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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
