Council Specific & Schunt Reports > Newham

Another poor trader is robbed by Newham Council to the tune of £5000

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Robinthehood:
Case Reference: 2120217541
Appellant: Chicken & Pizza Point
Authority: Newham
 :bashy: the Contravention: Footway parking (one - four wheels on footway)
Decision Date: 28 May 2012
Adjudicator: Henry Michael Greenslade
Appeal Decision: Refused
Direction: None
Reasons:
1.    In this appeal, Mr Abdul Ghafoor was represented by Miss Diana McGuiness, appearing on behalf of a company called K M Legal Advisory Limited; the Enforcement Authority, the London Borough of Newham, were represented by Mrs Rutu Shah, Senior Processing Officer of the Council, assisted by Mr Masoof Rahman, Processing Officer.
    2.    I note at this stage that Miss McGuiness initially sought an adjournment of the hearing to another day. This was opposed by the Enforcement Authority representative. Miss McGuiness referred to an application to the European Court of Human Rights. In a letter from K M Legal Advisory Limited, received at the Parking and Traffic Appeals Service the day prior to the hearing, it was stated simply: 'We are now looking into making an application to the European Court of Human Rights.' Having also referred to a Judicial Review, it continues 'For the said reasons, we request that a stay be granted in relation to the above manner [sic] until disposal of the ECHR application.'
    3.    No further details were submitted and no copy of any application was produced by Miss McGuiness. In any event, in order for any such application to be made, domestic remedies must be exhausted. This would of necessity mean that the matter of any parking contravention had to be considered by the Adjudicator.
4.    In his Order of 10 April 2012, to which I will refer later, Mr Justice Ouseley stated 'The question of whether the Claimant [the Appellant] has been parking unlawfully is one for the Parking Adjudicator on appeal against the PCNs.'
5.    The Adjudicator is, nevertheless, always mindful of the provisions the European Convention on Human Rights, as incorporated into the law of this jurisdiction by the Human Rights Act 1998 whilst considering an appeal but the scheme established under the Traffic Management Act 2004 has not been found to be incompatible and the Adjudicator is bound by the law as it now stands.
6.    Having considered the matter I did not find that the interests of justice required the appeal being adjourned at this late stage but I did, however, allow Miss McGuiness some considerable further time to prepare. Eventually, all parties indicated that they were ready to proceed. I will return to this and the matter of representation later.
7.    As to the facts, there is no dispute that the Appellant trades as Chicken and Pizza Point from an address in Leytonstone Road and has apparently done so for over twenty years. As the name of his establishment suggests, the Appellant sells takeaway food from the premises and, of particular relevance in this matter, provides the opportunity for purchases to be delivered. For customers availing of this useful service, the hot food is transported to them by motor scooter, in a box specifically attached to the rear of the scooter for this purpose. Such type of vehicle is a familiar sight in any town or city. The riders of the scooters collect the orders from the Appellant's premises and, whilst doing so, leave the vehicle waiting nearby. Exactly where they are left, and in what circumstances, is a live issue in this matter.
8.    This is one of twenty-seven appeals before me in which the parties agree that, although more than one vehicle is involved, the issues are identical. It is therefore agreed by the parties that I deal with all the cases together. A twenty-eighth appeal (PATAS 2120217712) originally listed for hearing today has been formally allowed as, shortly before the hearing, the Enforcement Authority indicated that they no longer sought to contest it. The Enforcement Authority stated at the hearing that this was due to a technical error in their evidence rather than any acceptance of the Appellant's case.
9.    A contravention under Section 15(1) of the Greater London Council (General Powers) Act 1974 as amended and by Section 15 of the London Local Authorities Act 2000 and Section 8 of the London Local Authorities and Transport for London Act 2008 occurs, and is enforceable under Paragraph 3(2)(a) of Schedule 7 to the Traffic Management Act 2004, if a vehicle is parked anywhere in Greater London with one or more wheels on or over any part of a road other than a carriageway or on or over a footpath, unless an exemption applies. There is no such exemption at this location. The restriction applies twenty-four hours a day seven days a week. There is no requirement for any signs. Section 8(5)(a) of the 2004 Act provides that 'footpath' means a highway over which the public have a right of way on foot only, not being a footway.
10.    These Penalty Charge Notices were all served by post under Regulation 10(1)(a) of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 on the basis of a record produced by an approved device.
11.    The parties agree that in none of the appeals is there any dispute as to ownership of the particular vehicle or to any issue regarding camera enforcement.
12.    Although the vehicles were always parked in much the same place on Leytonstone Road, originally there were railings or a barrier between the vehicles and Appellant's premises. Photographs/digital images of the location with the barrier still in place have been produced and it is of a type often seen in London, particularly at busy corners, crossings and junctions. As is happening now in many parts of the capital, the Enforcement Authority are removing unnecessary street furniture for safety and aesthetic reasons. 
