In the month of September independent adjudicators at London Tribunals made 245 decisions and of those 158 were in favour of the motorist, which is a magnificent win rate of 64%
Notable decisions included:
Postman using his own car (2170387441)
The present case relates to an alleged contravention of parking in a restricted street during prescribed hours. It is accepted that this was a restricted street, it is accepted that the Appellant parked during prescribed hours.
The Appellant though avers that he had parked to carry out his duties as a postal worker employed by the Royal Mail. The vehicle in question, was not owned by the Royal Mail, nor is it liveried as such. The Appellant states that he was working delivering mail, he returned to the vehicle and that he informed the CEO who was making out the ticket that this is what he had been doing.
The Respondent rejects this and states:
Please be advised that working for Royal Mail and using a private vehicle does not exempt you from the restrictions in place
I can also confirm that the Notes recorded by the CEO do not support your statement and must advise that the CEO is deemed a credible witness by the London Borough of Barnet.
Taking each in turn, firstly, what is the exemption? The submissions provided by the Respondent argue that no exemption applies to a postal worker using a private vehicle. I disagree. The exemption is what is contained within the traffic management order, this reads:
26(1) Nothing in this Order shall render it unlawful to cause or permit a vehicle to wait in any restricted street:
While postal packets adjacent to any such street in which the vehicle is waiting are being unloaded from the vehicle, or, having been unloaded therefrom, are being delivered
The Order does not specify by whom the vehicle must be owned. There is at least the potential of an exemption.
Secondly, does the exemption apply? Here, the burden reverses, the Appellant must show on the balance of probabilities that the exemption applies to him. Firstly, I must judge what the Appellant says, he has not appeared in person, so I am not able to test his evidence.
However, I note the following: (a) he is consistent in his account, (b) he has provided evidence of his employment, (c) the time of the contravention, (d) the Appellant lives in EN4, the contravention took place in N12.
The Respondent does not approach this case as they did on 25 July 2017, there they said the Appellant had not discharged the burden. Now, they argue that their own CEO contradicts the evidence provided by the Appellant.
The CEO has not provided a witness statement. However, there is his note:
After issuing the pcn driver returned and says that I was delivering and he was working for royal mail then I told pcn has been issued and the only way can appeal for that ic9 male 175cm height medium build
It is not clear to me how this undermines the Appellant’s case, if anything, it is consistent therewith. The Respondent’s submissions as to the credibility of their CEO are neither here nor there. The CEO is not disagreeing with the Appellant’s account. As too, should I note, that the CEO’s credibility (and there is no reason to doubt it), is a matter for the Tribunal to judge.
The suggestion by the Respondent that no exempt activity was observed, is, in reality something I cannot test. The CEO has not provided a statement, simply because he or she does not write something down, does not mean it was or was not happening.
In my view, it was be very dangerous indeed for the Appellant to be untruthful to this Tribunal, he potentially would face disciplinary action at work and could even face criminal prosecution. Likewise, he has been consistent in his account throughout.
I am satisfied therefore that the exemption did indeed apply in this case and I allow the appeal.
Time not proven (2170397048)
Having heard the driver of the vehicle in person I entirely accept her evidence that the clock in her vehicle showed 4.16. the Council’s camera shows the vehicle stationary just after 16.14. Whilst I would be slow to apply the principle of de minimis in the case of a set time limit, nevertheless it does seem to me that in a case where a contravention turns on a matter of seconds the onus is on the Council to prove the accuracy of its timing to this degree. The Council states the camera is calibrated to the universal time signal, which no doubt it is, but no further details are provided as to how this occurs or how the equipment is set or checked. On balance on the particular facts of this case I am unable to be satisfied a contravention is sufficiently proved and the Appeal is therefore allowed.
(In this case the school keep clear zig zag markings must finish at 16:15)
Time not proven, again (2170412822)
The Appellant appeared in person together with his wife, the driver.
The vehicle stopped on the markings at what the Appellant’s wife believed to be 16.15. I accept her evidence that she relied both on the clock in her vehicle and, more importantly perhaps, on the time on her mobile phone which is set to a satellite. The issue in this a case is therefore simply what the time actually was; and the onus is on the Council to prove that the vehicle was within the prohibited hours. Although I note the Council’s evidence as to the setting of the time by the atomic clock it seems to me that when it comes to proving he time within a margin of seconds evidence is required in the form of a log or otherwise showing that the required checks were in fact made on that day. On balance I am not satisfied that a contravention is sufficiently proved in this case and the Appeal is therefore allowed.
Adjustment for the Equality Act not obvious (2170412629)
The allegation in this case is that the vehicle was parked without payment of the parking charge. Mrs. Butler says that she did pay-to-park although she concedes she entered one incorrect digit. She says that she is dyslexic and says that she has previously been advised by a ‘Traffic Warden’ that it is permissible to move the vehicle from one location to another within paid-for time without having to pay again and she assumed the same applied on this occasion. Mrs. Butler has provided evidence of the payment.
