Monday, 30 January 2017

London Tribunals - August 2016

In the month of August there were 149 Barnet cases decided at London Tribunals of which 89, a lovely 60%, went the way of the motorist.

There were a dozen interesting decisions, and they appear in the words of the adjudicator below.

Wrong evidence

On 7th July 2016 Mr N attended the hearing.

He maintained that in the early stages of these proceedings he had been sent the wrong evidence or at least the evidence he had received did not show the vehicle concerned stopping on the box junction.

He stated that he had sent the DVD to this Tribunal.

I cause a search of the Tribunal but the DVD could not be found.

Nevertheless I will make a decision on the evidence before me and will reach a conclusion as to fact based on that evidence.

As stated above at the hearing stated he had never been sent conclusive proof that his vehicle had stopped on the box junction.

He had not looked at the DVD in the evidence pack provided by the local authority because he assumed it would have been the same as the one he had been sent initially.

Mr N made representations on 16th May 2016 to the effect that the only evidence he received did not show that his vehicle had stopped on the box junction.

The local authority issued a notice of rejection dated 23rd May 2016, in which they stated that they would send DVD evidence under separate cover.

On the 26th May 2016 the local authority sent a letter stating that they had enclosed contravention footage.

On 6th June 2016 Mr N sent an e-mail stating that the evidence enclosed still did not show any offence.

At the hearing Mr N asserted that he had been sent footage that did not show the vehicle in the box and that is why he appealed. He said that the penalty notice did not disclose a VRM. The on-line evidence did not show the vehicle had stopped. that is why he requested independent footage, which, he asserted, did not show any contravention.

On balance i am persuaded that he was sent the wrong evidence and that he was misled.

I will therefore allow the appeal.

Council fundamentally misdirects itself.

The Appellant Company is represented by Mr K who was the driver at the material time. The Authority was not represented.

Mr K said that he was unloading. His representations were rejected by the Authority who said that there was no evidence of unloading.

Mr K wrote again and offered some evidence of unloading. The Authority declined to change its mind stating that:"The loading exemption does not apply when a vehicle is double parked."

Section 85 (5) provides:
"The third exception is where—
(a) the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b) the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
(c) the vehicle is so parked for no longer than is necessary and for no more than 20 minutes."
There is therefore a loading/unloading exemption for double parking. The Authority has fundamentally misdirected itself on the law.

I find that this amounted to a procedural impropriety and I allow the appeal.

Room to exit the yellow box

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 have looked at the DVD footage.

I accept that the appellant's vehicle stopped in the box junction but it was not owing to the presence of another stationary vehicle. The vehicle that was stationary did not move off before the appellant's vehicle cleared the box junction. There was sufficient space behind the stationary vehicle for the appellant's vehicle to stop outside the box junction.

The appellant's vehicle did not therefore stop owing to the presence of that vehicle.

I will therefore allow the appeal.

Intervening car in your way in a yellow box junction

Mr Q denies the contravention. He states that his car was not stopped in the box junction due to the presence of stationary vehicles.

The contravention occurs if a person causes a vehicle to enter the box junction so that all or part of the vehicle has to stop within the box junction due to the presence of stationary vehicles. The Enforcement Authority does not have to prove that the vehicle caused any obstruction to other road users.

I find that the CCTV footage shows that the appellant’s car drove into the box junction at a time when the exit towards which Mr Q was driving was free. At the time that Mr Q drives his car into the box there is a red car to his left but this car is proceeding towards the offside lane exit. After the appellant‘s car is in the box the red car manoeuvres in front of the appellant’s car thereby preventing Mr Q from driving his car out of the box. I find that the appellant’s car is stationary for 3 seconds. I am not satisfied that the appellant’s car entered and stopped in the box junction due to the presence of stationary vehicles. The car had to stop because another car executed a manoeuvre after Mr Q’s car had entered the box.

I allow this appeal.

Learner driver keeps stalling (as they do sometimes) on school zig-zags

The appellant denies the contravention stating that she is a driving instructor and that her student was nervous as it was only their second lesson and kept on stalling.

The local authority do not dispute this but say that the appellant's vehicle was seen stationary for approximately 20 seconds which constitutes stopping rather than a mere pause.

Considering the evidence carefully I am not satisfied that the contravention did occur bit find that the appellant pulled over as part of a road traffic manoeuvre and to avoid an accident.

I therefore allow this appeal.

Boarding and alighting confused by the council

The appellant's case is that he stopped in this goods vehicle only loading bay to collect his disabled father, who was suffering from cancer, from a restaurant.

The council in its rejection notice stated that the appellant had said that he was assisting a mobility impaired passenger alight the vehicle and that there is no loading/unloading exemption in respect of bays of this type.

The appellant did not say that he was assisting his father alight the vehicle and the availability or otherwise of a loading exemption is not relevant to whether or not a boarding/alighting exemption applies (which it appears on a cursory examination of the TMO it may well).

I am not satisfied against this background that the council properly considered the representations made to it as it is required to do under the Regulations and find for that reason that a procedural impropriety on its part has occurred in these proceedings.

The appeal must accordingly be allowed.

Using the footway as a long term car parking space

The Appellant said that her vehicle was on the pavement for several days and had apparently received several penalty charge notices. She has not stated whether the vehicle had been moved in between these dates. The Authority had not said otherwise.

The Appellant's submissions about not knowing that one cannot park on the pavement in London is wholly untenable. At the appeal stage, Her focus is that she should only be penalised once.

The Authority said that it can issue a ticket every 24 hours. It has not offered any authority for this proposition. There is some authority to support this approach but even these authority restrict this to restrictions which do not run overnight. It does not therefore apply to the present case anyway.

