London Tribunals - September 16

A stuffed balloon bear

There were 113 Barnet decisions at London Tribunals in September 16. Of those only 54 were won by the motorist, down from 60% in August to 48%. The balance has tipped in favour of Barnet Council due to at least 13 yellow box junctions cases which were lost. You need a good argument to beat a yellow box PCN.

 

The following 8 decisions, in the words of the adjudicator from the public register, give you useful pointers on various questions:

 

Saracens repeat signage in past this point areas - Longfield Avenue NW7

 

The Appellant, whom I have heard in person in some detail, parked his vehicle in what was a permit parking area operational on event days (having previously parked it on private premises). Seeing no bay markings or other signage he saw no reason why he should not park on this unmarked length of carriageway. His case is essentially that the signage indicating that a permit was required to park there was inadequate.

 

Permit parking areas generally have been incorporated into the Traffic Signs Regulations and General Directions since January 2012 (-before that, specific authorisation from the Department for Transport was required). In the present case the “event day” wording nevertheless remained non- standard and prior to the 22nd April 2016 required authorisation - a copy of which the Council has provided. After that date, when the current incarnation of the Regulations came into force, “event day” wordings are permitted as standard. The upshot is that this a legally prescribed form of signage; and motorists are of course presumed to be aware of the meaning of legally prescribed traffic signs.

 

As in all event day cases where signs can be varied to show a day as an event day the Council is required to show that the sign was correctly set. The Council’s evidence that this was so, in the form of a very brief reply to an e-mail enquiry and an undated photograph, is a little thin. There is no direct evidence of the sign being changed and when. However in the absence of any definite evidence from the Appellant that the sign was not correctly set (-he can go no further than saying he did not notice whether it was-) I will accept, for the purposes of this decision at any rate, that the balance of probability lies in favour of it being set to display the event day wording.

 

However that is not the end of the matter. It is true that in a permit parking area bay markings are not required; that is the main point of introducing such an area. However it does seem to me that some sort of repeater signage is required within these areas unless they are very short single roads. The Traffic Signs Manual Chapter 3 para 7.15 suggests that this might be necessary; and certainly it is used in the event day permit parking areas for the Wembley Stadium Zone. In the case of Restricted Parking Zones, another example of a Zone with no carriageway markings, repeater signage is recommended. The Appellant states that he parked 500m from the signs; and whether or not this is precisely accurate it was certainly a considerable distance from the entry point, and he did not park there initially. It seems to me that this is a case where for clarity repeater signage is required, and that a motorist on parking on an unmarked length of carriageway should be able to see at least something to alert him to the fact that all may not be well if he parks there.

 

I am therefore not satisfied, on the facts of this particular case, that the signage, though not unlawful, was adequate to bring the restriction relied on the Appellant’s attention. It follows that no contravention occurred and the Appeal is allowed.

 

Time to obtain a voucher

 

The appellant has explained when attending on 2 September how he and his 2 year old had travelled up to Barnet with a view to taking out on the Friday concerned his mother. Her house was just by where the car was ticketed. The appellant told me he was well aware of the short daily restriction.

The officer did not see the motorist in this case and as there was no visitor permit or the like displayed he was not at fault in swiftly issuing the penalty charge notice as he did.

 

The appellant told me of his mother's worsening Parkinson's Disease. Although there was no permit on view at the time I have accepted that a reasonable time was not exceeded in obtaining a necessary permit from his mother and a reasonable time was also not exceeded for assisting her to the vehicle.

I have decided on this basis the appeal is properly allowed.

 

Chilton Rd HA8, low level sign

 

I accept the appellant was genuinely not aware of the practice in parts of Enfield (oops, Barnet) of using low-level signage to indicate the status and extent of restrictions. He told me how he had arrived when it was dark and how organisers of the wedding festival function being attended had regrettably, not alerted him to the long hours restriction locally. I have accepted he parked in genuine ignorance of the restrictions and genuinely failed to see the low-level sign as photographed by the reporting officer. I have on the signage issue and its prominence decided there is insufficient evidence to uphold the penalty charge in this particular case.

 

I have recorded the appeal as allowed.

 

Zig zags & a 3 point turn

 

The allegation in this case is that the vehicle was stopped in a restricted area outside a school, a hospital or a fire, police or ambulance station. Mr. X does not in fact dispute this but he says that he only stopped in order to perform a three-point-turn.

 

The enforcement camera DVD shows the vehicle stopped on the area marked by the school markings and then beginning to perform the three-point-turn. While it was a poor decision to perform this manoeuvre beginning on the school markings, the vehicle is shown stopped on the school markings for only 6-7 seconds. I would regard this as stopping as part of a traffic manoeuvre and not subject to the prohibition. Alternatively I would treat the stop as ‘de minimis’, too trifling to amount to the contravention. Accordingly I allow the appeal.

