30 June 2021

Enfield Council - perplexing the postman (or postlady).


The unfortunate resident of Mayfield Avenue, who will will call Mr R, who came to Mr Mustard for help, had unfortunately driven past a 'flying motorbike' sign three times in late 2020, and back again, so clocked up six PCNs on his leased vehicle. He had received six administration charges from the vehicle supplier and knew to expect six PCNs from the council. He received only five which Mr Mustard challenged at the tribunal. Two were cancelled and three were upheld so they were paid. Mr Mustard knew that sometimes a PCN gets cancelled rather than passed on to the vehicle user and so he didn't worry about the one missing PCN, Mr Mustard doesn't rock the boat in case he falls into the water.

The reason why the sixth PCN didn't reach Mr R, became apparent when he received the Charge Certificate, sent because he hadn't responded to the PCN that he hadn't received. Here, minus the name, is the document in question.

Mr Mustard spotted the omission of a street number. Perhaps the regular postman was on duty that day and knew which number, out of the 33 choices, Mr R lived at but on the delivery day for the PCN it got sent off to Belfast where poorly addressed mail gets dealt with by the Royal Mail. Whatever the reason Mr R is indebted to his postman for the dedication to delivery.

Mr Mustard went online to send Enfield Council a message as you can't phone them which would be much quicker in this sort of situation.

A possible third reason to cancel was that half the signs had been defaced.

Mr Mustard rather thought that having been told of their lack of street number error Enfield Council would cancel the PCN (they were too late to issue a new correct one). He was wrong.

A number of points arose. An enforcement authority has a wide discretion to consider representations (they don't mean 'Appeal' that is the tribunal stage) made out of time (although given the lack of service no right to make representations had actually arisen).

The issue of a charge certificate doesn't, in and of itself, stop the council from exercising their discretion to cancel a PCN which they issued and hold the fate of in their hands. It isn't the issue of a charge certificate which counts but the service of one. We were lucky this one was served as otherwise it would probably have been the bailiff that Mr R first heard from.

The right to serve a charge certificate only arises if and when a PCN has been served, in this case Mr R said he did not receive it and if he had he would have fought it at the tribunal is the logical thought.

Mr R was incensed that the council wrote 'apparently' not received. His word rebutted the presumption of service unless the council could prove he was lying. In addition, the balance of probabilities is that a piece of mail sent without an address may well not get properly delivered. Furthermore a PCN which is not properly addressed is not a valid PCN.

The council's power to register the PCN as a debt at the County Court (Traffic Enforcement Centre) is a discretionary one and subject to the approval of the Court which should not be assumed as being granted without demur and charge certificates shouldn't be issued automatically but when the council thinks one is appropriate (they are of course issued automatically, as night follows day). When registering debts an officer of the council has to certify that they have served a Charge Certificate. Given that the PCN was not served they cannot properly certify that they have served a (valid) charge certificate and so should not have threatened this step.

The council know that steps 2. and 3. are not applicable so why confuse the motorist by suggesting them? Mr R can't be expected to know PCN procedure as well as Mr Mustard does and is entitled to be treated fairly by Enfield Council, he wasn't being.

Before Mr R had received the above letter Mr Mustard saw on line that the balance had reverted to £65 so emailed the parking manager as this was an unusual case.

In a separate email Mr Mustard asked for a copy of the complete case report in case it noted down the return of the undelivered PCN. Instead he got sent copies only of the statutory documents. He then emailed the manager again saying he hadn't got what he asked for and could it be sent. Today he checked the balance on line again and saw it was now £0.00 and then this letter came in the post.

Finally a sensible decision had been taken. The moment the council became aware, as Mr Mustard told them, that the PCN was inadequately addressed they should have cancelled it. 

They seem to regard PCNs as sacrosanct once issued and this is a defective way of thinking which needs to be eliminated. You do wrong and get a penalty for £130, the council get it wrong and they want a penalty from you of £65 or £195 if you don't agree.

Mr Mustard thinks that 99% of motorists would have paid up when Enfield Council wrongly threatened them with the County Court. Sadly their illegal bullying doesn't have any costs consequences, it should.

Yours frugally

Mr Mustard

28 June 2021

Barnet Council - simply getting the law wrong


A car was parked here, outside the section of dropped kerb which serves the front door and bins, carefully leaving clear the right hand section which could be used to park a small vehicle. A PCN was issued by a Barnet Council traffic warden. The motorist challenged it as he knew he wasn't blocking a private drive, a cycle lane or a place where pedestrians cross the road. The absence of a cycle lane or parking place is patently obvious. Mr Mustard will leave the question of pedestrians crossing the carrigeway for the moment.

