London Tribunals - August 2017

Another good month for the motorists who were brave enough to take their case all the way to the independent adjudicators at London Tribunals.

There were 187 decisions.
Of those, 122 led to a cancelled PCN when the Appeal was allowed.
That is a fantastic 65% win rate for the motorist.

Three cases were noteworthy

Bailiff fees ordered to be refunded (2160528070)


Unless the address of the parents was on the warrant the bailiff had no business in even being there. It is not uncommon however for bailiffs to lean on family members to pay a debt which is not theirs when the motorist in question cannot pay. Expert help in this situation is available by phoning the Bailiff Advice Online phoneline on 01643 841886 between 9am and 6pm Monday to Friday.

Not 'not paying' but not 'not displaying' (2170170199)


PayByPhone text errors (2170343209)


Why would you even realise that a sign facing the opposite way from you has to be searched for? The sign telling you the hours and payment methods doesn't even refer you to it whereas arrows pointing towards meters are common.

Please remember that any decision by an adjudicator is not binding on another adjudicator or even themselves. each case is dealt with one its own facts although other decisions may turn out to be persuasive.

Keep those Appeals coming.

Yours appealingly

Miss Feezance

London Tribunals - June 17



A mobile dunny

In the month of June 2017 the adjudicators decided 182 Appeals in favour of the motorist i.e. their PCNs were cancelled. They refused 96 and asked the council to think again about 3 with a view to cancelling them. That is a win rate of 64%. That is not the full story though. Of the 281 Appeals which were started Barnet Council did not contest 129 of them so they became motorist wins by default. That is an amazing 46% of all Appeals that month. Whilst that may have been a one off due to staff holidays or some other reason it is still the case that Barnet Council rejected formal representations 129 times and then those motorists who persisted were rewarded with a cancellation. If everyone who had their formal representations rejected were to go to Appeal Barnet Council would implode.

There were 12 cases of particular interest and the adjudication decisions and case reference numbers are reproduced below:

6 minutes to PayByPhone - ok - 2170193070

The Appellant, whom I have heard in person in some detail, parked his vehicle in a pay by phone bay and immediately began the process of making payment by means of the app shown, as I accept, on the Council’s signage. Unfortunately there was a delay in finding a signal to enable the app to work successfully and by the time payment was made something of the order of six minutes had elapsed. During this time the vehicle was observed without any record of payment having been made and, unsurprisingly a PCN was issued.

On parking a vehicle a motorist is of necessity permitted a reasonable time to do whatever is necessary to validate the parking. Certainly the time in question will normally be fairly brief and the motorist must act promptly. In the present case six minutes is a fairly substantial time. However although on these facts the case is perhaps close to the borderline, it does seem to me that the time involved was not so long as to be unreasonable. The Appellant was, as I am satisfied, attempting to make payment throughout that time, and in the case of payment by means of an app in this way it is inevitable that minor delays of this type occasionally occur, Naturally the point will eventually be reached when the motorist has to accept that payment cannot be made promptly, and must then remove the vehicle or pay by some other means. However on the facts of this case I am not satisfied that point had quite been reached. It follows that, as it transpires, the vehicle was not in contravention and the PCN was incorrectly issued.

Representations wrongly rejected - 2170205690 (a council must not fetter the exercise of its discretion)

The Appellant said that he pulled over because his 4 year old daughter was in distress, apparently choking on water. He turned round in his seat to help her regulate her breathing.

The Authority's response in the Notice of Rejection was that there is no exemption that permits the Appellant to stop as no evidence has been produced to suggest it was a medical emergency.

The exception as stated in Schedule 7, Part 6, paragraph 4 (2)(b) in the Traffic Signs Regulations and General Directions 2016 applies to a vehicle "which is prevented from proceeding by circumstances beyond the driver’s control or which has to be stopped in order to avoid injury or damage to persons or property".

A medical emergency is likely to satisfy the above, but the exception goes beyond a medical emergency, and is applicable to the Appellant's case. The Authority is entitled to challenge the authenticity of the account, it is not entitled to reject the representations on the basis that the account cannot give rise to an exception.

There has been a procedural impropriety. I allow the appeal.