 

Yellow box - cctv does not show entering

 

There is no dispute as to the whereabouts of the vehicle,  at the time, on the material date; namely at a location subject to an operative restriction denoted by yellow cross-hatching, such demarcation indicating a prohibition against a vehicle entering and stopping within the defined area due to the presence of stationary vehicles.

 

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

Mr T denies liability, on behalf of the Appellant, for the ensuing penalty charge notice contending that the manner of driving of a vehicle ahead caused the said vehicle to become so positioned, which he reiterated and comprehensively detailed at the Hearing.

 

The Enforcement Authority who assert that the said vehicle was so driven contrary to the operative 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 together with photographic evidence: CCTV footage and still frames taken there-from revealing the said vehicle in situ and the applicable carriageway markings notifying motorists of the restriction.

 

Whilst it is incumbent upon a motorist to be acquainted with [by reference to The Highway Code], and comply with, such prohibitions, I note the length of the cross hatched area and query whether the Enforcement Authority is possessed of a Secretary of State's Authorization for the same.

 

The restriction, as set out in Paragraph 11 of Part 7 of Schedule 9 to The Traffic Signs Regulations & General Directions 2016 / Paragraph 7 (1) of Part 11 of The Traffic Signs Regulations & General Directions 2002, as amended, prohibits vehicles (or parts there-of) from entering and stopping within the cross-hatched area due to the presence of stationary vehicles.

 

The evidence adduced does to establish an essential element, the entering aspect, since at the point that the contemporaneous capture commences the said vehicle is already traversing the cross-hatched area.

 

It is not possible therefore to evaluate this pertinent aspect in conjunction with Mr T's representations; Mr T maintains that he had already commenced the manoeuvre on the basis that there was sufficient space to accommodate the said vehicle on the other side of the defined area, when a vehicle swiftly entered that space from the left.

 

I found the Mr T's evidence to be cogent and credible and I accepted it in its entirety, making a finding that the said vehicle was rendered stationary on the cross-hatched area by a vehicle impeding its path.

 

Evidentially I cannot satisfied that the contravention occurred, accordingly I allow this Appeal.

 

Yellow box - cctv does not show the reason for stopping

 

CCTV observed the vehicle enter the yellow box junction in West Hendon Broadway on 28 May 2016. The Appellant driver states he entered the box junction with his exit clear and the vehicle in front of him stopped unexpectedly for no reason as he had a clear lane ahead. The enforcement authority state there was no evidence to show the vehicle came to a stop for no reason. The CCTV evidence does not show that area of the road whereas the driver had a clear view from his position in the cab.

 

I have viewed the CCTV evidence a number of times and I am satisfied that the vehicle did not enter the hatched area before the other vehicle had left the area. The vehicle in front of the truck does appear to come to a halt and the CCTV does not appear to show a vehicle in front of that vehicle. Therefore the enforcement authority cannot say the vehicle was stopped for no reason as there is no evidence to suggest it had to stop due to other traffic. It is clear from the CCTV that the Appellant’s vehicle drove straight across the junction and stopped due to the other vehicle which left him partially in the hatched area. The driver states the road ahead was clear ahead and there was no obstruction to cause the vehicle in front to stop. He had the better view at the time.

 

Having carefully considered the CCTV evidence a number of times I cannot be satisfied there was a valid reason for the vehicle in front to stop where it did. The enforcement authority’s evidence does not show any reason due to the position of the CCTV camera. The evidence of the Appellant is more compelling in his account of the vehicle stopping without due reason. Therefore there is a doubt in this case and that doubt must necessarily be resolved in favour of the Appellant. The appeal is allowed.

 

Saracens signage - again - Woodcote Avenue

 

This PCN was issued for the alleged contravention of being parked in a permit space or zone in Woodcote Avenue at 3.46pm on 30 January 2016 without clearly displaying a valid permit.

I have looked at the CEO's images. These show Z's car parked in Woodcote Avenue where there were no bay markings. The images show no signage of permit parking restrictions in Woodcote Avenue itself. The Council relies upon signage at the junction of Salcombe Gardens as being adequate to alert motorists to the restrictions in Woodcote Avenue.

 

I am allowing this appeal because I do not consider the signage of the restrictions to be adequate. The Council submits google images of the junction of Salcombe Gardens and a close up image of a permit holder only restriction sign "past this point" on Event Days between 1pm and 6pm. There is a next event panel at the foot of the sign.

 

The Council correctly states that there is a sign on both sides of Salcombe Gardens. However, the sign on the right hand side of the road is past the left hand turn into Woodcote Avenue and is therefore unlikely to be seen by a motorist entering Woodcote Avenue. It may be adequate to alert motorists driving along Salcombe Gardens but it is not adequate for motorists making the left turn.

 

There is a sign on the left hand side of the road facing the oncoming traffic and this is placed at the junction. It is, however, not clear whether the "past this point" restriction means past this point for traffic continuing along Salcombe Gardens or past this point for traffic making the left turn into Woodcote Avenue. Furthermore, it appears from the google image that cars park on the road immediately before the junction. If a car is parked as shown in the image, it will inevitably make the restriction sign less likely to be seen as it will not be in the direct eye line of the motorist making the turn.