The response to the challenge is below:

The legislation does not cover 'any' dropped footway, only those for one of three statutory purposes, viz:

So, would a pedestrian cross at this locale? The norm is that one would expect to see a similar dropped kerb in the footway on the other side of the road, often with tactile paving. Here is the view from further away from the property in question:

Who would be crossing the road here? The traffic warden got it wrong and this has been compounded by the back office getting it wrong.

This should not be happening.

Yours frugally

Mr Mustard

18 June 2021

Hostile Hillingdon


Having written about Brent Council yesterday on the subject of a continuous contravention it just so happens when Mr Mustard was idling through the daily register of adjudicator decisions at London Tribunals that he alighted on a similar case, six PCNs given to a Mr Anthony Aneke (with whom Mr Mustard has no connection & whom he will refer to as Mr A) the identical number of PCNs given to a vehicle which again didn't move. The register is, by legal regulation, a public document and it can provide a useful source of information.

Here is the substance of the decision:

Each PCN was for £110 and so Hillingdon Council were trying to get a decision that Mr A should fork out £660. Hillingdon increased their council tax by 4.8% this year and so are clearly in great need of extra funds - this may partly explain why they want six penalty charges to be paid for one contravention.

There is no dispute but that Mr A made a mistake, a common one as it happens of trying to be mindful of other road users but overlooking inconvenience to pedestrians and wheelchair uses, prams etc. It isn't therefore unreasonable to extract one penalty from him but trying for six, when they aren't legally due, is hostile behaviour. Add in the facts that the vehicle had a mechanical problem, that he has just lost his job and that he fell ill and Hillingdon Council's behaviour is hostile, horrible, heartless, disproportionate, unreasonable and devoid of any morality and would lead to a debt burden. That isn't why councils exist, to make the lives of citizens more difficult. 'Welcome to Hillingdon' the entry signs should read, 'where we like to kick a man when he is down'.

Councils now tend to take the view that because a contravention has occurred a penalty must be paid, they decline to exercise their wide discretion in obviously deserving cases and throw their weight about like playground bullies. There needs to be objective and independent oversight to rein in their worst excesses. The role of the adjudicator is to apply the law but we need more than this as they only see 1% of all PCNs, someone sensible needs to look at the other 99% and keep local authorities on the straight and narrow.

What is the point of Penalty Charge Notices? The Secretary of State, in his statutory guidance, says, in part, that it is this:

In the case of Mr A the PCNs have been looked at in isolation, his personal financial and health situation having been ignored, and revenue raising is the apparent objective as Mr Mustard doesn't see any other possible explanation (well, not knowing the law at Hillingdon Council is an unattractive alternative).

Taking it as a given that the whole point of parking rules is to regulate parking, is there a better alternative to PCNs as almost 4 million a year being issued in London (for parking alone) suggests to Mr Mustard that they don't work? There is, clearly Mr A hadn't caught on that pavement parking is forbidden throughout Greater London except where the pavements are signed to allow it.

One option is to issue a warning PCN, which has a zero value, and then the message should get through, but councils issue very few such PCNs as they cost them money and they don't like them affecting their profit margins.

An alternative when a challenge is received for this type of PCN is to ask Mr A to sign an undertaking as to his future conduct and then cancelling the PCNs, something like this:

By this method, compliance would slowly improve, and the allegation of revenue raising could not be made.

Until something changes Mr Mustard will continue to bring to your attention the egregious activities of certain councils.

Yours frugally

Mr Mustard

17 June 2021

Continuous contrariness


When this car was parked there had been snowfall and the double yellow lines weren't visible. The snow soon melted away and traffic wardens did the opposite, they appeared 6 times in two weeks and stuck 6 PCNs on the windscreen.

The car had been rented out and inadvertently left this way by the hirer and so the vehicle owner paid the first PCN and asked Mr Mustard to challenge the other five. Both the owner and Mr Mustard knew that only one contravention had occurred, albeit of two weeks duration, and thus only on penalty was due. They both expected Brent Council to fold their hand at the first opportunity. Wrong! A clear and concise informal challenge was made:

The response was in the negative but notable by its absence was any indication that the concept of continuous contravention had been considered:

Mitigation was not argued, it was a head on assault on the validity of the PCN.

The owner sat and waited for the Notices to Owner and then formal representations were made:

Tribunal decisions aren't precedents but are 'legally persuasive' and are likely to be correct when it comes to points of law (decisions on other facts may turn on the circumstances) and Brent Council should consider at the very least if the decision is likely to be followed by another adjudicator, or not. As it happens Mr Mustard has a sheaf of similar decisions so was confident in the eventual outcome. A copy of the decision was sent to Brent Council so that it was in front of them.

