Grounds for Appeal - Contravention Code 27

follyfoot

Hi if a pcn was issued in feb 2009 for parking adjacent to a dropped footway, which part of the TMA should i be using to appeal it?

Coblcris

I would suggest as per post number three but add a paragraph describing the June 1st modification as proof of the unenforceability in February. Ensure that you mention that your case is so strong that you will regard anything less than Westminster dropping the case as vexatious.
You should fully expect Westminster to deny the grounds and then to drop out just before the PATAS hearing. To add even more weight make sure your formal appeal mentions the PATAS enforcement guide thus when Westminster do not follow the guide you should claim costs.

follyfoot

Coblcris wrote: »

I would suggest as per post number three but add a paragraph describing the June 1st modification as proof of the unenforceability in February. Ensure that you mention that your case is so strong that you will regard anything less than Westminster dropping the case as vexatious.
You should fully expect Westminster to deny the grounds and then to drop out just before the PATAS hearing. To add even more weight make sure your formal appeal mentions the PATAS enforcement guide thus when Westminster do not follow the guide you should claim costs.

Sorry, i got ticket for parking opposite footway from lambeth not westminister. does it make a difference?

MF17

Despite Westminster stating I would hear within 10 days still no news. Encouraging that it's now taken 23 days! Watch this space

MF17

As anticipated my informal appeal has been rejected. I will lodge a formal appeal once I receive the Notice to Owner. Westminster have failed to address the issue of the footway being useable by wheelchairs, pushchairs etc. I will post again once I conclude matters.

peter_the_piper

So far 4 different posters on this thread, got lost as to who has done what and when.

MF17

Westminster (acting as judge & jury) have rejected my formal appeal against the Notice to Owner. Off to the adjudicator next. Will post again on final result.

TheBogsDollocks

MF17 wrote: »

Westminster (acting as judge & jury) have rejected my formal appeal against the Notice to Owner. Off to the adjudicator next. Will post again on final result.

Since my last post I have discovered a new flaw that I fully recommend that you include in your appeal to the adjudicator. I will link at the end the relevant legislation so you can see for yourself.

Include the following paragraphs in your appeal to them;

“Council areas within Greater London that were awarded Special Parking Area status under section 76 of the Road Traffic Act 1991 are now considered, due to paragraph 1(5) of Schedule 10 within the TMA 2004, to be Special Enforcement Areas.

However, such council areas are not considered as Special Enforcement Areas where Statutory Instrument 2009/1116 is concerned. Paragraph 2(5) of S.I. 2009/1116 does not include paragraph 1(5) of Schedule 10 within the TMA 2004, in its definition of Special Enforcement Areas.

2(5) In paragraph (4) a “special enforcement area” means an area designated as a special enforcement area by means of—
(a) an order made under paragraph 1(1) or 3(1) of Schedule 10 to the Traffic Management Act 2004 ; or
(b) an order which, by virtue of paragraph 2(5) or 3(5) of that Schedule, has effect as if it were an order so made."

Since S.I. 2009/1116 does not include those councils within Greater London that were granted Special Parking Area status under the 1991 Act, it means that those councils do not qualify as being exempt from having to place traffic signs for the purpose of providing information to road users as to the effect of section 85 (double parking) or 86 (parking adjacent to dropped footways) of the Traffic Management Act 2004 in their area.

As the prohibition was not signed and no exemption from placing traffic signs has been granted, I require you to cancel this penalty charge forthwith and to immediately cease enforcing the effects of sections 85 & 86 of the TMA 2004 until the appropriate signage is placed or an exemption is enacted by statute”.

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=traffic+management+act+2004&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1606563&ActiveTextDocId=1606769&filesize=368

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&Year=2009&number=1116&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=3581767&ActiveTextDocId=3581775&filesize=4762

Coblcris

Excellent !

JustThisGuy_2

Further to TheBogsDollocks's absolutely brilliant note, I have written this up all legal-like. Opinions welcome. (The site won't let me HTML-link the relevant bits of law, but TBD's articles above have them)

The City of Westminster's road to its present, alleged status as an SEA is somewhat convoluted. s76(1) Road Traffic Act 1991 provides that "the Secretary of State may make an order designating the whole, or any part, of that [London] authority's area as a special parking area." The Road Traffic (Special Parking Area) (City of Westminster) Order 1994 came into force in July 1994, designating the City of Westminster as an SPA, including Soho Square. This SPA became an SEA by virtue of s84 Traffic Management Act 2004, with the provisions in Schedule 10 para 1:

"(1) The Secretary of State may... make an order designating the whole or part of that [London] authority's area as a special enforcement area... (5) An order in force immediately before the commencement of this Part of this Act under section 76 of the Road Traffic Act 1991 (c. 40) designating an area in Greater London as a special parking area has effect on and after the commencement of this Part of this Act as if it were an order under this paragraph designating the area as a special enforcement area."

Attention is drawn to the fact that the City of Westminster is an SEA by virtue of Schedule 10 para 1(5).

The law regulating the enforcement in SEAs is s86 Traffic Management Act 2004: "(1) In a special enforcement area a vehicle must not be parked on the carriageway adjacent to a [dropped] footway... (9) The prohibition in this section is enforceable as if imposed... (a) in Greater London, by an order under section 6 of the Road Traffic Regulation Act 1984 (c. 27)". Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, issued under the Road Traffic Regulation Act 1984, provides:

"4. [Part III] of these Regulations apply to orders made or proposed to be made by a local authority under section...6 of [the Road Traffic Regulation Act 1984]... [Part III]... 18(1). Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure- (a) before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road; (b) the maintenance of such signs for so long as the order remains in force".

This latter provision requires local authorities to post signs where orders are made under s6 RTRA 1984, including s86 TMA 2004. The Local Authorities' Traffic Orders (Procedure)(England and Wales)(Amendment)(England) Regulations 2009 inserts two extra paragraphs on regulation 18 of the 1996 Regulations:

"(4) Nothing in this regulation requires the placing of any traffic sign on or near a road, or the maintenance of such signs, in a special enforcement area in England for the purpose of providing information to road users as to the effect of section 85 or 86 of the Traffic Management Act 2004 in that area.
(5) In paragraph (4) a "special enforcement area" means an area designated as a special enforcement area by means of-
(a) an order made under paragraph 1(1) or 3(1) of Schedule 10 to the Traffic Management Act 2004; or
(b) an order which, by virtue of paragraph 2(5) or 3(5) of that Schedule, has effect as if it were an order so made."

This amendment purports to remove the requirement for signs in an SEA for the purposes of s86 TMA 2004. However, it only actually does so to SEAs created under Schedule 10 TMA 2004, para 1(1), 3(1), 2(5) or 3(5). It does not cover an SEA created under para 1(5). While the intention might have been otherwise, the law explicitly still requires signs for sections 85 and 86 TMA 2004. Since such signs are not present, the PCN is invalid.