 

Stuffed balloon bears

 

A Penalty Charge Notice was served on the vehicle for being parked in a pay bay without a payment having been made on 25 May 2016 in Golders Green Road. The civil enforcement officer observed the vehicle from 10.47 to 10.52 when the Penalty Charge Notice was issued. The notes were made at 10.57 and no activity was seen.

 

The Appellant made representations in response to the Notice to Owner and supplied an invoice to show he was delivering “stuffed balloon bears”. He explained that due the nature of the items and their vulnerability there was a requirement to park as near as possible to the place of delivery. The enforcement authority rejected the evidence as the invoice did not show where the delivery was in Golders Green Road. The only reference was I Fontein. A further invoice shows the delivery to be 102 Golders Green Road and from the map provided by the enforcement authority this was near where the vehicle was parked.

 

I am satisfied on the evidence this was a genuine case of unloading and the Appellant was permitted to park and unload. Eleven minutes was not unreasonable length of time to be away to make such a delivery. Mr B. may benefit in future from leaving a note when making such a delivery. The appeal is allowed.
 

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What the above decisions show is that it is worth the time to watch the yellow box cctv a few times and see if you shows you entering the box and why you stopped.

 

I fear that Barnet Council won even more cases in October 16 but we'll see soon.

 

Keep those Appeals coming.

 

Yours appealingly

 

Miss Feezance

London Tribunals - August 2016

In the month of August there were 149 Barnet cases decided at London Tribunals of which 89, a lovely 60%, went the way of the motorist.

There were a dozen interesting decisions, and they appear in the words of the adjudicator below.

Wrong evidence

On 7th July 2016 Mr N attended the hearing.

He maintained that in the early stages of these proceedings he had been sent the wrong evidence or at least the evidence he had received did not show the vehicle concerned stopping on the box junction.

He stated that he had sent the DVD to this Tribunal.

I cause a search of the Tribunal but the DVD could not be found.

Nevertheless I will make a decision on the evidence before me and will reach a conclusion as to fact based on that evidence.

As stated above at the hearing stated he had never been sent conclusive proof that his vehicle had stopped on the box junction.

He had not looked at the DVD in the evidence pack provided by the local authority because he assumed it would have been the same as the one he had been sent initially.

Mr N made representations on 16th May 2016 to the effect that the only evidence he received did not show that his vehicle had stopped on the box junction.

The local authority issued a notice of rejection dated 23rd May 2016, in which they stated that they would send DVD evidence under separate cover.

On the 26th May 2016 the local authority sent a letter stating that they had enclosed contravention footage.

On 6th June 2016 Mr N sent an e-mail stating that the evidence enclosed still did not show any offence.

At the hearing Mr N asserted that he had been sent footage that did not show the vehicle in the box and that is why he appealed. He said that the penalty notice did not disclose a VRM. The on-line evidence did not show the vehicle had stopped. that is why he requested independent footage, which, he asserted, did not show any contravention.

On balance i am persuaded that he was sent the wrong evidence and that he was misled.

I will therefore allow the appeal.

Council fundamentally misdirects itself.

The Appellant Company is represented by Mr K who was the driver at the material time. The Authority was not represented.

Mr K said that he was unloading. His representations were rejected by the Authority who said that there was no evidence of unloading.

Mr K wrote again and offered some evidence of unloading. The Authority declined to change its mind stating that:"The loading exemption does not apply when a vehicle is double parked."

Section 85 (5) provides:
"The third exception is where—
(a) the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises,
(b) the delivery, collection, loading or unloading cannot reasonably be carried out in relation to those premises without the vehicle being parked as mentioned in subsection (1), and
(c) the vehicle is so parked for no longer than is necessary and for no more than 20 minutes."
There is therefore a loading/unloading exemption for double parking. The Authority has fundamentally misdirected itself on the law.

I find that this amounted to a procedural impropriety and I allow the appeal.

Room to exit the yellow box

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.

I have looked at the DVD footage.

I accept that the appellant's vehicle stopped in the box junction but it was not owing to the presence of another stationary vehicle. The vehicle that was stationary did not move off before the appellant's vehicle cleared the box junction. There was sufficient space behind the stationary vehicle for the appellant's vehicle to stop outside the box junction.

The appellant's vehicle did not therefore stop owing to the presence of that vehicle.

I will therefore allow the appeal.

Intervening car in your way in a yellow box junction

Mr Q denies the contravention. He states that his car was not stopped in the box junction due to the presence of stationary vehicles.

The contravention occurs if a person causes a vehicle to enter the box junction so that all or part of the vehicle has to stop within the box junction due to the presence of stationary vehicles. The Enforcement Authority does not have to prove that the vehicle caused any obstruction to other road users.

