Tuesday, 11 April 2017

Londojn Tribunals - March 17

Oxford Avenue, N14
In March 2017 there were 120 Appeals which were won out of 231 which were heard which means that the motorist won 52% of the time, a slightly better than average result.
 
The following eight decisions, including two which were lost, are worthy of note.
 
Adjudicator refuses through gritted teeth.
 
The CEO’s photographs show sufficiently clearly that, as the driver (whom I have heard in person) does not dispute , the vehicle was observed in the early hours of the morning parked other than with all its wheels on the carriageway.
 
Parking a vehicle other than on the carriageway is unlawful throughout London (save at those locations where the Local Authority has exercised its powers to permit it and signed the exemption accordingly The prohibition is imposed by statute ( s15 Greater London Council (General Powers) Act 1974 as amended), and no signs are therefore required. As in many other areas of activity motorists are presumed to know the law, and are bound by it whether they are aware of it or not. It is referred to in the Highway Code with which all motorists should be familiar. It is irrelevant in law that no actual obstruction was caused to pedestrians, who are in any event legally entitled to access to the entire footway, not merely that part of it which a motorist may consider sufficient for their needs. It is never a defence to footway parking to say that had the vehicle been parked entirely on the carriageway danger or obstruction might have been caused. If this is the case at a particular location the vehicle must simply be parked safely elsewhere.
 
Whist it might certainly seem a little peculiar that the Council is expending its resources enforcing what is, at this type of location and at this time of night, a minor example of the contravention in question, I am unable to find that the PCN was issued anything other than lawfully and the Appeal must therefore be refused. (2170052895)
 
Dot matrix = self evidently inadequate signage (heads you win...)
 
Mr S.  appeared before me at a Personal Hearing on 10th March 2017, to represent his Wife, the Appellant [as registered keeper], to explain the contention personally. Mr S. also attended on behalf of his Daughter who was the driver at the relevant time.
 
The Enforcement Authority assert the whereabouts of the vehicle, at the relevant time, on the material date, to be at a location subject to an 'event' restriction, during which vehicles are obliged to display of an applicable and valid permit, and assert the absence of such permit display in respect of the said vehicle.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances and challenge as stated in the written representations (supported by photographic capture) which Mr S. reiterated and comprehensively detailed at the Hearing.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.
 
The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, signage Authorization and notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ, and an image of the adjacent signage notifying motorists of the restriction.
 
The Enforcement Authority adduce annotated maps/plans and undated images; these are of limited evidential value since the knowledge of the annotator is not known and it is not possible to correlate some images to the position of the said vehicle.
 
No evidence is adduced of the event or any event day signs advertising the material date as an event day.
 
Of crucial importance in an 'event' operative restricted area is the inclusion of clear and unambiguous information for the motorist regarding the 'event' triggering the operation of the same.

Mr S. indicated that there was a distinct lack of event signage in the vicinity, and challenged the notion that any such signage was adequate by submitting photographic capture showing the use of supplemental portable notification devices (dot matrix signs). (2170061692)
 
Evidentially I cannot be satisfied that a contravention occurred, accordingly I allow this Appeal.
 
Don't park on double yellows to buy a newspaper (a schoolboy error)
 
The appellant attended the personal hearing on the 11th March 2017.
He disputed the PCN on the basis that the CEO had indicated that he was open to a bribe and had himself parked in contravention.
 
The appellant stated that he only stopped to buy his elderly mother a newspaper and was away from the vehicle less than a few minutes when he saw the CEO who held out his hand to the appellant and said he had already issued the PCN but could help the appellant appeal which the appellant clearly interpreted to be an invitation for a bribe. In addition the appellant noticed the CEO parked in front of him on the same double yellow lines in an unmarked vehicle and remaining there for a period of time after the appellant moved away.
 
The allegations made by the appellant relate to the alleged behaviour of the CEO which is a matter for the local authority to consider and investigate.
 
The issue for me to decide is whether or not the alleged contravention did occur and whether there is any valid exemption available to the appellant.
 
The photographs taken by the CEO clearly show the appellant's vehicle parked on double yellow lines which is an instant contravention. Purchasing a newspaper does not amount to a loading/unloading activity which requires the use of a car in order to fall within the loading and unloading exemption.
 
