TAPAS - w/c 19 August 2013 (typo week)

In this week at PATAS there were 50 cancelled PCN, 36 upheld and 2 subject to a recommendation to cancel and a typo that cost the council a PCN.

On Monday two PCN were cancelled as the council had not proved that the Event Day zone was properly signed in Holders Hill Drive. If you get a match day PCN make sure you ask the council to prove that the signage is correct and in place.

This report was one of my favourites for this week, and includes the rarely seen word "concomitant":

The contravention alleged is that of having parked in a residents' bay without displaying a valid permit. The appellant says that she paid to renew her residents permit, in the sum of £100, on 11th March 2013. She produces evidence of this. This is not disputed by the authority.

The appellant says that having not received her new permit, and having been told by the operator who took the payment to do so while she waited for the replacement, she stuck a copy of the confirmation of payment, which carries all the permit ID details on the face of it, in the windscreen of her vehicle. The officer took a photo of the vehicle with the confirmation displayed.

On the day in question, some 3 weeks after she had paid for her permit, but not received it, this PCN was issued on the basis that she had not displayed a valid permit.

The authority's evidence in response to this is perplexing. In the first place it stated in the informal rejection of her representations that 'the number' she had been given on payment was a 'Dispensation Number' and that 'this number is only temporary until you have been given your residents' permit'. According to their records the 'dispensation' which she has displayed had expired on 26th March and that was why the PCN was issued. (except that it says the dispensation lasts until the permit arrives, it isn't merely for a fixed period)

In its Case Summary the authority says that 'a motorist who is awaiting a new permit must request a temporary dispensation for the vehicle, from the council to cover it until such time as they receive the said permit. The council checked their records and can confirm that there was no dispensation at the time of the contravention'. How would a motorist know to do this? You need a temporary permit to cover the period until you get a replacement permanent permit. Madness. You can print your own permit out at home if you want although it is a poor looking effort without the official hologram and this is probably why most people don't bother. The system should be set up so that every permit is issued on the day of payment.

In other words the council is relying on its own breach of duty of due and prompt administration (failure to issue the permit in a timely manner) in pursuing this PCN. It had accepted the appellant's money for a renewal of the permit, and she had done all she could reasonably be expected to do to comply with the restrictions, and the council has failed during a period of over 3 weeks to issue the permit to which she was entitled. The appellant says that following the issue of this PCN she rang the authority, understandably upset, and complained and the renewal permit arrived by first class post the following day.

It is clear to me that the authority, having received the appellant's representations and checked its records, should have exercised the discretion it alone has to cancel this PCN. That it has had the facts before it and failed to consider the exercise of its discretion on such clear facts strongly suggests that it has fettered its discretion inappropriately.

In the circumstances I allow the appeal on the basis that the authority has in this case been in breach of its concomitant duty to act fairly.

So if you park negligently you get a parking ticket and if the council acts negligently you get a parking ticket. Ain't life grand?, as they say in Private Eye.

The next case was even worse and it makes you wonder why NSL were chosen. Are they the best available? I don't fancy any company which is worse to enforce local parking tickets. This relates to a £110 PCN and of course 50% of that is £55 not £30.

 

I have heard from the Appellant about his mistake with the scratch card. I accept that it was a mistake, but the contravention has occurred.

It was common ground that the Appellant made informal representations within the discount period and the Authority rejected them and offered to accept a discount in settlement. What happened from that point onwards was remarkable.

The Authority had apparently offered settle the penalty at £30. The Authority had not supplied the letter of rejection and one might draw an inference from that (I think this refers to the evidence bundle and if so this was a little sneaky). The Authority's own correspondence log suggested that it accepted that such an error had been made, and I find that such an offer had been made.

It was therefore of no surprise that the Appellant paid over the £30. He then received a Notice to Owner. This stated that there is an outstanding balance of £80. The Authority's correspondence log then recorded a complaint from the Appellant. The Appellant was apparently told of the mistake and invited to pay a further £30 to clear the balance. The Appellant refused.

The Authority made an offer of settlement. The Appellant is entitled to hold the Authority to it. Instead of just calling it a day as apparently the Authority had tried to do, it issued a Notice to Owner demanding the balance. To compound the error, the Authority then asked for another £30 which would meant that the Appellant would be paying £5 more than what he would have need to pay if such an error had not occurred. When this became an issue at the appeal stage, the Authority chose not to provide a copy of the letter of rejection and it did not explain why there is a balance to pay.

There had been a procedural impropriety. I am allowing the appeal.

I would say that would be a suitable case on which to demand costs as the council/NSL has made a mistake and then tried to cover it up and bully its way out which is wholly unreasonable.

In another case the PCN was cancelled as the driver had left and not been served as the traffic warden had not begun to prepare the PCN.

Of course, back office staff in Croydon don't know where they are when it comes to Barnet:

The Appellant said that he had paid for parking at location no. 5938 which is on the High Road, North Finchley. The enforcement officer's notes indicated that the vehicle was outside Martyn Gerrard and there was a sign outside the confectioners Mr Simms, a few doors from Martyn Gerrard. The sign identifies the location as 5950.