There were two pages of standard rejection guff and Mr Mustard has extract all that goes anywhere near actually answering the argument.

There was no argument raised about liability resting with the hirer as hire is done by an App so there isn't a written hire agreement thus ruling out transfer of liability. That was a red herring that Brent Council introduced and then refused.

Perhaps if the council hadn't dealt with each PCN individually they might have realised that there was only one contravention. To say the tribunal decision had 'no bearing' is a gross dereliction of the council to consider (i.e. think about a little bit) the representations which have been made not to say they are irrelevant. The other PCNs weren't ones that Mr Mustard or his client had received, they were for a different party entirely.

Needless to say, Appeals to the independent adjudicator at London Tribunals were made. The Grounds were that there had been one continuous contravention. The first PCN of six had been paid, which settled any liability in full and Brent Council had cancelled the final PCN without saying why apart from some error had occurred. When Brent Council put their evidence it was disclosed that they cancelled the final PCN because it was issued less than 24 hours after the fifth one so clearly they thought they could issue one PCN a day (or 24 hour & 1 minute period) but didn't actually say so. It only took a few minutes with the Adjudicator to get him out of the snow and away from the hire agreement question (in fact Mr Mustard dealt with 6 PCNs for 3 motorists in 14 minutes of phone call) for him to decide that only one contravention had occurred and cancel these four PCNs.

Auto-correct rather changed the flow of the decision.
'Number' became 'slumber' but a slumber of parking isn't all that wrong in this case.
'Amount' became 'manhunt', which Brent Council have been on, wanting 4 times £110 that wasn't due.

What worries Mr Mustard is that the principle of a continuous (or continuing) contravention isn't a new one, it is as old as double yellow lines (or PCNs on them). Either Brent Council don't know what they are doing or they think that they can pull the wool over the eyes of Mr Mustard which is a rare event. The worrying aspect is that the motorist in person would believe Brent Council and/or they are too frightened / too busy / too worried because of a health scare or whatever to spare the time and/or mental energy to fight through the three rounds of the battle (Mr Mustard is battle hardened and somehow has an almost unlimited capacity for argument) and would gift Brent Council a windfall £440. 

It is an assumption that a council will be procedurally fair, not all of them are and Brent Council featured in the previous blog displaying a different ignorance of the law.

In this case £55 was paid for the first PCN and Brent Council have had to pay out c. £120 in fees to the tribunal which they won't see again so they made a nett loss of £75. One hopes that they will learn something from this public humiliation but don't hold your breath, there are too many £millions at stake.

Yours frugally

Mr Mustard

16 June 2021

Dropping a clanger - in Brent and Barnet


The red lines are the section which can be enforced if any part of your vehicle is alongside.

'Dropped kerb' is the colloquial term for a place where the path (or verge) has been lowered to meet the carriageway. There are three types of dropped kerb which can be enforced under the provisions of Section 86 of the Traffic Management Act 2004

The second option (b) is usually found at junctions so pedestrians don't have to step up and down (you might think it applies to a speed table but Mr Mustard seems to recall an adjudication decision which found it didn't as the primary purpose of that was to slow traffic).

So that is clear as clear can be, yes?

Apparently, despite 17 years in which to learn the law, Brent Council and Barnet Council don't understand it, to the detriment of the motorist and to the advantage of council coffers.

A lovely picture of this short dropped kerb in Hilltop Avenue, Brent. From this we can glean that the dropped kerb is to a bin store and there isn't a matching dropped kerb on the other side of the carriageway.

A traffic warden can only issue a PCN when he has a belief that a contravention has occurred, clearly he/she cannot properly hold that belief in this case. The motorist knew the law and quoted it to Brent Council at the informal and formal stages and Mr Mustard quoted it at the Appeal to an independent adjudicator stage.

Brent's responses were worthy of Yes Minister and would be funny if money was not at risk and also quoted an out of date law.

So three times Brent Council got it wrong, and so simple. How many times have they done this? The Adjudication took just a few minutes on the telephone, with the adjudicator cancelling the PCN and saying this:

Oh dear, being reminded that the role of the local authority is to apply the law and only just escaping an order for costs as the bar is set very high.

Barnet Council weren't quite as bad, but not far short.

They issued a dropped kerb PCN at this location in Derby Avenue N12:

Looking at the three scenarios in which a PCN can be issued:

For pedestrians to cross the road - clearly not in the middle of a parking bay and no dropped kerb opposite.

Cyclists - no cycle lane there.

Private drive - no and never was so very off why the drop is there in the first place.

It was bonkers of the traffic warden to issue a PCN at that location in the first place.

The informal challenge referred to a tribunal decision which set out the law:

I attach tribunal decision 2120539093 which sets out the 3 categories of dropped kerb which the council is entitled to enforce.

