Monday, 9 January 2017

London Tribunals - March 16

an empty car

In the month of March 16 there were 111 Barnet Council Appeals considered by adjudicators. Of those 68 went the way of the motorist, a satisfying 61% and comfortably above the norm of 50%

Four cases were of note.

Do not leave your car empty whilst dropping off passengers (but you can).

This is what the adjudicator had to say.

There seems to me no reason to doubt the Appellant’s evidence, now supported by a letter from his employers, that at the time the vehicle was observed waiting the Appellant was in the process of attempting to make contact with his passenger. The very brief observation period does nothing to suggest that any other activity was in progress. I am satisfied the Appellant was within the exemption relied on and the Appeal is therefore allowed.

The Council should note, and note carefully, that it is not the law that a driver may not leave the vehicle for this purpose (whatever the advice of the Public Carriage office might be). The leading case of R v The Parking Adjudicator on the application of Makda (2010) EWHV 3392(Admin) makes it clear that a PHV driver is permitted a reasonable time to identify the passenger, or to conclude that the passenger is not there, as that is a necessary part of the picking up process. There is nothing in that decision to require the driver to remain in the vehicle whilst doing so – something that in many situations would be impossible. 

The Council’s consideration of the representations in the light of a self-imposed limitation on the law would amount to a procedural impropriety and the Appeal would have fallen to be allowed for that reason alone.

What do the council write nowadays? the very same thing, that you must not leave a car unattended whilst dropping off passengers. Oh dear.

What a liar

Ms Jones appeared before me today for the personal hearing of her appeal. She gave evidence in the same terms as her earlier representations to the Enforcement Authority and her Notice of Appeal, adding further details to her account.

Should does not dispute that her car was parked in a residents’ bay without a permit when it was seen by a Civil Enforcement Officer (CEO). At the hearing she amplified the account she had previously given to the Authority. She had spent the previous night at the flat of her boyfriend, Luke Smith. She had parked her car in this residents’ bay at a time when restrictions did not apply. She was aware that they applied from 10 am to 11 am, but normally would not have been there during the week, but only at weekends. Consequently she forgot that the restrictions would come into force the following day.

However she and her boyfriend saw a CEO at the car from his flat window, and so she went out to speak to him. She was surprised at how pleasant he was, and is quite clear that he reassured her that he would not issue a PCN, and indeed both wished her a Merry Christmas and even gave her advice as to where she could park in a nearby street without risk of enforcement. As Mr Smith says in his witness statement, she told him how helpful the officer had been.

The CEO has recorded that the driver returned and drove away before he could complete preparing this Penalty Charge Notice (PCN), but Ms Jones is adamant that he was not preparing a PCN, and that in any event she did not drive off so as to prevent him from serving one. Indeed she is quite clear that he positively undertook not to issue one, as well as giving her advice as to where she could park safely.

There is thus a direct conflict of evidence in this case. However I have had the advantage over the Authority of hearing from Ms Jones in person, and found her a convincing and credible witness. Her account is also supported by the witness statement from Mr Smith. I accept Ms Jones’s evidence regarding this conversation. I find as a fact that she was given an express assurance by the CEO to the effect that he would not be issuing a PCN. This gave rise to a legitimate expectation on her part that none would be issued. It is immaterial that the CEO may not have had any authority to give that assurance. I am also satisfied that the conditions that entitle the Authority to issue a PCN by post under Regulation 10 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 had not arisen, so that they were not entitled to do so.

Accordingly I allow this appeal.

PayByPhone bug

Mr Oldcar attended the personal hearing listed for today. I found him to be a very honest and sincere witness.

Mr Oldcar denies the contravention stating that he regularly parks his car near the station to commute to work and uses the text by phone payment system.

This requires him to text the first four digits which is the location code, followed by the number of minutes he wishes to park (usually 570 minutes) followed by the last three digits of his credit card. This should register the payment to his vehicle AB55CDE. There is no need to enter the vehicle registration details or any option to change the vehicle by text so the error cannot be on his part. He showed the text number on his phone which showed the same pattern of texts verifying his account.

In addition he produced a print out of his payment receipts for the last 2 years which show approximately 150 entries all registered with the appellant's current VRM number AB55CDE.

There are only two entries on 18th and 22nd September where unbeknown to the appellant at the time the payment was credited to an old vehicle which he had sold more than 5 years ago. He received this PCN for the alleged contravention of the 22nd September.

The local authority have not produced any evidence that the pay by phone system was working properly. The onus is on the local authority as the pay by phone system is operated by the local authority's contractors.The Appellant tried to raise the issue directly with Pay by Phone but who refused to deal with him stating that he had to contact the local authority and appeal.

It is very clear from the appellants evidence that there was a system error and the money was credited by the computer systems to the an old obsolete vehicle. I accept that It could not have been inputted incorrectly by the appellant as there is no option to select a vehicle.

I am therefore not satisfied that the contravention did occur and allow this appeal.

Late suspension

I note from the case summary that the suspension sign was erected on 11 November 2016; which is the day before the suspension came into effect.

I find that the erection of the suspension notice was too near the suspended period.

Keep those Appeals coming, it is worth the tiny effort involved.

Yours appealingly

Miss Feezance

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