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Parking ticket on a scooter - loading/unloading
TheFonz12
Posts: 3 Newbie
Dear all, I received a ticket on a loading / unloading area in Wimbledon and I'm wondering if someone can help me to understand if there is any ground to win an appeal based on the incorrect signage on the kerb.
Unfortunately I'm not able to post any link to the images in my previous post. I hope I will be able to do this later on.
I decided to appeal and I sent the following letter:
Location Church Road SW19
Contravention Parked or loading/unloading in a restricted street where waiting and loading/unloading restrictions are in force
REPRESENTATION AGAINST PENALTY CHARGES
Dear Sirs,
Thank you for your PCN of the 24th of April 2012.
I would like to make a representation against a Penalty Charge Notice received on the 24th of April 2012. Your PCN is incomplete and misleading and the road markings and signs are not according to the legislation.
1. The first objection is that the PCN does not convey the correct information as prescribed in the TMA 2004 and s1 of the Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 No. 3483. According to your PCN I should pay a penalty charge of £110 for an unknown silver vehicle. The PCN is totally wrong where it states colour, make and mode and Vel described as obscured?
One could assume that silver is referred to the colour of the bike but, according to the DVLA, the colour of the bike is white.
There is no word resembling white on the issued PCN.
2. Also I believe the PCN fails to comply with, The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, regulation 3(2)(b) as it does not correctly inform me of the time available for submitting informal representations, which is any time up until an NTO is served.
3. Concerning the on street parking and loading, the Traffic Signs Manual – Regulatory Signs 2008 states the following:
Traffic Signs Manual - Chapter 3 – Page 62
7.30 Where a parking or loading bay does not operate continuously, and there is a prohibition of waiting at certain times, a sign to diagram 639.1B should be used.
This comprises either two or three panels depending on whether there is a prohibition of loading. The upper panel is yellow and gives details of the waiting restrictions. It is based on the sign to diagram 639 and may be varied to either diagram 650.2 or 650.3 where the parking or loading bay is used as a “no waiting” taxi rank at other times, perhaps overnight. The centre panel, if any, will include details of the loading prohibition. The top and centre panel will therefore be similar in design to diagram 640. The lower panel gives details of the parking or loading conditions. It may indicate limited waiting, permit parking, disabled badge holder parking, pay and display parking, voucher parking, a loading bay, shared-use parking or disc zone parking. It has the same design as one of the signs described previously in this section, other than diagrams 801 and 661.4, or the same design as the shared-use bay sign or the “disc zone” sign to diagram 662. The permitted variants that apply to the individual signs for these parking bays also apply to the lower panel of diagram 639.1B.
The vertical sign that is located on the sidewalk (please find enclosed picture) is not mentioned anywhere in the Regulatory Signs 2008 and so it is unlawful.
4. The road marks that are present on the street and on the sidewalk are also not correct.
According to the Traffic Signs Manual – Regulatory Signs 2008, page 43, the sign 638.1 can only be combined with Road Markings 1020.1 (picture below taken from Traffic Signs Manual - Chapter 5 – page 116:
As you can see from the enclosed picture, there are no changeover points on the sidewalk and the marks should be laid so that the first and last in the series correspond with the limits of the prohibition. Where two types of prohibition meet, the more restrictive marking should be placed at the point of change (see figure 20-1). The marks should be repeated at approximately 3 m intervals, but may be varied to between 2 m and 4 m to avoid a short length at the end.
The first mark that you can also see in the enclosed picture is only after 1m90cm from the double yellow line.
5. Inspecting the Google Street Map of Church road, all the signs on the payment and the street signs are completely different from todays one, so I suppose all the new restrictions were introduced recently.
Although you accuse me of this contravention you have not provided any evidence that confirms that the restriction is supported by a legally enacted traffic order. You may possess a few photos of my vehicle but this is meaningless as evidence of a supposed contravention unless it is supported by a valid traffic order.
I require documentation that confirms the restriction in question has been legally enabled by regulations 6 to 18 of the 1996 Traffic order procedures.
