Monday, 30 January 2017

London Tribunals - July 2016

Traffic wardens pull the trigger very readily

In the month of July 2016, 94 motorists won their Appeal and 99 lost given the council a slightly better than average win rate of 51%.

The following are the adjudication decisions which were noteworthy, largely in the words of the adjudicators themselves.

Traffic warden shoots a PCN out too fast.

This PCN was issued for the alleged contravention of being parked in a restricted street during prescribed hours. The alleged contravention occurred in Lodge Lane at 3.50pm on 14 May 2016.
I have looked at the CEO's photographs. There is a single image of the Company's car stopped on a single yellow line indicating that there was a no stopping and no waiting restriction. Another image shows a time plate with the restricted hours of 8am to 6.30pm Mondays to Saturdays.

I am allowing the appeal because I accept the driver's evidence that he pulled over onto the single yellow line to check the restrictions on the time plate and that he then drove the car away. The CEO clearly did not have time to serve a PCN in this case as the car was driven away. The fact that only a single image of the vehicle was captured suggests to me that the car was stopped only very briefly. A motorist is allowed a reasonable time on parking to check the parking restrictions and I therefore find that the alleged contravention did not occur.

Loading laundry sacks.

I have seen the appellant explanation about laundry sacks and why its driver of the van may not be able to load the vehicle from the appellant premises nearby very swiftly on all occasions.
The officer was not at fault in this case as he had the van under constant observation for at least 7 minutes and identified no coming or going, or indeed anything which might be classed as loading or unloading.

The loading bay has a very generous maximum of one hour but bay occupancy is only permissible while loading and unloading is actually underway.

I have however broadly accepted the appellant explanation about delay and I have accepted that a reasonable time for loading garments was not actually exceeded in this particular case.

I have thus recorded the appeal as allowed.

Unloading musical equipment

The appellant has produced reasonable evidence of unloading musical equipment and has provided supporting evidence, which I find compelling.

I will therefore allow the appeal.

Payment by text - is when the text is sent

The Appellant said that she sent a text to pay for her parking at 14:02. She produced her phone bill. She makes the point that no other text was sent to that number that day so that if payment was successful, she must have paid for her parking at 14:02.

The Authority's contractor provided a record which says that the text was received at 15:26 and parking was valid until 2:56 pm. It does not make sense.

The Authority "corrected" the difference. It argued that payment was received at 14:26. It did not suggest that the Appellant's text was the text that triggered the payment at 14:26. It submits however that payment is only "deemed as paid upon receipts of the funds." This interpretation is flawed in law and entirely unfair to motorists.

"Making a payment" is not directly defined in the Traffic Management Order. The TMO does however refer to making a payment by a telephone payment parking system whereby a payment is made by following the instructions indicated on signs located by each parking place, The signs tell people that they can pay by, inter alia, sending a text. They do not say that payment is only completed by it being registered on the system.

There is also a practical problem. Once a motorist sends a text, he or she has no control over or input into the next stages.

The Authority submitted that Appellant should have waited until she received the confirmatory text. The Appellant did receive one some 20 minutes after she sent her text, which rather ties in with the time of registration of the payment. I do not think that it is reasonable to expect people to wait for 20 minutes. If this is the expectation, it should be clearly signed.

In any event, I find that payment is made once the text was sent. There is no contravention. I allow the appeal.

Photos taken the day before the PCN was issued!

The appellant did not attend the hearing on 14 July. Her case was presented to me by her son who in the normal way simply drives his own car, but on this occasion was using his mother's. The Council did not send a representative to the hearing.

There was an initial point emerging at the hearing. This was the discrepancy between the date stamp on the colour photographs associated with the penalty charge and showing the appellant car and the date when the officer recorded issuing the penalty charge notice which correctly was dated 2 February. The officer colour photographs were stamped 01/02/2016.

The evidence certainly pointed overall to the photographs being taken on 2 February and the date stamping mechanism in the camera being at fault.

I remarked initially that I had never seen a similar mismatch presented to me in evidence. I also remarked that I was well aware that councils in general were at great pains to calibrate handheld ticketing equipment regularly and carefully. I had always until this case proceeded on the basis that date and times on officer cameras were broadly reliable and properly checked for date and time, but I shall not be doing that so very blindly in future if a point is taken.

