Advice on appealing a PCN for parking adjacent to a dropped footway

wusey

Hi,

I received a PCN from Westminster Council for parking adjacent to a dropped footway on Hinde Street, at the junction with Manchester Square. My informal and formal appeals have been rejected; I will post my formal appeal as the next post. I want to submit an appeal to the Parking and Traffic Appeals Service and I would be grateful for advice how I should appeal this PCN. I list below the Notice of Rejection for my formal appeal:

The PCN was issued because the CEO believed the vehicle to be parked in front of a dropped footway.

I have rejected the Representation because although this states that the legislation regarding dropped footway enforcement is unclear, making this PCN invalid, I must advise that parking in this location is illegal, meaning this PCN was correctly served.

For future reference, Rule 243 in the Highway Code (2007( states that the motorist must not park: Where the kerb has been lowered to help wheelchair users. Westminster City Council regularly review which dropped footway locations are enforceable, and I can confirm that Hinde Street, at the junction with Manchester Square, is on the most recent enforcement list.

In general, when waiting restrictions on single yellow lines are in place PCNs will be issued for this contravention, but when controlled hours end the dropped footway remains a special enforcement area. Any vehicle parked in this location is liable to receive a PCN, so the motorist must ensure that they have checked the road markings and the adjacent footway before leaving their vehicle, seeking alternative parking if necessary.

wusey

Hi,

Listed below is the text of my formal appeal to Westminster Council:

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.

taffy056

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Good luck!