Tribunal Appeals - Jan 17

Richmond Rd, the trap awaits as you turn in

Gosh, here we are, bang up to date with my tribunal decision reporting.

 

In January 2017 there were 300 Appeals heard of which 161, a lovely 54%, went the way of the motorist. It really is worth the effort to complete that orange Appeal form and post it off to Nottingham, as you have a more than even chance of then paying nothing for your PCN, and you lose nothing if the discount option had gone.

 

There are 8 decisions for which you can now read the adjudicator's decision although I take out the name of the motorist even though it is published on the tribunal register.

 

Redundant dropped kerb since 2003

 

Mr B has appeared in person, supported by his father, Mr DB.

 

This PCN was issued at 10.43am on 4 July 2016 for the alleged contravention of being parked in a special enforcement area in Colin Gardens adjacent to a footway, cycle track or verge lowered to meet the level of the carriageway.

 

It is not in dispute that Mr B's car was parked next to a dropped footway. Mr Beeltah tells me that the dropped footway originally provided vehicular access to garages for 9 and 11 Colin Gardens. Mr Beeltah has been a resident of Colin Gardens since 1997. Mr B explains that, in around 2003, the Council gave permission for the garages to be removed and for the garage areas to be converted into part of the properties. He says that, since 2003, there has been no vehicular access with the garages gone. Images submitted in evidence show that the area is no longer used for vehicular access. Mr B says that he has parked his car across the dropped footway since the garages were removed.

 

I find Mr B to be an honest witness and I accept his evidence.

 

Since the footway has long since ceased to be lowered for the purpose of assisting vehicular access from the carriage way, I find that the prohibition in Section 86(1)(a)(iii) of The Traffic Management Act 2004 does not apply. I interpret the wording of the provision purposively so that the purpose for which the footway is lowered is to be read as a continuing purpose. The prohibition cannot continue to apply where an entrance way has effectively been blocked off and the purpose for which the footway was lowered has long since ceased to exist.

 

Zig zags - U turn if you want to.

 

Barnet council provide a very short section of CCTV footage taken on 19 October 2016 at 08:46. It shows Mrs D’s car, manoeuvring backwards and forwards in Whitings Road. As part of that manoeuvre, it is captured being momentarily stationary on a school crossing.

 

Mrs D’s account is that she was simply manoeuvring to pass congestion ahead while she decided the best way in which to proceed to work. In the event, she made a U turn, although the CCTV footage is far too short to demonstrate that.

 

It is entirely appropriate that enforcement authorities should look to enforce school entrance restrictions, and they are entitled to do so by camera. However, they do still have to provide sufficient evidence of a contravention. I do not find that they have done so in this case. As noted above, the CCTV footage shows the car stopped only as part of a driving manoeuvre. The footage confirms at least part of Mrs D’s account that there is congestion ahead, and her activities are entirely consistent with her account of attempting to manoeuvre past those.

 

The CCTV footage is in fact so brief that it unfairly does not show the whole of the incident that could support Mrs D’s version of events.

 

In any event, on the evidence provided, I am satisfied that the evidence shows nothing more than Mrs D carrying out a driving manoeuvre and being forced to stop as part of that manoeuvre. That is insufficient to demonstrate a “parking” or even a “stopping” contravention.

 

As the contravention is not proved I allow the appeal.

 

Overnight waiting ban - not adequately signed

 

The Appellant did not attend this hearing.

 

The Appellant argues that the signage for this restriction is inadequate and he refers to the Signs Manual which states as follows:

 

6.19 The sign [640.2A] is used either as a repeater sign within a controlled parking zone that applies only to commercial vehicles (see paras 12.15 to 12.18) or as the only sign on roads not forming part of a zone. In both cases, road markings are not used and enforcement depends on the upright signs only. At the start or end of any restriction that is not within a zone, the sign should include an arrow indicating the length of road to which the restriction applies. On other signs the arrow is omitted. In a zone, the Regulations require that at least one sign is provided on each side of every road. For roads not within a zone, additional signs might be required as there is no zone entry sign. In this case, the aim should be to provide signs at approximately 60 m intervals on each side of the road.