I find that the CCTV footage shows that the appellant’s car drove into the box junction at a time when the exit towards which Mr Q was driving was free. At the time that Mr Q drives his car into the box there is a red car to his left but this car is proceeding towards the offside lane exit. After the appellant‘s car is in the box the red car manoeuvres in front of the appellant’s car thereby preventing Mr Q from driving his car out of the box. I find that the appellant’s car is stationary for 3 seconds. I am not satisfied that the appellant’s car entered and stopped in the box junction due to the presence of stationary vehicles. The car had to stop because another car executed a manoeuvre after Mr Q’s car had entered the box.

I allow this appeal.

Learner driver keeps stalling (as they do sometimes) on school zig-zags

The appellant denies the contravention stating that she is a driving instructor and that her student was nervous as it was only their second lesson and kept on stalling.

The local authority do not dispute this but say that the appellant's vehicle was seen stationary for approximately 20 seconds which constitutes stopping rather than a mere pause.

Considering the evidence carefully I am not satisfied that the contravention did occur bit find that the appellant pulled over as part of a road traffic manoeuvre and to avoid an accident.

I therefore allow this appeal.

Boarding and alighting confused by the council

The appellant's case is that he stopped in this goods vehicle only loading bay to collect his disabled father, who was suffering from cancer, from a restaurant.

The council in its rejection notice stated that the appellant had said that he was assisting a mobility impaired passenger alight the vehicle and that there is no loading/unloading exemption in respect of bays of this type.

The appellant did not say that he was assisting his father alight the vehicle and the availability or otherwise of a loading exemption is not relevant to whether or not a boarding/alighting exemption applies (which it appears on a cursory examination of the TMO it may well).

I am not satisfied against this background that the council properly considered the representations made to it as it is required to do under the Regulations and find for that reason that a procedural impropriety on its part has occurred in these proceedings.

The appeal must accordingly be allowed.

Using the footway as a long term car parking space

The Appellant said that her vehicle was on the pavement for several days and had apparently received several penalty charge notices. She has not stated whether the vehicle had been moved in between these dates. The Authority had not said otherwise.

The Appellant's submissions about not knowing that one cannot park on the pavement in London is wholly untenable. At the appeal stage, Her focus is that she should only be penalised once.

The Authority said that it can issue a ticket every 24 hours. It has not offered any authority for this proposition. There is some authority to support this approach but even these authority restrict this to restrictions which do not run overnight. It does not therefore apply to the present case anyway.

The starting point is that one wrong doing should only be penalised once. The Authority has not offered anything which goes against this point.

I allow the appeal. I take it that the Appellant will not complain if her car is removed should this recur. She will find that the removal charges cost more than three PCNs.

Pay by phone registration error

The allegation in this case is that at the time of issue of the PCN the vehicle was parked in a pay and display car park without clearly displaying a valid pay and display ticket. Mr. R does not in fact dispute this but he says that he had used the pay-by-phone system to register for the 3 hours free parking afforded at that time.

The Enforcement Authority acknowledge that Mr. R had registered for the free period but that the vehicle registered had the VRM ‘58XOB’. The VRM for Mr. R’s vehicle is ‘ZZ58XOB’.

The primary responsibility lies with the motorist to ensure that payment has been made for the correct time, vehicle and location. However, I allow appeals in cases where a parking period has been wrongly ascribed due to a mistake by the Enforcement Authority’s system or operator. In this case Mr. R says that his vehicle was already registered with the pay-by-phone system.

The Enforcement Authority say that the details are read back to the user and it may be that Mr. R has been fortunate on this occasion. However, I do not feel able to say that the error was Mr. R’s on this occasion and accordingly I allow the appeal.

Stopped in yellow box when exit clear

I have heard the appellant in person who I find an honest and credible witness. The Authority did not appear and was not represented.

The Authority has produced the details of a link to their website on which I have viewed CCTV footage. The footage shows that the exit lane of the box junction was clear when the appellant’s vehicle entered it. Further, it shows that the vehicle stopped only briefly in the box junction when there was sufficient space to move forward. The vehicle was not forced to stop in the box because of stationary traffic.

I find as fact that the exit lane was clear when the vehicle in question entered the box junction. I find as fact that the vehicle was not forced to stop because of stationary traffic. The components for the contravention have not been met. I am not satisfied that the contravention occurred.

I allow the appeal.

Pregnant & vomiting

Mr and Mrs T attended the hearing. The Authority was not represented.

Mrs T was pregnant at the time and suffering from sickness. She needed to stop to be sick and she needed to be close to her home because the road goes uphill and she had her young child with her.
I accept Mrs T' account. The vehicle was stopped for a reason beyond her control.

I allow the appeal.

Previous motorist's payment receipt (Moxon Street car park)

The Authority's case is that the Appellant's vehicle was parked in a car park without clearly displaying a valid pay and display ticket or voucher or parking clock when in Moxon Street car park on 4 April 2016 at 18.54.

