21 August 2019

ULEZ - were TfL frit?

Mr Mustard is going to tell you a story. He was asked to take over fighting a PCN at the tribunal Appeal stage. He said yes, but let's start at the beginning.

Let us call the motorist Mr H. He entered the ULEZ area at 9 of an evening so the congestion zone was not in force at that time. He knew nothing of the ULEZ as he is a member of a religious minority which does not expose itself to mass media and he did not see a ULEZ sign as he said in his representations against the PCN. He pointed out to TfL that Dart Charge let you off your first contravention if you ask them (usually) as long as you pay for the crossing itself and asked to be allowed to do the same for the ULEZ. He could not, of course, use that argument again in the future.

The whole point of these schemes is to obtain compliance but enforcement authorities appear to run them instead to maximise revenue.

Despite the short nature of the representations, TFL's Notice of Rejection ran into 3 dense pages of explanation about the setting up of the scheme, consultations, publicity, signs and so on. Ultimately, TfL rejected the representations which admitted to not paying to enter the zone because Mr H hadn't paid to enter the zone, a somewhat circular reason. There was no attempt to consider cancelling the PCN because this was a first contravention or due to not having seen any advertisements about it. Nor did TfL point out where the missed sign or signs where.

Mr H was unhappy so he put the whole £160 penalty at risk and make his own Appeal to the tribunal. The grounds were technical ones, that the Notice of Rejection threatened to send him a Charge Certificate before TfL were legally entitled to do so. At that point TfL did not know Mr Mustard was waiting in the wings. TfL decided to contest the Appeal and produced the evidence pack which had the usual 70 pages. TfL only wanted 50% (£80) if they won. They sometimes do this when you get your Appeal in to the tribunal within 14 days of their Notice of Rejection being issued. It is a simple decision therefore to go to the tribunal as there is nothing to lose.

At this point Mr Mustard went on file at the tribunal as an authorised representative and filed a skeleton argument a few days before the hearing date. As TfL rather unhelpfully don't allow on line Appeals to be made to the tribunal, and don't give out an email address, their copy of the skeleton argument had to be posted to them, so they would only have got it 2 days before the hearing, which doesn't give them a fair crack at defending themselves.

At the scheduled tribunal hearing the Adjudicator had clearly read the papers before Mr Mustard had entered the room and said that he wanted to adjourn the hearing for 28 days to give TfL an opportunity to respond to the important points which had only just been raised. Mr Mustard agreed as he wanted the points decided upon as they were substantive issues. The Adjudicator duly wrote to TfL seeking their detailed response.

This was the skeleton argument which Mr Mustard had filed:

Early threat of a charge certificate.*

Whilst TfL refer to this ground of Appeal in the case summary (and 8 pages is not a summary and is unfair on Appellants who represent themselves) they do not dispute it.

Accordingly the demand exceeded that applicable in the circumstances of the case.

The Notice of Rejection did not comply with Reg 17(2)(a). It is ultra vires. (Reg 15(1) is also applicable so add that in. Best have a good read!)

Mitigation not properly considered

The Appellant's case was very simple. His religious observance meant he did not know of the new ULEZ scheme. The Notice of Rejection goes on for 3 pages (which is procedurally unfair and likely to put many people off the idea of Appealing to the tribunal as they are effectively browbeaten by the volume) and doesn't really get to grips with the actual representation. TfL said 'because the daily charge has not been purchased. It is clear the PCN had been correctly issued'. Using against the motorist the facts which had been admitted cannot be said to be considering the mitigation. The nub of the representation was that the ULEZ scheme had not been heard of and nor had a sign been observed en route. The Notice of Rejection should have said why TfL were not prepared to exercise their discretion (they would only have to do this once as Dart Charge do as it happens and future compliance should be more important than raising revenue) and provided evidence of the sign that was passed. Neither of these things were in the Notice of Rejection.

I do not think that, based upon what they have written, which was all about the preparations for and implementation of the charging scheme, TfL can be said to have adequately considered the representations in line with Reg 13(6) (RUC Regs 2001**).

No evidence a sign was passed.

The representations denied that a sign was passed. No proof has been adduced of the sign or signs in place at the point of entry to the charging zone. Baker Street is a long road. A more informative description is essential to adequately describe the contravention. (Such a description does arrive in the case summary, the junction with Paddington St)

Sign is compliant but not adequate.

It is all very well putting up compliant signs but are they adequate? To a person who has never heard of the ULEZ coming across 'sign A' whilst driving along and at the point of entering the zone, has seconds in which to decide what classes of vehicle are affected and whether or not their particular vehicle is likely to be affected. Given the complete lack of information on the sign I do not think that the individual motorist is given adequate information as they aren't given any except that they are at the edge of the zone. They are not told the classes of vehicle which are affected nor the emissions levels which a vehicle must meet.

