Democratic deficit - Barnet Council

 

In the opinion of Mr Mustard councillors have gifted (delegated) far too much power to 'Officers' (the rather grand name for highly paid staff) and there is then far too little oversight of what they are up to. We get quarterly reports of the decisions if you know where on the website to look but that is of little use when the report for October 19 gets published in January 2021.

Decisions taken by councillors are public on the day they take them as the meetings are live streamed. Decisions by 'officers' take place in their home office (most probably) and if we are lucky we get to hear about them a few months later, or in the case of the Deputy Chief Executive 15 months later. That is to thumb your nose at Barnet residents. It is not democratic.

Should an 'officer' have taken a decision which a member of the public wishes to challenge and maybe take up with their local councillor, the horse is out the stable door and way out of sight. Nothing can be done about the decision, even if it was the worst decision in the world.

If a resident wishes to pursue a judicial review ('JR') the Court is going to be unimpressed. The general rule (and there is a lot of case law on this, not to forget Nash v Barnet which was out of time) is that a JR should be brought

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.

These DPR report should not be produced quarterly, they should be produced monthly and even better, every time a decision is taken by an 'officer' it should be the subject of an individual delegated powers report which is published the minute they sign the decision.

You can find the decisions of all 'officers' here always assuming they have bothered to produce them (cue some frantic work by the million pound PR department to get all officers up to date once they see Mr Mustard's tweet).

Just so you can see how much money is involved here is the final quarter of 2019 for the Deputy CEO alone:

Enjoy your lockdown reading.

Yours frugally

Mr Mustard
 

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

Spot the difference in Brent

Here you go, the informal challenge made in response to the PCN on the left, the challenge was rejected.

The formal representations, on the right, were accepted.

This should not happen, if councils are going to cancel a PCN they should do it at the earliest opportunity. Anyone would think they were hoping to wear the motorist down so they give in and pay up.

Mr Mustard does not give up? Councils seem a bit slow to learn that lesson.

Yours frugally

Mr Mustard

Postal delays

One would hope that all enforcement authorities in London (and those just around it) would have recognised the unfairness of sending out moving traffic PCNs (and other documents) to London's residents, which have a penal effect if the 28 day deadline is missed, and added extra time into their systems.

If not, they should be making due allowance and you the motorist should make your representations as soon as you get a document which is late and state the date on which it did actually arrive.

The umbrella body for all councils in London sent out an email to all councils in London on 14 January 21 to give them a nudge if they hadn't already thought about it.

Don't hesitate with Notices about PCNs, deal with them today. 

Procrastinating can be expensive.

Yours frugally

Mr Mustard

Redbridge - ridiculous PCNs in Barley Lane IG3

Readers may have seen Mr Musatrd's tweet about Mr Audi and his pavement parking PCN. Mr Mustard was a bit busy when he told Mr Audi not to leave his car on the pavement, hadn't studied all the facts, didn't anticipate that Redbridge Council would have completely lashed up but the advice he gave that roads are for cars and pavements are for pedestrians was generally sound. He told Mr Audi not to put his wheels on the pavement unless there were marked bays. He has now had to add 'or signs'.

Here are all the blue footway parking allowed signs on Mr Audi's side of Barley Lane.

This is the sign as it appears in the law

So now you have to ask yourself how & why 3 cars in a row where ticketed one after the other and there was a blue pavement parking allowed sign adjacent to the boot of one of the cars, the traffic warden can hardly have missed it and has probably, on his scooter, passed half a dozen signs along Barley Lane to where he stopped. This is one of them

One option is the traffic warden is new and missed the signs.

More likely in Mr Mustard's opinion is that the traffic warden thought the cars were too far onto the pavement due to the layout, you see tarmac at the kerb rather than slabs. When called to out of the window the traffic warden sped off on his scooter and didn't ticket numerous other cars which were similarly parked.

You cannot be given (well not legally) a PCN for failing to comply with a requirement that is not communicated to you although as pavement parking in London is against the law (except where it is allowed) you are deemed to know that. If Redbridge Council want to limit the extent to which you put your car on the pavement then they need to get their paint brush out and paint bays, like this one outside Mr Mustard's favourite bakery in Enfield (an old photo as Mr Mustard wanted to show you clear markings, the shop is now a lovely shade of light blue).

Unfortunately, three motorists have now been put to the trouble of making challenges on line and Mr Mustard has drafted a complaint about the traffic warden.

If pavement parking is permitted where you are, please leave ample room for a wheelchair to get by.

Yours frugally

Mr Mustard

Is this car parked in breach of a loading ban?

 

This car belongs to a blue badge holder, you can't see the badge but just accept it is there for the purposes of this question. You can see a PCN.

Is the car parked in defiance of a loading prohibition?

In case you don't know blue badge holders can park for 3 hours on double yellow lines unless loading is banned, which is conveyed by double marks across the kerb (the sign although a useful reminder is not legally necessary).

27 January 2021 - Time for Mr Mustard to tell you what he thought about the situation.

LTNs - diversionary tactics

In an effort to reduce the number of cars committing a contravention in Warwick Road, N11, or perhaps partly because Mr Mustard won his tribunal case when there was only one low sign, there are now 3 signs in Warwick Road; that helps, provided you know what the sign means in the first place.

Now, let us suppose you are not simply a commuter trying to take the quickest route and finding that Brownlow Road (the B106) is backed up so you take the convenient alternative but someone who has good cause to be in the Warwick Road area, you might be visiting elderly family with a food parcel or a friend in Union Rd (your bubble) or you are a home delivery driver, collecting a sick person for a day care visit to the hospice or even dropping off a skip like the one in the picture, you just have to visit the northern part of Warwick Road.

You get there, you understand the signs and now you have a problem. A diversion isn't posted. Mr Mustard has highlighted in yellow the two alternative routes, to the west and the east. These routes are ones which you can take without having to make a u-turn as on busy London roads they are more dangerous than mostly left turns (which would be Mr Mustard's preference) or mostly right turns

Here is the area in question:

The yellow highlighter shows the ridiculous routes you have to take in order to get to a point just 1m from where you were 20 minutes previously. The green lines are ones you can take in order to avoid the no left at Bounds Green tube as by taking them you are going straight over, not left. Better to use the longer one as the short one is narrow and may be used by drivers coming up Brownlow Road who aren't allowed to turn right so they may take this route.

Mr Mustard cycled them both as if he was in a car so (apart from using the pavement some of the time, whether shared use or not, as he was respectful of the rights of pedestrians) he followed the signs as applicable to motor vehicles (except at the end when he went between the no motor vehicles signs). His camera didn't have a long enough recording time so part of the eastern route got recorded over, here is the western route via Arnos Grove tube station.

 

 

 

As it happens Mr Mustard lived in Warwick Road over 40 years ago.  He was in a  bedsit, he bought a BSA B40 from the milkman, a milkman who would now have to go on a huge round trip in order to put a pint bottle on the step.

Mr Mustard is both a car driver and a cyclist and thus neutral on Low Traffic Neighbourhoods so this blog post isn't intended to start a bunfight between car drivers and cyclists but is simply to highlight the problems caused by the lack of a posted alternative route. It would be of great benefit if the alternative route was posted to help those who do have business in the street. The council could start by exempting 'for access' and putting every resident in this block on the 'white list' so they don't get ticketed by the cctv camera and can take the shortest route home, avoid traffic jams and cut their pollution contribution.

Mr Mustard thinks there are better ways of fixing the cut through problem, he doesn't like the pejorative 'rat run' label, if the road is open, everyone is entitled to use it.

Yours frugally

Mr Mustard