Delivering school meals to a school - 217017400A

I accept the Appellants’ evidence that the vehicle was there in order to deliver school meals. It is not entirely clear whether the delivery was to be made from that position or whether the driver was simply in the process of obtaining the key to gain access to an off-road delivery area. However whichever is the case there is no exemption in the Regulations (Schedule 7 Part 6 Traffic Signs Regulations and General Directions 2016) for loading/unloading, or for parking whilst gaining access to premises. The keep clear markings, in place for the safety of school children, are effectively a no-go area for motor vehicles, even vehicles having official business with the school in question. The vehicle was in contravention and the PCN was lawfully issued.

(No doubt if the Appellants were able to persuade the Council that there is no realistic alternative way to deliver this essential service some sort of formal dispensation would be granted, but in the absence of any such dispensation the vehicle cannot lawfully park there).

Unsigned PCN - not necessary - 2170225166

Mr. Halibard appeals on two bases, the first of which has two limbs. The first ground of appeal is that there was a procedural impropriety by the Enforcement Authority (EA) in that it a) implicitly misled him as to the effect of the Penalty Charge Notice (PCN) not having been signed by the Enforcement Officer (EO) and b) failed to have regard, in considering his representations following the issuance of the notice to owner (NTO), to evidence submitted by him after the service of the PCN but before the issuance of the NTO. The second, substantive ground of appeal is that the contravention did not occur because Mr. Halibard was at the relevant time engaged in loading of the vehicle in question, such as to bring him within the exemption (contained in Article 22(1)(h)) to the prohibitions imposed by the Council of the London Borough of Barnet Traffic Management Order 2015 (“the TMO”).

The EA’s case does not expressly address the first of the two procedural impropriety points raised by Mr. Halibard; the EA’s case, which is correct in law, as is accepted by Mr. Halibard, is that the PCN did not need to be signed. That is not quite the point that Mr. Halibard makes; he says the EA should not have asked him to provide the PCN in response to his representation on that point when, as they well knew, it would not have made a jot of difference. The EA also rather misses Mr. Halibard’s second point too. The EA’s case is that it does not accept the evidence, namely a letter from a grocery store from which Mr. Halibard says he was loading substantial quantities of fruit and vegetables. The EA is wrong to say that the letter was only provided at the appeal stage; Mr. Halibard’s e-mail of 13 February 2017 attaches it in his ‘representations’ prior to the issuance of the NTO. It was also provided again after his representations against the NTO were rejected. The EA’s case on the ‘loading’ issue is that they do not accept that sufficient evidence has been adduced to support Mr. Halibard’s case and that, in any event, the items were not sufficiently bulky or heavy that they could not reasonably be carried by hand.

Dealing with the first aspect of Mr. Halibard’s appeal, the EA should not have asked Mr. Halibard to provide the PCN when that was a document a copy of which was in its hands in any event and, further, when it knew that whether it was signed or not was immaterial. It should also, in my opinion, have had regard in evaluating Mr. Halibard’s representations to evidence which he had already submitted after he received the PCN but before the NTO was issued. The attached letter was probably received; the EA’s response of 20 February 2017 does not state ‘we did not receive your attachment’. The matter was perhaps complicated because on 22 February 2017 when he responded, Mr. Halibard did not re-attach the letter but a witness statement in an unrelated matter. In any event, Mr. Halibard did not re-send the letter in his formal representations against the NTO on 22 March 2017. I have to decide, however, whether there has been a procedural impropriety within the meaning of Regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as explained in London Borough of Camden v. Parking Adjudicator [2011] EWHC 295 (Admin). In my judgment, notwithstanding the above errors by the EA, there was no failure on its part to observe the requirements imposed upon it by the prevailing Regulations and the Traffic Management Act 2004. There was, therefore, no procedural impropriety within the meaning of regulation 4(5).

I do, however, uphold Mr. Halibard’s appeal on his second, substantive ground. I found his evidence to be credible and compelling. Mr. Halibard explained how he needed assistance from the shopkeeper to load the 4-5 heavy bags of fruit and vegetables he purchased for his family into the vehicle he then needed to drive them at least half a mile to his house. It would, I accept, be wholly impracticable to carry them home. He parked immediately adjacent to the shop for that purpose. The vehicle was only observed in that location for 2 minutes. The letter from Yarok grocery shop corroborates that evidence; although unfortunately undated it is signed. The EA’s point that there is no VAT number on the letter is misconceived; by virtue of Schedule 8 to the VAT Act 1994 there is no VAT payable on fruit and vegetables. Mr. Halibard falls within the exception in Article 22(1)(h) and the contravention did not occur. The appeal is therefore allowed. I would further observe that although the prohibition on parking outside the limits of bays may be on the EA’s website, it is not displayed at all on the sign at the relevant location.