Mr Mustard went on holiday for 2 weeks. Whilst he was away, and a mere 6 days after the adjudicator had asked TfL to provide their detailed response, TfL instead decided to exercise their discretion and no longer wished to contest the Appeal. Now why didn't they do that when Mr H wrote to them or when Mr H filed their Appeal?

Have they taken fright or has Mr Mustard hit the bulls eye with one of this arguments? We'll never know except that we might. If you have a Notice of Rejection for a ULEZ PCN or if you have already started an Appeal at London Tribunals you might want to borrow one or more of Mr Mustard's arguments. (Mr Mustard expects that the Notice of Rejection will have been recently corrected, since the start of August).

*Expanding on the first argument, the PCN said this:

The Notice of Rejection said this:

and thus the Notice of Rejection demanded payment before it was legally due, because the date of service of the Notice of Rejection is usually 2 days after the date of the Notice and as the Notice of Rejection did not offer what the PCN offered nor what the legislation demands (the time periods for paying or Appealing the Notice of Rejection being the same 28 days after service).

Good luck.

Yours frugally

Mr Mustard

This story, received via the twitter account of the ABD (@TheABD) shows you how little known the ULEZ is. Close to 130,000 PCNs in 3 months. £10,400,000 to shore up TFL's budget and ultra low emissions within the zone clearly not achieved.

** The Road User Charging (Enforcement and Adjudication) (London) Regulations 2001.

29 July 2019

PCN cost increase - tell Barnet Council 'no thanks'

There is a consultation here on changing the values of PCNs for parking contraventions in Barnet from £60/£110 up to £80/£130. The council say that is because they want fewer people to contravene but Mr Mustard thinks it is a simple question of revenue raising.

Sorry there isn't much time but Mr Mustard has been working flat out on his day job for 6 months and this is the first day back in his Barnet office.

Mr Mustard obtained a paper copy of the questions as he likes to see them all before he starts to answer.

By train and in a wheelchair are omitted options. Mr Mustard's suggested answer to this is to tick all that apply, in his case all of them and write 'Train' in the other box.

A dangerous question. If you tick 'a lot' it might be assumed you get lots of PCNs so your response is discounted or if you tick 'rarely' your view is unimportant as you won't get many PCNs? Who can say. Mr Mustard decided to go for 'Often' although that seems rather like 'a lot of the time' to him. Rather vague measures. The number of journeys per week would have been a better idea. 

An easy one this. Just tell the truth. A comparison will be made between those who will be affected and those who won't.

 Mr Mustard would tick all that apply, he doesn't commute or do a school run.

Easy, you 'strongly disagree'. Who in their right mind would vote to be penalised more severely?

You disagree because £110 already takes someone on the minimum wage £8.21 an hour, more than a day to earn. Even the £60 PCN is most of a day's pay (7.3 hours). You disagree because PCNs don't work, Camden have always been at the higher Band A rate and they issue 50,000 more PCNs each year than in Barnet. You also disagree because the vast majority of people aren't trying to get a PCN, they have usually made an innocent error, misunderstood a sign or found themselves having paid to park the wrong car etc. 

You also disagree because Barnet Council don't do anything to help you understand the complex parking system and as you suspect they are just trying to raise more revenue which takes the pressure off the general fund.

Yes. Sign every single yellow line inside a CPZ so that motorists are told on the spot of the times as to when they can park rather than having to spot zone entry signs as they drive along. Make all signs simpler, get rid of complex multi-use bays if possible. Have traffic wardens observe on single and double yellows and in bays for 5 minutes before issuing a PCN rather than instantly issuing as is mostly the case now.

Give talks to drivers about lines and signs to help them avoid falling into error.

Conduct research as to why PCNs are issued. Did the driver 'take a chance' or make an innocent or unknowing error. Conduct research into the most frequently committed contraventions and devise ways of making them less likely to happen and inform the public of them.

Mr Mustard doesn't think this optional question #8 needs to be answered.

Your opinion carries more weight if you are answering on behalf of a group.

Mr Mustard skipped all questions after this one, about his personal characteristics.

Mr Mustard looked at the statistics for Barnet.  It is simplistic to consider that the level of the penalty and the number of PCNs being issued bear much relation to each other. The main factor is the number of traffic wardens on duty and the number of school keep clear sites under cctv. Barnet introduced cctv in May 16 and this caused a huge surge in the number of PCNs issued for stopping on the markings. Population growth in Barnet has been constant these last few years and that means more vehicles on the roads and thus more competition for parking spaces and more PCNs. The increasing use of external contractors for enforcement will be a factor in the number of PCNs issued. Budget pressures, not that any council will admit this, are a pressure on the parking department to keep ticket issuing high.

