Wednesday, 15 February 2017

London Tribunals - Dec 16 - Bunns fights

The month of December turned out, despite hearings finishing on 23 December, to be the busiest month of the whole year. There were a massive 321 hearings. Of those 174 were won which is 54% and a better result for motorists than the average across London (actually 48% won by motorists across London in the year ended 31 March 16). Well done everyone who went to the tribunal.
There are 5 cases for which I copy the words of the adjudicators (after changing people's names although they are published on the tribunal website).
Loading at 2 a.m.

The vehicle was parked on a double yellow line indicating a waiting restriction in operation 24 hours a day. The vehicle was therefore in contravention unless the Appellant is able to establish, on balance, that some exemption applied. He relies on the familiar exemption for loading, stating that he was picking up heavy kitchen equipment from his café.
Loading is in law essentially the process of transferring heavy or bulky goods from premises to a vehicle. The CEO saw no evidence of items being moved; however this is hardly surprising as he issued the PCN virtually instantaneously, recording an observation period of only one minute, at the end of which the Appellant had returned to the vehicle. In the absence of any evidence to suggest that he had some other purpose in bringing his vehicle to his café at 2.00 in the morning it seems to me overwhelmingly probable that the Appellant is correct and that the vehicle was there to be loaded.
The only real point to consider is whether the two or three minutes described by the Appellant during which he was checking the premises fall to be counted as “loading”. It seems to me that they are, on the basis that securing premises after loading goods is in my judgement a reasonably necessary part of the loading process, certainly if it is done immediately and without any undue delay.
It follows that, as it transpires, the vehicle was not in contravention and the PCN was incorrectly issued.
It is therefore unnecessary to consider the Appellant’s submissions regarding the subsequent procedures and correspondence
'Cut up' in a Yellow Box Junction
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.

To stop means to come to a stand as in the course of a journey, to halt or to cease moving.

I looked at the on-line evidence.

I am satisfied that the appellant's vehicle could have cleared the box junction. It was the vehicle on the off-side threatening to take the appellant's vehicle space that caused the appellant's vehicle to have stopped.

It was the vehicle on the off-side, threatening to "Cut up" the appellant's vehicle, which otherwise would have cleared the box junction that causes me to allow the appeal.
Bunns Lane Car Park
Sign does not reflect the provisions of the Traffic Management Order
Mr NB attended today. His daughter, H B is the owner of the car. Mr B was the driver on 4th August.
The Penalty Charge Notice was issued for the contravention of parking without payment of the parking charge. It is not in issue that no payment was made to park in the Bunns Lane Car Park on 4th August. Mr B appeals as he states that he had sent a text to the correct number to pay to park his daughter’s car. He has an account set up with Pay by Phone and so he believed that the payment would be debited to his card.
Mr B provides a screen shots from his phone. I accept his evidence that a text was sent at 08:49 on 4th August. Mr B provides a photograph of the board in the car park. It provides information for existing users. The board states ‘when paying by text if you do not receive a confirmation text within five minutes of your transaction please call (a number is given) to confirm’ Mr B argues that the board does not state that if no confirmation text is received it means that the payment has not been processed. He provides evidence that in 2014 he frequently paid to park by text and did not routinely received any confirmatory text.
The Traffic Management Order states that the appropriate parking charge must be paid immediately on leaving the vehicle. It stated that in the case of a payment made using the telephone parking system payment of the charge shall be indicated by an indication that payment has been made using the telephone payment parking system.
I find that the notice in the car park does not clearly indicate to motorists the provision of the Traffic Management Order that states that the payment of the charge is indicated by an indication on the telephone. The sign on the board states only that if no text is received a phone call should be made.
I accept the appellant’s evidence that he thought that he had paid to park the car. I find that the signage in the car park does not clearly indicate that a payment is not made until an indication is received.
I allow this appeal.
Footway parking - 4 sided bay not authorised (in Cloister Rd)
Part of the vehicle, as seen in the photographs, is outside a marked bay which is on the road other than a carriageway, usually referred to as the pavement. The Enforcement Authority say that constitutes the contravention of parking on the pavement – one or more wheels on or over, for which no signs or markings are required. This presupposes that parking is allowed only within marked bays on the pavement rather than on the pavement area between two signs.
Where there is an issue as to whether or not the vehicle is in a permissible area, the Enforcement Authority must satisfy the Adjudicator as to the presence of signage and markings that show clearly what that area is and that they are both adequate and compliant.
The Enforcement Authority have not produced any evidence of the signs required - fig.667 Traffic Signs Regulations & General Directions 2002 and whether they include the words in marked bays.
Moreover, the Signs Manual provides at para. 8.6 - The signs described in para 8.5 [fig.667 ] may be used without any road markings. This would be appropriate where parking is allowed on a verge unsuitable for road markings or where there is no specific requirement for a designated parking place as described in section 7. Where bay markings are to be provided they must be to diagram 1028.4; no other marking is prescribed for verge or footway parking. For a bay that is wholly on the footway the three-sided version only must be used, the fourth boundary being the kerbline. The Regulations do not prescribe the four-sided marking for use wholly on the footway (i.e. remote from the kerb). This version of the marking is used for a bay that is partially on the footway and partially on the carriageway; no markings shall be omitted for that part of the bay which is on the carriageway.
The bay markings seen in the photographs are four sided contrary for which there is no provision absent any evidence of special DoT authorisation.
Accordingly, I cannot be satisfied that the signage or markings were compliant and/or clear and so must allow this appeal.
Bunns Lane Car Park - poor mobile phone signal
This PCN was issued for the alleged contravention of being parked in Bunns Lane Car Park at 9.56am on 19 September 2016 without payment of the parking charge.
It is not in dispute that a payment of £5.10 was made to park vehicle registration LT04JYR in Bunns Lane Car Park from 10.06am on 19 September 2016. It is also not in dispute that no payment had been made to park the vehicle at the time of issue of the PCN. The vehicle had been observed from 9.44am.
Mr R appeals because he is a regular user of the car park and he says that the network coverage for the area is very poor so that it is often not possible to make an immediate connection for payment of the parking charge. He says that he made the payment as soon as he had the connection. The Council says that 22 minutes from the time of parking is excessive.
I would normally agree with the Council that a period of 22 minutes is in excess of the time that would be permitted for a motorist to make a payment to park. However, each case must be considered on its own facts as there is no law which states that payment must be made within a specific period from the time of parking.
A motorist is allowed a reasonable period upon parking to make the payment to park. This will normally be no longer than a few minutes where a ticket is being purchased from a machine and a payment by phone can generally be made within a similar time frame. However, there will be occasions where there is no coverage or connection and a longer period for payment is required. I am satisfied from Mr R's evidence that this was one such occasion. Mr R clearly had every intention of making payment and was prevented from making an immediate payment through no fault of his own. I find in the circumstances that the alleged contravention did not occur.
The Council's suggestion in its case summary that it is a requirement that payment is made prior to leaving the vehicle cannot be correct. Where there is a connection issue as there was in this situation, it is likely to be the case that payment can only be made by leaving the vehicle.
Well done everyone, even if you lost the council had to pay a £30 tribunal fee that they cannot recover from you.

Yours appealingly

Miss Feezance

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