 

The restricted area was not within a zone where the signs were on entrance points to the zone (no evidence of such zonal signage has been provided) . The council in their summary state:

 

The Council would reiterate that the restriction is a borough wide ban and that signage meets statutory requirements. The Council would further advise that whilst signage indicating the overnight waiting ban is required on every street within the borough, it is not required on either side of the street in the borough. Annotated maps in evidence type H shows that the vehicle was parked within 100 metres distance from the time plate indicating the restrictions.

 

In fact the Manual recommends signs on each side of the road at intervals of 60 meters; this was not in place. Chapter 3 of the Manual sets out the relationship between it and the Traffic Signs Regulations & General Directions 2002 in these terms:

 

1.1 The Traffic Signs Manual is intended to give advice to traffic authorities and their agents on the correct use of signs and road markings. Mandatory requirements are set out in the current version of the Traffic Signs Regulations and General Directions; nothing in the Manual can override these. The advice is given to assist authorities in the discharge of their duties under section 122 of the Road Traffic Regulation Act 1984 and Part 2 of the Traffic Management Act 2004. Subject always to compliance with the Directions, which, except in Northern Ireland, are mandatory (see para 1.4), it is for traffic authorities to determine what signing is necessary to meet those duties, although failure to follow the Manual's guidance without good reason might well lead to enforcement difficulties. In particular, adjudicators might consider such failure to be evidence that the signing was unclear. Traffic authorities should always remember that the purpose of regulatory signs is to ensure that drivers clearly understand what restrictions or prohibitions are in force.

 

The council have given no reason, good or otherwise, why they have not followed the Manual’s guidance/recommendations and therefor I find that the signage in place was inadequate.

 

Yellow box junction - car cuts in from the side

 

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 find that when the appellant made his move to enter the box junction there was enough space on the other side for his vehicle to clear the box junction.

The space was however taken by another vehicle entering the box junction from the other side.

Effectively the appellant's vehicle was, "Cut up."

I will therefore allow the appeal

 

Richmond Road school zig zags - a known trap spot

 

The appellant attended. Together we looked at the on-line footage.

He told me and I believed him that as he drove along this road there was a "Stand-off" between two vehicles out of camera vision.

Neither vehicle would give way, then one started reversing in the appellant's direction. Due to the fact that there were parked cars along the road the carriageway was narrow. That is why the appellant reversed-to allow the reversing "Stand-off" vehicle to come by. The on-line footage is too short in duration to confirm this but I accept it as fact.

I find that the appellant stopped in circumstances beyond his control.

I will therefore allow the appeal.

 

Richmond Road school zig zags - again

 

Mr R attended today. He was the driver on 9th November 2016. His wife, Julie R is the registered keeper of the car.

 

Mr R does not dispute that the car was stopped in a restricted area outside a school. Mr R states that his car was stopped for only so long as necessary to allow oncoming traffic to proceed. Mr R lives in Richmond Road a short distance from the school. He was no his way home having taken his own children to school. The children do not go to the school in Richmond Road. Mr R states that he would have no reason to stop the car in Richmond Road other than to wait for oncoming traffic as he was going home and he could park the car on the drive to his property.

 

I have seen the CCTV footage. The car stops at 08:45:00. At 08:45:12 the camera focuses on the timeplate at the location. The footage ends at 08:45:16. The footage shows a car parked in front of the appellant’s car. There is no evidence of any oncoming vehicle on the footage however I accept the appellant’s evidence that the only reason he had for stopping was to wait for traffic. Mr R explains that sometimes approaching cars stop to park to drop off children at the school.

 

I allow this appeal because I find that the reason that the car was stopped to wait for oncoming traffic.

 

I allow this appeal.

 

Saracens Event day zone not proven to be adequately signed

 

Mr S was scheduled for a personal hearing today but he was unable to attend and he has requested that the hearing proceed in his absence.

 

This PCN was issued for the alleged contravention of being parked in a permit space or zone in Longfield Avenue at 3.32pm on 9 October 2016 without clearly displaying a valid permit.