Let us look at other boroughs which are mentioned, as having success in reducing PCN numbers by increasing the cost of a PCN. There may be a short term effect but it won't last and besides, visitors to a borough don't choose it because it has Band B PCNs rather than Band A.

So here is Waltham Forest which has been all band A since April 13. 

We can see that numbers did drop but we are now nearly back where we started. The main result is that the council will be raking in loads more money, say 86,000 PCNs at an extra £10 each = £860,000

Next is Haringey.

This is really interesting. The PCN value increase was in October 13. The numbers of PCNs in 2013/14 was down on the previous year but then in 2014/15 it went up before falling markedly in 2015/16 since which it has risen in the following two years (2018/19 figures are not yet published by London Councils) and we will soon be back where we started. Haringey are probably gathering in another £1,400,000 each year.

Let's look at Camden which has always been Band A as they are a central London borough.

Despite being at the higher rate all along the number of PCNs has not dropped but remained more or less the same for the last 6 years. What this tells us is that higher level penalties don't stop contraventions from occurring. PCNs are a blunt instrument which do not work except in their unofficial guise of revenue raising. Camden take in c. £2,000,000 more each year because of the PCNs each being £20 higher than for band B (the majority will be paid at the 50% rate but also some at 150% so that's an extra £30, kerching).

Finally, Islington another central London borough who have always charged the higher band figures.

That is some rollercoaster ride in Islington. Mr Mustard doesn't know what the data proves, he does know it doesn't prove that higher PCN values = lower numbers of PCNs. There are other factors at play in Islington.

Please have your say and ask barnet not to put up PCN values but to become a pioneering borough that tries to genuinely reduce the numbers. Less of the stick, more education is needed. save the stick for those who don't want or refuse to learn.

Yours frugally

Mr Mustard

6 July 2019

Tfl - congestion zone - seconds out

Mr Mustard was consulted by a lady who enters the congestion charge once a week at the end of the day and is well aware of the times.

She was sent a PCN timed at 17:59 which Mr Mustard thought was a little harsh as the zone ends, allowing free entry, at 18:00. Mr Mustard also remembered the below Barnet decision:

He asked the lady to find the exact time at which she entered and started an Appeal regardless as paying even the 50% (£80) was not palatable for less than 60 seconds of alleged early entry. Having made a Subject Access Request of TfL this was the gobbledegook response received.

Mr Mustard thought that the answer was not the whole truth so he changed tack. A copy of the cctv was requested by the vehicle owner (it is awaited, doubtless it will now be said to have been destroyed which will lead to more enquiries) and he made a Freedom of Information request for the earliest and latest times in recent years.

What we see from the table is that sometime between April 18 and March 19 the leeway provided at the end of the day was reduced from the 2 minutes which was in Mr Musatrd's memory to 1 minute and then sometime during April 19 to zero minutes.

Which faceless functionary made that policy decision? Whoever is was, they have been given too much power.

What we also see is that the TfL answer to the lady who enquired for the exact time to the second was a bare faced lie as they were able to produce bags more information for Mr Mustard if he wanted it, but he already had all he needed.

If you get a congestion charge PCN later than 17:58 I would fight it on the grounds that your car was showing 18:00 and/or that the pips had gone on the car radio. The cameras may be synchronised to the atomic clock at the start of the day but could be out of sync by the end of the day.

The grounds of Appeal prepared by Mr Mustard were these, which you are free to copy for your own case

As soon as TfL saw the grounds of Appeal, they threw in the towel and cancelled the PCN. Their pursuit of a £160 penalty in this situation was a gross abuse of power.

Yours frugally

Mr Mustard

23 June 2019

Barnet Council - Notice to Owner blunder

Parking PCNs only, not bus lane or moving traffic contraventions e.g. no left turn.

In 2017 the Notice to Owner correctly read like this when it came to the time to pay

In June 2018 the wording was changed which Mr Mustard didn't spot until some time later. This wording is incorrect.

After losing at the tribunal more than once the council have now changed the wording back to the correct one in June 19

Here follows the wording of just one of the cases which Mr Mustard has won at the tribunal, case reference 2190021431

The appellant was represented by Mr Dishman. The Enforcement Authority did not attend.