I require evidence that a Notice of Proposal was published, that the statutory bodies such as the three emergency services were consulted, that those affected by living and working in the vicinity were notified, that the draft order was made available for public inspection and that a Notice of Making was also published. Evidence of DFT approval to use this non prescribed bay.
6. In addition, I am aware of the provision under section 76(3) of the Traffic Management Act;
(3)Civil enforcement officers— when exercising specified functions must wear such uniform as may be determined by the enforcement authority in accordance with guidelines issued by the appropriate national authority, and must not exercise any of those functions when not in uniform.
The council has provided no evidence that the CEO was wearing a uniform in compliance with section 76(3)(a) and with the guidance given in section 42 of the Secretary of State’s Statutory Guidance;
42. When exercising prescribed functions a CEO must wear a uniform. The uniform should clearly show:
· that the wearer is engaged in parking enforcement;
· the name of the local authority/authorities of whose behalf s/he is acting;
and
· a personal identity number.
As the wearing of uniform by the CEO is mandatory when serving a regulation 9 PCN, it is reasonable to conclude that an efficient and conscientious enforcement authority will inspect and keep a record of each officer before they begin their patrol to ensure a uniform is worn and that it complies with the guidance. Since it is a mandatory requirement, the burden of proof must remain with the enforcement authority. This principle is supported in the adjudication case between Derek Jack Hayward v London Borough of Croydon. Therefore, I require unequivocal evidence that the officer who served the PCN upon my vehicle was wearing the correct uniform in the correct manner. Without any evidence to the contrary, it is not unreasonable to assert that the PCN was served by the CEO in contravention of section 76(3)(a) thus invalidating the PCN served. A parallel can be drawn here in that where an authority fails to provide evidence that a PCN was affixed to the vehicle then an adjudicator will often allow the appeal. The wearing of a uniform is given no less mandatory weight in law than the affixing of a PCN and if the council cannot provide any records to satisfy the burden of proof then there is nothing to swing the balance of probabilities in their favor. The simple fact that a PCN was served is not in itself evidence that a uniform was worn correctly at the time of service and should not be construed as such.
7. Last but not least, the motorcycle wheels were NOT in the parking bay delimited by the white marks, and so the bike was not in a restricted loading/unloading area. Because of this the PCN is not enforceable.
If you disagree with this, I request copy of a picture supporting your claim.
I received a letter from the Council:
The PCN was issued as the vehicle was observed on xxxxxxxxx road parked or loading / unloading in a restricted street where waiting and loading / unloading restriction are in force. During loading restrictions no waiting is permitted at all, no matter how briefly the vehicle may have been parked.
The council is satisfied that the PCN does comply with all relevant legislation. A civil enforcement officer may enter the make od a vehicle, usually a motorcycle, on the PCN as unknown when they are not able to establish the make. There is no mandatory requirement for an officer to record the model and colour of the vehicle and recording the wrong colour does not invalidate a PCN nor is it grounds to cancel a PCN. On this occasion the office logged that the Vehicle Excise License (VEL) number as being obscured.
It states on the PCN, 'If the penalty charge is not paid before the end of the period of 28 days beginning with the date on which the Penalty Charge Notice is served a Notice to Owner may be served by the enforcement authority on the owner of the vehicle.
If representations against the penalty charge are received... before a Notice to Owner is served, those representation will be considered.'
At the location where the vehicle was parked there is a single yellow line that runs through this parking space, which together with single kerb markings are there to alert motorist that waiting and loading restrictions apply at certain times. It is the motorist's responsibility to then check whether restrictions are in force.
There are clear signs displayed at this parking space to advice motorists that no waiting and no loading are permitted. Monday to Saturday between 7-10am, and 4-7pm. The signs also clearly indicate that the bays are only operational between 10am-4pm.
These signs are used nationally and the order in which they appear, with the waiting restrictions at the top, the loading restrictions beneath and the permitted parking times below that conform to the Traffic Signs Regulations and General Directions 2002 and are, therefore, enforceable. The points you make relate to advisory guidance as laid out in Chapter 3 of the Traffic Signs Manual Moreover, the Introduction section of the Traffic Signs Manual states "The Traffic Signs Manual is intended to give advice to traffic authorities and their agents on the correct use of signs and road markings". The manual is for guidance only.