 

The Council says in its case summary that there was a permit holder only restriction between 1pm and 6pm on Event Days in the location where Mr S's car was parked.

 

I have looked at the CEO's images. They show no signage of any restrictions where the vehicle was parked. The Council submits a google image showing two parking signs at the entrance to Longfield Avenue. I am unable to see what is written on these signs even with the benefit of magnification.

 

Further, the images from the CEO show that there were no bay markings where Mr S's car was parked. The car was parked some distance into Longfield Avenue. This means that there was nothing at, or near to, the place of parking to alert the motorist to look for parking restrictions. A single yellow line will alert the motorist to look for CPZ restrictions where there is no signage in a particular street. A marked bay will similarly alert a motorist to look for parking restrictions.

 

I am not satisfied for these reasons that any restrictions were properly or adequately signed.

 

Yellow Box Junction - 3 lanes make situation impossible (case 2160497090)

 

The contravention is set out in the Traffic Signs Regulations and General Directions 2016 (TSRGD).

 

The yellow box junction conveys the prohibition that:

 

"... no person shall cause a vehicle to enter the box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles."

 

The prohibition has the following elements:

i. Causing a vehicle to enter the box junction,
ii. Stopping within the box junction, and
iii. That stopping being due to the presence of stationary vehicles.

 

There is always a risk that the traffic ahead will stop for one reason or another. The Highway Code accordingly advises motorists as follows: "you must not enter the box until your exit road or lane is clear".

 

It is not unlawful for a motorist to enter a box junction in a line of traffic or before there is a receiving space for his vehicle beyond the junction. While the Highway Code advice is simply that - advice, it is a reasonable interpretation of how a contravention can occur. A motorist who follows it cannot commit this contravention. A motorists who does not follow the advice is likely to find himself or herself in contravention.

 

In this case, the junction is quite large. At the material time, there are three entrances to one exit and all three entrances have vehicles waiting to enter the junction. None of the entrances are controlled by traffic signals. The High Code Advice cannot be adhered to. Each motorist must depend on at least two other motorists not moving into the junction. This begs the question as to what decides which motorist can enter the junction first when one receiving space becomes available. I have asked the Authority this question. It was either unable or unwilling to respond.

 

Under the above condition, I am not satisfied that the contravention has occurred.

 

I am refusing the appeal. (a typing error, it was allowed)

 

Such fun, all these Appeals. Go on, give it a go.

 

Yours appealingly

 

Miss Feezance

London Tribunals - Dec 16 - Bunns fights

 

The month of December turned out, despite hearings finishing on 23 December, to be the busiest month of the whole year. There were a massive 321 hearings. Of those 174 were won which is 54% and a better result for motorists than the average across London (actually 48% won by motorists across London in the year ended 31 March 16). Well done everyone who went to the tribunal.

 

There are 5 cases for which I copy the words of the adjudicators (after changing people's names although they are published on the tribunal website).

 

Loading at 2 a.m.

The vehicle was parked on a double yellow line indicating a waiting restriction in operation 24 hours a day. The vehicle was therefore in contravention unless the Appellant is able to establish, on balance, that some exemption applied. He relies on the familiar exemption for loading, stating that he was picking up heavy kitchen equipment from his café.

 

Loading is in law essentially the process of transferring heavy or bulky goods from premises to a vehicle. The CEO saw no evidence of items being moved; however this is hardly surprising as he issued the PCN virtually instantaneously, recording an observation period of only one minute, at the end of which the Appellant had returned to the vehicle. In the absence of any evidence to suggest that he had some other purpose in bringing his vehicle to his café at 2.00 in the morning it seems to me overwhelmingly probable that the Appellant is correct and that the vehicle was there to be loaded.

 

The only real point to consider is whether the two or three minutes described by the Appellant during which he was checking the premises fall to be counted as “loading”. It seems to me that they are, on the basis that securing premises after loading goods is in my judgement a reasonably necessary part of the loading process, certainly if it is done immediately and without any undue delay.