Text sent = payment made - 2170232117

It is common ground that the Appellant attempted to pay by text. It is equally clear that, as it transpired, payment was not in fact made. The Council’s position is that unless and until payment is “confirmed” the motorist cannot assume that the payment has been made and accepted.

It seems to me that the onus is on the Council providing a pay by text system to explain to the motorist how the system works and what is required. I note the Council’s evidence of the instructions on the reverse of the timeplate “when paying by text etc...” However this seems to me to fall short of the clear warning necessary to the effect that until a confirmation text has been received payment has not been made – something that I do not regard as self-evident. It seems to me that the Appellant was entitled to assume that his payment had been made in the absence of any indication from the system to tell him otherwise. The Appeal is therefore allowed.

Saracens zone repeater signs - 2170233710

The Appellant said that she entered Engel park via Bittacy Rise. She accepts that there is signage indicating event day restrictions on Bittacy Rise but she had not thought that it would apply to another road.

The sign does say permit holders parking only past this point so the Appellant's understanding was incorrect. However, where there is a turn into another road after the sign, I would say that repeater signs are required.

I am not satisfied that the signage was adequate. I allow the appeal.

Suspension sign white not yellow - 2170233233

The Appellant was due to attend for a person or appeal before me this morning, but has not done so. No explanation has been received by the tribunal for the appellants absence. In the circumstances I consider it just and proportionate to determine her appeal on the information before me in the absence of the Appellant.

The Council's case is that the Appellant's vehicle was parked in a suspended bay in Cornwall Avenue on 15 December 2016. A penalty charge notice was issued at 1914.

The Appellant states that there was no signage on the side of the road where she parked. She adds that it was dark and that there was no sign of any works being carried out and that the period of suspension was unreasonable.

The Council rely upon the evidence of their civil enforcement officer. This includes a series of photographs of the vehicle and two of a close-up of a suspension sign. In answer to what appears to be a pre-populated question on his handheld device as to "distance to the nearest signing metres?", The answer is given as 4 m. I assume that this refers to the distance between the sign and the vehicle. The Council has also produced some location photographs, annotated with the position of the sign and the Appellant's vehicle.

I have considered the suspension sign and note that although there are no prescribed regulations as to the form or colour, it is white, as opposed to the more usual yellow suspension signs, that there is no "no parking" roundel on it, and that it is the same colour as the time plate on the post.

In all the circumstances I am not persuaded that the Council has established that the sign was adequate to convey the suspension to the motorist and therefore the appeal is allowed.

Kara Way - confusing signs - 2170212856

The Appellant, whom I have heard in person parked his vehicle on s single yellow line on a Sunday within what was a correctly signed Controlled Parking Zone. The Appellant saw the CPZ signs on entering the road and noted the operational hours; however he believed that those hours would not apply on a Sunday.

Had the case amounted to no more than this, the Appeal would inevitably have been refused. As the Council points out, if a sign is silent at to the days of operation the restriction applies on all days. However the Appellant examined the signs relating to adjacent designated parking places which gave the operational days as Monday to Sunday (i.e. every day of the week). On the basis of this he assumed that if the CPZ hours similarly operated Monday to Sundays (i.e. every day of the week) day the CPZ sign would have been similarly worded.

Having considered the matter carefully it seems to me that his assumption was a not unreasonable one. Motorists can reasonably expect there to be some consistency in signage within a small area. In my view this falls to be treated as one of those rare cases where the clarity of what is otherwise clear and correct signage is undermined by the presence of other ( equally correct ) signage. On the very particular facts of this case I am not satisfied that the signage was adequate to indicate to the Appellant sufficiently clearly that the yellow line operated on a Sunday; and it follows that , as it transpires, the PCN was incorrectly issued.

Cloned - council to prove their case - 2170150147

The issue in the case is whether the Appellant's was in contravention of restrictions.

The EA case is that the Appellant's vehicle was seen making a prohibited right turn, in contravention of restrictions, and so a PCN was issued to the vehicle.

The EA rely on contemporaneous footage.

The Appellant's case is that his vehicle registration plate having been cloned; he first became aware of this problem, when the Police telephoned him in respect of diesel not paid for at a petrol station, and the Appellant was provided with a Police reference number. He remarks that his vehicle is in fact petrol. He then received this PCN and another from EA's in areas that he has no need to travel.