The Appellant case is that when he went to obtain his voucher, which allows 1 hour free parking, the machine issued him with a receipt.

I have considered the evidence in this case and I find that this penalty Charge Notice cannot be upheld for the following reasons;

First, I find that the Appellant had not exceeded the 1 hour free time parking allowed at this location.

Second, I find that it is not the Appellant's fault that the machine gave him the receipt of the previous user.

Third, whilst it would have helped if the Appellant had viewed the voucher issued to him, I find that he had a reasonable expectation that the machine would issue the correct voucher.

Taking these matters together I find that this Penalty Charge Notice is not proved.

The appeal is allowed.

Yellow box junction - intervening vehicle

There is no dispute as to the whereabouts of vehicle, at the time, on the material date; namely at a location subject to an operative restriction denoted by yellow cross-hatching, such demarcation indicating a prohibition against a vehicle remaining stationary within the defined area due to the presence of stationary vehicles.

The Enforcement Authority assert that the said vehicle entered the defined area and stopped. The Appellant denies liability for the ensuing penalty charge notice contending that the manner of driving of a vehicle ahead caused the said vehicle to become so positioned.

The Enforcement Authority who assert that the said vehicle was so driven contrary to the operative 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 together with photographic evidence: CCTV footage and still frames taken there-from revealing the said vehicle in situ and the applicable carriageway markings notifying motorists of the restriction.

It is incumbent upon a motorist to be acquainted with [by reference to The Highway Code], and comply with, such prohibitions.

The restriction, as set out in Paragraph 7 (1) of Part 11 of The Traffic Signs Regulations & General Directions 2002, as amended, prohibits vehicles (or parts there-of) from entering and becoming stationary or stopping within the cross-hatched area due to the presence of stationary vehicles.

The essential element is the presence or otherwise of stationary vehicles causing the vehicle in question to stop.

The photographic capture was examined to evaluate this aspect in conjunction with the Appellant's representations; by virtue of the brevity of the contemporaneous footage extract and the fact that it commences after the said vehicle has already entered the cross hatched area, evidentially it is not possible to determine all criteria necessary to establish a contravention.

Indeed the Appellant's contention, with regard to the interloping vehicle executing a right-hand turn, is borne out by the evidence.

It is accepted that split-second judgement calls are necessitated by driving conditions, but the need for a vehicle to await room for clearance before commencing a manoeuvre across such a junction is the only option available to a motorist to avoid contravening the prohibition.

In this instance, on balance I accept that the said vehicle was rendered stationary on the cross-hatched area by a vehicle unexpectedly impeding its path after the said vehicle had entered the junction; therefore I am not satisfied that the contravention occurred, accordingly I allow this Appeal.

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These cases are not binding precedents but they do give you useful pointers as to whether your facts are such that you too might get a favourable decision if you go to the tribunal. If the discount is no longer available then you might as well. To save time you can have your case considered 'on the papers' but better results are generally obtained by an in person hearing at the tribunal centre in the Chancery Lane area. Make the event a bit of a day out and have a good lunch or do some sight-seeing whilst you are there.

Keep those appeals flowing.

Yours appealingly

Miss Feezance

London Tribunals - July 2016

Traffic wardens pull the trigger very readily

In the month of July 2016, 94 motorists won their Appeal and 99 lost given the council a slightly better than average win rate of 51%.

The following are the adjudication decisions which were noteworthy, largely in the words of the adjudicators themselves.

Traffic warden shoots a PCN out too fast.

This PCN was issued for the alleged contravention of being parked in a restricted street during prescribed hours. The alleged contravention occurred in Lodge Lane at 3.50pm on 14 May 2016.

I have looked at the CEO's photographs. There is a single image of the Company's car stopped on a single yellow line indicating that there was a no stopping and no waiting restriction. Another image shows a time plate with the restricted hours of 8am to 6.30pm Mondays to Saturdays.

I am allowing the appeal because I accept the driver's evidence that he pulled over onto the single yellow line to check the restrictions on the time plate and that he then drove the car away. The CEO clearly did not have time to serve a PCN in this case as the car was driven away. The fact that only a single image of the vehicle was captured suggests to me that the car was stopped only very briefly. A motorist is allowed a reasonable time on parking to check the parking restrictions and I therefore find that the alleged contravention did not occur.

Loading laundry sacks.

I have seen the appellant explanation about laundry sacks and why its driver of the van may not be able to load the vehicle from the appellant premises nearby very swiftly on all occasions.

The officer was not at fault in this case as he had the van under constant observation for at least 7 minutes and identified no coming or going, or indeed anything which might be classed as loading or unloading.

The loading bay has a very generous maximum of one hour but bay occupancy is only permissible while loading and unloading is actually underway.

I have however broadly accepted the appellant explanation about delay and I have accepted that a reasonable time for loading garments was not actually exceeded in this particular case.

I have thus recorded the appeal as allowed.

