Charmille Avenue - clueless council

A 'charmille' is a tree covered walk, this one in Belgium is charming:

https://fr.wikipedia.org/wiki/Charmille

Charmille Avenue, on the other hand, adjacent to Grahame Park Way isn't worth a detour being typical of the blocks of bland, rectangular, unattractive flats that are being thrown up all over Barnet

A motorist was making a delivery and parked on the right, partly on the double yellow lines and definitely adjacent to the dropped kerb. Often the end of the double yellow lines demarcates the join between public highway and private land but not in this case, the give way lines mark the join. A traffic warden isn't going to know this, they will rely on the double yellows (which is one reason why they should not be used on private land) and they did, they whacked out a PCN whilst the following was being delivered:

The driver knew two things, that he was on private land and that loading over a dropped kerb is an exemption (although he always tried not to do so). He made an informal challenge against the PCN which said:

I was issued with a parking ticket for parking at Charmille Avenue NW9. This Road is on a Private Land. Barnet Council has no Jurisdiction to issue any PCN on that road unless it has adopted the road in which case they have not. I believe that this ticket was issued unfairly.

I am not liable for the amount payable because at the time of the contravention I was engaged in delivering goods to our customer and taking them inside the property to the second floor flat. I am aware of the parking restriction at the location however due to the goods and the items been heavy and bulky I had no options but to park at the location so that I can proceed with my normal delivery. 

Your Enforcement Officer should have observed the vehicle for a period of time to ascertain whether loading/unloading is being carried out. If a goods vehicle is being observed then it is recommended that the observation time is longer. In this case, the Enforcement Officer has failed to do any observation. An observation must be carried out as required under the guidelines and best practice issued by London Council in the Civil Enforcement Officers Handbook. 

 PLEASE NOTE THAT UNDER TRAFFIC MANAGEMENT ACT 2004, CHAPTER 18, PART 6 CIVIL ENFORCEMENT OF TRAFFIC CONTRAVENTIONS, SECTION 86, NUMBER 5 A STATES; (5) The fourth exception is where— (a) the vehicle is being used for the purposes of delivering goods to, or collecting goods from, any premises, or is being loaded from or unloaded to any premises, I am aware of the parking restriction at the location however due the goods and the items been heavy and bulky I had no options but to park at the location so that I can proceed with my normal delivery. 

I have attached a copy of the delivery note for your records and I would hope under these specific circumstances you will on this occasion cancel the penalty charge. I look forward to hearing from you in due course. Yours faithfully

Mr Mustard likes to save his words in case he runs out (not on his blog though obviously) and would have written this instead (do feel free to write in a more succinct manner as your challenge is one of hundreds or thousands made every month):

1 - I was parked on private land, you may not lawfully issue a PCN there.

2 - It is an exemption to so park when unloading. Please see the attached delivery note.

Please cancel the PCN.

The Secretary of State says this about challenges: Enforcement authorities should give proper consideration and respond to these challenges with care and attention

and this

The process of considering challenges, representations and defence of appeals is a legal process that requires officers dealing with these aspects to be trained in the relevant legislation and how to apply it. They should be well versed in the collection, interpretation and consideration of evidence; writing clear but concise case-specific responses to challenges, enquiries and representations; presenting the authority’s case to adjudicators

Did Barnet Council pass or fail? yes, you knew, a dismal response was sent.

Mr Mustard had not heard of truncated domes and whatnot (he knew of dimpled paving) but the writer didn't even think about the difference between public and private land. The writer then went on to completely ignore the piece of law which had been correctly given to him/her.

The motorist, let us call him Mr D, wasn't having any of this nonsense, you can't with equanimity follow a set procedure, which is supposed to be even handed, where the parking minion is judge & jury and either a deliberate liar or ignorant of the law (which is no excuse as we all know) or both so he emailed the Chief Executive who, as one would expect, passed it down the chain of command and before long, the following was received:

I can confirm that the PCN has been cancelled as Charmille Avenue is not a road within our jurisdiction and therefore the PCN should not have been issued to you. I would like to take the opportunity to apologise for the initial error, the fact that it has not been acknowledged until now and for the inconvenience caused by this matter. I can confirm that the case is closed and that no further action is required.

You have also referred to a section of the Traffic Management Act 2004 regarding parking in front of dropped footways and permissible exceptions. Whilst stopping for up to 20 minutes to load or unload is permitted, in roads that are monitored by Barnet Council an observing Civil Enforcement Officer would expect to seeing continuous activity involving the transportation of heavy or bulky goods. When a vehicle is observed unattended for more than 5 minutes it would be deemed that loading or unloading is not taking place and a PCN may be issued.

Once again please accept our sincere apologies and I hope the above brings about a suitable conclusion.

Kind regards

It is always nice to receive a fulsome apology. Mr D is now content but Mr Mustard is going to point out further errors in the letter of apology (parking is technical).

'The initial error' - there are three:

1. issuing the PCN.

2. Ignoring the private property argument.

3. Ignoring the quoted law.

Stopping for as long as necessary is permitted, it says so at Article 21(1) of the council's Traffic Management Order, 2014 No. 120 ('TMO') not 20 minutes.

Goods don't have to be heavy or bulky (they were in this case so why are they being defined and wrongly to boot) as the TMO says that 'Goods' are 'goods of any kind whether animate or inanimate and includes postal packets of any description'.

The council cannot 'deem' that a contravention is taking place they can only issue a PCN if the Civil Enforcement Office (traffic warden) believes a contravention has occurred and then it becomes a question of fact, ultimately decided by an independent adjudicator as to whether a contravention occurred or not.

You also look a bit stupid writing about a 5 minutes observation period when the issue of the PCN was instantaneous.

Mr Mustard has checked the published PCN data up to 31 March 2020 for other PCNs being issued at the same location. If you received one after that date and have paid it, ask for your money back as it was issued in contravention of the law.

What really bothers Mr Mustard is that so many people believe what a council tells them, even when it is bilge. Don't. They get the law wrong all the time and write to you that black is white and there is insufficent scrutiny of what are £multi million money making machines. Mr Mustard can only scratch the surface of what goes wrong.

The rejection of the first challenge to many motorists is enough to put them off going on as they have been told they have no chance when the exact opposite is true. If you believe you are correct, fight all the way to the tribunal. The worst that can happen is that you lose the 50% discount (costs awards are rarer than hen's teeth) and you may well win. Every tribunal case costs the council a processing fee of c.£30 win or lose, money they don't see again. If enough people fought back they would be unable to cope. It needs to be made harder for them to subsidise council tax by their excessive PCN issuing.

Yours frugally

Mr Mustard