 

It follows that, as it transpires, the vehicle was not in contravention and the PCN was incorrectly issued.

 

It is therefore unnecessary to consider the Appellant’s submissions regarding the subsequent procedures and correspondence

 

'Cut up' in a Yellow Box Junction

 

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.

To stop means to come to a stand as in the course of a journey, to halt or to cease moving.

I looked at the on-line evidence.

I am satisfied that the appellant's vehicle could have cleared the box junction. It was the vehicle on the off-side threatening to take the appellant's vehicle space that caused the appellant's vehicle to have stopped.

It was the vehicle on the off-side, threatening to "Cut up" the appellant's vehicle, which otherwise would have cleared the box junction that causes me to allow the appeal.

 

Bunns Lane Car Park

Sign does not reflect the provisions of the Traffic Management Order

 

Mr NB attended today. His daughter, H B is the owner of the car. Mr B was the driver on 4th August.

 

The Penalty Charge Notice was issued for the contravention of parking without payment of the parking charge. It is not in issue that no payment was made to park in the Bunns Lane Car Park on 4th August. Mr B appeals as he states that he had sent a text to the correct number to pay to park his daughter’s car. He has an account set up with Pay by Phone and so he believed that the payment would be debited to his card.

 

Mr B provides a screen shots from his phone. I accept his evidence that a text was sent at 08:49 on 4th August. Mr B provides a photograph of the board in the car park. It provides information for existing users. The board states ‘when paying by text if you do not receive a confirmation text within five minutes of your transaction please call (a number is given) to confirm’ Mr B argues that the board does not state that if no confirmation text is received it means that the payment has not been processed. He provides evidence that in 2014 he frequently paid to park by text and did not routinely received any confirmatory text.

 

The Traffic Management Order states that the appropriate parking charge must be paid immediately on leaving the vehicle. It stated that in the case of a payment made using the telephone parking system payment of the charge shall be indicated by an indication that payment has been made using the telephone payment parking system.

 

I find that the notice in the car park does not clearly indicate to motorists the provision of the Traffic Management Order that states that the payment of the charge is indicated by an indication on the telephone. The sign on the board states only that if no text is received a phone call should be made.

I accept the appellant’s evidence that he thought that he had paid to park the car. I find that the signage in the car park does not clearly indicate that a payment is not made until an indication is received.

 

I allow this appeal.

 

Footway parking - 4 sided bay not authorised (in Cloister Rd)

 

Part of the vehicle, as seen in the photographs, is outside a marked bay which is on the road other than a carriageway, usually referred to as the pavement. The Enforcement Authority say that constitutes the contravention of parking on the pavement – one or more wheels on or over, for which no signs or markings are required. This presupposes that parking is allowed only within marked bays on the pavement rather than on the pavement area between two signs.

 

Where there is an issue as to whether or not the vehicle is in a permissible area, the Enforcement Authority must satisfy the Adjudicator as to the presence of signage and markings that show clearly what that area is and that they are both adequate and compliant.

 

The Enforcement Authority have not produced any evidence of the signs required - fig.667 Traffic Signs Regulations & General Directions 2002 and whether they include the words in marked bays.

Moreover, the Signs Manual provides at para. 8.6 - The signs described in para 8.5 [fig.667 ] may be used without any road markings. This would be appropriate where parking is allowed on a verge unsuitable for road markings or where there is no specific requirement for a designated parking place as described in section 7. Where bay markings are to be provided they must be to diagram 1028.4; no other marking is prescribed for verge or footway parking. For a bay that is wholly on the footway the three-sided version only must be used, the fourth boundary being the kerbline. The Regulations do not prescribe the four-sided marking for use wholly on the footway (i.e. remote from the kerb). This version of the marking is used for a bay that is partially on the footway and partially on the carriageway; no markings shall be omitted for that part of the bay which is on the carriageway.

The bay markings seen in the photographs are four sided contrary for which there is no provision absent any evidence of special DoT authorisation.

 

Accordingly, I cannot be satisfied that the signage or markings were compliant and/or clear and so must allow this appeal.

