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.
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
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