23 August 2017

The foresight saga

Who knows what the yellow suspension sign said? no-one.

Mr Mustard knew from the off that he was going to beat the PCN in question, it just took a while, partly because the Notice to Owner failed to arrive and so a witness statement had to be made to the TEC to drag the PCN back from £165 to £110

The trouble started on 20 January. His client, Mrs B, parked as above and made the following informal challenge in response to the PCN.

I paid for my parking and ran* to the pharmacy as I was feeling unwell due to being 8 months pregnant.

Unknown to me due to the unclear signage the bay I parked at was suspended and I got a ticket. I appealed to Barnet explaining my situation including proof of parking payment and medical proof of pregnancy and mentioned how unclear it was.

* Mr Mustard thinks a more accurate word may have been 'hurried' but as he has never been 8 months pregnant he can't be sure..

Firstly, Mr Mustard noted the complete lack of work going on in Bell Lane (as that is the location in question, which seems to have almost permanent suspensions in 2017) and questions whether PCN should even, in fairness, be given out at a suspended bay if no trouble is caused. Any fair minded person would say not.

Secondly, the terms of the suspension are not known as the traffic warden failed to photograph the sign. Thus the council have no proof that the bay was suspended, when and why. That was how Mr Mustard could have the foresight to say that the PCN would eventually get cancelled.

Thirdly, the council accepted a payment to park which validated the parking notwithstanding the suspension.

Of course the council failed to notice their glaring error and rejected the informal challenge.

'At this stage' makes Mr Mustard think they will later. The words might though simply be space fillers with no real meaning.

Now we know the dates of the suspension and the parking occurred 2/3rds of the way through the suspended period so the reason for the suspension may have been fulfilled. You can phone up and ask for the sign to be removed or put a sticker over the dates (not really naughty if you know from the council they don't need the suspension any longer, you are just helping out) or do what Mr Mustard does in his own road after a removal van has left which is to cut the sign down and leave it somewhere visible for the council to pick up later.

Mr Mustard doesn't think the suspension supersedes (https://en.wiktionary.org/wiki/supercede) the normal operational hours i.e. you cannot suspend a bay outside of those hours as there is nothing to suspend but he knows that adjudicators will be against him on that one as it creates practical difficulties.

This is a pay bay so permits were never valid.

It is the council's responsibility to mount clear signs and for their traffic wardens to photograph them.

The council do not mean 'cannot' be accepted as a reason. They can accept any reason they wish. What they mean is they 'will not'. Councils should not shilly shally, they should use clear & direct words.

Mrs B had not paid for "an hours parking", she had paid for "an hour's parking". If apostrophe use is beyond you, simply say "Mrs B had paid to park for an hour".

Fast forward to June 17 and the replacement Notice to Owner arrived. Mr Mustard made the formal representations:

The council cannot accept payment, as they have, and also suspend the bay and issue a PCN for said suspension. That is unfair and I rely on the persuasive support of the decision in case 2130229773. (tribunal decisions are not binding precedents).

Please also reconsider the informal challenge made by my client prior to my being instructed.

About a month later the council inevitably rejected the representations. The letter was of the usual standard, pretty woeful.

Oh, here we go, 'at this stage' again. There is just one more stage to go, the tribunal.

The 2002 edition of The Traffic Signs Regulations (plural) and General Directions was replaced on 22 April 2016 by the 2016 Regulations coming into force. The PCN was issued in 2017 and so the 2016 Regulations apply (even for old no longer used signs which are saved by the 2016 Regs if the sign was valid under the 2002 Regs). Oh, the TSRGD isn't an 'Act', the clue is in the name, 'Regulations' which are made by the Secretary of State.

Which signage? The Pay by Phone sign or the Suspension sign, or both? The compliancy of the signs was not in play so why are the council rejecting non-existent representations? To make you think you don't stand a chance at the tribunal, is why.

Was only part of a bay suspended in this case? The informal rejection said 'Nearby signage indicates the bays are suspended' so why the formal Notice of Rejection introduces doubt about only part of a bay being suspended is either lazy cut and paste or obfuscation to dissuade you from going to the tribunal. The whole bay being suspended, payment should not have been possible; in the old days the meter would have been bagged over for the duration of the suspension.

Were the signs also approved especially under the Road Traffic Regulation Act 1984 - sections 64 and 65 - authorisation of traffic signs and special directions, which is the 'approved' which the council are vaguely referring to. Well, as it happens, Mr Mustard knows they both were so why even mention the TSRGD which cannot therefore apply, as only non-standard signs need such approval?

Oh dear, the 'payment system relies on motorists...' but motorists rely on the council to be honest and not accept payments they are not entitled to. This is what the adjudicator said in case 2130229773 back in 2013

The council claim some unproven responsibility on the motorist to check the signage for the whole bay. If an entire bay is extended and it is long and has 3 pay signs then 3 suspended bay signs should also be erected in order to meet the test of adequacy and in order to be procedurally fair.

Mr Mustard finds that Barnet Council are very keen on the responsibilities, onuses and duties of motorists.

They never seem to be keen to mention their own legal duties.