The Appellant has submitted photographs of his vehicle, and has undertaken a "spot" the difference; which is as to the European mark on his plate, but not the photographs seen in the picture, and also a child's sticker in his vehicle which is not seen in the other vehicle.

I consider that the Appellant has provided a straightforward account of how he became aware of this, a Police reference number, photographs in support. The burden remains on the EA to show that the vehicle in contravention is the Appellant's vehicle; in the circumstances, in light of the points made, I am not satisfied that the EA have discharged this liability.

I therefore allow the appeal.

Alongside school entrance markings - 2170246585

The contravention alleged on the PCN is that this vehicle 'stopped in a restricted area outside a school . . . . .when prohibited'.

Signage at the location indicates that stopping is prohibited on entrance markings.

On the evidence before me the appellant's vehicle did not stop on such markings but to the side of them.

Upon that point being raised by the appellant although this prohibition on stopping applies to the whole of the length and breadth of the carriageway at this location that is not made clear on signage the prohibition as stated thereon applying to stopping on entrance markings only and I am not satisfied for that reason that this signage gives adequate indication of the ambit of the prohibition the council seeks to enforce.

The contravention has not accordingly I find been proved.

Greater than 50cm from kerb but passenger alighting - 2170250527

This PCN was issued for the alleged contravention of being parked in a special enforcement area more than 50cms from the edge of the carriageway and not within a designated parking place. The alleged contravention occurred in Hillview Gardens at 12.11am on 8 January 2017.

The alleged contravention arises by virtue of Section 85 of the Traffic Management Act 2004. Section 85(1) provides that, in a special enforcement area, a vehicle must not be parked on the carriageway in such a way that no part of the vehicle is within 50 cms of the edge of the carriageway.

Section 85(7) provides that "parking" for the purpose of this contravention does not include stopping to drop off or pick up a passenger where the vehicle is stopped for no longer than is necessary for that purpose.

I accept the evidence of Rabbi David that the car was stopped while he dropped off his 6 year old grandchild to 51 Hillview Gardens. There was only a one minute observation period before the issue of the PCN and it is, therefore, unsurprising that the CEO did not see the driver of the vehicle. The setting down exemption allows for a driver to leave the vehicle and to provide assistance to a passenger in reaching their destination where the passenger requires such assistance. I therefore find that the vehicle was not parked for the purposes of Section 85 and that the alleged contravention did not occur.

Disabled person needing the toilet - 2170252737

The appellant seeks to dispute liability for the charge on the ground that he is severely disabled he giving evidence as to his medical condition a consequence of which being that he frequently needs to use the toilet he on this occasion being 'caught short' he parking as he did because it was close to toilet facilities.

I acknowledge what is said but, on the assumption that I am being provided by the appellant with a truthful account of this incident, other than in the case of a medical emergency, which I am not persuaded on the appellant's case unsupported as it is by any medical evidence this was, there is no exemption that allows a motorist to park where restrictions are in force for the toilet to be used.

I note on the officer's photographs that a disabled badge and time clock were on display in the vehicle but the benefit of the disabled badge holder exemption may not be claimed where, as here, loading restrictions are in force.

I am satisfied against this background that the contravention occurred and am not satisfied that any exemption applies.

The appeal is refused.

Keep those Appeals coming. It is worth the effort.

Yours appealingly

Miss Feezance

London Tribunals - March 17

Oxford Avenue, N14

In March 2017 there were 120 Appeals which were won out of 231 which were heard which means that the motorist won 52% of the time, a slightly better than average result.

 

The following eight decisions, including two which were lost, are worthy of note.

 

Adjudicator refuses through gritted teeth.

 

The CEO’s photographs show sufficiently clearly that, as the driver (whom I have heard in person) does not dispute , the vehicle was observed in the early hours of the morning parked other than with all its wheels on the carriageway.

 

Parking a vehicle other than on the carriageway is unlawful throughout London (save at those locations where the Local Authority has exercised its powers to permit it and signed the exemption accordingly The prohibition is imposed by statute ( s15 Greater London Council (General Powers) Act 1974 as amended), and no signs are therefore required. As in many other areas of activity motorists are presumed to know the law, and are bound by it whether they are aware of it or not. It is referred to in the Highway Code with which all motorists should be familiar. It is irrelevant in law that no actual obstruction was caused to pedestrians, who are in any event legally entitled to access to the entire footway, not merely that part of it which a motorist may consider sufficient for their needs. It is never a defence to footway parking to say that had the vehicle been parked entirely on the carriageway danger or obstruction might have been caused. If this is the case at a particular location the vehicle must simply be parked safely elsewhere.