 

Bunns Lane Car Park - poor mobile phone signal

 

This PCN was issued for the alleged contravention of being parked in Bunns Lane Car Park at 9.56am on 19 September 2016 without payment of the parking charge.

 

It is not in dispute that a payment of £5.10 was made to park vehicle registration LT04JYR in Bunns Lane Car Park from 10.06am on 19 September 2016. It is also not in dispute that no payment had been made to park the vehicle at the time of issue of the PCN. The vehicle had been observed from 9.44am.

 

Mr R appeals because he is a regular user of the car park and he says that the network coverage for the area is very poor so that it is often not possible to make an immediate connection for payment of the parking charge. He says that he made the payment as soon as he had the connection. The Council says that 22 minutes from the time of parking is excessive.

 

I would normally agree with the Council that a period of 22 minutes is in excess of the time that would be permitted for a motorist to make a payment to park. However, each case must be considered on its own facts as there is no law which states that payment must be made within a specific period from the time of parking.

 

A motorist is allowed a reasonable period upon parking to make the payment to park. This will normally be no longer than a few minutes where a ticket is being purchased from a machine and a payment by phone can generally be made within a similar time frame. However, there will be occasions where there is no coverage or connection and a longer period for payment is required. I am satisfied from Mr R's evidence that this was one such occasion. Mr R clearly had every intention of making payment and was prevented from making an immediate payment through no fault of his own. I find in the circumstances that the alleged contravention did not occur.

 

The Council's suggestion in its case summary that it is a requirement that payment is made prior to leaving the vehicle cannot be correct. Where there is a connection issue as there was in this situation, it is likely to be the case that payment can only be made by leaving the vehicle.

 

Well done everyone, even if you lost the council had to pay a £30 tribunal fee that they cannot recover from you.

Yours appealingly

Miss Feezance

London Tribunals - February 2016

In February 2016, there were 162 decisions at the tribunal for Barnet Council of which 85, that is 52%, went the way of the motorist. That is a typical result.

The indivdual decisions were a mixed bag of various topics and the interesting decisions, in the written reports of the traffic adjudicators, all of which led to the PCN being cancelled, were as follows:

Dedicated disabled bays - The Appellant’s wife, a disabled badge holder, parked in what she thought was a disabled bay. The bay had the legend DISABLED and the sign read Disabled permit holder 095 only. She thought that the number referred to a zone as she was unaware that there could be bay reserved for the exclusive use of one particular badge holder. The Appellant argues that the sign is misleading and challenges it.

The sign is not permitted by the Traffic Signs Regulations & General Directions 2002. It does not comply with 661A and its permitted variants – the wheelchair symbol is missing and the word permit replaces the word badge. Neither does it comply with any of the 660 signs or their permitted variants as the word disabled is not allowed. As such the sign must have special authorisation of the DoT, but no such authorisation has been produced. In these circumstances I find that the sign substantially non- compliant.

Footway was actually private land - The Appellant attended this hearing together with a friend who lives in the block of flats she was visiting when this Penalty Charge Notice was issued to her vehicle.

The contravention the Appellant is said to have committed is set out in s15(1) Greater London Council (General Powers)Act 1974 - Save as provided in subsections (3), (4), (7) and (11), any person who causes or permits any vehicle to be parked in Greater London with one or more wheels on or over any part of a road other than a carriageway or on or over a footpath, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

The Appellant says that she parked on the pavement adjacent to the access or slip road to the block of flats and this was part of the property owned by the freeholders of the block. Her friend confirmed this.

The council maintain that as the public have access to the area and no proof has been given that it is private land the Penalty Charge Notice was properly issued.

From the photographs that the Appellant showed me, the area in question is quite clearly part of the block of flats and is an access road or forecourt. Between it and the carriageway is a public pavement broken only by dropped footway for access.

There is another pavement between the access road or forecourt and the block of flats. Whilst the public would have access to it if visiting the block of flats, but for no other purpose
given the public pavement referred to above, it does not make that area into a road other than a carriageway or a footpath.

