Wednesday, 1 March 2017

London Tribunals - February 2017

In the month of February, a shorter month, there were fewer Barnet Council PCN Appeals at London Tribunals, a mere 193 of which 113, a terrific 59%, were won by the motorist.
There were 6 cases worthy of being reproduced.
Richmond Rd (again) - 2160488646
The allegation in these proceedings was that this vehicle stopped in a restricted area outside a school.
The appellant, who appeared before me today, submitted that she had not stopped in contravention but in order to give way to oncoming traffic her evidence on that point being consistent with her written submissions.
I was not entirely convinced as to what was said but I had a doubt in this case as to whether on the appellant's evidence her vehicle had stopped in contravention and I resolved that doubt in her favour.
The appeal was accordingly allowed.
Blue badge on a double yellow - 2170012879
The Civil Enforcement Officer (CEO) noted all the details of Mrs D’s car and recorded that this Penalty Charge Notice (PCN) was issued because the car was parked on double yellow lines. A note was made that the vehicle was displaying a disabled badge and a clock set at 13:00. This implied that the car had been parked more than 3 hours earlier, which is the maximum time that a vehicle displaying a Blue Badge may park on double or single yellow lines.
Mrs D made representations on the basis that she was dealing with an emergency relating to her elderly and ill mother (whose Blue Badge I assume it was), and that in her hurry she had accidentally turned the clock to the wrong number. With her Notice of Appeal she submitted a letter from her mother, who said that it was she who had set the clock to the wrong time. Mrs D sought the Authority’s leniency in these difficult circumstances. However I do not need to decide the appeal on the basis put forward by Mrs D, for the following reasons.
Paragraph 1(e) of the Schedule to the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 requires that a PCN must state, among other things, “the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable”.The PCN in this case stated, "...the following contravention was believed to have occurred – 30(o) Parked for longer than permitted ".
The CEO’s evidence was that the car was parked on double yellow lines. That, on its face, is a contravention, unless an exemption applies. There is an exemption that allows a vehicle properly displaying a Blue Badge and clock to park for three hours. However that is an exemption (albeit a time limited one) to the prohibition on parking signed by the double yellow lines - it is not a permitted period of parking. Parking is only permitted in parking places. This is supported by the fact that the Standard PCN Codes issued by London Councils for use by Enforcement Authorities provides a number of suffixes for Code 30, indicated by the letters/number “flmnopsu1”. These translate, respectively, as free parking bay, loading place, parking meter, red route, Blue Badge holder, Pay & Display ,shared use bay, electronic payment, electric vehicles bay.
Whilst the suffix “o” refers to Blue Badge holders, it is quite clear from the context that that means that Code 30 may be used where a vehicle is parked in a parking bay designated for use by such badge holders – it does not mean that it is to be used where a vehicle is parked on double or single yellow lines.
An analogy is where a Traffic Management Order provides an exemption that allows a vehicle to park on yellow lines for up to 20 minutes for the purpose of loading or unloading; if a vehicle is seen loading or unloading, but for longer than 20 minutes, a PCN will be issued for parking in a restricted street, not for parking longer than permitted.
It follows that Mrs D’s car could not have been parking "for longer than permitted".
In these circumstances, whilst a different contravention (e.g. parked in a restricted street) may have occurred, I am not satisfied that the contravention actually alleged did occur.
I therefore allow the appeal.
Motorbike moved by road workers - 2170024867
The Appellant attended the personal hearing in this case.
The allegation in this case is that the vehicle was parked with one or more wheels on or over a footpath or any part of a road other than a carriageway. Mr. Y does not in fact dispute this but he says that he had parked his motorcycle legally with both wheels on the carriageway outside his home before going away from home for a spell. There had been no warning before he left but while he was away the road was resurfaced. He returned to find his motorcycle had been moved onto the footway and issued 2 PCNs. He later learned the motorcycle had been issued a further 2 PCNs.
The record made by the Civil Enforcement Officer merely confirms that the vehicle was parked as alleged.
The Enforcement Authority have provided evidence from their contractor of vehicles which were moved to facilitate the roadworks but these did not include this motorcycle. Nevertheless, I have had the opportunity to question Mr. Y and assess him as a witness. Having done so I am satisfied he has given a truthful and accurate account and that the vehicle was parked where it was issued the PCNs by someone who was in control of it without his consent. Accordingly I allow the appeal.
Mr. Y says that one of the remaining PCNs was cancelled by the Enforcement Authority and that he has paid the remaining 2 at the reduced amount of £55 each to save the amounts escalating. In the circumstances he may wish to ask the Enforcement Authority for a refund and to refer them to my finding of fact in this case. However, I have no power to make any order in relation to those 2 PCNs.
Council evidence vague and uncertain - 2170029102
These are civil proceedings. Both parties are under a legal duty to prove their case. They do so by way of evidence. Therefore they each have an evidential burden also.
Their evidential burden is on a balance of probabilities. Whose evidence is more probable?
Broadly construed, evidence is anything presented in support of an assertion. This support may be strong or weak.

The strongest type of evidence is that which provides direct proof of the truth of an assertion.
I find the local authority's evidence vague and uncertain. I find the appellant's evidence more persuasive.

I will therefore allow the appeal.
Legitimate expectation - 2170036571
I found the appellant, who appeared before me today, to be a credible and convincing witness.
He did not deny that he had stopped in a restricted area outside a school but said he had been doing so on a regular weekly basis for the past 6 years to set down his children he not before now receiving a PCN for doing so enforcement having only recently commenced friends of his having received warning notices for stopping as he did he however receiving a ticket. He also submitted that he had received the PCN late (at the end of December 2016) he having issues with his post.
The council appeared to accept that camera enforcement had only recently begun at this spot.
I was satisfied on the appellant's evidence due as I found to a lack of previous enforcement at this location that he had a legitimate expectation that if he stopped as he did he would not receive a PCN and I found for that reason that the contravention had not occurred.
I was not satisfied on the appellant's evidence that the PCN had been served upon him within the required 28 days statutory time period.
The appeal was for these reasons allowed.
Wrong papers - a data breach - 212003566A
The Appellant has appeared in person for today’s hearing, somewhat confused about the Enforcement Authority’s case.
This was not surprising since what the Enforcement Authority sent him relates to another case, involving another vehicle and another appellant entirely. Nothing in it relates to this present appeal.
Regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (‘the Appeal Regulations’) provides that “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the Traffic Management Act 2004, by the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 or by these Appeal Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular (a) the taking of any step, whether or not involving the service of any document, otherwise than (i) in accordance with the conditions subject to which; or (ii) at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken; and (b)in a case where an enforcement authority is seeking to recover an unpaid charge, the purported service of a charge certificate under regulation 21 of the General Regulations before the enforcement authority is authorised to serve it by those Regulations.
I will assume that this is likely to be a genuine error by the Enforcement Authority rather than anything more, but the effect is the same.
Accordingly this appeal must be allowed.
As the numbers ahve droppe dit is clearly time for you to get that Appeal lodged. You can now do it on line here, it is really easy so don't not do it.
Yours appealingly
Miss Feezance