 

Whist it might certainly seem a little peculiar that the Council is expending its resources enforcing what is, at this type of location and at this time of night, a minor example of the contravention in question, I am unable to find that the PCN was issued anything other than lawfully and the Appeal must therefore be refused. (2170052895)

 

Dot matrix = self evidently inadequate signage (heads you win...)

 

Mr S.  appeared before me at a Personal Hearing on 10th March 2017, to represent his Wife, the Appellant [as registered keeper], to explain the contention personally. Mr S. also attended on behalf of his Daughter who was the driver at the relevant time.

 

The Enforcement Authority assert the whereabouts of the vehicle, at the relevant time, on the material date, to be at a location subject to an 'event' restriction, during which vehicles are obliged to display of an applicable and valid permit, and assert the absence of such permit display in respect of the said vehicle.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances and challenge as stated in the written representations (supported by photographic capture) which Mr S. reiterated and comprehensively detailed at the Hearing.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a 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, extracts of governing Traffic Management Order provisions, signage Authorization and notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ, and an image of the adjacent signage notifying motorists of the restriction.

 

The Enforcement Authority adduce annotated maps/plans and undated images; these are of limited evidential value since the knowledge of the annotator is not known and it is not possible to correlate some images to the position of the said vehicle.

 

No evidence is adduced of the event or any event day signs advertising the material date as an event day.

 

Of crucial importance in an 'event' operative restricted area is the inclusion of clear and unambiguous information for the motorist regarding the 'event' triggering the operation of the same.

Mr S. indicated that there was a distinct lack of event signage in the vicinity, and challenged the notion that any such signage was adequate by submitting photographic capture showing the use of supplemental portable notification devices (dot matrix signs). (2170061692)

 

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

 

Don't park on double yellows to buy a newspaper (a schoolboy error)

 

The appellant attended the personal hearing on the 11th March 2017.

He disputed the PCN on the basis that the CEO had indicated that he was open to a bribe and had himself parked in contravention.

 

The appellant stated that he only stopped to buy his elderly mother a newspaper and was away from the vehicle less than a few minutes when he saw the CEO who held out his hand to the appellant and said he had already issued the PCN but could help the appellant appeal which the appellant clearly interpreted to be an invitation for a bribe. In addition the appellant noticed the CEO parked in front of him on the same double yellow lines in an unmarked vehicle and remaining there for a period of time after the appellant moved away.

 

The allegations made by the appellant relate to the alleged behaviour of the CEO which is a matter for the local authority to consider and investigate.

 

The issue for me to decide is whether or not the alleged contravention did occur and whether there is any valid exemption available to the appellant.

 

The photographs taken by the CEO clearly show the appellant's vehicle parked on double yellow lines which is an instant contravention. Purchasing a newspaper does not amount to a loading/unloading activity which requires the use of a car in order to fall within the loading and unloading exemption.

 

Considering the evidence carefully I am satisfied that the contravention did occur and can find no valid grounds for this appeal. I am also satisfied that the enforcement officer was entitled to stop on the double yellow lines in order to issue the appellant with a PCN as part of his powers of enforcement and there was nowhere else nearby where he could have legally stopped in order to carry out his duties. I therefore do not find there to have been any procedural impropriety which affects the validity of this PCN.

 

Appeal refused. (2170020935)

 

Don't fall over & then expect the council to show any compassion

 

Mr G, the Appellant, appeared before me accompanied by his son, Mr N G.

 

The Appellant accepted that at the time the penalty charge notice was issued his disabled badge was not displayed. However, he explained that there was a very good reason for this. He has difficulty walking and uses an elbow crutch. He had exited from the vehicle to make sure that it was parked fully within the disabled bay, before displaying his badge. Unfortunately, in the course of doing this he fell over. He was assisted by a passerby – a Mr Joseph – who has provided a signed witness statement confirming these facts. The passerby took Mr G to a wall nearby where he could sit down and Mr N G was telephoned to come to his father's assistance. While this occurred, the officer issued the penalty charge notice (quite properly) to the vehicle but out of eyeshot of the Appellant.