I allow this appeal as I am not satisfied that where the vehicle was parked was a road other than a carriageway or a footpath.

Bunns Lane Car Park 3 hours free - he allegation in this case is that the vehicle was parked without payment of the parking charge. Mr. A says that he parked on a Saturday, read the tariff board and believed he was entitled simply to park without payment.

The Enforcement Authority have provided a photograph of the relevant conditions of use plate. There is a box giving the tariffs for the bay. This indicates ‘Saturday 8am-6.30pm Up to 3 hours No Charge/Free’. The Enforcement Authority rely on a statement at the bottom of the box ‘FREE PARKING SESSION MUST BE REGISTERED BY PHONE’. However, beyond the use of capitals this direction enjoys no special prominence.

I regard this as a borderline case. However, having considered the matter carefully I do not feel able to say that the signage was clear and adequate to inform the motorist. Accordingly I allow the appeal.

Crossing the bus lane to access premises - The Appellant's case, which I have heard from him in person, is that having executed a lawful U-turn he entered the bus lane in order to gain access to adjacent premises where he had a pickup to make. The relevant Traffic Management Order contains the usual exemption allowing vehicles to cross a bus lane for
such a purpose. The issue in this case is therefore essentially whether in all the circumstances the Appellant's vehicle would fall within that exemption. The distances are quite short and there seems to me some force in the Appellant's submission that it would be unsafe to require his vehicle to pursue a zig-zag course of leaving the bus lane only to turn back across it immediately.

In my judgement the exemption for crossing does not require the vehicle to cross at a right angle and only at a right angle. There are questions of fact and degree in these cases. The
Council has not provided a copy of the CCTV evidence and in its absence it seems to me probable on the particular facts of this case that the exemption would apply. The Appeal is
therefore allowed.

Signing of the overnight waiting ban - I do not have a great deal of sympathy with the Appellant . The sign shown in her photograph indicating the presnce of an overnight prohibition on waiting for buses and lorries has no application at all to the single yellow line. It is simply the sign required by regulations to be present in every street within a Zone prohibiting overnight parking by HGVs. Motorists are required to be aware of the meaning of legally prescribed traffic signs and must take steps to familiarise themselves with them if
necessary. It also looks as if, given the fact that previous PCNs have been issued, the Appellant ought to have been well aware of the waiting restriction in place whether or not those appeals were allowed.

Nevertheless I take the view that where an issue as to the clarity of signage arises a failure by a Council to follow the recommendations of the Traffic Signs Manual, the official government guidance, inevitably puts the Council in some difficulty . The TSM Chapter 3 Para 12.11 specifically recommends that where there are two types of Zone at the same location a time plate to indicate the waiting restriction should be co-located with the overnight parking sign to avoid possible confusion. In the circumstances I am just persuaded that the signage was not as clear as it should have been and on this occasion the Appeal is allowed. The Appellant, however, should note that she cannot continue to plead ignorance or confusion indefinitely.

Single yellow line across a dropped kerb - This vehicle on the council's case was parked adjacent to a lowered footway.

The vehicle was resting on a single yellow line which runs alongside that lowered footway.

There was no dispute that the appellant had parked outside of the yellow line's hours of restriction.

The appellant submitted that given yellow line restrictions were not in force he believed he could park as he did.

There is both a prohibition on parking at this spot adjacent to the lowered footway AND a waiting restriction at it indicated by the single yellow line.

I was satisfied however having noted the appellant's submissions on the point that the marking of a single [as opposed to a double] yellow line alongside this lowered footway
misleads the motorist into thinking that he can park adjacent to it outside of restricted hours applicable in respect of the yellow line notwithstanding the prohibition that is in place. I was not for that reason satisfied that the prohibition on parking adjacent to a lowered footway at this location was clearly communicated to the motorist and found that the contravention had not therefore been proved.

Keep those Appeals coming. If your PCN is at full value you have nothing to lose by making

an Appeal to London Tribunals once you have a Notice of Rejection at full price (i.e. no 50% discount)

Yours appealingly

Miss Feezance