I am aware that photographic evidence from the patrolling officer is not mandatory. It does not follow from that that I can readily agree with the Council argument in its case summary that the discrepancy does not matter. It seems to me that when councils will regularly refuse to cancel penalty charge for an inadvertent mistake over the motorist completing a scratch off card for example with Wednesday rather than Tuesday, that equality rather argues for the Council getting its dates right on evidence it wishes to use.

Previous cases before me in adjudications have usually resulted in me upholding a penalty charge where the motorist has mistakenly through inadvertence or other fault on his part paid for the wrong vehicle registration. Having heard from the appellant's son and how he had earlier on the day in question sought to add the registration for his mother's vehicle and how the payment as receipted was attributed to his own vehicle instead, I have been left in some doubt as to whether the fault lay with the appellant's son or with the software glitching in some manner. I have resolved that point in the appellant's favour on this occasion.

These factors have resulted in me concluding that this particular case is not strong enough for penalty charge for enforcement.

I have recorded this appeal as allowed.

Footway parking needs a council resolution

The case concerns off-carriageway parking in a road where there are 2up bays painted and intervening single yellow line such as there was where the appellant car was when ticketed.

The appellant told me that he and his wife had recently arrived in London and indeed Mrs R was the lady seen by the reporting officer and she who protested to him that she did not know it was unlawful. She I understood had only recently started to drive.

It is repeatedly said by the Adjudicator in footway parking cases that the narrowness of the carriageway never justifies leaving a private car unattended with wheels over the footway (unless there is an exemption applying in the part of the street concerned).

It is repeatedly and correctly said by councils that the statutory ban concerned operates without any need for signage.

The appellant told me, I believe quite correctly that since the ticketing occurred and indeed before it also, no penalty charge had been given them for footway parking.

I explained to the appellant that the law did not support his arguments and his decision to avoid parking in similar fashion thereafter was accordingly certainly prudent (even as I believe the case to be, there are in the close neighbourhood many streets which have been exempted apparently from the statutory ban and footway parking is not ticketed whether in bay markings or not).

As I further explained at the hearing there are statutory provisions governing the way in which Councils give effect to any decision to exempt a street or part of one. They are generally required to proceed by way of Council resolution.

In this appeal so far as I have been able to see, no copy of any relevant resolution has been included in the file sent by the Council and I have thus not been able to verify whether the extent of permissible footway parking as indicated by bays is correctly matched by the provisions of a relevant resolution.

When I discussed this lack with the appellant I informed him that with streets which are partially exempt the Adjudicator may adjourn for the Council to investigate and produce relevant documents proving the proper extent of what is lawfully permissible in a particular partially exempted street.
I decided against adjourning for that purpose in this case given its features overall and the fact the appellant had attended in person.

I have consequently decided there is insufficient evidence produced on this occasion to uphold the penalty charge for the reasons stated.

The appellant will appreciate that similar parking may attract later penalty charges where the extent of evidence provided in an adjudication may include a copy of the relevant resolution and that that may result in an outcome of penalty charge liability rather than the penalty charge been quashed as it has been quashed by me today.

For these reasons I have recorded the appeal as allowed.

Wrong person made the representations

Mrs S attended as the Appellant.

The owner of the vehicle is Mr John S, Mrs S's husband. Mr S was correctly served with the Notice to Owner but Mrs S responded. Mrs S identified herself as the driver and that her husband was the owner of the vehicle. This does not give Mrs S the right to make formal representations nor can anything Mrs S said be treated as formal representations. The Notice of Rejection which in addressed to Mr S is therefore invalid because Mr S had not made any representations.

There has been a procedural impropriety. I allow the appeal

An expensive visit to the dentist

The officer recorded handing the penalty charge notice to the driver. That entitles the Council to pursue the penalty charge.

The officer recorded receiving an explanation for parking on the double yellow line from the returning driver.

The explanation was about escorting a relation to the dentist and I have accepted that an excessive time was not taken to drop the lady of in the particular circumstances described.

I have decided to allow the appeal on the basis of the limited exemption in favour of passengers alighting.

I have recorded the appeal as allowed on that basis.

Remember that decisions are an adjudicator are not binding, even on them. In legal terms they are merely persuasive. They do though give you a good idea of what might be accepted as grounds for an Appeal.

One thing though is certain. Unless you make an Appeal on line, you can't win it.

Yours appealing

Miss Feezance

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