorist they will themselves spend time looking for a loophole.

Burglary followed by attempted extortion?

I have seen the appellant letter of 5 October with a copy of the e-mail from Ringgo and examined the Tribunal dossier.

I have seen that the van was a hired one but it seems to me from the correspondence I have examined that the appellant previously had a Ringgo account and on that basis it seems to me inherently unlikely that the critical error of using Ringo instead of Verrus is fairly attributable to advice actually given by a patrolling officer seeking to be helpful. Patrolling officers may very well not be expert from personal experience in actually transacting the purchase of time and the identification of the correct operator is ultimately a motorist responsibility in my judgment.

It is consequently my conclusion that the contravention did occur. Although the appellant has I believe probably exaggerated her case about blaming any enforcement officer, I do consider having regard to the surrounding traumatic circumstances of domestic burglary and hiring the van, the error that occurred is the more readily explained and does have powerful mitigation.

I am on that basis urging the Council to be lenient in relation to this particular case and agree to a discretionary cancellation.

That's enough for this month.

Keep those Appeals coming as 80 is far too few for one month.

Yours appealingly

Miss Feezance