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| an awful lot of signs to take in whilst also watching for people crossing the road |
This report concerns a motorist who got caught in Sunny Gardens Road on a Saracens Match Day. The decision of the adjudicator from the Appeal follows, the motorist attended and Barnet Council relied on their bundle of evidence.
The issue in the case is whether the signage was adequate.
The EA case is that the Appellant's vehicle had parked in a permit holder's bay, without displaying a permit, and so a PCN was issued to the vehicle.
The EA rely on contemporaneous notes and photographs.
The Appellant's case is that the signage is not adequate. He has specified the route taken to visit his friend, and taken a series of photographs illustrating the various challenges faced in trying to see/read the signage in place.
The EA case is that the road is within a CPZ, which applies during events, and which dates are posted.
Both parties have filed photographs and made written submissions.
I have heard from the Appellant and read the remaining evidence.
It appears from the EA map that the route taken by the Appellant means that he would encounter 4 possible sets of CPZ signs. His case is that the first set are a mile from when he was due to park (and the second set 3/4 of a mile from where he was due to park), and as he was not contemplating then parking could not reasonably be expected to have had to have regard to them. There is some force in that argument, because these are temporary restrictions - so that as well as reading that it was a CPZ, the motorist would have to take in the forthcoming dates. In my view this sets too great a burden on the motorist. In respect of the first sign I also note that the sign would easily be discounted / missed; at that point a vehicle would be turning off the A41, which is a busy and fast moving road.
In respect of the third sign the Appellant has provided evidence that there were two trees prior to the junction, one large, and then one small, so that the motorist's view would be obscured such that he would be non-sighted save at the point of turning left (and fortuitously looking at the sign).
In respect of the fourth sign, this was located very close to the house he was visiting, but again he has provided photographs showing that there were trees planted in front; even if not in leaf, they obscured the smaller plates which show the dates.
In summary, - bearing in mind that the motorist is not just looking for the CPZ sign, but for a smaller sign, with dates on it - I find that the signage for was not adequate on this day in these circumstances to communicate the restriction.
I therefore allow the appeal.
The EA case is that the Appellant's vehicle had parked in a permit holder's bay, without displaying a permit, and so a PCN was issued to the vehicle.
The EA rely on contemporaneous notes and photographs.
The Appellant's case is that the signage is not adequate. He has specified the route taken to visit his friend, and taken a series of photographs illustrating the various challenges faced in trying to see/read the signage in place.
The EA case is that the road is within a CPZ, which applies during events, and which dates are posted.
Both parties have filed photographs and made written submissions.
I have heard from the Appellant and read the remaining evidence.
It appears from the EA map that the route taken by the Appellant means that he would encounter 4 possible sets of CPZ signs. His case is that the first set are a mile from when he was due to park (and the second set 3/4 of a mile from where he was due to park), and as he was not contemplating then parking could not reasonably be expected to have had to have regard to them. There is some force in that argument, because these are temporary restrictions - so that as well as reading that it was a CPZ, the motorist would have to take in the forthcoming dates. In my view this sets too great a burden on the motorist. In respect of the first sign I also note that the sign would easily be discounted / missed; at that point a vehicle would be turning off the A41, which is a busy and fast moving road.
In respect of the third sign the Appellant has provided evidence that there were two trees prior to the junction, one large, and then one small, so that the motorist's view would be obscured such that he would be non-sighted save at the point of turning left (and fortuitously looking at the sign).
In respect of the fourth sign, this was located very close to the house he was visiting, but again he has provided photographs showing that there were trees planted in front; even if not in leaf, they obscured the smaller plates which show the dates.
In summary, - bearing in mind that the motorist is not just looking for the CPZ sign, but for a smaller sign, with dates on it - I find that the signage for was not adequate on this day in these circumstances to communicate the restriction.
I therefore allow the appeal.
Having won his case the motorist then decided to apply for costs. These are awarded rarely, no more thar a dozen times a year per enforcement authority. This motorist was logical, organised & determined and made out a good enough argument to convince the adjudicator that Barnet Council had been wholly unreasonable. Here is the decision.
I allowed this appeal on 4th April 2018, following an oral hearing, at which the Appellant attended but the EA did not.
The issue was the adequacy of signage; I found that the signage was not adequate; both parties had filed evidence on the point. I made findings as to inadequacy, as argued by the Appellant, on each of the 4 signs which the EA relied on to show that the motorist had fair warning of the restrictions. The decision was not subject to onward challenge by the EA. The decision does not set a precedent. There may well be decisions of other Adjudicators finding that the signage was adequate - as argued by the EA - but there is no test case on it, and I no specific decision was drawn to my attention and so cannot see what evidence those Adjudicators had access to.
