Saturday, 21 January 2017

London Tribunals - April 16

In April 2016 there were 135 Barnet Council appeals considered by the adjudicators at London Tribunals. Of those 73, which is 54%, went the way of the motorist, and were cancelled. This is a better than average result for London.
The Castle Road Car Park (pictured) figured three times and led to three cancellations, (blue type is a copy of the adjudication decisions):
The appellant, who paid to park by phone, raises the issue of signage his case being that the requirement to display a permit when parking in a bay such as this in this car park is inadequately signed. Supporting photographs are provided.
I acknowledge that permit bays are marked in orange and that confirmation is provided on the tariff board that only permit holders may park in such bays but in my view these permit holder only bays should be identified as such with bay plates to meet the test of adequate signage and given on the evidence before me that does not appear to be the position I am not satisfied that the restriction the council seeks to enforce is clearly signed.
The contravention did not for that reason occur.
The appeal is allowed.
Mr Dishman appeared before me today as the representative for Mr T at the personal hearing of his appeal.
Mr T does not dispute that his car was parked in a bay marked with orange paint in this car park, and that he did not display a permit. However his argument is that he did not know that these were reserved for permit holders, and that only the bays marked in white were available for those wishing to pay by phone, as he did.
Mr Dishman put forward a number of arguments on Mr T’s behalf, but the central one was to the effect that the signage of the restrictions that applied in this car park was inadequate to warn motorists of the distinction between what was required in each type of bay.
The Enforcement Authority’s case is that the sign at the entrance to the car park states the requirements for each type of bay. However Mr Dishman adopted Mr T’s proposition to the effect that further signs should have been placed within the car park, adjacent to the orange bays, to make clear that they were reserved for permit holders.
I am aware that a number of Adjudicators have made decisions in appeals arising from essentially the same circumstances, and that these have not all been consistent in their outcomes. However I share the view expressed so succinctly by Adjudicator Edward Houghton in Case No 2150180881, in which he stated:
“This is an issue purely of clarity. Unlike for example yellow lines or cross-hatching, orange bay markings do not in themselves convey any particular probable meaning. In my judgement something more than a single line of print on a sign near the entrance is required i.e. some signs near the bays themselves announcing “Permit holders only” or similar. As I am unable to be satisfied the nature of the bay was adequately brought to the driver’s attention no contravention occurred and the Appeal is allowed.”
For the same reasons I allow this appeal.
The Appellant has attended his appeal I find him to be an honest, convincing and consistent witnesses I believe what he tells me.
After some consideration I have decided, on a balance of probabilities, to allow this appeal for the following reasons:
First, I have accepted from the Appellant that the introduction of permit bays in this pay & display/pay by phone is relatively new and since the last time he parked in this car park.
Second, I find that the orange markings in this bay are more pink in colour that orange. The Appellant produced evidence to support his appeal, which has been exhibited.
Third, I have looked at the terms and conditions board and find part of the legend illegible in relation to the words that follow 'Orange bays....' .
Fourth, I find that the Authority should in a case such as this have erected a repeater sign by these pink coloured bays indicating that they are restricted to permit bays.
Fifth, overall I find the bay markings and the signage to be inadequate and unclear.
Taking these matters together I find that this Penalty Charge Notice cannot be upheld.
The appeal is allowed.
Leaves on the line then moved from rail to road