The Authority said that the Appellant claimed that he had parked at location 5938 which was the incorrect location. The location was certainly incorrect but the Appellant said 5939, not 5938.

The Authority said that the Appellant should have paid for 5940, which is around Regents News, 323 Ballards Lane. Regent's News is in deed at 323 Ballards Lane but it is around a third of a mile from Martyn Gerrard who are at 773 High Road North Finchley. I can understand misreading 5939 as 5938, but I do not understand why the Authority had not thought that something was wrong when its PCN and photographic evidence suggested that a contravention occurred on the High Road at location 5940 yet its research show that 5940 was in Ballards Lane. It even went to the trouble of obtaining a Google image showing Martyn Gerrard in the background. I have repeated the exercise. William Hill and Cancer Research are on either side of Martyn Gerrard. There is no Regent's News on that parade of shops at all.

I have therefore no confidence that the vehicle was at location 5940 despite the CEO's photographic evidence of the sign. The CEO would have relied on the sign to do his check and of course the Appellant had not paid to park outside Regent's News.

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

A parking ticket being pursued from 31 May 2011 was described as an "abuse of process" and it was therefore cancelled. If you get an old PCN come back to life on you, keep appealing until you reach PATAS.

A time plate for the bus lane in West Hendon Broadway (headed South, the ones going North belong to Brent) was missing and so the PCN was invalid. Bus lane tickets are hard to get off so check the signs if you get a PCN at that location.

There was an interesting PayByPhone observation:

 

The Appellant's case is that he had in fact paid; and he produces a bank statement and phone bill in support. The phone bill shows the date in question; and I do not regard it as at all improbable that the debit is shown on the statement the next day. Presumably if it did indeed represent a payment for parking on the 11th and not the 10th the Council would be in a position to produce evidence that there was such a payment for parking on that day and that it therefore cannot relate to the day before. On balance I am satisfied payment was made and the Appeal is therefore allowed.

 

Well done that motorist for fighting properly armed with his evidence.

 

Now, the typo error you have been waiting for:

 

The appellant attended the personal hearing listed for today. He denied the contravention and said he thought he had parked within a CPZ which only applied Mon- Friday and which the local authority also stated was the case in their initial rejection letter, and the whole matter was therefore very confusing.

I have looked at the penalty charge notice and the photographic evidence. This clearly shows the appellant's vehicle parked on a single yellow line very close to a time - plate which restricts the hours of parking seven days a week and during the hours the appellant was parked.

I am therefore satisfied that the appellant was parked in contravention and that the penalty charge notices were properly issued.

However I am not satisfied that the local authority have properly dealt with the appellant's representations.

The local authority apologise for the typographical error in their response to the informal representations. However their response is more than a typographical error. It confirms that the appellant was parked in a CPZ outside the hours of restriction and therefore misleads the appellant in believing he has a genuine ground of appeal.

I therefore find that there has been a procedural impropriety on the part of the local authority and allow this appeal.

 

If you make an error it costs you £110, if the council blunder that is simply a typo even when it isn't. Double standards apply in the world of parking.

 

Double yellow lines across a dropped kerb could mislead.

 

They argued that the photograph that the local authority has produced is old, taken from an elevated angle and is therefore misleading.

The photograph that the appellant has produced certainly shows that the stretch of pavement there has been lowered but it most certainly does not meet the level of the carriageway. There is a ridge.

The contemporaneous photographic evidence taken by the officer does not show that it does meet the carriageway.

There are also double yellow lines there. Mr. Perry parked his vehicle on those double yellow lines and displayed his disability badge and clock.

Whilst I accept that the two contraventions - dropped footway and double yellow lines - are mutually exclusive, it is clear that there must be absolute certainty so that the motorist is not misled.

A disabled motorist is permitted to park on double yellow lines as long as the badge and clock are displayed but a disabled motorist displaying the badge and clock is not permitted to park adjacent to a dropped footway, all the more reason for making the dropped footway clear and unequivocal.

I find as a fact that the dropped footway does not meet the carriageway and with the presence of the double yellow lines this is capable of misleading a reasonable, disabled motorist.

I will therefore allow the appeal.

Barnet Council / NSL have an unreasonable expectation that everyone should carry a stock of visitor vouchers in their car for a zone they have not previously visited so that you don't need to go to the house you are visiting to collect a permit - not how life works.

 

The Enforcement Authority has provided brief notes and photographs. The photographs are not timed. The penalty charge notice (pcn) shows an observation period from 14:31 to 14:32.

The appellant claims that the driver went to collect a visitor's voucher from his home nearby. She claims when he returned to the vehicle with the vehicle with the voucher the pcn had been issued. She complains that the vehicle was observed for only one minute. There is a letter from the driver and a copy of the permit.