The Appellant now seeks costs, on the basis that the EA were wholly unreasonable and vexatious. He relies on letters dated 5th and 6th April and 25th May. The EA have filed a response on 8th June 2018 disputing the claim.
The Appellant says that the following conduct engaged the Regulations: he disclosed his case in representations and adduced evidence, and yet the EA pursued and challenged it; the Council produced highly misleading photographs; there was poor pagination of the bundle which necessitated a personal hearing and additional letters; the Council produced a bundle of over 200 pages, which were not germane to the issue.
The EA say that the Appellant has failed to produce receipts for his expenses, that the decision does not set a precedent and has been found adequate by other Adjudicators, that the Adjudicator had wrongly found that the restrictions were temporary as they were in place since 2013 and the vehicle had been parked 3/4 of the mile from the sign, the Appellant could have had a postal hearing, and so the Appellant need not have opted for an oral hearing.
I start my consideration of the application for costs from the following point of view; I do consider that costs awards should be made sparingly, as parties should be able to come to the Tribunal and have their say, without the fear of costs orders being made, and which may otherwise deter them. It would be quite wrong for motorists who have simply misunderstood rules of signage to be subject to the penalty of costs if they are inevitably going to lose their appeal. The draftsmen clearly intended that costs should be awarded only in limited circumstances from the language of the Regulations.
On this occasion I allow costs for the following reasons.
The Appellant has discharged the burden of showing that the disputed decision was wholly unreasonable (Regulation 13(1)(b)) and that the EA were wholly unreasonable in resisting the appeal.
The Appellant has satisfied me that he made very detailed representations in response to the notice to owner, dated 12th December 2017, which set out his route, a description of the problems with the signage, and photographs in support. The notice of rejection dated 23rd January 2017 simply says that there is signage in place with which the motorist must familiarise himself, but does not address the question of adequacy and the specific points made. There was considerable force in the Appellant's view that his representations had not been properly addressed; inevitably an appeal was filed.
The EA seek in their submissions to rely on past appeals having been refused (and the EA decision upheld), to conclude this signage was adequate in respect of this appeal; however, any outcome will depend on the evidence adduced before the Adjudicator, and so the EA cannot simply resort to this without proper enquiry of the evidence in those other cases.
In this case the appeal was allowed before me on the evidence which was before the EA at the point that representations were made; so the EA should have considered it at that point, and concluded that the signage was not adequate.
The EA seek in the costs representations to say that the decision wrongly refers to "temporary" signs; I agree that this could have been better expressed, as signs which operate on event days only, so will frequently change. The point remains that as the signs with the dates on them are small, require careful reading, and which is more challenging when the vehicle is moving and on major roads, the more clear and obvious the signage.
The Appellant makes other points as to lack of pagination of the bundle and a large bundle of little relevance, but I do not consider these points to amount to evidence of unreasonably conduct.
As to assessment of costs, the Appellant can claim for time spent and costs incurred only from the date of the disputed decision (notice of rejection). Further, as the jurisdiction of the Tribunal is similar to the jurisdiction of the country court, the litigant in person rate of £9.25 is apposite. I allow time and expenses for travel: the Appellant does not have to justify why he wishes to attend an oral hearing; he is entitled to do so, and is indeed helpful where routes/photographs/signage/perspective are relevant to the decision.
I accept, in light of the Appellant's address, that his travel claim in terms of expenses of £55.10 is reasonable and reasonably incurred.
In light of the distance, the length of travel is reasonable, as is the time in the hearing, and preparation time for filing the notice of appeal, entering into correspondence, raising issues, drafting letters, and preparing for the hearing, I allow 9 hours in total at £9.25 per hour (£83.25).
I therefore make a costs award in the Appellant's favour of £138.35.
The issue was the adequacy of signage; I found that the signage was not adequate; both parties had filed evidence on the point. I made findings as to inadequacy, as argued by the Appellant, on each of the 4 signs which the EA relied on to show that the motorist had fair warning of the restrictions. The decision was not subject to onward challenge by the EA. The decision does not set a precedent. There may well be decisions of other Adjudicators finding that the signage was adequate - as argued by the EA - but there is no test case on it, and I no specific decision was drawn to my attention and so cannot see what evidence those Adjudicators had access to.
The Appellant now seeks costs, on the basis that the EA were wholly unreasonable and vexatious. He relies on letters dated 5th and 6th April and 25th May. The EA have filed a response on 8th June 2018 disputing the claim.