In the Court of Appeal case of Neil Herron v The Parking Adjudicator, Sunderland City Council and The Secretary of State for Transport in July 2011 it was held that even where a statute is clear in imposing a duty, and does so in terms that are apparently mandatory, it will not necessary be interpreted as invalidating steps taken by a public authority that are not in strict conformity with the duty. It was further held that parking restrictions are imposed by the applicable Traffic Management Order (TMO), copies enclosed, not by the sine age and markings. The purpose of the signage required by Traffic Signs Regulations and General Directions (TSRGD) is to convey to the motorist adequate information to the motorist of the relevant restrictions. Therefore, substantial compliance with the statutory specification in the tsrgd suffices as long as the signage adequately informs the motorist and does not mislead.
Notice were placed in the press, with the required consultation taking place before the TMO came into effect. Warning notices were put up on street furniture on 12 January 2012 prior to the restrictions coming into effect into effect as stated in the TMO.
The wearing of uniform is compulsory for all civil enforcement officers. At the start of the shift supervisors carry out a visual check to ensure officers comply and would only keep a record by exception. It would be unreasonable for each officer to be accompanied by a supervisor to ensure that the full uniform is worn when a PCN is served. However on the balance of probabilities the council is satisfied that the officer was wearing the full uniform, unless proven otherwise.
The council is satisfied that the PCN was properly issued and served and there are no grounds to cancel the PCN. Accordingly, I request that you make a settlement at the discounted rate of £55.00, within 14 days from the date of this letter, £110.00 thereafter.
Thank you to anyone that will reply.
Regards
Unfortunately I'm not able to post any link to the images in my previous post. I hope I will be able to do this later on.
I decided to appeal and I sent the following letter:
Location Church Road SW19
Contravention Parked or loading/unloading in a restricted street where waiting and loading/unloading restrictions are in force
REPRESENTATION AGAINST PENALTY CHARGES
Dear Sirs,
Thank you for your PCN of the 24th of April 2012.
I would like to make a representation against a Penalty Charge Notice received on the 24th of April 2012. Your PCN is incomplete and misleading and the road markings and signs are not according to the legislation.
1. The first objection is that the PCN does not convey the correct information as prescribed in the TMA 2004 and s1 of the Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 No. 3483. According to your PCN I should pay a penalty charge of £110 for an unknown silver vehicle. The PCN is totally wrong where it states colour, make and mode and Vel described as obscured?
One could assume that silver is referred to the colour of the bike but, according to the DVLA, the colour of the bike is white.
There is no word resembling white on the issued PCN.
2. Also I believe the PCN fails to comply with, The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, regulation 3(2)(b) as it does not correctly inform me of the time available for submitting informal representations, which is any time up until an NTO is served.
3. Concerning the on street parking and loading, the Traffic Signs Manual – Regulatory Signs 2008 states the following:
Traffic Signs Manual - Chapter 3 – Page 62
7.30 Where a parking or loading bay does not operate continuously, and there is a prohibition of waiting at certain times, a sign to diagram 639.1B should be used.
This comprises either two or three panels depending on whether there is a prohibition of loading. The upper panel is yellow and gives details of the waiting restrictions. It is based on the sign to diagram 639 and may be varied to either diagram 650.2 or 650.3 where the parking or loading bay is used as a “no waiting” taxi rank at other times, perhaps overnight. The centre panel, if any, will include details of the loading prohibition. The top and centre panel will therefore be similar in design to diagram 640. The lower panel gives details of the parking or loading conditions. It may indicate limited waiting, permit parking, disabled badge holder parking, pay and display parking, voucher parking, a loading bay, shared-use parking or disc zone parking. It has the same design as one of the signs described previously in this section, other than diagrams 801 and 661.4, or the same design as the shared-use bay sign or the “disc zone” sign to diagram 662. The permitted variants that apply to the individual signs for these parking bays also apply to the lower panel of diagram 639.1B.