Mr Dishman lodged a skeleton argument dated 14 May 2019. It was submitted: i) The Notice to Owner (NTO) was materially defective as it states that a charge certificate may be issued 28 days after the date of the NTO rather than 28 days after service; ii) appellants are required to request an Appeal form as opposed to one being provided which erodes the 28 day time limit in which to appeal. The practice was said to be discriminatory pursuant to the Equality Act 2010.

The Enforcement Authority resisted the appeal.

Ground 1:

The NTO stated: “If the Penalty Charge is not paid before the end of the 28 day period beginning with the date of this Notice, the Council may increase the charge by 50% to £165.00 and a Charge Certificate may be served seeking payment of the increased charge.”

Regulation 19 (2) of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides that a Notice to Owner must specify various matters including that “if, after the payment period has expired, no representations have been made under regulation 4 of the Representations and Appeals Regulations and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the applicable surcharge…”

Regulation 21 provides:

“(1) Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by the amount of the applicable surcharge.

(2) The relevant period, in relation to a notice to owner, is the period of 28 days beginning—

(a) where no representations are made under regulation 4 of the Representations and Appeals Regulations, with the date on which the notice to owner is served…”

Regulation 3 deals with service via post. Service is deemed is deemed to have been effected on the second working day after posting (Regulation 3 (2)).

The NTO in this case misstated the position; it stated a Charge Certificate can be issued 28 days after the date of the NTO. The true position is that a Charge Certificate may be issued 28 days after service of the NTO.

Regulation 4(4) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides the grounds on which representations may be made against a Notice to Owner.

Regulation 4(4) (f) states:

'that there has been a procedural impropriety on the part of the enforcement authority'

"Procedural impropriety" in this context means a failure by the enforcement authority to observe any requirement imposed by the Traffic Management Act 2004 or the General Regulations or Representations and Appeals Regulations. This includes, pursuant to Regulation 4(5) (a) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 the taking of any step, whether or not involving the service of any document, otherwise than in accordance with the conditions subject to which; or at the time or during the period when, it is authorised or required to be taken.

I find the failure to accurately state the position in the NTO to be a procedural impropriety as so defined.

For these reasons I allow this appeal and have not gone on to consider ground 2.

You will only have a Notice to Owner with this wording if you received a PCN on the street served to your vehicle or put in your hand. If the Notice to Owner was received by you less than 28 days ago, and has the wrong wording that you only have 28 days from the date of the Notice to Owner in which to pay, rather than 28 days from service (i.e. when it was delivered to you) then you should make representations that in line with London tribunals decision number 2190021431 the Notice to Owner contains wording which is a procedural impropriety as it limits the proper time for payment.

If you have a Notice of Rejection which was received by you less than 28 days ago and your Notice to Owner also had the incorrect wording then you should make an on line Appeal to London Tribunals on the grounds of procedural impropriety and ask the adjudicator to follow the decisions in 2190021431, 2190185574, 2190155868 and 219019494A which are by four different adjudicators so starting to produce a body of identical decisions which makes it more likely than not that any other adjudicator will follow them (they are not precedents but may be persuasive).

If you have an Appeal at London Tribunals which has not yet been decided you can email them on queries@londontribunals.org.uk
and add a new ground of Appeal of procedural impropriety and quote the four decisions above. If you need copies of the decisions please email mrmustard@zoho.com
or you can search in the tribunal register for them here
choose Statutory Registers and then 'search' the Environment and Traffic Adjudicators register and then search by the reference numbers one at a time.

Barnet Council will pounce on the slightest error that a motorist makes and issue a PCN.

Time to turn the tables and make their blunder expensive for them.

Yours frugally

Mr Mustard

Mr Mustard has just read another decision from Saturday 22 June, 2190177587, by a fifth adjudicator, that also finds the Notice to Owner non-compliant.

Mind how you approach Sainsbury's at Golders Green

Adjudicators have been split as to whether a car that goes across the road and down the side of Sainsbury's had actually turned right or not, with only the merest turn of the wheel being necessary to get there and the no right turn signs apparently intended to stop right turns into the Finchley Road.

Well the doubt will soon exist no more as the signs are to be changed on or about 3 June to mandatory turn left signs (the 'turn left' letters on the road not having featured in any adjudication decision that Mr Mustard has read). 

The junction is, of course, under the ever watchful gaze of a cctv camera which will automatically send you a PCN if you now fail to go left.

If you want to go to Sainsbury's best not now arrive via Rodborough Road or turn left, go around the clock tower and turn through 180 degrees, minding the camera on the yellow box outside the tube station, and then turn left into St Albans Lane or go up North End Lane and right into West Heath Drive.