The starting point is that one wrong doing should only be penalised once. The Authority has not offered anything which goes against this point.

I allow the appeal. I take it that the Appellant will not complain if her car is removed should this recur. She will find that the removal charges cost more than three PCNs.

Pay by phone registration error

The allegation in this case is that at the time of issue of the PCN the vehicle was parked in a pay and display car park without clearly displaying a valid pay and display ticket. Mr. R does not in fact dispute this but he says that he had used the pay-by-phone system to register for the 3 hours free parking afforded at that time.

The Enforcement Authority acknowledge that Mr. R had registered for the free period but that the vehicle registered had the VRM ‘58XOB’. The VRM for Mr. R’s vehicle is ‘ZZ58XOB’.

The primary responsibility lies with the motorist to ensure that payment has been made for the correct time, vehicle and location. However, I allow appeals in cases where a parking period has been wrongly ascribed due to a mistake by the Enforcement Authority’s system or operator. In this case Mr. R says that his vehicle was already registered with the pay-by-phone system.

The Enforcement Authority say that the details are read back to the user and it may be that Mr. R has been fortunate on this occasion. However, I do not feel able to say that the error was Mr. R’s on this occasion and accordingly I allow the appeal.

Stopped in yellow box when exit clear

I have heard the appellant in person who I find an honest and credible witness. The Authority did not appear and was not represented.

The Authority has produced the details of a link to their website on which I have viewed CCTV footage. The footage shows that the exit lane of the box junction was clear when the appellant’s vehicle entered it. Further, it shows that the vehicle stopped only briefly in the box junction when there was sufficient space to move forward. The vehicle was not forced to stop in the box because of stationary traffic.

I find as fact that the exit lane was clear when the vehicle in question entered the box junction. I find as fact that the vehicle was not forced to stop because of stationary traffic. The components for the contravention have not been met. I am not satisfied that the contravention occurred.

I allow the appeal.

Pregnant & vomiting

Mr and Mrs T attended the hearing. The Authority was not represented.

Mrs T was pregnant at the time and suffering from sickness. She needed to stop to be sick and she needed to be close to her home because the road goes uphill and she had her young child with her.
I accept Mrs T' account. The vehicle was stopped for a reason beyond her control.

I allow the appeal.

Previous motorist's payment receipt (Moxon Street car park)

The Authority's case is that the Appellant's vehicle was parked in a car park without clearly displaying a valid pay and display ticket or voucher or parking clock when in Moxon Street car park on 4 April 2016 at 18.54.

The Appellant case is that when he went to obtain his voucher, which allows 1 hour free parking, the machine issued him with a receipt.

I have considered the evidence in this case and I find that this penalty Charge Notice cannot be upheld for the following reasons;

First, I find that the Appellant had not exceeded the 1 hour free time parking allowed at this location.

Second, I find that it is not the Appellant's fault that the machine gave him the receipt of the previous user.

Third, whilst it would have helped if the Appellant had viewed the voucher issued to him, I find that he had a reasonable expectation that the machine would issue the correct voucher.

Taking these matters together I find that this Penalty Charge Notice is not proved.

The appeal is allowed.

Yellow box junction - intervening vehicle

There is no dispute as to the whereabouts of vehicle, at the time, on the material date; namely at a location subject to an operative restriction denoted by yellow cross-hatching, such demarcation indicating a prohibition against a vehicle remaining stationary within the defined area due to the presence of stationary vehicles.

The Enforcement Authority assert that the said vehicle entered the defined area and stopped. The Appellant denies liability for the ensuing penalty charge notice contending that the manner of driving of a vehicle ahead caused the said vehicle to become so positioned.

The Enforcement Authority who assert that the said vehicle was so driven contrary to the operative restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice together with photographic evidence: CCTV footage and still frames taken there-from revealing the said vehicle in situ and the applicable carriageway markings notifying motorists of the restriction.

It is incumbent upon a motorist to be acquainted with [by reference to The Highway Code], and comply with, such prohibitions.

The restriction, as set out in Paragraph 7 (1) of Part 11 of The Traffic Signs Regulations & General Directions 2002, as amended, prohibits vehicles (or parts there-of) from entering and becoming stationary or stopping within the cross-hatched area due to the presence of stationary vehicles.

The essential element is the presence or otherwise of stationary vehicles causing the vehicle in question to stop.

The photographic capture was examined to evaluate this aspect in conjunction with the Appellant's representations; by virtue of the brevity of the contemporaneous footage extract and the fact that it commences after the said vehicle has already entered the cross hatched area, evidentially it is not possible to determine all criteria necessary to establish a contravention.

Indeed the Appellant's contention, with regard to the interloping vehicle executing a right-hand turn, is borne out by the evidence.

It is accepted that split-second judgement calls are necessitated by driving conditions, but the need for a vehicle to await room for clearance before commencing a manoeuvre across such a junction is the only option available to a motorist to avoid contravening the prohibition.

In this instance, on balance I accept that the said vehicle was rendered stationary on the cross-hatched area by a vehicle unexpectedly impeding its path after the said vehicle had entered the junction; therefore I am not satisfied that the contravention occurred, accordingly I allow this Appeal.

These cases are not binding precedents but they do give you useful pointers as to whether your facts are such that you too might get a favourable decision if you go to the tribunal. If the discount is no longer available then you might as well. To save time you can have your case considered 'on the papers' but better results are generally obtained by an in person hearing at the tribunal centre in the Chancery Lane area. Make the event a bit of a day out and have a good lunch or do some sight-seeing whilst you are there.

Keep those appeals flowing.

Yours appealingly

Miss Feezance

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