 

I accept this evidence as true. It does not amount to a defence to the contravention, but I do consider it to be compelling mitigation. I strongly recommend that the Council on this occasion exercise their discretion not to enforce the penalty in the light of my findings of fact. (2170053559) (Why the heck did the council not cancel this PCN before the tribunal stage?)

 

Paid but not paid, by phone.

 

Mr Q appeals against the issue of a Penalty Charge Notice to his vehicle for parking on 10 October 2016 in the High Street.

 

Mr Q attended the hearing. He explained he is a frequent user of the pay by phone system and also uses the other systems operated by other Authorities throughout London.

 

When he parked his vehicle Mr Q used the App on his telephone to pay for parking. He is registered with the pay by phone company and all details are held by them for the two vehicles he uses. His payment card is also registered with the company. On making the “payment” by entering the details and the CVV number of his card he left the vehicle. Half way through the time he purchased he checked on his phone and using the screenshot sent by the company and saw he had a number of minutes left.

 

On returning to the vehicle he noted the Penalty Charge Notice. He informed the Enforcement Authority of his payment and initially he was advised there was no trace of his using the system on the day. However later the company accepted he had been on the system but claimed the CVV was not entered so payment was not made. However neither the Enforcement Authority or the Company have offered any explanation as to how Mr Q received the countdown screen shot if the CVV number had not been entered and a payment made.

 

As Mr Q had not previously had any difficulty with the system he did not take a photograph of the screenshot he relied on 10 October 2016. That is a perfectly reasonable position to take.

 

Mr Q is a reliable witness and is very conversant with the pay by phone system. I have no reason to doubt his account of what happened. I find he did all that was required of him to make the payment and for some technical reason the company failed to take the payment. He was entitled to rely on the screen shot he was sent by the company to show he had paid to park. I see no reason why Mr Q should pay the Penalty Charge for a technical fault with the system he used. Neither the operating company or the Enforcement Authority have any valid explanation for the screen shot being sent if the steps taken by Mr Q were incomplete. It is logical that the screenshot can only be created and sent following completion of the information required to take a payment or indeed a payment taken.

 

I am satisfied the error lies with the pay by phone company and not Mr Q. The appeal is allowed. (2170069504)

 

Council want to enforce on private land, or is it?

 

The Appellant is represented by Mr R.

 

The Appellant's case is that the vehicle was outside no 26 Oxford Avenue. It is private and the Authority has no jurisdiction to issue a Penalty Charge Notice.

 

Both parties have made extensive submissions as to whether the road was adopted. There is no conclusive evidence from either side. The evidence is not particular persuasive either way.

 

The Authority says that the map it supplied proves that Oxford Avenue is adopted. I do not see why or how. As Mr R points out, he has never said that the whole of Oxford Avenue is not adopted. He is saying that the adoption stopped short of the Appellant's address. He drew my attention n to the yellow line stopping short of the Appellant's address. There is also a strip of paving across the carriageway. There is no apparent purpose for this save to separate one part of Oxford Avenue from another. Mr R asks a not unreasonable question - why can the Authority not produce primary documentation of the adoption?

 

On the other hand, Mr R has been engaged with what appeared to be lengthy discussions with the management company of the estate some time before 2010 to the point that the latter has informed him that there would been discussion. If the relevant section of Oxford Avenue has not been adopted since 2015, I would have thought that the Appellant would have received bills for maintenance and certainly bills for street lighting. Mr R says that there are none.

 

I think that one has to start from basics. The contravention occurs when any person 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.

 

A road means, according to section 142 (1) of the he Road Traffic Regulations Act 1984, any length of highway or of any other road to which the public has access, and includes bridges over which a road passes. It is irrelevant whether the road is privately owned or maintained by the public, see R on the application of Dawood v the Parking Adjudicator PATAS and another [2009] EWCA Civ 1411.

 

Oxford Avenue is clearly a road in that it is a definable way of passage between two points. The issue is therefore whether the general public, and not merely a special class of the general public, has access to the road and that the public has access at least by tolerance of the owner of the road.

 

In Deacon v AT (A Minor) [1976] RTR 244, the Court held that the prosecutor seeking to prove that there is public access to the road must prove the general public used the road. It is not sufficient to prove that a restricted class of the public e.g. the residents and visitors of an estate has access to the road.