Unloading musical equipment

The appellant has produced reasonable evidence of unloading musical equipment and has provided supporting evidence, which I find compelling.

I will therefore allow the appeal.

Payment by text - is when the text is sent

The Appellant said that she sent a text to pay for her parking at 14:02. She produced her phone bill. She makes the point that no other text was sent to that number that day so that if payment was successful, she must have paid for her parking at 14:02.

The Authority's contractor provided a record which says that the text was received at 15:26 and parking was valid until 2:56 pm. It does not make sense.

The Authority "corrected" the difference. It argued that payment was received at 14:26. It did not suggest that the Appellant's text was the text that triggered the payment at 14:26. It submits however that payment is only "deemed as paid upon receipts of the funds." This interpretation is flawed in law and entirely unfair to motorists.

"Making a payment" is not directly defined in the Traffic Management Order. The TMO does however refer to making a payment by a telephone payment parking system whereby a payment is made by following the instructions indicated on signs located by each parking place, The signs tell people that they can pay by, inter alia, sending a text. They do not say that payment is only completed by it being registered on the system.

There is also a practical problem. Once a motorist sends a text, he or she has no control over or input into the next stages.

The Authority submitted that Appellant should have waited until she received the confirmatory text. The Appellant did receive one some 20 minutes after she sent her text, which rather ties in with the time of registration of the payment. I do not think that it is reasonable to expect people to wait for 20 minutes. If this is the expectation, it should be clearly signed.

In any event, I find that payment is made once the text was sent. There is no contravention. I allow the appeal.

Photos taken the day before the PCN was issued!

The appellant did not attend the hearing on 14 July. Her case was presented to me by her son who in the normal way simply drives his own car, but on this occasion was using his mother's. The Council did not send a representative to the hearing.

There was an initial point emerging at the hearing. This was the discrepancy between the date stamp on the colour photographs associated with the penalty charge and showing the appellant car and the date when the officer recorded issuing the penalty charge notice which correctly was dated 2 February. The officer colour photographs were stamped 01/02/2016.

The evidence certainly pointed overall to the photographs being taken on 2 February and the date stamping mechanism in the camera being at fault.

I remarked initially that I had never seen a similar mismatch presented to me in evidence. I also remarked that I was well aware that councils in general were at great pains to calibrate handheld ticketing equipment regularly and carefully. I had always until this case proceeded on the basis that date and times on officer cameras were broadly reliable and properly checked for date and time, but I shall not be doing that so very blindly in future if a point is taken.

I am aware that photographic evidence from the patrolling officer is not mandatory. It does not follow from that that I can readily agree with the Council argument in its case summary that the discrepancy does not matter. It seems to me that when councils will regularly refuse to cancel penalty charge for an inadvertent mistake over the motorist completing a scratch off card for example with Wednesday rather than Tuesday, that equality rather argues for the Council getting its dates right on evidence it wishes to use.

Previous cases before me in adjudications have usually resulted in me upholding a penalty charge where the motorist has mistakenly through inadvertence or other fault on his part paid for the wrong vehicle registration. Having heard from the appellant's son and how he had earlier on the day in question sought to add the registration for his mother's vehicle and how the payment as receipted was attributed to his own vehicle instead, I have been left in some doubt as to whether the fault lay with the appellant's son or with the software glitching in some manner. I have resolved that point in the appellant's favour on this occasion.

These factors have resulted in me concluding that this particular case is not strong enough for penalty charge for enforcement.

I have recorded this appeal as allowed.

Footway parking needs a council resolution

The case concerns off-carriageway parking in a road where there are 2up bays painted and intervening single yellow line such as there was where the appellant car was when ticketed.

The appellant told me that he and his wife had recently arrived in London and indeed Mrs R was the lady seen by the reporting officer and she who protested to him that she did not know it was unlawful. She I understood had only recently started to drive.

It is repeatedly said by the Adjudicator in footway parking cases that the narrowness of the carriageway never justifies leaving a private car unattended with wheels over the footway (unless there is an exemption applying in the part of the street concerned).

It is repeatedly and correctly said by councils that the statutory ban concerned operates without any need for signage.

The appellant told me, I believe quite correctly that since the ticketing occurred and indeed before it also, no penalty charge had been given them for footway parking.

I explained to the appellant that the law did not support his arguments and his decision to avoid parking in similar fashion thereafter was accordingly certainly prudent (even as I believe the case to be, there are in the close neighbourhood many streets which have been exempted apparently from the statutory ban and footway parking is not ticketed whether in bay markings or not).

As I further explained at the hearing there are statutory provisions governing the way in which Councils give effect to any decision to exempt a street or part of one. They are generally required to proceed by way of Council resolution.

In this appeal so far as I have been able to see, no copy of any relevant resolution has been included in the file sent by the Council and I have thus not been able to verify whether the extent of permissible footway parking as indicated by bays is correctly matched by the provisions of a relevant resolution.