I am not satisfied that the Authority has proven the case against the appellant. The dusky weather conditions and the fallen leaves have not assisted me in ascertaining whether the appellant had parked his vehicle adjacent to a dropped kerb. I agree with the appellant who submitted that he could not see "the recess" of the cropped curved paved area when he parked his vehicle. I have considered the photographic evidence of the CEO at some length. I would have been assisted if just one photograph displayed with clarity the rear wheel of the vehicle in relation to the start of the dropped kerb. This evidence lacks the clarity and reliability in demonstrating that such a contravention occurred.
A not suspended suspended bay caused confusion
The Appellant challenged the clarity of the signage.
The Authority submitted a photograph of the sign. The photograph is of a part of a sign. has a yellow background but the sign as seen on the photograph does not contain the word suspension or suspended.
Even if I were to accept that there was in fact a suspension sign, the notice referred to the reason for suspension was for "Herts Traffic". There is no evidence that the bays were lawfully suspended. The sign also said that five pay by phone and permit bays are "required". There is no evidence that the Appellant's vehicle is in one of these bays.
I am not satisfied that the contravention occurred. I allow the appeal.
A blind eye is now turned on you
The fact that a vehicle has parked unlawfully for many years, or that other vehicles have similarly parked unlawfully for many years will not avail the Appellant. However I see no reason to doubt his evidence that the area is patrolled by CEOs who have never, until the present instance, issued a PCN. It seems to me that a continual absence of enforcement by CEOs, the turning of the blind eye, can amount to an indication that the Council has no objection to parking in this way; and in the circumstances of this case it seems to me that the period of non-enforcement is such as to give rise to this implied permission or undertaking. The Council cannot resile from this without giving notice that any such permission is at an end – and the issue of the PCN in the present case has that effect.
The Appellant should be quite clear that he cannot park there in the future. However having given what is an implied undertaking that parking is the Council cannot be allowed to enforce in breach of it as doing so would amount to the equivalent of an abuse of process; and in these circumstances no enforceable contravention can be said to have occurred (see the dicta in Camden v The Parking Adjudicator and BHS t/a First for Food Service Ltd [2011] EWHC 295 Admin [2011] EWCA Civ 905).
The Appeal is therefore allowed.
On the pavement six times, or once?
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 on 11.12.15. Miss Charles does not in fact dispute this but she says that this is one of a number of PCNs issued over the period of 6 days. She says that she has paid one of the penalty charges but challenges the attempt to enforce any more than one in circumstances where the vehicle was not moved in between.
The Enforcement Authority Case Summary asserts that they are ‘within their right to issue a further PCN to a vehicle parked in the same contravention after a period of 24 hours have passed and is in line with statutory guidance’. However, they have not provided any authority to support the assertion. On the evidence I have seen I am not satisfied that the Enforcement Authority have established separate contraventions and accordingly I allow the appeal.
Straddling two bays
The Enforcement Authority assert that the vehicle, at the relevant time, on the material date, was parked otherwise than within designated bay/space markings.
The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances as set out in her written representations (supported by photographic capture), which she reiterated and comprehensively detailed at the Hearing.
The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.
The evidence upon which the Enforcement Authority rely to substantiate the assertion comprises the certified copy Penalty Charge Notice, and contemporaneous notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ, and the presence of a double delineation bay distinction.
No evidence is adduced either of the governing Traffic Management Order, or the applicable signage notifying motorists of the restrictions pertinent to each bay.
Helpfully the Appellant provides photographic evidence to establish both the respective restrictions and that 'TF' permit holders are permitted to park in both bays.
The Enforcement Authority suggest in the Case Summary, which is not, of itself, evidence, that the Traffic Management Order obliges permit holders to park within bay markings. In the absence of the Traffic Management Order's Articles I know not the accuracy of that suggestion.
The Appellant argues that she has a TF permit, and as such can park in both bays, and there is no signage in the vicinity to indicate that straddling the two is not permissible. To this end the Appellant maintains that she has been encouraged in her view that such manner of parking is permissible due to the fact that she has adopted such parked position on dozens of occasions annually, over the 10+ years that she has held a permit, without previously receiving a Penalty Charge Notice for the same.
The Appellant contends that this manifests itself as a legitimate expectation that no penalty will flow; which interpretation is emphasized by the fact that the Enforcement Authority did not contest Case No 2160086562, an identical matter. I found the Appellant's oral evidence to be cogent and credible and I accepted it in its entirety.

Evidentially therefore I cannot be satisfied that this contravention occurred, accordingly I allow this Appeal.
Keep those Appeals flowing. They cost the council c. £30 each in tribunal fees, and a whole bundle of work, so the more cases they have to provide evidence for, the better.
Yours appealingly

Miss Feezance

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