13.    The result is that, although parked where they were previously, the motor scooters are now more obviously on what might be thought of as the pavement. It is agreed that, although resurfacing may have taken place, the level of the ground where the motor scooters were parked was always the same as it is now. Specifically, it has not changed since the removal of the barrier and was always higher than the level of the carriageway.
14.    This contravention is often referred to as 'footway parking', whatever the exact position of the vehicle. On road, the prohibited area is generally all land from the edge of the carriageway to the building line. It includes 'crossovers' which give access from the road to adjoining premises.
15.    At this particular location, at the edge of what would generally be called the pavement, there is a kerb and then, at a lower level, the carriageway. In the part of Leytonstone Road where the vehicles were parked, the carriageway is marked with a single yellow line along the edge.
16.    Although not raised on behalf of the Appellant, and only briefly mentioned on behalf of the Enforcement Authority, I remind myself that under Section 15(3)(d) of the Act of 1974 as amended, a contravention does not occur if a vehicle is parked on the footway and the [motorist] shows that it was for the purpose of loading or unloading goods for a period not exceeding twenty minutes or such longer period as the council may permit and (i) the loading or unloading of the vehicle could not have been satisfactorily performed if it had not been so parked; and (ii) the vehicle was not left unattended at any time while it was so parked.
17.    Again there is no real dispute, and I find as a fact that, in each and every case, whether or not the vehicle was left unattended at any time, any loading of chicken, pizzas or any other item that may have been taking place, was not such that it could not have been satisfactorily performed if the vehicle had not been parked where it was.
18.    I am referred by the Enforcement Authority to the decision of Lord Justice Sedley, refusing leave to appeal to the Court of Appeal in The Queen on the Application of Dawood -v- Parking and Traffic Appeals Service and Another [2009] EWCA Civ 1411, which in effect confirmed that whether or not a particular location is 'footway' within the meaning of Section 15 of the 1974 Act as amended, is a matter for the Adjudicator to determine. I am more than familiar with this case at first instance.
19.    Miss McGuiness' submissions are that:
    a.     any obstruction caused by the Appellant's vehicle was not unlawful;
        b.    the Appellant enjoys an easement in respect of the area where the vehicles were parked; and
c.    the Appellant had a legitimate expectation that no Penalty Charge Notice would be issued.
        20.    I will deal with the issue of obstruction first and quite briefly. I am referred to Section 137 of the Highways Act 1980, which provides:
    If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.
        I am also referred to the case of Hirst and Agu -v- Chief Constable of West Yorkshire (1987) 85 Cr App Rep 143 in which this provision was explored in some detail. The case involved animal right protestors handing out leaflets on the footway.
    21.    This submission is, with respect, somewhat misconceived. Numerous statutes, regulations and byelaws apply to all kinds of activities that may take place on the footway. Prohibitions and restrictions may or may not be enforced. The 1974 Act as amended applies specifically to motor vehicles and, under the Act, the vehicle need not be causing any actual obstruction for the contravention to occur.
    22.    Miss McGuiness submits that the Appellant was 'authorised by an easement' to park his motor scooter on the public footpath. No evidence of this was produced but, again, it is not the relevant test. A common situation that Adjudicators consider is when a vehicle, particularly a motor scooter or motorcycle, is parked on what are often know as pavement lights. Land Registry plans may even be produced showing the particular area to be included as part of the adjoining private property. However, that does not mean that the public do not have the right to pass and re-pass or that it is not part of the road within the meaning of the 1974 Act as amended. This is a question of fact for the Adjudicator to determine on the evidence.
    23.    As to legitimate expectation, if it ever had any place in tribunal proceedings, then as far as parking appeals are concerned, the specific provisions of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations') provide the only possible grounds of appeal that the Adjudicator can consider.
    24.    The fact that Penalty Charge Notices may not have been issued to vehicles parked in exactly the same position for many years passed is raised in appeals that come before Adjudicators relating to footway parking, perhaps more than any other single contravention.
25.    The fact is that not every contravention that occurs can actually be enforced and local authorities may have to prioritise enforcement based on local needs and conditions. These may naturally change from time to time.
26.    Prior to works commencing on the footway on Monday 16 May 2011, a letter bearing the logo of F M Conway Limited and London Borough of Newham was sent to addresses in Windmill Lane and Leytonstone Road including, it is accepted, the Appellant's, indicating that the works would commence and that the "foot/highway" should be kept clear. It also stated that "parking restrictions will be of a temporary nature and cleared at the end of the working time in that location."
27.    Whilst not written in the clearest grammar, this was obviously intended to mean that restrictions on the carriageway would be greater that they were before. However, the footway parking prohibition applies twenty-four hours a day, seven days a week.