The dropped kerb in question is not within those categories so the council does not have the legal right to issue the PCN.

That challenge was rejected:

The council didn't carefully consider anything.

The council quote the wrong Act although the wording of it didn't change much and then in the next paragraph quote the correct Act although rather unhelpfully not that it was section 86.

The law doesn't cover 'any' dropped kerb as if it did there would be no need to set out three categories of dropped kerb which can legally be enforced.

It is true that tribunal decisions aren't precedents but they are 'legally persuasive' and Adjudicators are experienced lawyers who consider these cases all day and tend to get the law correct 99.9% of the time.

The parking didn't contravene any regulations.

Curiously the identical representations were made at the second opportunity, in response to the Notice to Owner, and they were accepted. The Notice of acceptance contained a standard line which is nonsense:

'Please note that this does not set a precedent for any PCN issued under similar circumstances'. By 'similar' Mr Mustard reads, 'in the same place' as otherwise it makes no sense, which it doesn't anyway. Of course it sets a precedent, the PCN was wrong and every other one issued at that location in Derby Avenue, outside #16, is a nullity due to having no legal foundation.

So, on two dropped kerb cases on which Mr Mustard has been the advisor in the last month, two separate councils, with different contractors, got it plain wrong both on the ground and in the comfort and safety of their offices. Mr Mustard finds it hard to believe that he has been in some statistical freak show and found the only two occasions when Brent & Barnet councils have right royally lashed up.

Don't let it happen to you.

Yours frugally

Mr Mustard

13 June 2021

Harwood Terrace SW6 - a lot to take in

You are slowly making progress down the King's Road heading for Wandsworth Bridge and you think you will, as you have done for years, cut the corner off to avoid some of the traffic. Don't!

There is a new sign but you don't see it as a large lorry is in front of you

This is what you would have seen in 2019

but that sign has gone to be replaced by another 20m further on, 

much nearer to the junction, which I can't get a clear image of which tells you how hard it is for the motorist on the move rather than sat at a keyboard.

Whilst the sign has honourable intentions, it is misleading, it implies that both of the next two side turnings are closed when they aren't, you can go down one (Edith Row) and back up the other (Waterford Road); they do lead to a road you cannot go through though. You can't get through to Bagleys Lane or Wandsworth Bridge Road though without incurring a PCN. The weight restriction is no longer deemed worthy of advance warning.

This map is of some help

Having been unable to see the sign due to high sided vehicles blocking the view you are warned as you enter Edith Row except that, even without the roadworks, you get very little time to see it, you have to watch for pedestrians crossing the junction, the sign is too high, there needs to be one on the right that a driver of a RHD car can more easily see, it contains a lot of information to take in and rather assumes you know where Harwood Terrace is in the first place.

Edith Row is quite short, turn right at the end, it will probably be busy as there is a hire cycle station there and then you are on the roundabout, this was the view in 2019

You can see the lorry weight limit signs but at that time the road was open to all other traffic. Now, as you come round that roundabout, and one rather expects to be able to exit, you are faced with sign overload

It would help to remove the traffic camera signs as most adjudicators say that everyone knows cameras are common in London and it is sufficient for warnings to be located about the borough. There is already a warning, although hard to spot, as you enter Edith Road. The humps sign could also go, as long as the humps are clearly defined and easily spotted even in bad light, and SLOW could usefully be painted on the road in front of them instead.

If you happen to spot the signs prohibiting goods vehicles which exceed 7.5 tonnes (except for access e.g. to deliver to a property or reach your depot) you might, if you were in a small van, conclude you are allowed down this road, Harwood Terrace. You aren't as you are caught by the two other signs, the 'flying motorbike' signs. They prohibit all motor vehicles so it is not necessary to also prohibit 7.5T goods vehicles. In fact, they should be added to the exemptions list. That puts us in the bizarre situation whereby you can't deliver something in a tiny van but you can go down the road in your monster truck.

With the two blue directional arrows also in your eyeline, you are expect to take in and process 14 signs and/or information plates in 5 seconds or so. It can't be done and that is probably why Mr Mustard has a PCN on his desk to fight. Oversigning is a well known defence to a PCN but each case turns on its own particular facts and so a win at the tribunal isn't guaranteed.

Throw your SatNav away and start saying aloud every sign you see. If you don't know what they all mean then bone up here which as well as being free to consult will save you receiving lots of lovely £130 PCNs in the post. Also, whilst Mr Mustard has your attention, go and find your V5 registration document. Look at the name and address section, is it up to date and accurate? If not, amend it online or via the post. That way you will avoid bailiff hell when they find your new address as all documents went to the old address and you never saw them.

Yours frugally

Mr Mustard