 

In this case, there is no evidence of any level of use of the section of Oxford Avenue save by residents or visitors. It is therefore not a road to which the public has access. There is there no restriction on footway parking at the location. I allow the appeal. (2170061863)

 

Payment for the other side of the road is OK

 

The Appellant attended in person.

 

The facts are not in dispute. The Appellant parked his car in Brent Street and sought to pay for his parking by app. It turned out that the location number selected was for the other side of the street. The Appellant does not dispute that the sign for the bay in which he parked showed a different location number but he had not seen this when he was using his app in his car.

 

The Authority submits that it is permissible to have two location numbers on the same street because different tariffs may apply. It is therefore the driver's responsibility to ascertain and use the correct location code.

 

I do not disagree with the above as a general principle. However, not only is there no difference in tariff between the two sides of the road, and this is well known to local residents, the Authority does not challenge the Appellant's assertion that one can purchase a ticket from one side of the road and use it on the other.

 

The Traffic Management Order requires the payment by inserting money into a ticket meter for "that parking place". It follows that if machines on both sides of the road can be used, both sides of the road is the same "parking place". The Authority has not drawn my attention to anything in the TMO that says that payment by phone or app should be treated differently.

 

Even if the Authority is somehow saying that the two sides of the road are in fact different "parking places", I would say that it is incumbent upon the Authority to make this clear.

 

The Appellant also makes the point that the app refers to Brent Street. It does not offer a choice as to where in Brent Street.

 

I am not satisfied that the contravention occurred. I allow appeal. (2170081805)

 

Safety is motorist's first priority, revenue raising is the council's?

 

The appellant, who appeared before me today, said that his hearing aid batteries had failed as he was driving he being unable to continue with his journey in safety without being able to hear sound he stopping in this bay close to an opticians to replace his batteries.

 

The appellant had I noted provided this explanation to the issuing officer and he supplied supporting evidence from the optician concerned.

 

I was satisfied as to the evidence given and adduced by the appellant as to this incident and found as a fact that he had been prevented from proceeding by circumstances beyond his control the exemption in that regard being applicable. (2170093473)

 

Just to remind you that decisions by an adjudicator are not legally binding, not even on themselves. They are persuasive so claim their support but don't poke the adjudicator in the eye with them, adjudicators like to make their own decisions so just mention the decision exists and leave it at that.

 

I have given you the tribunal references so you can look at the original decisions if you wish, and print them, form here.

 

If you want to look at all contraventions which have taken place in, say, Oxford Avenue, then you can search the register by completing at least 2 fields. Type BARN in the Enforcing Authority box and you can then select Barnet Council, type OXFORD% in the location box and you will get all road names which start with Oxford and perhaps put 1/1/16 in the from box so you don't get too many results. Have fun.

 

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 - March 16

an empty car

In the month of March 16 there were 111 Barnet Council Appeals considered by adjudicators. Of those 68 went the way of the motorist, a satisfying 61% and comfortably above the norm of 50%

Four cases were of note.

Do not leave your car empty whilst dropping off passengers (but you can).

This is what the adjudicator had to say.

There seems to me no reason to doubt the Appellant’s evidence, now supported by a letter from his employers, that at the time the vehicle was observed waiting the Appellant was in the process of attempting to make contact with his passenger. The very brief observation period does nothing to suggest that any other activity was in progress. I am satisfied the Appellant was within the exemption relied on and the Appeal is therefore allowed.

The Council should note, and note carefully, that it is not the law that a driver may not leave the vehicle for this purpose (whatever the advice of the Public Carriage office might be). The leading case of R v The Parking Adjudicator on the application of Makda (2010) EWHV 3392(Admin) makes it clear that a PHV driver is permitted a reasonable time to identify the passenger, or to conclude that the passenger is not there, as that is a necessary part of the picking up process. There is nothing in that decision to require the driver to remain in the vehicle whilst doing so – something that in many situations would be impossible. 

The Council’s consideration of the representations in the light of a self-imposed limitation on the law would amount to a procedural impropriety and the Appeal would have fallen to be allowed for that reason alone. 

What do the council write nowadays? the very same thing, that you must not leave a car unattended whilst dropping off passengers. Oh dear.

What a liar

Ms Jones appeared before me today for the personal hearing of her appeal. She gave evidence in the same terms as her earlier representations to the Enforcement Authority and her Notice of Appeal, adding further details to her account.