Following on from the Notice of Rejection Mr Mustard completed the Notice of Appeal and handed it in at the tribunal on 12 July during one of his vists. The case was listed for an in-person hearing on 6 September. On 21 August, Barnet Council threw in the towel and cancelled the PCN having needlessly incurred a £30 tribunal fee. Had they considered his formal representations properly, they could have cancelled earlier and saved the loss to the taxpayer.

Sorry, a bit of a saga but a lot for you to learn from and reuse.

Yours frugally

Mr Mustard

22 August 2017

PayByPhone - not so quick sometimes

Barnet Council imposed PayByPhone on everyone in Barnet who wishes to pay to park their vehicle with, in most places (500 cash parking meters were latterly replaced by 50 card only machines) and no other practical alternative for those who want to use cash. Being able to pay is dependent upon you having a mobile phone with some charge in it and a phone signal which although more reliable than 10 years ago can still be variable for certain providers in certain locations. There are also unexplained delays in the PayByPhone system responding to texts sometimes. Barnet Council always try to put the blame on the motorist for any failing in the PayByPhone system which is unfair as the motorist has no choice in the chocie of mobile payment system. A recent adjudication at the tribunal saw, in decision 2170163808 in May 17, the following result

This PCN was issued for the alleged contravention of being parked in Watling Avenue Car Park at 3.14pm on 5 January 2017 without payment of the parking charge. It is not in dispute that Mr M's car was parked without payment of the parking charge. I am, however, allowing this appeal because it is clear from Mr M's evidence that, in the period between parking the car and the issue of the PCN, he was actively and continuously engaged in the process of attempting to make a payment to park by phone. The evidence shows a series of text messages sent from the phone and it appears that the correct information was being transmitted by Mr M. A motorist is allowed a reasonable period on parking to make the payment to park. A period of 25 minutes would ordinarily be regarded as excessive but I am satisfied from the evidence that Mr M was prevented from making payment through no fault of his own. I therefore find that the alleged contravention did not occur.

The council can provide evidence of everything you did with your phone to try and effect payment. If you are sure of your ground you can demand this be disclosed to the tribunal. Don't though see you have just been issued with a PCN and then start to effect payment as you will look like a cheat, which you would be.

Yours frugally

Mr Mustard

18 August 2017

Lewishan the internecine Council

Mr Mustard keeps an eye on the results at London Tribunals each day. He sees odd things sometimes.

Here Lewisham Council have refused representations from themselves four times and taken themselves to the PCN tribunal four times at a total cost in tribunal fees of about £120. At that point they have decided to not contest their own arguments.

Bonkers or what?

Interestingly they chose to fight the 5 motorists who weren't the borough themselves, perhaps because they stood to actually raise some revenue from them, but even then they only won 2 out of 5 of the cases and so should collect £260 in due course but have paid out about £150 in tribunal fees (not recoverable) and probably spent about 7 - 10 hours in getting the evidence packs ready for the tribunal & on pursuing the PCN generally.

Yours frugally

Mr Mustard

17 August 2017

Cooker - for charity or community.

Mr Mustard has decided to replace his twin oven cooker. It was purchased in October 05. He always found the top oven, non fan, a bit slow being a man always in a hurry. Conversely the bottom oven was always too hot and burnt pizza to a crisp in minutes. At least it did until last week when it tripped the breaker and now there isn't a fan.

The four rings work perfectly and rather than send it for recycling Mr Mustard thought that there might be a charity who could use it if they mostly use the rings.

It is a Smeg Opera A42-5 and is 70cm wide (measure any gap it needs to fit within).

If your charity or community group would like it, email mrmustard@zoho.com and it is yours for free.

If an individual wants it for their own use then that is also possible in return for a donation to the North London Hospice.

Bus fare?

Mr Mustard keeps an eye on decisions at London Tribunals and looks at anything out of the ordinary. This decision, number 2170244830, was unusual:

I have to deal with appeals against a large number of PCNs issued by this Enforcement Authority to a number of the Appellants’ buses, alleging in each case that the vehicle entered and stopped in the box junction at the junction of Castelnau and Trinity Church Rd. when prohibited. Mr. Claridge attended on behalf of the Appellants with Mr. Johnson representing the Enforcement Authority. I am grateful for the assistance each provided.

Mr. Claridge does not dispute in any of the cases that the bus entered and stopped in the box junction but he criticises the particular box junction which he argues does not serve the purpose of facilitating traffic turning right onto Castelnau. He states that it is company policy to require their drivers to pay penalty charges or face disciplinary action. When the Appellants began to receive PCNs from this location they were paid as usual. However, given the large number of PCNs received, and having spoken to their drivers and made their own assessment of the particular box junction, they took the view that enforcement was unfair. Mr. Claridge points out that there is a bus stop beyond the box junction which services up to 50 buses during morning rush-hour. He says that 8 of these buses terminate here and therefore tend to need longer than at a through-bus stop. Mr. Claridge states that the bus stop is capable of serving 3 buses at a time but that the design dictates that the driver of the first bus must stop short of the end to enable passengers to board or alight. He says that when 2 buses are stopped at the bus stop there is insufficient remaining available space for a third bus to clear the box junction. He points out the box junction follows an ‘at any time’ bus lane and argues the only vehicles in the inside lane should be buses. He indicates that he has had negotiations with representatives of the Enforcement Authority and Transport for London with a view to relocating the bus stop.