When I discussed this lack with the appellant I informed him that with streets which are partially exempt the Adjudicator may adjourn for the Council to investigate and produce relevant documents proving the proper extent of what is lawfully permissible in a particular partially exempted street.

I decided against adjourning for that purpose in this case given its features overall and the fact the appellant had attended in person.

I have consequently decided there is insufficient evidence produced on this occasion to uphold the penalty charge for the reasons stated.

The appellant will appreciate that similar parking may attract later penalty charges where the extent of evidence provided in an adjudication may include a copy of the relevant resolution and that that may result in an outcome of penalty charge liability rather than the penalty charge been quashed as it has been quashed by me today.

For these reasons I have recorded the appeal as allowed.

Wrong person made the representations

Mrs S attended as the Appellant.

The owner of the vehicle is Mr John S, Mrs S's husband. Mr S was correctly served with the Notice to Owner but Mrs S responded. Mrs S identified herself as the driver and that her husband was the owner of the vehicle. This does not give Mrs S the right to make formal representations nor can anything Mrs S said be treated as formal representations. The Notice of Rejection which in addressed to Mr S is therefore invalid because Mr S had not made any representations.

There has been a procedural impropriety. I allow the appeal

An expensive visit to the dentist

The officer recorded handing the penalty charge notice to the driver. That entitles the Council to pursue the penalty charge.

The officer recorded receiving an explanation for parking on the double yellow line from the returning driver.

The explanation was about escorting a relation to the dentist and I have accepted that an excessive time was not taken to drop the lady of in the particular circumstances described.

I have decided to allow the appeal on the basis of the limited exemption in favour of passengers alighting.

I have recorded the appeal as allowed on that basis.

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Remember that decisions are an adjudicator are not binding, even on them. In legal terms they are merely persuasive. They do though give you a good idea of what might be accepted as grounds for an Appeal.

One thing though is certain. Unless you make an Appeal on line, you can't win it.

Yours appealing

Miss Feezance

London Tribunals - June 16

 

In June 16 there were 210 decided cases of which 114, that is 54%, went the way of the motorist. That is better than the average across London of 50%.

There were 5 tribunal cases I wanted to tell you about and I simply copy what the adjudicator had to say:

Volte face:

A contravention can occur if a vehicle is parked in a restricted street during controlled hours.

There appears to be no dispute that Mr G’s vehicle was in Princes Avenue, as shown in the single photograph/digital image produced by the Enforcement Authority.

The Penalty Charge Notice was issued under Regulation 10 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 on the basis that the civil enforcement officer had begun to prepare a penalty charge notice for service in accordance with Regulation 9, but the vehicle concerned was driven away from the place in which it was stationary before the civil enforcement officer had finished preparing the penalty charge notice or had served it in accordance with Regulation 9.

Mr G’s case is that he is a licenced private hire vehicle driver but was in the vehicle the whole time. Mr G says that he was going to pick up a passenger but the civil enforcement officer, who was in an apparent altercation with another driver, told him to move or a Penalty Charge Notice was would be issued, and so he did drive away.

The vehicle is shown in the Enforcement Authority’s image to be clearly parked on a single yellow line, although at the rear of the vehicle there is a double yellow line. The image does not show whether any of the vehicle’s wheels are on the double yellow line.

The civil enforcement officer records that the vehicle was on a double yellow line but also records ‘atv’ indicating that the Penalty Charge Notice was attached to the vehicle.

However, it is the Enforcement Authority’s case that this did not happen, as that is the basis of their issuing the Penalty Charge Notice under Regulation 10.

However, Mr G says that he was careful to stop on the single yellow line as he lives two streets away and is aware of the restrictions.

I have had the opportunity of hearing Mr G personally and find him to be a credible and convincing witness. I accept what he tells me and find that the vehicle was stopped wholly on the single yellow line.

Restrictions are indicated by the signs and lines. A double yellow line generally means that no parking is allowed at any time, this is twenty-four hours a day, seven days a week. A single yellow line means that parking is not allowed for some period less than this but can mean that there are still restrictions every day. The Enforcement Authority have produced no evidence as to the restricted hours of this single yellow line.

The Adjudicator is only able decide an appeal by making findings of fact on the basis of the evidence produced by the parties.

Considering all the evidence before me carefully I am not satisfied that, on this particular occasion, a contravention did occur.

Accordingly this appeal must be allowed.

Absolutely wrong!

A contravention can occur if a vehicle is parked in an on-street resident parking bay during controlled hours, without clearly displaying a valid permit or voucher, or without payment of the parking charge.

There appears to be no dispute that the appellant’s vehicle was parked in this bay at Leeside Crescent, London NW11, or that the Penalty Charge Notice was issued to it, as shown in the photographs/digital images produced by the Enforcement Authority.

The appellant’s case is that the vehicle was displaying an old style, yet valid, visitor permit.