Should does not dispute that her car was parked in a residents’ bay without a permit when it was seen by a Civil Enforcement Officer (CEO). At the hearing she amplified the account she had previously given to the Authority. She had spent the previous night at the flat of her boyfriend, Luke Smith. She had parked her car in this residents’ bay at a time when restrictions did not apply. She was aware that they applied from 10 am to 11 am, but normally would not have been there during the week, but only at weekends. Consequently she forgot that the restrictions would come into force the following day.

However she and her boyfriend saw a CEO at the car from his flat window, and so she went out to speak to him. She was surprised at how pleasant he was, and is quite clear that he reassured her that he would not issue a PCN, and indeed both wished her a Merry Christmas and even gave her advice as to where she could park in a nearby street without risk of enforcement. As Mr Smith says in his witness statement, she told him how helpful the officer had been.

The CEO has recorded that the driver returned and drove away before he could complete preparing this Penalty Charge Notice (PCN), but Ms Jones is adamant that he was not preparing a PCN, and that in any event she did not drive off so as to prevent him from serving one. Indeed she is quite clear that he positively undertook not to issue one, as well as giving her advice as to where she could park safely.

There is thus a direct conflict of evidence in this case. However I have had the advantage over the Authority of hearing from Ms Jones in person, and found her a convincing and credible witness. Her account is also supported by the witness statement from Mr Smith. I accept Ms Jones’s evidence regarding this conversation. I find as a fact that she was given an express assurance by the CEO to the effect that he would not be issuing a PCN. This gave rise to a legitimate expectation on her part that none would be issued. It is immaterial that the CEO may not have had any authority to give that assurance. I am also satisfied that the conditions that entitle the Authority to issue a PCN by post under Regulation 10 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 had not arisen, so that they were not entitled to do so.

Accordingly I allow this appeal.

PayByPhone bug

Mr Oldcar attended the personal hearing listed for today. I found him to be a very honest and sincere witness.

Mr Oldcar denies the contravention stating that he regularly parks his car near the station to commute to work and uses the text by phone payment system.

This requires him to text the first four digits which is the location code, followed by the number of minutes he wishes to park (usually 570 minutes) followed by the last three digits of his credit card. This should register the payment to his vehicle AB55CDE. There is no need to enter the vehicle registration details or any option to change the vehicle by text so the error cannot be on his part. He showed the text number on his phone which showed the same pattern of texts verifying his account.

In addition he produced a print out of his payment receipts for the last 2 years which show approximately 150 entries all registered with the appellant's current VRM number AB55CDE.

There are only two entries on 18th and 22nd September where unbeknown to the appellant at the time the payment was credited to an old vehicle which he had sold more than 5 years ago. He received this PCN for the alleged contravention of the 22nd September.

The local authority have not produced any evidence that the pay by phone system was working properly. The onus is on the local authority as the pay by phone system is operated by the local authority's contractors.The Appellant tried to raise the issue directly with Pay by Phone but who refused to deal with him stating that he had to contact the local authority and appeal.

It is very clear from the appellants evidence that there was a system error and the money was credited by the computer systems to the an old obsolete vehicle. I accept that It could not have been inputted incorrectly by the appellant as there is no option to select a vehicle.

I am therefore not satisfied that the contravention did occur and allow this appeal.

Late suspension

I note from the case summary that the suspension sign was erected on 11 November 2016; which is the day before the suspension came into effect.

I find that the erection of the suspension notice was too near the suspended period.

Keep those Appeals coming, it is worth the tiny effort involved.

Yours appealingly

Miss Feezance

PATAS - w/c 4 May 15 - armageddon

Here are the stats for the week which was a day short due to a Bank Holiday.

Only two that I need to tell you about.

In the first one a PCN was cancelled because the PayByPhone system was down and there isn't a viable alternative in most places, meters now being as rare as hen's teeth. I heard this week that the owners of PayByPhone are putting it up for sale as it is not mainstream to their business and even taking 10% of the payment, as they roughly do in Barnet, it loses money. All I can say to that is they haven't put their technology together very economically if they can't process payments for a single digit percentage. 

The danger of relying on just one form of technology is that the day that armageddon hits the phone network, there will be almost no income for the council.

The second PCN was cancelled as a blue badge holder had one without an expiry date on it and there was, apparently, no reminder system to forewarn you that you need to renew.

Keep those Appeals coming.

Yours appealingly

Miss Feezance