Considering the evidence carefully I am satisfied that the contravention did occur and can find no valid grounds for this appeal. I am also satisfied that the enforcement officer was entitled to stop on the double yellow lines in order to issue the appellant with a PCN as part of his powers of enforcement and there was nowhere else nearby where he could have legally stopped in order to carry out his duties. I therefore do not find there to have been any procedural impropriety which affects the validity of this PCN.
 
Appeal refused. (2170020935)
 
Don't fall over & then expect the council to show any compassion
 
Mr G, the Appellant, appeared before me accompanied by his son, Mr N G.
 
The Appellant accepted that at the time the penalty charge notice was issued his disabled badge was not displayed. However, he explained that there was a very good reason for this. He has difficulty walking and uses an elbow crutch. He had exited from the vehicle to make sure that it was parked fully within the disabled bay, before displaying his badge. Unfortunately, in the course of doing this he fell over. He was assisted by a passerby – a Mr Joseph – who has provided a signed witness statement confirming these facts. The passerby took Mr G to a wall nearby where he could sit down and Mr N G was telephoned to come to his father's assistance. While this occurred, the officer issued the penalty charge notice (quite properly) to the vehicle but out of eyeshot of the Appellant.
 
I accept this evidence as true. It does not amount to a defence to the contravention, but I do consider it to be compelling mitigation. I strongly recommend that the Council on this occasion exercise their discretion not to enforce the penalty in the light of my findings of fact. (2170053559) (Why the heck did the council not cancel this PCN before the tribunal stage?)
 
Paid but not paid, by phone.
 
Mr Q appeals against the issue of a Penalty Charge Notice to his vehicle for parking on 10 October 2016 in the High Street.
 
Mr Q attended the hearing. He explained he is a frequent user of the pay by phone system and also uses the other systems operated by other Authorities throughout London.
 
When he parked his vehicle Mr Q used the App on his telephone to pay for parking. He is registered with the pay by phone company and all details are held by them for the two vehicles he uses. His payment card is also registered with the company. On making the “payment” by entering the details and the CVV number of his card he left the vehicle. Half way through the time he purchased he checked on his phone and using the screenshot sent by the company and saw he had a number of minutes left.
 
On returning to the vehicle he noted the Penalty Charge Notice. He informed the Enforcement Authority of his payment and initially he was advised there was no trace of his using the system on the day. However later the company accepted he had been on the system but claimed the CVV was not entered so payment was not made. However neither the Enforcement Authority or the Company have offered any explanation as to how Mr Q received the countdown screen shot if the CVV number had not been entered and a payment made.
 
As Mr Q had not previously had any difficulty with the system he did not take a photograph of the screenshot he relied on 10 October 2016. That is a perfectly reasonable position to take.
 
Mr Q is a reliable witness and is very conversant with the pay by phone system. I have no reason to doubt his account of what happened. I find he did all that was required of him to make the payment and for some technical reason the company failed to take the payment. He was entitled to rely on the screen shot he was sent by the company to show he had paid to park. I see no reason why Mr Q should pay the Penalty Charge for a technical fault with the system he used. Neither the operating company or the Enforcement Authority have any valid explanation for the screen shot being sent if the steps taken by Mr Q were incomplete. It is logical that the screenshot can only be created and sent following completion of the information required to take a payment or indeed a payment taken.
 
I am satisfied the error lies with the pay by phone company and not Mr Q. The appeal is allowed. (2170069504)
 
Council want to enforce on private land, or is it?
 
The Appellant is represented by Mr R.
 
The Appellant's case is that the vehicle was outside no 26 Oxford Avenue. It is private and the Authority has no jurisdiction to issue a Penalty Charge Notice.
 
Both parties have made extensive submissions as to whether the road was adopted. There is no conclusive evidence from either side. The evidence is not particular persuasive either way.
 
The Authority says that the map it supplied proves that Oxford Avenue is adopted. I do not see why or how. As Mr R points out, he has never said that the whole of Oxford Avenue is not adopted. He is saying that the adoption stopped short of the Appellant's address. He drew my attention n to the yellow line stopping short of the Appellant's address. There is also a strip of paving across the carriageway. There is no apparent purpose for this save to separate one part of Oxford Avenue from another. Mr R asks a not unreasonable question - why can the Authority not produce primary documentation of the adoption?
 