If you think that there never was any conflict at St Albans Lane you are able to send an objection into the council at any time between now and 3 December, using the email address in the Notice above or by traditional mail.

Be careful out there.

Yours frugally

Mr Mustard

27 May 2019

Only 8/9ths as inhumane

Having failed to convince the public that they should be allowed to squeeze 9 pints into a pint pot the developers withdrew their application, in order to not have a refusal on file, made a few piffling amendments, and are trying again, this time for 8 pints. We need to convince the council that these inhumanely small studios are not homes which the residents of Barnet deserve to be cooped up within.

Mr Mustard is just about to submit his objection, as below. Feel free to reuse any of it and make your own objection. Barnet Planning can be found here

Objection to planning permission being granted to 2 Bruce Road


I expect that councillors and Regional Enterprise Ltd will have seen this article from the Guardian


'Are these the worst new flats in Britain?'

and the answer is no, the ones proposed for 2 Bruce Road are.

Whilst it is the case that flats this small can, in certain circumstances, be built without planning permission, the fact of actually applying means that the dispensation does not apply.

The rules under which this application should be judged are the government's 'national described space standard' which for a 1 person, 1 bed flat is 35 sq. m. and thus this application should be rejected and the Applicant encouraged to come back with a scheme with decent sized accommodation or stick with retail usage. This is exactly what the council's Residential Design Guidance from it's own local plan says, 37 sq. m, at para 15.13.

I will comment upon the proposal using the numbering of the Applicant's Planning and design and access statement.

4 Given that the site is within the retail triangle, its use for retail should continue.

I disagree that the site is not a primary or secondary frontage. It is completely surrounded by retail uses and is a secondary frontage.

5 It is no justification to tear up minimum size standards to provide sub-standard units such as these & allow a HMO on an unsuitable site just because there is a shortage of HMO.

I don't believe that there are 85 people under the age of 35 seeking a home within High Barnet alone looking for such tiny accommodation. That may be the number in the entire borough & consequently misleading.

7.1.7 Given the shapes of the rooms the usable space isn't as high as stated. To be useful rooms really need to be pretty much rectangular in shape. None of the rooms will readily accommodate furniture.

7.1.8 Of course parking is needed. This will badly affect the resident permit parking bays, especially in Chipping Close. It is a nonsense to suggest that the tenants are unlikely to own cars. This is what TFL's figures show

It is ludicrous to think that tenants will pay to park in council car parks. Stapylton Road Car park, about 100m away, is £4 a day which times 6 times 52 = £1,248 p.a. No-one will pay that.

7.1.9 Open land available to the public at large is no substitute for personal green space. Gardens are a great aid to mental health as this charity tells us https://www.thrive.org.uk/gardening-can-help-you-feel-better.aspx

Outward opening doors: These are placed right next to the hotel entrance and will be dangerous to the numerous pedestrian users of the hotel.

Only one kitchen: If all 8 residents decide to cook Sunday lunch at the same time, and the poor need to eat as much as residents who can afford a decent sized home, there simply won't be room for them to get into the kitchen at the same time. They will even struggle to all manage to make tea and toast in the confined internal space. There doesn't appear to be an air extraction system within the kitchen.

Bin store: The bin store does not appear to, and should not be, accessible from the entry hall, and given that is the case it would not be possible via the outward opening doors to reach over the first 1100ltr bin to put items in the second one. Having food waste caddies at high level in the entrance hall is ridiculously unhygienic. No planning officer would keep the 23ltr council food waste caddy (once reintroduced) on a shelf above their head in their lovely home.

This application for planning permission is simply based upon greed, how many 'homes' can be squeezed in. No thought has been given to the mental health of the occupants who are to be treated sub optimally.

The reason for this application is purely to maximise profit. Some occupiers will doubtless suffer mental health difficulties, at great cost to the council and the community, if this proposal is approved, from staring at the (very close) four walls.

It is instructive to note that the proposal for a hotel on the adjacent site, intended for purely short term accomodation, not for permanent living, has guest rooms which are twice the size of the ones in the HMO.

Approving this HMO will lead to a high degree of transience in the population and the area will also suffer from antisocial behaviour and high levels of crime.

It is an inhumane proposal and should be rejected in order to save prospective tenants from being crammed into tiny spaces, so that they can keep their sanity and prevent over-development of this lovely old corner of Barnet.

Thank you

Derek Dishman, 21 Carnarvon Rd, Barnet EN5 4LX

This building is the one which contains the much-loved Dory's cafe. It will remain in busienss as it has for decades, the over-development proposal is nothing to do with them. We all know how small the Cafe is, apparently big enough for two people to live in half each. What utter nonsense.