13 September 2013

Not a laughing matter

Here is a shocking report from the independent adjudicator.

The Appellant attended before me today to explain her contention personally.

There is no dispute as to the whereabouts of the vehicle at the time, on the material date; the Enforcement Authority assert the said vehicle to have been parked otherwise than within 50cms of the edge of the carriageway.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances as fully stated in her written representations (and submitted supportive documentation), which she reiterated and comprehensively detailed at the Hearing.

The contravention to which this matter relates is regulated by Statute rather than subordinate legislation; that is to say The Traffic Management Act 2004 prescribes that such manner of 'double parking', as it is colloquially known, is prohibited throughout Greater London. The prohibition applies twenty-four hours, daily, and there is no necessity for signage since it is stated in The Highway Code.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, and computer-generated notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ.

It is incumbent upon a motorist to be acquainted with [by reference to The Highway Code], and comply with, such restrictions.

The Appellant described fully the sequence of events, as she had documented from the outset.

The Appellant indicated there to have been an inordinate delay in obtaining responses to her submissions from the Enforcement Authority whom she contacted via a variety of means (email/telephonic) and suggestions of letters dispatched which were never received.

Despite the statements made by the Enforcement Authority in both the case summary and Notice of Rejection that the Appellant's contentions had been considered 'very carefully,' the fact that the enforcement authority query the date on the hospital report indicates the contrary.

There is clear reason for the date differential; the Appellant submits the documentation by way of background to set the scene as to the choking episode. Had the Enforcement Authority considered 'very carefully' the representation, that fact would have been apparent.

The Appellant advances the choking episode as compelling reason for abandoning the said vehicle in search of water to save her life, yet the Enforcement Authority state in the Case Summary that cancellation of Penalty Charge Notices is effected 'in serious emergency situations.'

This contradiction suggests to me that the Enforcement Authority had not discharged its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 [the points raised by the Appellant in her Formal Representation deserved proper consideration] which I find to be a 'procedural impropriety' on the part of the Enforcement Authority.

In this context, 'procedural impropriety' means a failure by the Enforcement Authority to observe any requirement imposed on it by the Traffic Management act 2004 or Regulation 4(5)(a) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.

Regulation 7(2) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 provides that if I conclude that a Ground specified in Regulation 4(4) applies I shall Allow the Appeal.

Accordingly I find in favour of the Appellant's ground of Appeal and I Allow this Appeal.
The question that must be asked is how serious an emergency has to be before Barnet Council / NSL will decide, and presumably they don't have a medical doctor in the appeals team, to exercise its discretion and cancel the PCN. Prior to NSL the council used the cancellation code MIT if documentary evidence was provided by a GP or a Hospital. There is, apparently, now no cancellation procedure which can be requested under FOI (Freedom of Information) from the council as it is NSL's. Someone, other than Mr Mustard, tried using the whatdotheyknow website.

Perhaps it is time there was a policy imposed on NSL by the council and published for the residents to know. It would save time as residents would submit the necessary proof with their appeal.

Paragraph 25 of The Secretary of State's Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions says:

"Once authorities have finalised their parking enforcement policies, they should publish and promote them openly". The council don't seem to have due regard for Codes of conduct and Guidance etc. A pity.

Whilst on the subject of double parking, as this is why the 50cm rule exists, traffic wardens often dish out parking tickets when the car is parked at an angle and the rear might be a metre away but the front is less than 50cm away. That is not an offence (untidy though) and those tickets should be appealed. If you don't know how, download my quick guide from the left of the blog.

Yours frugally

Mr Mustard

1 comment:

  1. Vehicles come in two part, the front part and the back part so if any part of the vehicle is more than 50cm from the kerb then the contravention has occurred. This is designed to stop vehicles parking perpendicular to the kerb as well as double parking this is to allow local authorities to enforce perpendicular parking unless in a parking place or bay. When a vehicle is parked along side the kerb the front and rear part of the vehicle are within 50 cm of the kerb. I do not think many Councils know this judging by there web sites let alone the public.


I now moderate comments in the light of the Delfi case. Due to the current high incidence of spam I have had to turn word verification on.