I have seen the permit that the appellant says was displayed and also heard from the resident who provided it. Ms H explains that the old style visitor voucher had to be put in the kerb side window. I have seen that this is clearly stated on the instructions. They both say that this is what happened on this occasion.

The images show what may be something in the ear kerbside window but it is not clear. The civil enforcement officer has not taken a close image of it.

However, I have had the opportunity of hearing both the appellant and her witness personally and find them each to be a credible and convincing witness. I accept what they tell me.

Considering all the evidence before me carefully I find as a fact that and valid permit was displayed at the material time and thus a contravention did not occur.

Accordingly this appeal must be allowed.

I note that in their case summary the Enforcement Authority state ‘Where an Appellant advances a defence, the burden rests on them to produce evidence that, on a balance of probabilities, proves their defence.’ This is absolutely WRONG. It is for the party seeking the charge, that is the Enforcement Authority, to prove their case to that standard.

Saracens Zone - repeater signs

The Appellant said that his wife was driving. She turned from Bittacy Rise into Engel Park at its southern entrance and there is no zone sign there. The Appellant accepted that there were signs at the junction of Pursley Road and Bittacy Rise but they would have been obscured by a bus turning in front of his wife's vehicle.

The Appellant said that there were no signs close to where the vehicle was parked. The Authority submitted that there is no need for signs in the zone. I disagree. Unlike Controlled Parking Zones which have road markings, a permit zone has no road markings. There should be a sufficient and appropriate number of repeater signs.

Furthermore, the Authority has not provided evidence that it was an event day nor has it provided evidence that it has signed the event day.

I am to satisfied that the contravention occurred. I allow the appeal.

Dash cam can save your bacon

This PCN was issued for the alleged contravention of being in a bus lane in W. Hendon Broadway at 6.55pm on 16 December 2015. The controlled hours for this bus lane are from 7am to 10pm and from 4pm to 7pm Mondays to Saturdays.

I am allowing the appeal because I am not satisfied from the evidence that Mr Merody's car was travelling in the bus lane during controlled hours. The images from the Council are timed at 6.55pm and the Council says that the camera system is checked against the Atomic Clock at the start of each shift. However, Mr J submits images from his dashboard camera showing the vehicle entering the bus lane at 19:00:38 outside of controlled hours and I accept the evidence of Mr Merody that the audio play records the broadcasting of the LBC 7pm news.

The evidence leaves a serious question mark over the timing of the entry of Mr J's vehicle into the bus lane and it seems to me that it may well have been outside of the controlled hours.

£50 towards nursery costs

The Appellant's case is that his wife was dropping off their children at a nursery. He submitted a letter from the manager of the nursery in support of this claim. The representations were rejected. The letter of refusal did not say why the alighting exception did not apply.

The Appellant repeated his claim by way of formal representations. He had also re-submitted the letter from the nursery. The representations were rejected on the basis that the CEO did not observe any alighting activities and that no documentary evidence was supplied.

I am satisfied on the evidence before me that the alighting exception applied. I will however highlight the following.

The letter of refusal did not explain why the claim of alighting could not succeed. The Authority says in the case summary that this is because the Appellant could have parked elsewhere. This is a wholly untenable argument. The alighting exception is reasonably well known. I am not aware that any yellow line Traffic Management Order requires the motorists to seek alternative parking before engaging the alighting exemption.

The Notice of Rejection said that no documentary evidence was submitted. Not only was there documentary evidence (submitted at both representations stages and now acknowledged in the case summary) , it was fairly strong evidence.

The Authority said that there was no conclusive evidence that children alighted. The test is balance of probabilities, not proved beyond doubt.

An Authority is of course entitled to reject a factual account but there ought to be some basis for doing so. The Appellant had submitted supporting evidence from the nursery. There is absolutely no evidence to contradict the Appellant's and the nursery manager's account. It was 9:00 am on Monday morning and the CEO recorded an observation period of 9:00 am to 9:00 am. The Authority has not offered any submissions as to why it thought that the Appellant's account cannot in any way be inaccurate.

I am satisfied on the evidence before me that the Authority has failed to discharge its duty to consider the Appellant's representations. This continued to the appeal stage. The Authority got the law wrong and had turned a blind eye to the evidence.

I allow the appeal. I am allowing the Appellant's application for costs under separate cover.

Costs

This decision should be read in conjunction with my decision on the substantive issue. I found that the Authority has failed to discharge its duty to consider the Appellant's representations. After the Appeal was lodged, the Authority decision to resist the appeal was wholly unreasonable. It has misdirected itself on the law and it summarily dismissed the Appellant's evidence without any justification.

The Appellant seeks to recover the cost of three hours preparation. I think that he should be entitled to two and a half hours. The hourly rate is £20. The award is therefore £50.

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I hope these decisions help you and the overall numbers give you confidence that you have at least a 50/50 chance of winning. If you have missed the discount window you may as well go to Appeal at the tribunal as there is nothing to lose.

Yours appealingly

Miss Feezance