On balance, I accept the appellant's account which appears genuine. A motorist should be given sufficient time to obtain and display a visitor's voucher. The observation time in this case was brief. I allow the appeal.
 

Sometimes the traffic warden walks off when the motorist appears and they think phew but a PCN arrives in the post. It shouldn't.

 

Mr X stated that she (the traffic warden) then walked off and he assumed that it was the end of the matter and drove away. He explained that at no time did the officer state that she was trying to issue a penalty charge notice or did she ask him to wait. At no stage did he prevent her from issuing a penalty charge notice. Mr Z confirmed his account.

The authority have sought to serve the penalty charge notice by post because, they assert, that their officer attempted to serve the penalty charge notice by fixing it to the vehicle or giving it to the person who appeared to be in charge of it, "but was prevented from doing so by some person". Her notes do not support this.

I have no hesitation in accepting Mr X and Mr Z's accounts as true as I found them to be credible witnesses. I do not accept that the officer attempted to serve a penalty charge notice under regulation 9 or that she was prevented in any way from so doing.

In the circumstances, the authority have not established entitlement to serve this penalty charge notice by post and the appeal must be allowed.

 

A PCN fixed to your car is a Regulation 9 PCN and one sent by post is a Regulation 10 PCN. You get one fewer appeals with a regulation 10 PCN as it acts like a Notice to Owner.

 

Finally, in what was a good week for the adjudicators, another Saracens Event Day case:

 

The Appellant's representations make a number of points, namely:

1 The Penalty Charge Notice was not affixed to his vehicle, but merely tucked under the windscreen wiper;
2 The Penalty Charge Notice did not state the Zone and thus did not accurately make out the contravention;
3 The Appellant formed the view, based on the Enforcement Authority's correspondence, that his Zone E permit would be valid;
4 The date of the alleged contravention was after the last of the event days notified; and
5 The bay lines were worn and thus not substantially compliant

but these were rejected by the Enforcement Authority.

In his appeal, the Appellant repeated the same issues and claimed that the Enforcement Authority had failed to consider his representations and that such failure amounted to a procedural impropriety. He also raised the following:

(i) the sign next to the bay where he had parked was not a standard sign and the Enforcement Authority was required to provide a copy of the special authorisation of the Department for Transport;
(ii) the Event Day Controlled Parking Zone was not properly signed and proof was sought that the event for 12 May 2013 was shown on signs at the necessary locations; and
(iii) the Enforcement Authority was asked to demonstrate the Traffic Management Order authority for setting 12 May as a restricted Event Day
Further observations were raised by the Appellant upon receipt of the Enforcement Authority's evidence, in particular that the Enforcement Authority had failed to show that they had properly communicated the restrictions to show that 12 May was an Event Day.

The Enforcement Authority is in difficulty in this case for the following reasons:

1) There is no evidence that the day in question was an event day.
2) Article 5 of the relevant traffic Management Oder provided by the Council requires a vehicle left in a parking place referred to in Schedule 1 and 2 and in permit area streets during the permitted hours to obtain or display a permit. A "permit area street" is defined in Article 2(1) as a "street or any part of a street described in Schedule 3". Schedule 3, or adequate extracts from it, have not been supplied, and the inclusion of item 347 on a page appearing to form part of Schedule 1 does not provide conclusive evidence that the street in question is a permit area street
3) The sign shown in the Enforcement Authority's photograph is not a permitted sign under the Traffic Signs Regulations and General Directions 2002 (as amended), and requires authorisation. No evidence of this has been provided or of the zone entry signs and authorisation for them.
4) Direction 25(3) TSRGD as amended prohibits the use of most types of bay markings within a permit parking area (PPA). It would appear from the photographs that such bay markings are present. Authorisation for their continued presence within a PPA is required. (If it were to be argued that a permit area street is not a Permit Parking area authorisation for the signage would be required in any event).
5) The single sign shown in the photographs is in my view inadequate on its own to indicate give a sufficient indication to a motorist parking there as to the event day restrictions that required a permit to park there.

As I am unable to be satisfied that the vehicle was in breach of the requirement to display a permit or that the requirement to do so was clearly indicated by clear and correct signage, I cannot be satisfied that a contravention occurred and must allow the appeal.

 

The next Saracens Event Day is coming up this Saturday 31 August 2013. If you are one of the motorists unlucky enough to be targeted for a parking ticket then make all of the same appeal points as were successful in the above appeal, particularly (i), (ii) & (iii).

 

Quite a long report this week but if you are in a similar situation you can crib ideas and save yourself £60, 3110 or £130. Remember once the 50% discount offer has expired i.e. you have received the Notice to Owner, you have absolutely nothing to lose by appealing again to the council and then again to PATAS as it is only 28 days after losing a PATAS appeal that the council can increase the amount to pay (or they can increase it 28 days after the Notice to Owner if you don't appeal to PATAS) so you can delay the inevitable and you also have a 72% chance of winning if you put together a half decent argument.

Yours appealingly

Miss Feezance