Saturday, 28 January 2017

London Tribunals - May 16

Geron Way
In the month of May 16 there were 157 Appeals decided upon. Of those, 84, that is 54%, went the way of the motorist. Winning 50% is the norm so another good month for the motorist. If you go to the tribunal with a half decent argument, you stand a chance.

There were 5 decisions of note:

Geron Way

The Appellant attended in person. The Authority was not represented.

The is whether the signage was too difficult to find. The Appellant said that the sign was too small and too high. I do not accept this submission.

The sign was behind the Appellant's vehicle. It was on a lengthy yellow line and bearing in mind the issue, I have to ascertain whether the signs either side of the Appellant's vehicle are within acceptable distances. The Authority provided a diagram which suggest that there is a sign within about 20 metres of the rear of the vehicle. It suggests that there is a sign slightly further away in the opposite direction. I cannot see such a sign in the Google image also submitted by the Authority. I have obtained a clearer and more close up image. It showed a post with no sign.

I am not satisfied that the signage was adequate. I allow the appeal. (signs every 60m on a single yellow line are the gold standard).

The traffic warden knew and yet...

This PCN was meant to have been issued for the alleged contravention of being parked in a restricted street during prescribed hours. The PCN was issued at 2.12pm on 26 November 2015 and the location was Golders Green Road. The PCN in fact cites an incorrect alleged contravention of "being parked in a restricted street during prescribed hours (blue badge holder)".

I have looked at the CEO's images. These show that Mr Oops' car was parked on double yellow lines with a valid blue badge displayed in the windscreen of the vehicle. Although the Council says in its case summary that the badge was displayed so that the CEO could not see all of the relevant details, that was clearly not the case. The expiry date and badge number are clearly in view and there is no concealed information. The CEO's notes make no reference to the badge being partially concealed from view. It is not clear to me why the Council have made this submission.

The clock displayed with the badge was set for the incorrect time of 4.30pm and Mr Oops, who was with his father at the time of parking, has explained that this was a genuine mistake. An appeal would normally be refused where a motorist has made a mistake with the clock time. I am, however, allowing the appeal in this case because I accept the evidence of Mr Oops that the CEO was next to the vehicle when it was parked and that he inspected the badge and clock while Mr Oops and his father were still there. The CEO clearly knew that a mistake had been made with the clock and allowed Mr Oops to walk away without drawing it to his attention.

The CEO was fully aware that the motorist had just parked and was, in my view, duty bound to explain to Mr Oops the need to re-set the clock. The failure to discharge that duty would make it wholly unjust to enforce a PCN. The CEO effectively allowed Mr Oops to walk away so that he could issue a PCN.

No proof that clock was wrongly set

The Penalty Charge Notice was issued for the contravention of parking for longer than permitted. The appellant’s car was observed parked in a disabled bay. There was a disabled badge in the car. The sign in the bay states that the bay is for disabled badge holders only for up to three hours with no return within 1 hour.

The car was first seen at 15:06. The civil enforcement officer states that the Penalty Charge Notice was issued at 15:08. Mr C denies that he was handed a Penalty Charge Notice. The civil enforcement officer took photographs of the car. There is no evidence of any earlier observation of the appellant’s car.

The local authority states that the car must have been parked for over three hours because the clock in the car was set at 11:55. Mr C states that he had been at a restaurant a couple of miles away. He provides a receipt. The receipt is timed at 13:18. Mr C states that he had parked the car to go to a shop. Mr C lives very near to where his car was parked. He states that he usually parks the car in a service road behind the flats.

The onus is on the local authority to prove that a contravention occurred. In the absence of any direct evidence that the car was in the bay before 12:06 I cannot be satisfied that the vehicle was parked for longer than permitted. I am not satisfied that the time set on the clock is alone sufficient to prove that the car was parked for over three hours. This is particularly so when the appellant denies the contravention and provides some evidence in support of his assertion.

I allow this appeal.

No clock required

The appellant did not attend the hearing arranged for 17 May. The Council did not send a representative.

I have concluded the adjudication after reading a note on the Tribunal file recording a telephone call from the appellant in which she stated that she was happy for the adjudication to be concluded without her personal attendance.

I have seen the appellant refer to her earlier decided case and I believe this to be 2160052549 where the essential issue was again whether the penalty charge should stand despite the lack of clock accompanying the blue badge. As I believe in that earlier case the relevant restriction for the single yellow line in this appeal operated only for an hour in the day (Mon-Fri).

I have had the opportunity to read the Adjudicator Ms Brennan's decision overturning the earlier penalty charge and I believe it is correctly applied to the facts of this present case (a single hour restriction case).

and case 2160052549 said

The Penalty Charge Notice was issued when the appellant’s car was parked on a single yellow line in Market Place. There was a disabled badge in the car. The hours of restriction at the location are from 2pm to 3pm Monday to Friday.

Miss B states that she did not display the clock with her disabled badge because the restriction was only in operation for an hour. The purpose of the clock is to show what time the car was parked. The disabled badge exemption applies on single yellow lines for up to three hours.

The London Borough of Barnet argues that there is a requirement to display the clock with the badge.

Article 23 of the Traffic Management Order states that restrictions do not apply in relation to a disabled persons vehicle which displays in the relevant position a disabled persons blue badge issued by any local authority provided that where the prescribed hours are of a period of more than 3 hours duration that vehicle shall wait for no more than 3 hours…..on the same day.

The Traffic Management Order does not impose a requirement to display a clock. The Penalty Charge Notice was issued at 14:30. The Penalty Charge Notice was issued at 14:00. The car was not parked for longer than three hours.

I am satisfied that the disabled badge exemption applies. I allow this appeal.

Can leave vehicle before paying by phone

This PCN was issued for the alleged contravention of being parked in Bunns Lane Car Park at 9.26am on 24 December 2015 without payment of the parking charge.

I am allowing the appeal because the VAT receipt submitted in evidence by Mr K shows that he made a payment to park from 9.32am on 24 December 2015 to 8am the following day at a cost of £5.10.

Mr K has explained that he was unable to make immediate payment on parking because of a mobile phone connection issue and I accept this evidence as explaining the reason for the 10 minute delay in making payment.

I am satisfied that Mr K was in the process of attempting to make a payment at the time of issue of the PCN.

A motorist is allowed the time on parking to make the payment to park and the amount of time to be allowed for this will depend entirely on the circumstances of the particular case.

I would liken this case to a situation where a motorist finds a pay and display machine to be out of order and has to walk some distance to another machine to make payment.
The Council says that its terms of parking require the motorist to make payment before leaving the vehicle.

I have seen no notice drawing such a term to the attention of the motorist. Mr K clearly needed to leave the immediate location on this occasion in order to make the connection to process a payment.

Keep those Appeals coming. They cause the council a bundle of work and they have to pay the tribunal fees which they cannot claim back from you.

Yours appealingly

Miss Feezance

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