A load of nonsense in Bexley

Mr Mustard is going to take you step by step through a Regulation 10 PCN - one sent by post as the service of a PCN at the roadside was either prevented by violence (or the threat of) or by driving away (which is more common and is the case here. Mr Mustard advocates saying nothing to the 'traffic warden' give them a smile and a wave and get out of there as often councils get these situations wrong.

 

9 November 2023: a heavy parcel needs dropping off at the post office. The driver stops on a single yellow line just around the corner from the post office and on his way back from his mission sees the traffic warden, hurries to the car and drives away. The return and drive away is captured on the body worn camera of the traffic warden.

 

14 November 2023: A PCN is posted to the registered keeper who is the wife of the driver. The contravention time is given as 16:36

The notes of the traffic warden include 'VDA. Announced to driver it will be sent to his house'. It will but it won't be sent to him as it isn't his car.

 

24 November 2023: The driver makes a representation which is an error as he has no right to, his name not being on the face of the PCN. It was a well constructed challenge as he had taken advice on a forum of PCN experts who can't have been told of the fact of who was going to challenge:

You are absolutely entitled to wait for a reasonably short period on a single yellow line in order to load or unload provided that there aren't kerb marks across the kerb which prohibit such an activity some or all of the time.

 

This was a representation which the council should have accepted. They didn't.

 

12 January 2024: A Notice of Rejection is issued. Assuming it was posted the same day it would be deemed served two working days later which is 16 January. Thus the council had taken 54 days in which to serve their Notice of Rejection. 

 

They were only 2 days within the 56 day deadline.

 

Only one paragraph of the Notice of Rejection responded directly to the representation, viz:

Just because you express sympathy doesn't mean you have any and clearly the council didn't otherwise they would have cancelled the PCN. What is more, the rejection is based on the false premise that the car was not legally parked, when it clearly was.

 

22 January 2024: Mr Mustard stepped in and started an Appeal to London Tribunals, the home of the independent adjudicators. Mr Mustard hasn't shown you ground #2 as it was unlikely to succeed and he doesn't want you to rely on it alone.

At this point Bexley Council have a choice to make. Cancel the PCN because the Grounds of Appeal are likely to succeed or spend at least a couple of hours in producing the evidence pack which gives the adjudicator both sides of the story. 

6 February 2024: Bexley opted to contest the Appeal and duly produced the evidence pack.

14 February 2024: Mr Mustard went carefully through the evidence and filed a skeleton argument. The relevant parts follow (The motorist is not called Smith):

Now Mr Mustard has seen the Traffic Order which sets the council's rules for parking he has absolute proof that the parking was not unlawful (provided that the adjudicator accepts that the time taken to unload was not unreasonable) and so pokes Bexley Council firmly in the eye with their own rules.

As it happens Mr Oliver no longer sits as an adjudicator, his decisions were often followed by other adjudicators. Mr Chan is now the Chief Adjudicator and therefore his decisions are likely to garner respect. The adjudicator in this case is not bound by either of them as their decisions are not precedents but are legally persuasive. Here we had decisions in opposite directions on the same facts. That is the adjudicator lottery which sometimes faces Mr Mustard and why even having won before he cannot guarantee the outcome on an identical set of facts in another case. Mr Mustard is also obliged to point out cases both before and against his argument and his duty is to assist the adjudicator, not to be partisan.

The skeleton said that he would deal with the 'merely observing' argument on the day as he thought he would get a win on the other grounds so didn't need to spend further time in formulating and typing up his arguments.

In this case the bodycam footage was really useful to show exactly what happened at the time. Bear this in mind if you are thinking of exaggerating the truth in your representations.

14 February 2024: With the hearing set to take place on 22 February Mr Mustard emailed the skeleton argument to Bexley Council so that they were on immediate notice of it.

19 February 2024: Bexley Council emailed him to say they cannot disclose the case with me as I am not the registered keeper. The council had missed Mr Mustard's authority letter on file. It didn't notice the lack of authority when Mr Smith wrote in and wasn't authorised.

What happened next was unusual, the penny dropped with someone at Bexley Council, they have already done all the work but were perhaps concerned there might be a costs application for wholly unreasonable behaviour on their part.

Mr Mustard hasn't made a note of it but he probably received a phone call from the tribunal to tell him that the hearing on 22 February 2024 would not go ahead.

21 February 2024: the tribunal sent an email confirming the hearing would not go ahead.

What you can learn from this is that if you have a good argument a council will reject it regardless of merit and that you may have to go to an independent adjudicator to obtain justice. It costs you nothing and costs the council c. £30 which they never see again. Bexley Council have met Mr Mustard a time or two before and should have realised sooner that they were up against it.

Be persistent, forget about the 50% discount, you are aiming for a 100% discount. The odd loss is the price of learning.

The end.