The vertical sign that is located on the sidewalk (please find enclosed picture) is not mentioned anywhere in the Regulatory Signs 2008 and so it is unlawful.
4. The road marks that are present on the street and on the sidewalk are also not correct.
According to the Traffic Signs Manual – Regulatory Signs 2008, page 43, the sign 638.1 can only be combined with Road Markings 1020.1 (picture below taken from Traffic Signs Manual - Chapter 5 – page 116:
As you can see from the enclosed picture, there are no changeover points on the sidewalk and the marks should be laid so that the first and last in the series correspond with the limits of the prohibition. Where two types of prohibition meet, the more restrictive marking should be placed at the point of change (see figure 20-1). The marks should be repeated at approximately 3 m intervals, but may be varied to between 2 m and 4 m to avoid a short length at the end.
The first mark that you can also see in the enclosed picture is only after 1m90cm from the double yellow line.
5. Inspecting the Google Street Map of Church road, all the signs on the payment and the street signs are completely different from todays one, so I suppose all the new restrictions were introduced recently.
Although you accuse me of this contravention you have not provided any evidence that confirms that the restriction is supported by a legally enacted traffic order. You may possess a few photos of my vehicle but this is meaningless as evidence of a supposed contravention unless it is supported by a valid traffic order.
I require documentation that confirms the restriction in question has been legally enabled by regulations 6 to 18 of the 1996 Traffic order procedures.
I require evidence that a Notice of Proposal was published, that the statutory bodies such as the three emergency services were consulted, that those affected by living and working in the vicinity were notified, that the draft order was made available for public inspection and that a Notice of Making was also published. Evidence of DFT approval to use this non prescribed bay.
6. In addition, I am aware of the provision under section 76(3) of the Traffic Management Act;
(3)Civil enforcement officers— when exercising specified functions must wear such uniform as may be determined by the enforcement authority in accordance with guidelines issued by the appropriate national authority, and must not exercise any of those functions when not in uniform.
The council has provided no evidence that the CEO was wearing a uniform in compliance with section 76(3)(a) and with the guidance given in section 42 of the Secretary of State’s Statutory Guidance;
42. When exercising prescribed functions a CEO must wear a uniform. The uniform should clearly show:
· that the wearer is engaged in parking enforcement;
· the name of the local authority/authorities of whose behalf s/he is acting;
and
· a personal identity number.
As the wearing of uniform by the CEO is mandatory when serving a regulation 9 PCN, it is reasonable to conclude that an efficient and conscientious enforcement authority will inspect and keep a record of each officer before they begin their patrol to ensure a uniform is worn and that it complies with the guidance. Since it is a mandatory requirement, the burden of proof must remain with the enforcement authority. This principle is supported in the adjudication case between Derek Jack Hayward v London Borough of Croydon. Therefore, I require unequivocal evidence that the officer who served the PCN upon my vehicle was wearing the correct uniform in the correct manner. Without any evidence to the contrary, it is not unreasonable to assert that the PCN was served by the CEO in contravention of section 76(3)(a) thus invalidating the PCN served. A parallel can be drawn here in that where an authority fails to provide evidence that a PCN was affixed to the vehicle then an adjudicator will often allow the appeal. The wearing of a uniform is given no less mandatory weight in law than the affixing of a PCN and if the council cannot provide any records to satisfy the burden of proof then there is nothing to swing the balance of probabilities in their favor. The simple fact that a PCN was served is not in itself evidence that a uniform was worn correctly at the time of service and should not be construed as such.
7. Last but not least, the motorcycle wheels were NOT in the parking bay delimited by the white marks, and so the bike was not in a restricted loading/unloading area. Because of this the PCN is not enforceable.
If you disagree with this, I request copy of a picture supporting your claim.
I received a letter from the Council:
The PCN was issued as the vehicle was observed on xxxxxxxxx road parked or loading / unloading in a restricted street where waiting and loading / unloading restriction are in force. During loading restrictions no waiting is permitted at all, no matter how briefly the vehicle may have been parked.
