Barnet Council failure leads to costs against them

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.

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 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

An action packed Environment Committee on 11 June 15

Mr Mustard had not been to a meeting for a while so he decided to show his face and speak to the committee for 3 minutes. The running order of the meeting was changed so that the items Mr Mustard was speaking on came earlier although once there Mr Mustard usually stays for the whole meeting.

Cllr Dean Cohen is proposing that single yellow lines are not enforced on Bank Holidays. There seemed to be more debate about what is a bank (or public) holiday than about the idea of enforcement but after some faffing about the proposal that will be worked on by officers is to not enforce on a day on which the public don't expect enforcement as the pay and resident bays are not enforced on those days. Mr Mustard proposed this when policy was reviewed last July. He is pleased that it is at least being considered now. Traffic wardens could, in the meantime, be instructed to concentrate on other areas and all challenges against single yellow line enforcement on bank and public holidays could be accepted whilst the necessary legal steps are taken.

Cllr John Hart, on behalf of all 3 Mill Hill ward councillors, then proposed the contraction of the area and times of the Saracens Event Day zone. He posited that it could be removed but it is part of the planning permission and other councillors would have voted him down so he stuck to reducing the area size and the hours. Officers are against reducing the 6 hours as that is their way of ensuring the restricted time covers possibly differing kick off times so essentially we are in a situation where you can be penalised for parking after a match is over which is a nonsense brought about by administrative convenience. A plan will be worked up and brought back to the committee with a smaller number of restricted roads for councillors to vote upon.

Permits for school staff was next. You might want to read the proposals here. It is unsurprising that staff who work in schools were heavily in favour of being allowed to park in a residents CPZ. Mr Mustard thinks that residents will not be so keen and the residents in affected areas are to be consulted.

This is what Mr Mustard had to say to councillors on the subject:

I am all in favour of maximising the usage of on-street car parking spaces.

However, the idea of letting school staff is one that needs to be treated with caution as even private profit making schools appear to be included. So a school employee could have a permit which would cost, I presume, the same amount as a resident's permit (with £40 being typical) but an employee of, say, a school stationery supplier, which might be in an adjacent building would have to pay £525 (this is the annual cost of a permit for a business)

I feel a judicial review coming on if you treat one group of employees more favourably than another.

HB public law have noted Mr Mustard's concerns.

Then we came to the meaty part of the meeting which will bring shedloads of money into the council's coffers mostly from yellow box junctions, is Mr Mustard's view, although the safety of schoolkids was, of course, put forward as the moral reason for having all these cameras.

Mr Mustard had his say, as follows:

I would like to say a few words on three topics, yellow box junctions, banned turns and permits for school staff.

Firstly, box junctions.

The words "Entering and stopping in a box junction when prohibited" have cost drivers in London millions of pounds.

If you are in moving traffic and see a yellow box junction approaching you are meant to stop before the yellow markings, watch the car in front cross the junction and clear it by 5 metres or so and then set off.

That is not how London traffic actually operates in the real world.

In the real world people keep driving if it looks like the exit will be clear by the time they reach it. If that goes wrong, they risk a £130 penalty.

Other London councils, like Hammersmith & Fulham, have created some fantastic money-spinners including the notorious money box junction where Bagleys Lane meets the New King's Rd, £2.7m in a year.

The yellow box exists to try and prevent junctions from becoming blocked which is an entirely reasonable policy. What is not reasonable is for councils to issue a PCN to someone who clears the junction but still has a metre of their car over-hanging the yellow box and causes no traffic disruption.

What I would like to suggest that Barnet should have as its policy is that PCN will only be issued for yellow box contraventions where the failure to leave the box clear hinders the other traffic flow, usually the road at right angles. Also, that yellow boxes should be designed to the minimum possible sizes and I suggest councillors take a look at the one outside Sainsburys in North Finchley as being an example of one that is oversized.

Secondly, banned turns.

Rather than issuing PCN for people turning right or left when they shouldn't, I think that the council should, as policy, engineer the roads such that banned turns become impossible to perform. After all you are trying to control traffic flow, not raise revenue. (thirdly is above)

Time will tell what happens.

Yours frugally

Mr Mustard

Armchair Auditor Objection

The council's TMO had one fault (not 4)

Mr Mustard and Mr Reasonable have been separately busy pouring over a tiny fragment of the Annual Accounts of Barnet Council and looking at the backup documents. Our work continues as we struggle with Capita to get what we are entitled to see (they are trying to fob Mr Mustard off with a draft of a contract when he is entitled to see the actual contract with anything top secret crossed out - if Mr Mustard doesn't see a contract with redacted signatures and actual dates, how does he know a contract was signed?). The struggle is well worth it as some juicy stuff is to be found if you know which stone to look under. The bloggers also look under several decoy stones!

Mr Mustard tries hard to point the external auditor Paul Hughes (of Grant Thornton) at what he sees as terrible wrongdoing but Mr Mustard has yet, despite trying 5 times last year, to get him to issue a public interest notice or apply to the Courts. Mr Hughes is currently sunning himself, is Mr Mustard's guess, as he has an out-of-office set up (one of those infuriating ones which says if your enquiry is urgent do something about it yourself as they couldn't be bothered to make sure your emails are even glanced at whilst they are away) so you can read the Objection before he does.

Dear Mr Hughes

The London Borough of Barnet

Accounts for the year ended 31 March 2014

Notice of Objection

I am told by Barnet Council that in the year ended 31 March 2014 they issued 4,827 Penalty Charge Notices (PCN) within the Saracens Event Day zone with an estimated income of £217,215 which I believe they have collected unlawfully.

I request a public interest notice as per section 8 of the Audit Commission Act 1998 that Barnet has unlawfully derived income of £217,215.

I request you apply to the courts under section 17 of the Audit Commission Act 1998 to have the income derived from the £217,215 of PCN declared as illegally derived income.

The reason why the income is illegally derived is that the Traffic Management Order did not contain a definition of what constituted an Event Day and consequently there were no days whatsoever on which a PCN could legally be issued for failure to comply with Event Day signs. For the avoidance of doubt, I am not claiming that the TMO was invalid, as it has to be contested within 6 weeks of being made and that did not happen, but on the contrary that it is valid but does not permit enforceable PCN to be issued.

The council are well aware of the deficiency as on 13 March 2014 they made TMO 2014 No. 28 in order to completely replace the defectively worded TMO 2012 No. 70.

All income from PCN issued inside the Saracens Event Day CPZ prior to 13 March 2014 should be refunded to the public.

A copy of this Notice of Objection has been sent to Mr C Naylor.

I look forward to hearing from you.

Yours sincerely

Should you still have an unpaid PCN issued inside the Saracens Zone before 22 March 14 then do feel free to get in touch with Mr Mustard as they are a doddle to defeat. Later ones might prove to be a little harder but properly approached, they too can be beaten.

Yours frugally

Mr Mustard

Update 18:07

Unlike the Capita man who had left halfway through the afternoon one of Mr Hughes's staff is still hard at it in his central London office and has thanked Mr Mustard  for his objection. So polite.