The Appellant says that the following conduct engaged the Regulations: he disclosed his case in representations and adduced evidence, and yet the EA pursued and challenged it; the Council produced highly misleading photographs; there was poor pagination of the bundle which necessitated a personal hearing and additional letters; the Council produced a bundle of over 200 pages, which were not germane to the issue.
The EA say that the Appellant has failed to produce receipts for his expenses, that the decision does not set a precedent and has been found adequate by other Adjudicators, that the Adjudicator had wrongly found that the restrictions were temporary as they were in place since 2013 and the vehicle had been parked 3/4 of the mile from the sign, the Appellant could have had a postal hearing, and so the Appellant need not have opted for an oral hearing.
I start my consideration of the application for costs from the following point of view; I do consider that costs awards should be made sparingly, as parties should be able to come to the Tribunal and have their say, without the fear of costs orders being made, and which may otherwise deter them. It would be quite wrong for motorists who have simply misunderstood rules of signage to be subject to the penalty of costs if they are inevitably going to lose their appeal. The draftsmen clearly intended that costs should be awarded only in limited circumstances from the language of the Regulations.
On this occasion I allow costs for the following reasons.
The Appellant has discharged the burden of showing that the disputed decision was wholly unreasonable (Regulation 13(1)(b)) and that the EA were wholly unreasonable in resisting the appeal.
The Appellant has satisfied me that he made very detailed representations in response to the notice to owner, dated 12th December 2017, which set out his route, a description of the problems with the signage, and photographs in support. The notice of rejection dated 23rd January 2017 simply says that there is signage in place with which the motorist must familiarise himself, but does not address the question of adequacy and the specific points made. There was considerable force in the Appellant's view that his representations had not been properly addressed; inevitably an appeal was filed.
The EA seek in their submissions to rely on past appeals having been refused (and the EA decision upheld), to conclude this signage was adequate in respect of this appeal; however, any outcome will depend on the evidence adduced before the Adjudicator, and so the EA cannot simply resort to this without proper enquiry of the evidence in those other cases.
In this case the appeal was allowed before me on the evidence which was before the EA at the point that representations were made; so the EA should have considered it at that point, and concluded that the signage was not adequate.
The EA seek in the costs representations to say that the decision wrongly refers to "temporary" signs; I agree that this could have been better expressed, as signs which operate on event days only, so will frequently change. The point remains that as the signs with the dates on them are small, require careful reading, and which is more challenging when the vehicle is moving and on major roads, the more clear and obvious the signage.
The Appellant makes other points as to lack of pagination of the bundle and a large bundle of little relevance, but I do not consider these points to amount to evidence of unreasonably conduct.
As to assessment of costs, the Appellant can claim for time spent and costs incurred only from the date of the disputed decision (notice of rejection). Further, as the jurisdiction of the Tribunal is similar to the jurisdiction of the country court, the litigant in person rate of £9.25 is apposite. I allow time and expenses for travel: the Appellant does not have to justify why he wishes to attend an oral hearing; he is entitled to do so, and is indeed helpful where routes/photographs/signage/perspective are relevant to the decision.
I accept, in light of the Appellant's address, that his travel claim in terms of expenses of £55.10 is reasonable and reasonably incurred.
In light of the distance, the length of travel is reasonable, as is the time in the hearing, and preparation time for filing the notice of appeal, entering into correspondence, raising issues, drafting letters, and preparing for the hearing, I allow 9 hours in total at £9.25 per hour (£83.25).
I therefore make a costs award in the Appellant's favour of £138.35.
The litigant in person rate is now £19 per hour so even more could have been awarded.
Interesting points from Mr Musatrd's point of view is that a CPZ is only meant to cover a small number of streets not huge areas which lead to the vital signs being a long way away and this decision helps with the argument that signage is not adequate & often there will only be one sign that was passed about a mile away.
The evidence bundle of 200 pages does outface many motorists who don't then study it carefully. One day Mr Mustard will get around to dissecting and explaining an evidence bundle to you and suggest an order in which to tackle it and what to look for.
In this case the motorist put his cards on the table early and detailed his approach route so the only signs the council needed to produce were the ones between the edge of the zone and his stopping point. It was lazy of the council (or possibly NSL who do most of the back office work) to put every sign for the Saracens zone in the bundle as that was simply padding.
The Statutory Guidance of the Secreatary of State requires that a Notice of Rejection should be as follows
Thus merely saying that the signs are there and not explaining how they were adequate and how they could be seen despite the trees doesn't cut it and their arrogant and unhelpful summary dismissal has cost them dear. Mr Mustard sees numerous similar Notices of Rejection. Barnet Council need to improve their written responses.
Yours frugally
Mr Mustard
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