The council is satisfied that the PCN does comply with all relevant legislation. A civil enforcement officer may enter the make od a vehicle, usually a motorcycle, on the PCN as unknown when they are not able to establish the make. There is no mandatory requirement for an officer to record the model and colour of the vehicle and recording the wrong colour does not invalidate a PCN nor is it grounds to cancel a PCN. On this occasion the office logged that the Vehicle Excise License (VEL) number as being obscured.
It states on the PCN, 'If the penalty charge is not paid before the end of the period of 28 days beginning with the date on which the Penalty Charge Notice is served a Notice to Owner may be served by the enforcement authority on the owner of the vehicle.
If representations against the penalty charge are received... before a Notice to Owner is served, those representation will be considered.'
At the location where the vehicle was parked there is a single yellow line that runs through this parking space, which together with single kerb markings are there to alert motorist that waiting and loading restrictions apply at certain times. It is the motorist's responsibility to then check whether restrictions are in force.
There are clear signs displayed at this parking space to advice motorists that no waiting and no loading are permitted. Monday to Saturday between 7-10am, and 4-7pm. The signs also clearly indicate that the bays are only operational between 10am-4pm.
These signs are used nationally and the order in which they appear, with the waiting restrictions at the top, the loading restrictions beneath and the permitted parking times below that conform to the Traffic Signs Regulations and General Directions 2002 and are, therefore, enforceable. The points you make relate to advisory guidance as laid out in Chapter 3 of the Traffic Signs Manual Moreover, the Introduction section of the Traffic Signs Manual states "The Traffic Signs Manual is intended to give advice to traffic authorities and their agents on the correct use of signs and road markings". The manual is for guidance only.
In the Court of Appeal case of Neil Herron v The Parking Adjudicator, Sunderland City Council and The Secretary of State for Transport in July 2011 it was held that even where a statute is clear in imposing a duty, and does so in terms that are apparently mandatory, it will not necessary be interpreted as invalidating steps taken by a public authority that are not in strict conformity with the duty. It was further held that parking restrictions are imposed by the applicable Traffic Management Order (TMO), copies enclosed, not by the sine age and markings. The purpose of the signage required by Traffic Signs Regulations and General Directions (TSRGD) is to convey to the motorist adequate information to the motorist of the relevant restrictions. Therefore, substantial compliance with the statutory specification in the tsrgd suffices as long as the signage adequately informs the motorist and does not mislead.
Notice were placed in the press, with the required consultation taking place before the TMO came into effect. Warning notices were put up on street furniture on 12 January 2012 prior to the restrictions coming into effect into effect as stated in the TMO.
The wearing of uniform is compulsory for all civil enforcement officers. At the start of the shift supervisors carry out a visual check to ensure officers comply and would only keep a record by exception. It would be unreasonable for each officer to be accompanied by a supervisor to ensure that the full uniform is worn when a PCN is served. However on the balance of probabilities the council is satisfied that the officer was wearing the full uniform, unless proven otherwise.
The council is satisfied that the PCN was properly issued and served and there are no grounds to cancel the PCN. Accordingly, I request that you make a settlement at the discounted rate of £55.00, within 14 days from the date of this letter, £110.00 thereafter.
Thank you to anyone that will reply.
Regards
0
Comments
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I would suggest you take this over to www.pepipoo.com and start a new thread in the council parking section.
It is normal for them to reject any appeal at this stage, but the guys over at pepipoo will be able to assist."You should know not to believe everything in media & polls by now !"
John539 2-12-14 Post 150300 -
It's already on pepipoo here:
http://forums.pepipoo.com/index.php?showtopic=70125
And we seem to have drawn a blank unless the OP wants to continue with the same arguments and hope to win anyway. There are no obvious strong points of appeal as far as I can see (I am SchoolRunMum over there and I was the last to reply but feel free to disagree if something has been missed).
To be fair, if I had ANY Counil PCN I would look to always appeal all the way, simply because most people win or Councils fold before a hearing. Even if I had a very weak case I still would give it a go these days if ever I get a Council ticket.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
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