28.    In any event, it would have been clear to the Appellant by the date of the first contravention that I am considering that the Enforcement Authority were now enforcing at this location.
    29.    Finally, when considering the possibility of collateral challenge in London Borough of Camden -v- The Parking Adjudicator [2011] EWHC 295 (Admin), Mr Justice Burnett held:
    The restatement and reformulation of the powers of Parking Adjudicators in the Appeals Regulations show public law issues do fall to be considered in the appeals process but only in so far as the regulations themselves allow it. There is no independent roving commission to identify public law failings with consequent power to allow appeals outside the relevant regulations.
      30.    At the end of the day it does remain the responsibility of the motorist to check carefully on each occasion before leaving their vehicle, so as to ensure that they park only as permitted and that this will remain the position for as long as the vehicle will be there. Rule 244 of the current edition of the Official Highway Code, which is of course advisory, states:
    You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it. Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs.
        31.    Considering carefully all the evidence before me, I must find as a fact that, on each occasion, a contravention did occur and thus each Penalty Charge Notice was properly issued.
    32.    These Penalty Charge Notices have apparently be the subject of much correspondence between the parties.
33.    An application to the High Court was made in respect of the barrier or railings in Leytonstone Road and also these Penalty Charge Notices. The Appellant sought interim relief and this was refused by Mr Justice Ouseley, when he made the observations I have referred to.
34.    By fax on 14 May 2012, K M Legal Advisory Limited, on behalf of the Appellant, sought an adjournment of this hearing in the following terms: 'A Judicial Review is pending in relation to the above case and as such we would like to request a stay on the above proceedings until the outcome of the Judicial Review.'
35.    When the Enforcement Authority's view was sought on this application for an adjournment, the Parking and Traffic Appeals Service were informed that, on 11 May 2012, Mr Justice Stadlen had refused permission. I therefore refused the application for an adjournment and indicated that the parties should be ready to proceed on 22 May 2012. The administrative staff of the Parking and Traffic Appeals Service informed K M Legal Advisory Limited of this by telephone at about 15:45 that same day, 14 May 2012.
36.    By fax on 21 May 2012, the day before the hearing, K M Legal Advisory Limited, on behalf of the Appellant, again sought an adjournment of this hearing in the following terms: 'The refusal to our application for Judicial Review, dated 11 May 2012 was not received by this office until the afternoon of 18 May 2012. Consequently, there has not been efficient [sic] time to prepare the case bundle in readiness for the 22 May 2012.' Miss McGuiness did accept at the hearing that K M Legal Advisory Limited had actually been informed of this fact on 14 May 2012.
37.    When I had put the matter back on the morning of the hearing, I understood that this was for Miss McGuiness' principal to have the case file sent over to the Hearing Centre. I observed that I hoped that this might be done by motorcycle courier, in order to save time. It appears K M Legal Advisory Limited never sent the case file and that Miss McGuiness therefore had to represent the Appellant on her own knowledge of the case and by the taking of further instructions.
38.    As I was unclear of the exact status of K M Legal Advisory Limited, Miss McGuiness informed me that her principal was a Solicitor but not of the of the Senior Courts of England and Wales. I would add that Miss McGuiness, appearing in a non-legally qualified capacity, was put in an almost impossible position and yet impressively represented the Appellant's case in a clear and succinct manner and certainly said all that could be on her client's behalf.
39.    Considering the current position, the Adjudicator is only able to decide an appeal by making findings of fact on the basis of the evidence produced by the parties and applying the relevant law. The Adjudicator has no power to consider mitigating circumstances of any description and I can find no compelling reasons within the meaning of the Regulations warranting the making of a recommendation to the Authority. The Enforcement Authority have, I accept, already considered the matter very fully.
40.    In totality, the penalty charges now due in respect of the Penalty Charge Notices subject of these appeals amounts to some £3,510. At the end of the hearing, I enquired of Mrs Shah as to whether the Enforcement Authority would, at this late stage, be minded in all the circumstances to accept the reduced penalty on each. This would still amount to the not inconsiderable sum of £1,755. Mrs Shah indicated that she did not have authority to make that decision and pointed out that at least one other Penalty Charge Notice was actually paid, indicating, she submitted, an acceptance of liability. Nevertheless, I would hope that the Enforcement Authority would at least give some urgent consideration to such course and, for the avoidance of any doubt or misunderstanding, notify the Appellant of their decision, whatever it may be.
    41.    In the meantime, the full penalty charge remains due for each Penalty Charge Notice and, if it is not paid within twenty-eight days, the Enforcement Authority may issue a Charge Certificate increasing the penalty charge on each to £195, being £5,265 in total.

