Monday, 21 August 2017

London Tribunals - May 17

During the month of May 2017 there were 130 Appeals decided upon by experienced legally qualified adjudicators at London Tribunals. On 80 occasions they cancelled the PCN which is a run rate of 62% and above the usual average of 50%. Well done motorists.

A few decisions are worth replicating. The numbers are the tribunal references.

2170161201 - Richmond Road

There seems to me no doubt the Council received the Appellant’s informal representations sent by e-mail within the statutory time limit. It acknowledged receipt in the email of the 10th February produced in evidence by the Appellant. It should therefore have offered the Appellant a further opportunity to pay at the discounted rate when rejecting those representations; and had it been necessary I would certainly have directed the Council to do so.

In the event that is not necessary, since I am not satisfied the contravention itself is made out. The Appellant has provided very detailed evidence that he stopped only to allow a vehicle ahead to manoeuvre and to allow a pedestrian to cross. The very brief CCTV footage provided no evidence inconsistent with that account; indeed the position of the vehicle a little way out on the markings suggests a vehicle stopping briefly in the ordinary course of driving rather than for any other purpose. There is a statutory exception to the stopping provision for vehicles which have to be stropped to avoid damage persons or property (Traffic Signs Regulations and General Directions 2016 Schedule 7 Part 6 para 4(2)); and this covers a case where a vehicle has to stop on the basis that if it continued to proceed it might run into another vehicle or a pedestrian. On balance I am satisfied the vehicle was not in contravention and that as it transpires the PCN was incorrectly issued.

2170172911 - Clovelly Avenue

The appellant attended on 15 May accompanied by her mother but it was she alone who presented the appeal and gave evidence to me.

The Council did not send a representative to the hearing.

We watched the CCTV clip together. The appellant described quite complicated arrangements regarding family school runs for the two children attending the school shown on the clip at the end of the cul-de-sac.

The appellant described why her father was driving her to the school on the occasion concerned.

The appellant remarked about the way in which the yellow plate for the zigzags was positioned. I could not see a well founded appeal point on that issue. Although a cul-de-sac it was correct for the plate to be aligned with the kerb line. Furthermore given the position of the appellant as a parent there can be little excuse for not knowing and not remembering the operational hours of the school zigzags. That position accorded with ministerially approved practice for this type of sign.

I could see the appellant car in the CCTV clip after it had reversed. I could see a few seconds of it being stopped before it moved on. The CCTV footage itself did not show any boarding or alighting from the appellant vehicle. I decided after viewing the CCTV footage and on hearing from the appellant that the evidence shown on the clip was inconclusive, that is to say it was ambiguous whether what was shown was an unlawful halt for the purpose of boarding or alighting, or simply to permit the progress of the black car also shown in the clip. On that basis I have decided there is insufficient evidence to uphold the penalty charge on this occasion and I have recorded the appeal as allowed.

2170104398 - Hampstead Way

This is an appeal against a Penalty Charge Notice issued to the vehicle whilst it was parked in Hampstead Way in a bay that was for the sole use of loading and unloading. The bay was clearly marked on the road surface plus sign on the pole indicating it was reserved for goods vehicles.

Mr Bernadout, the driver appeared on behalf of the registered keeper Mr Clifford. The vehicle is an electric car is used for the carrying of exams papers for Specialised Training Ltd.

Mr Bernadout attended the hearing today and explained the adaptions made by the company to this vehicle in order to allow it to collect and deliver papers from exams.

The definition of “goods carrying vehicle” means a motor vehicle which is constructed or adapted for the use for the carriage of goods or burden of any description, and is not drawing a trailer”.

Mr Bernadout has explained the vehicle has been adapted by removing the fixtures in the well area of the rear of the vehicle and the placement of a tray that prevents boxes of papers from moving around. The space can accommodate five boxers of A4 papers.

On 24 December 2016 I find the vehicle was being used for a commercial activity, which was the collection of papers. These boxes of papers come within the definition of “goods”.

Secondly there were five boxes of papers placed in adapted storage of the vehicle.

Whilst this vehicle is clearly not a constructed as a commercial vehicle it has been adapted for the use of carriage of goods. Having raised the issue of adapting the vehicle to carry goods it was for the Company to prove the adaption was for the sole use of the carriage of goods and this activity forms part of a commercial activity. Mr Bernadout has also indicated the vehicle is a company vehicle under a commercial lease and is not “returned” to its original state at any time.

When the car is registered as a private car by the DVLA, it is for the registered keeper to show on a balance of probabilities that any adaption to the vehicle was for the sole use of carriage of "goods or burden". Each case has to be considered separately on the evidence submitted of the adaptions made. Mr Bernadout has so satisfied me in this case. I am satisfied this vehicle was adapted for the carriage of goods and it was undertaking a commercial activity at the time. The appeal is allowed.