On the other hand, Mr R has been engaged with what appeared to be lengthy discussions with the management company of the estate some time before 2010 to the point that the latter has informed him that there would been discussion. If the relevant section of Oxford Avenue has not been adopted since 2015, I would have thought that the Appellant would have received bills for maintenance and certainly bills for street lighting. Mr R says that there are none.
 
I think that one has to start from basics. The contravention occurs when any person causes or permits any vehicle to be parked in Greater London with one or more wheels on or over any part of a road other than a carriageway or on or over a footpath.
 
A road means, according to section 142 (1) of the he Road Traffic Regulations Act 1984, any length of highway or of any other road to which the public has access, and includes bridges over which a road passes. It is irrelevant whether the road is privately owned or maintained by the public, see R on the application of Dawood v the Parking Adjudicator PATAS and another [2009] EWCA Civ 1411.
 
Oxford Avenue is clearly a road in that it is a definable way of passage between two points. The issue is therefore whether the general public, and not merely a special class of the general public, has access to the road and that the public has access at least by tolerance of the owner of the road.
 
In Deacon v AT (A Minor) [1976] RTR 244, the Court held that the prosecutor seeking to prove that there is public access to the road must prove the general public used the road. It is not sufficient to prove that a restricted class of the public e.g. the residents and visitors of an estate has access to the road.
 
In this case, there is no evidence of any level of use of the section of Oxford Avenue save by residents or visitors. It is therefore not a road to which the public has access. There is there no restriction on footway parking at the location. I allow the appeal. (2170061863)
 
Payment for the other side of the road is OK
 
The Appellant attended in person.
 
The facts are not in dispute. The Appellant parked his car in Brent Street and sought to pay for his parking by app. It turned out that the location number selected was for the other side of the street. The Appellant does not dispute that the sign for the bay in which he parked showed a different location number but he had not seen this when he was using his app in his car.
 
The Authority submits that it is permissible to have two location numbers on the same street because different tariffs may apply. It is therefore the driver's responsibility to ascertain and use the correct location code.
 
I do not disagree with the above as a general principle. However, not only is there no difference in tariff between the two sides of the road, and this is well known to local residents, the Authority does not challenge the Appellant's assertion that one can purchase a ticket from one side of the road and use it on the other.
 
The Traffic Management Order requires the payment by inserting money into a ticket meter for "that parking place". It follows that if machines on both sides of the road can be used, both sides of the road is the same "parking place". The Authority has not drawn my attention to anything in the TMO that says that payment by phone or app should be treated differently.
 
Even if the Authority is somehow saying that the two sides of the road are in fact different "parking places", I would say that it is incumbent upon the Authority to make this clear.
 
The Appellant also makes the point that the app refers to Brent Street. It does not offer a choice as to where in Brent Street.
 
I am not satisfied that the contravention occurred. I allow appeal. (2170081805)
 
Safety is motorist's first priority, revenue raising is the council's?
 
The appellant, who appeared before me today, said that his hearing aid batteries had failed as he was driving he being unable to continue with his journey in safety without being able to hear sound he stopping in this bay close to an opticians to replace his batteries.
 
The appellant had I noted provided this explanation to the issuing officer and he supplied supporting evidence from the optician concerned.
 
I was satisfied as to the evidence given and adduced by the appellant as to this incident and found as a fact that he had been prevented from proceeding by circumstances beyond his control the exemption in that regard being applicable. (2170093473)
 
Just to remind you that decisions by an adjudicator are not legally binding, not even on themselves. They are persuasive so claim their support but don't poke the adjudicator in the eye with them, adjudicators like to make their own decisions so just mention the decision exists and leave it at that.
 
I have given you the tribunal references so you can look at the original decisions if you wish, and print them, form here.
 
If you want to look at all contraventions which have taken place in, say, Oxford Avenue, then you can search the register by completing at least 2 fields. Type BARN in the Enforcing Authority box and you can then select Barnet Council, type OXFORD% in the location box and you will get all road names which start with Oxford and perhaps put 1/1/16 in the from box so you don't get too many results. Have fun.
 
Yours appealingly
 
Miss Feezance

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