Reversing the burden of proof in Newham

 

Here is a still image taken from the cctv record which led to two PCNs being sent in the post to Mr Niceman (not his real name) who takes his mum shopping in Newham as she has a blue badge and difficulties in walking. His sister has done the same kindness and also received PCNs.

 

We can see from the sign that any car displaying a blue badge (or in Mr Mustard's opinion containing a driver or passenger with a blue badge in their possession) is entitled to drive that way and not be given a PCN as they are exempt. Newham have reversed the burden of proof. They send you a PCN in the post which states that they believe a penalty is due. They don't genuinely believe that, they believe you passed the sign is all they can honestly believe.

The registered keeper had the worry of being liable for £130 and/or having to go to the independent tribunal if the council reject the representations and perfectly good representations get rejected every day.

In this case the representations were accepted:

There is an apology which is a good start but there will have to be apologies for the next decade unless something changes and this method of operation is all wrong.

Newham Council did not have to move the camera. If they had left it face forward and took regular, say monthly, photos of the signs most adjudicators would accept that as adequate evidence of what was there.

The council had a second option. Two cameras, one from behind and one focussed on the car as it goes through the signs which would show any blue badge on display, it is unlikely to show the expiry date clearly enough, but it would show the layout of a badge (cameras are getting better all the time so sufficient detail might be discerned). The council could also offer motorists the opportunity for residents to register vehicles which are regularly used to transport blue badge holders.

Newham Council need to think again. If a PCN is lost in the post, as does happen, the motorist is already at £195 and out of time to challenge when the Charge Certificate arrives. Then they have the worry of waiting for the Order for Recovery, at £205, before they have to swear a Statutory Declaration which entails a visit to a Solicitor (more inconvenience for being law abiding) and forking out £5 for the privilege of being innocent and a postal delivery going wrong.

The end.

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.

Greenwich 1 - Lambeth 0

Here is an image of a white car being driven the wrong side of a keep left bollard in Vanbrugh hill, Greenwich. A naughty and stupid piece of driving, you'll see the cctv a bit further on. Who is driving the car? someone with the permission of the London Borough of Lambeth, oh dear, do as I say not as I do.

Mr Mustard learnt about this case because the PCN ended up at the independent tribunal and here is the decision of the adjudicator.

This presented Mr Mustard with the long awaited opportunity to show you what a tribunal evidence pack looks like. It is produced by the 'prosecuting' borough, in this case Greenwich and includes Lambeth's evidence

Here is the video, a hideously bad, arrogant and dangerous move.

The end

Barnet Council issue 162 unlawful PCNs

 Here is the tribunal decision for no. 163

 

(Actually there aren't 162 unlawful PCNs as the ones issued to the motorcycle have, out of fairness, to be subtracted and Mr Mustard doesn't know how many that is but the number of unlawful PCNs must be over 80 and is probably over 100).

As the adjudicator observed the council should have stopped issuing unlawful PCNs and removed the vehicle to the pound. Mr Mustard suspects they didn't bother because they thought a broken down 20 year old van wouldn't sell for enough to cover their costs, which shouldn't be a traffic management consideration.

Mr Mustard recommends you don't leave your broken down vehicle in contravention for 6 months because the stress of 163 PCNs would be too much for most, it is the number that Mr Mustard deals with during 6 months although those are all different so slower to deal with. Far better to get some mates round, move the broken down vehicle by pushing it and then buying them a few beers.

162 PCNs at £130 each comes to £21,060 which is clearly excessive for one parking action. 

It appears that either Barnet Council hasn't got its parking contractor NSL under control or they colluded in this corporate stupidity.

The end.

Parallel crossings

 

Mr Mustard saw the above tweets last week and realised that he too was one of those drivers and cyclists (he is both and also a pedestrian) who hadn't, perhaps, kept up with the legal meaning of these new style crossings despite regularly buying the latest Highway Code when he is alerted to a new edition. It sort of didn't matter as whether on two wheels or four Mr Mustard is attentive at such a junction and gives way all the time to others rather than have a scrape and be filling in insurance claim forms.

Mr Mustard didn't think that cyclists had priority because of one simple fact, the give way line on the cycle track. Mr Mustard decided to see what the law says and this is to be found on pages 476/7 of the Traffic Signs Regulations and General Directions 2016. This is available free on line or like Mr Mustard you can lash out £65 for a hard copy. Here are the relevant drawings

 

Just for completeness the square markings each side of the cycle crossing are diagram 1055.3 

These Elephants' Footprints, as they are known, merely delineate the lane, they don't have a give way meaning.

The zig zag lines come with complicated rules but luckily the Highway Code contains a simple interpretation:

 

The crossing Mr Mustard is most familiar with on his bicycle is the one in Montagu Road in Edmonton which looks like this:

He has found that as he cautiously approaches it is never long before a vehicle stops and lets him go for which they always get a friendly wave (Mr Mustard doesn't want to start a debate as to whether or not you should thank a driver for following the law but when he isn't chewing the ear off councils about unfair PCNs Mr Mustard is quite a friendly soul so he opts to wave as he thinks it makes the world a better place).

Mr Mustard's conclusion for the crossing in Hackney is that all people approaching should look, slow down, be prepared to give way and then cross when it is safe to do so. 

Avoid argument, insurance company paperwork, increased insurance premiums, broken bones or hospital food.

The end.

Words weighing heavily on Wandsworth Council

Here is a tribunal decision about 2 PCNs which Mr Mustard only looked at as he had a family connection to the road.

 

Here is a map of the area. The B229 is Burntwood Lane.

The refusal of Wandsworth Council to cancel a PCN to a company just trying to do its job, is thoroughly miserable and flies in the face of common sense. Just look at the size of this vehicle, total weight of up to 44 tonnes.

The routes available to a lorry of that size in streets this narrow are limited.

Well done to C K Transport for fighting as far as the tribunal. It causes councils huge amounts of work and seeing them hoist on the petard of their own traffic order is most amusing as are the opening words of the adjudicator that he'll carry on without the rep. as they are going to win.

The end.

The Unfairway - Barnet

 

Here we have a tribunal decision for stopping on the yellow zig zag markings outside a school. The motorist was unhappy about the PCN and the adjudicator agreed it was unjust and cancelled it, using nice legal words about mischief and focussing on the traffic management purpose.

If you look at the location in question (Mr Mustard doesn't know exactly where this alleged contravention occurred) you can get a feeling for what happened.

To get into that parking space, reversing first as is usual, you have to stop briefly on the right hand half of the carriageway, the section to which the yellow markings apply. It would be the same if you stopped to allow the car in front to park, you can't smash into it to avoid stopping. That is an entirely different situation to someone stopping on the markings to take a phone call or to drop their children off.

Common sense has prevailed. Why doesn't Barnet Council have some, here is a selection of possible reasons:-

- a computer selects cctv clips of possible contraventions, the computer doesn't have a brain.

- the person who is meant to check the clip either doesn't bother or isn't concentrating

- the person who decides whether to accept a representation or not is either a bit dense or doesn't care

- it's all about the money.

If you think your PCN is unfair take it to the tribunal after you get a formal Notice of Rejection. You get a fairer hearing than from Barnet Council as the qualified lawyer who decides your case is independent and not motivated by the revenue stream.

The end.