I initially considered a group of 46 cases which relate to this box junction. In each case the enforcement camera DVD appeared to show a clear example of the contravention, with the bus entering the box junction and having to stop wholly or partly in the box junction due to the presence of stationary vehicles. In 24 cases the situation presented the classic problem identified by Mr. Claridge, with 2 buses stopped at the bus stop leaving insufficient space for the third to clear the box junction. In the remaining cases there was either one bus or another type of vehicle which prevented the Appellants’ bus clearing the box junction.

I have had the opportunity to question Mr. Claridge and consider his submissions and I am quite satisfied these appeals are advanced in good faith. I accept that for some reason the Appellants’ drivers find this box junction particularly difficult to negotiate. However, I have not identified anything unusual about this box junction in any of the enforcement camera footage. I am satisfied that the box junction is substantially compliant, clear and adequate and therefore enforceable.

I am not satisfied that the Appellants have established anything in any of these cases which goes beyond mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion but Adjudicators have no power to direct cancellation on the basis of mitigating circumstances.

Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.

The penalty charge in each of these cases has always been £130. The Enforcement Authority must accept half of this amount in full and final settlement if received within 14 days beginning with the date of the PCN. Outside this period the Enforcement Authority may accept the reduced amount in full and final settlement but this is entirely a matter of their discretion. An Adjudicator has no power to direct that they do so. It follows that in this case the Enforcement Authority are entitled to insist on payment of the full penalty charge. However, the Enforcement Authority have indicated that they are in each of these cases prepared to accept the reduced amount of £65 in full and final settlement. This must be paid within 21 days of today or the full penalty charge will fall due.

Mr Mustard doesn't see anything to quibble over with the decision.

Mr Mustard has often wondered if buses just weren't given yellow box junction PCN as he had rarely seen obviously bus company names in the tribunal register. Well, that has all changed now. Don't be at all surprised if other boroughs, their parking manager having spoken to the Richmond manager at a quarterly meeting, decide to go after bus companies for easy money in order to improve road safety and traffic flow.

This has cost the bus company 46 * £65 = £2,990

Mr Mustard observes the following:

1. Given that the yellow box is within traffic lights it probably isn't needed. With suitable phasing both roads could get a fair share of the available road space.

2. It is harder for a bus, about 11m in length, to get clear of a yellow box, but in this case they have a bus lane in advance of the box so do not have fight with more nimble cars for the exit space.

3. Similarly, if the box waited short of the box they would not be in conflict with other waiting traffic, which is in lane 2.

4. The road is the route of the 33, 72, 209 & 485. One of them seems to terminate there on 8 occasions during the rush hour. The location is a bus stop not a bus stand so buses should not be parked there, only stopped for passengers to board and alight, for up to 2 minutes. (Any bus experts are welcome to correct this if wrong).

5. As can be seen from the photo the alighting point has not been placed at the end of the bus stop but further along. That needs to be changed.

The trouble with discretion being entirely at the judgment of the enforcement authority who will receive the income if they reject your representations is
'Nemo judex in causa sua' which means 'no-one should be a judge in his own cause." It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". This wasn't. As the problem became apparent it would have been the mature approach for Richmond Council to have sat down with the bus company and resolved the matter without penalty.

As it happens Mr Mustard has just sorted out his own bus related yellow box PCN in Barnet. Here is the scene.

The black car, fully in the box, stopped where they were thus leaving the junction clear but could, in Mr Mustard's opinion have cleared the box so they chose not to, they were not stopped due to the presence of a stationary vehicle, the bus. The PCN was at the charge certificate stage as the PCN itself had not been received, i.e. £195 was being claimed. If you look like getting completely stuck, take a left turn down Ravensdale Avenue instead, or turn right into Avenue Road, or even reverse out, do a u-turn, crawl forwards at half a mile an hour, anything, just don't sit there like a sitting duck.

Mr Mustard was going to go down the witness statement route at the TEC, to obtain a fresh PCN, once the Order for Recovery had been issued, but instead he looked up the PCNs which had been issued at that location on the day in question, as Barnet Council publish them without personal data. There wasn't a PCN for the bus (based upon the contravention time) which was fully in the box. The parking manager tells Mr Mustard he likes to be fair. Mr Mustard suggested that sending a PCN to the car but not the bus was not fair. The PCN was cancelled, whether for fairness or because arguably the car did not commit a contravention, was a source of no concern to Mr Mustard. The PCN has been cancelled which has saved both sides a whole load of work and the council may have saved themselves a £30 tribunal fee.

Mr Mustard has no objection to Barnet Council not issuing PCNs to the buses who are trying to get to their stop as their exit is usually free and they will otherwise lose out to vehicles coming out of Ravensdale Avenue

Yours frugally

Mr Mustard