 

Robinthehood:
I just had a call from the poor bugger.

He said he already paid over £10'000 to bailiffs >:D

All because, Newham council stole the strip of land outside his show on the other side of railings where the pizza delivery scooters used to park. This guy is near Stratford, close to the Olympics. The council was trying to beautify the area and took the railings out and add his bit to the pavement.

This is outrageous!!

 

Nigel W:
So now he can't run his business! More high council tax paying traders being driven out of business by over zealous parking enforcement.

Lord True put a stop to this activity in Richmond.  The Council 'works with businesses to encourage vibrant high streets.'

It does not do what others like Newham do. That is do their damnedest to drive shops and businesses to the wall by stopping them from parking and by stopping people visiting their premises:

"THE grandmother of a disabled MBE recipient says she will never shop in Warrington again after she was given a parking ticket."

http://www.warringtonguardian.co.uk/news/9492662.Visitor_refuses_to_return_to_town_after_parking_ticket/r/?ref=rss

seggsy:
I was given a ticket in Tunbridge Wells about 5 years ago. I vowed I would never return. Guess what, I have never been back, so the shops, cafes and restaurants of Tunbridge have missed out on 5 years of patronage, and will continue too.

I now try to avoid using Bexley and Bexleyheath, preferring to go to Bluewater where there is ample free parking.

Belplasca:
Yes - and that adjudicator has not taken into account whether there truly is a public RIGHT of way on this piece of private land or whether they are, in fact trespasing if they walk onto it. Because it's that non-existent right of way that defines what is the footway.

But the councils just point at the Dawood case and the adjudicators stop their examinations.

Just plain wrong and an infringement of the rights of the property owner.

Bob

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