The Civil Enforcement Officer’s record merely confirms that no payment had been made to park this vehicle at this location at this time.
I allow appeals in cases where payment has been wrongly ascribed due to a mistake by the Enforcement Authority’s system or operator. However, primary responsibility lies with the motorist to ensure that payment has been made for the correct time, vehicle and location.
I have no reason to doubt that Mrs. Butler made a genuine error but amounts only to mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion but Adjudicators have no power to direct cancellation on the basis of mitigating circumstances.
The claim is often made by a motorist that he parked on the advice or with the permission of an Enforcement Officer. It is an easy claim to make and a difficult claim to disprove. Whenever the claim is made I would look to see if there is any supporting evidence. In this case Mrs. Butler has not provided any supporting evidence and the advice she claims to have received is unlikely on its face. If it were accurate there would be no need for individual location codes at all. I am not satisfied that he was advised in the terms she has described.
Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.
The Respondent does not approach this case as they did on 25 July 2017, there they said the Appellant had not discharged the burden. Now, they argue that their own CEO contradicts the evidence provided by the Appellant.
The CEO has not provided a witness statement. However, there is his note:
After issuing the pcn driver returned and says that I was delivering and he was working for royal mail then I told pcn has been issued and the only way can appeal for that ic9 male 175cm height medium build
It is not clear to me how this undermines the Appellant’s case, if anything, it is consistent therewith. The Respondent’s submissions as to the credibility of their CEO are neither here nor there. The CEO is not disagreeing with the Appellant’s account. As too, should I note, that the CEO’s credibility (and there is no reason to doubt it), is a matter for the Tribunal to judge.
The suggestion by the Respondent that no exempt activity was observed, is, in reality something I cannot test. The CEO has not provided a statement, simply because he or she does not write something down, does not mean it was or was not happening.
In my view, it was be very dangerous indeed for the Appellant to be untruthful to this Tribunal, he potentially would face disciplinary action at work and could even face criminal prosecution. Likewise, he has been consistent in his account throughout.
I am satisfied therefore that the exemption did indeed apply in this case and I allow the appeal.
Time not proven (2170397048)
Having heard the driver of the vehicle in person I entirely accept her evidence that the clock in her vehicle showed 4.16. the Council’s camera shows the vehicle stationary just after 16.14. Whilst I would be slow to apply the principle of de minimis in the case of a set time limit, nevertheless it does seem to me that in a case where a contravention turns on a matter of seconds the onus is on the Council to prove the accuracy of its timing to this degree. The Council states the camera is calibrated to the universal time signal, which no doubt it is, but no further details are provided as to how this occurs or how the equipment is set or checked. On balance on the particular facts of this case I am unable to be satisfied a contravention is sufficiently proved and the Appeal is therefore allowed.
(In this case the school keep clear zig zag markings must finish at 16:15)
Time not proven, again (2170412822)
The Appellant appeared in person together with his wife, the driver.
The vehicle stopped on the markings at what the Appellant’s wife believed to be 16.15. I accept her evidence that she relied both on the clock in her vehicle and, more importantly perhaps, on the time on her mobile phone which is set to a satellite. The issue in this a case is therefore simply what the time actually was; and the onus is on the Council to prove that the vehicle was within the prohibited hours. Although I note the Council’s evidence as to the setting of the time by the atomic clock it seems to me that when it comes to proving he time within a margin of seconds evidence is required in the form of a log or otherwise showing that the required checks were in fact made on that day. On balance I am not satisfied that a contravention is sufficiently proved in this case and the Appeal is therefore allowed.
Adjustment for the Equality Act not obvious (2170412629)
The allegation in this case is that the vehicle was parked without payment of the parking charge. Mrs. Butler says that she did pay-to-park although she concedes she entered one incorrect digit. She says that she is dyslexic and says that she has previously been advised by a ‘Traffic Warden’ that it is permissible to move the vehicle from one location to another within paid-for time without having to pay again and she assumed the same applied on this occasion. Mrs. Butler has provided evidence of the payment.
The Civil Enforcement Officer’s record merely confirms that no payment had been made to park this vehicle at this location at this time.
I allow appeals in cases where payment has been wrongly ascribed due to a mistake by the Enforcement Authority’s system or operator. However, primary responsibility lies with the motorist to ensure that payment has been made for the correct time, vehicle and location.
I have no reason to doubt that Mrs. Butler made a genuine error but amounts only to mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion but Adjudicators have no power to direct cancellation on the basis of mitigating circumstances.
The claim is often made by a motorist that he parked on the advice or with the permission of an Enforcement Officer. It is an easy claim to make and a difficult claim to disprove. Whenever the claim is made I would look to see if there is any supporting evidence. In this case Mrs. Butler has not provided any supporting evidence and the advice she claims to have received is unlikely on its face. If it were accurate there would be no need for individual location codes at all. I am not satisfied that he was advised in the terms she has described.
Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.
Keep those Appeals coming. If you have a good case you have a better than evens chance of winning.
Your appealingly
Miss Feezance