2170181402 - Bow Lane N12

This vehicle on the council's case 'stopped in a restricted area . . .. outside a school.

The sign at the location as shown in the council's cctv images states 'No stopping . . .. . on entrance markings'.

I have not been able to access the council's online footage of the incident but upon the point being raised by the appellant on the images taken therefrom the vehicle does not stop on entrance markings.

Although the restriction the council seeks to enforce extends across the length and breadth of the carriageway at this spot that is not made clear on the sign the restriction being stated thereon to apply only to entrance markings and I am not for that reason satisfied that signage is adequate to convey the restriction that is applicable.

The contravention has not I find for that reason been proved.

The appeal is allowed.

2170182267 - Montagu Road

The Appellant said that he stopped because a vehicle ahead had stopped. His daughter who was seated at the back assumed that the Appellant stopped to let her off so she exited the vehicle.

I am not sure why the Appellant's daughter (who is not a young child) would have assumed that she would be dropped off at the entrance when this would, I presume, not be a regular occurrence.

However, if another vehicle causes the Appellant to stop and his daughter takes the opportunity to exit without the Appellant's encouragement, there is not a lot the Appellant can do about that.

I am not satisfied that the contravention occurred. I allow the appeal.

2170181468 - Thorverton Road

The allegation in these proceedings is that this vehicle stopped in a restricted area outside a school.

The restriction as stated on the sign applies where a vehicle stops on 'entrance markings'

On the undisputed evidence before me this vehicle did not stop on entrance markings but in the middle of the road.

Upon the point being raised by the appellant although this restriction on stopping applies to the length and breadth of the carriageway at this location that is not I find made clear on the sign the ambit of the restriction as given thereon extending only to entrance markings and I am not for that reason satisfied that this signage, although compliant, clearly indicates the restriction that is in force.

The contravention has not I find for this reason been proved.

2170187227 - Richmond Road

The Appellant says she was stopped while waiting for oncoming traffic to pass and therefore was in effect in the course of traffic and not stopped for the purpose of this contravention.

In the cctv footage no one is seen getting in or out of the vehicle and therefore there was no apparent reason for the vehicle to stop on the zig zag lines. There are no other vehicles seen coming towards the vehicle, but the camera concentrates on close up of the vehicle and ends after some seconds before the vehicle moves off. The footage is not inconsistent with the Appellant’s claim and given that there appears to be no other reason why the vehicle is stopped I accept that it was in the course of traffic.

217018008A - Whitings Road

There is no dispute as to the whereabouts of vehicle, at the relevant time, on the material date; namely at a location subject to an operative restriction denoted by zig zag carriageway markings, such demarcation indicating a prohibition against a vehicle remaining stationary within the defined area.

The Enforcement Authority assert that the said vehicle entered the defined area and stopped.

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

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, photographic evidence: CCTV footage and still frames taken there-from revealing the said vehicle in situ, and the applicable signage and carriageway markings notifying motorists of the restriction.

It is incumbent upon a motorist to consult signage and comply with carriageway/kerb indications, and to be acquainted with the nature of such restrictions/prohibitions by reference to The Highway Code.

Examination of the contemporaneous footage shows the said vehicle pull into position briefly and the move forward, again briefly before the camera capture concludes abruptly.

No boarding or alighting is discernible.

The Appellant described a scenario consistent with that stated at the outset, and supported his contention with images of the road in question [and indeed moving footage of both the whole road and bus journey] which demonstrate its dimension and the effect of parked vehicles on either side.

The Appellant's photographic capture establish that the road affords the passage of only one moving vehicle at a time to traverse between the parked vehicles; vehicles travelling in an opposite direction being caused to pull into spaces to accord precedence to the other, such situations alternating dependent upon the courtesy of respective drivers.

The Appellant maintains that at the relevant time he had pulled the said vehicle over to one side to allow an oncoming bus to pass.

I had the benefit of assessing and questioning the Appellant at the Hearing; I found the Appellant's oral evidence to be cogent and credible and I accepted it in its entirety making a finding that the said vehicle was paused in the course of a manoeuvre. I distinguish the present instance from the mischief which the restriction is designed to combat by finding that the said vehicle was paused during the course of a manoeuvre.

A balance must be made between traffic enforcement and the practicalities of motoring.

Evidentially I am not satisfied that this contravention occurred, accordingly I allow this Appeal.

That is an awful lot of school zig zag PCNs which should not have been issued. What will Barnet Council learn from these decisions?

Do keep the Appeals coming.

Yours appealingly

Miss Feezance

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