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Council Specific & Schunt Reports => Southwark => Topic started by: ElleWoods on 20 June, 2012, 11:50:09 AM
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Hi All,
Just thought I'd let you know that I recently had my PATAS hearing in relation to the PCN that I posted about before regarding the Tesco's loading bay on Southampton Way.
My appeal was upheld (yay!), principally on the basis that:
(i) The Adjudicator did not consider that the Council had shown that they had given due regard to the Secretary of State's Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions (28 February 2008) re. why CCTV enforcement, as opposed to CEO enforcement was used. The Adjudicator's decision in the case of Sainsbury's -v- Camden Council was particularly persuasive on this point.
(ii) The bay was not properly marked for its use in that there was no carriageway legend ("Loading only"). The November 2011 decision of Angol -v- Southwark Council (which was about exactly the same bay) was particularly persuasive here.
The Adjudicator did say that he did not consider that the sign (as it was then, in January 2012) was confusing, and he also stated that the bay was not required to have end markings since it is a lay-by.
He did, however, also make the point that he considered that the Council's PCN was ineffective as it did not contain enough information in the "Contravention Description" section (i.e. no reference to a Traffic Order, legislation, etc) to enable the driver to ascertain exactly what it is the Council alleges they have done wrong.
I hope that this might be of some help to others. I'll post the wording of the judgment here when I receive it.
Thanks to all who helped me on this - another victory for the law-abiding motorist against the unscrupulous, non-enforcing, money-grabbing Council!
Elle
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Well done Elle. :aplude: :aplude: :aplude:
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Another one saying that they shouldn't be using $cameras where a CEO will suffice. Well done Elle. :aplude: :aplude: :aplude:
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Well done Elle :aplude: :aplude: :aplude:
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Glad you got a result but bear in mind that previously successful grounds do not guarantee future success. As Nigel will tell you, PATAS decisions are usually dependant on whether the coin falls on heads or tails.
:bashy:
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Congrats. Ellie :aplude: :aplude: Your case is already available on PaTAS website.
Exactly Ewan. We had an appeal disallowed on the same grounds at the same bay.
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Authority: Southwark
Contravention Location: Southampton Way
Penalty Amount: £130.00
Contravention: In bay for special vehicle class e.g. motor cycles
Adjudicator: Hugh Cooper
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice.
Reasons:
xxxxxxxxxxxx appeared before me today for the personal hearing of her appeal.
She does not dispute that her car was parked in a parking place which at the time was reserved for goods vehicle loading only, as recorded by the Enforcement Authority's CCTV camera.
In her original representations and in her Notice of Appeal xxxxxxxxx set out detailed submissions as to why the Authority should not be allowed to enforce this penalty charge. Although I discussed all of these with xxxxxxxxxx at the hearing, I need only refer in this decision to two of them, which I find require me to allow her appeal.
One of her submissions was to the effect that the Authority had failed to demonstrate that they had had regard to the Secretary of State's Guidance regarding the use of camera enforcement. She cited the decision by this Tribunal in Case No 211001669A - Sainsburys Supermarkets - v - London Borough of Camden. It was only on looking at that case that I recognised it as one that I had decided. No Adjudicator is bound by the decision of another Adjudicator or even by his own previous decision, but on re-reading that decision I am satisfied that the reasoning still stands, and that it is indeed applicable to xxxxxxxxxxxxx's case.
The significant point in that decision was that whilst Enforcement Authorities are not obliged to follow the Secretary of State's Guidance, they must have regard to it, and when challenged as to whether they have in fact had such regard, they must be able to show that they have. In xxxxxxxxxxx's case the Authority have cited another Adjudicator who is said to have stated that there is no legal requirement to follow the guidance. They go on to say, "The authority would state that to ensure that as much space as possible is made available for use, any vehicle parked in an incorrect bay is a high priority for enforcement action". However this does not explain why such enforcement action needs to be carried out by camera enforcement rather than by on-street CEOs, and consequently does not demonstrate that the Authority had regard to the Guidance, i.e. that they consciously considered why camera enforcement was appropriate at this location.
xxxxxxxxxxxx contends that there has been a procedural impropriety on the part of the Authority. "Procedural impropriety" is defined in Regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations as, "a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum..." It is a requirement of the Traffic Management Act 2004 (the 2004 Act) that the Enforcement Authority must have regard to the Secretary of State's guidance. As I cannot be satisfied that this requirement has been met, I find that there has been a procedural impropriety on the part of the Enforcement Authority. It follows that I must allow this appeal.
xxxxxxxxxx also argued that the road markings of this parking bay did not comply with the requirements of the Traffic Signs Regulations and General Directions 2002, citing the decision of Adjudicator Edward Houghton in Case No 2110544676 - Angol - v- London Borough of Southwark. It does indeed appear that there is no "Loading only" legend adjacent to the bay markings, and so, for the same reasons as the Adjudicator in that case, I find that the bay was not substantially compliant and clearly signed. It follows that the Authority may not enforce a penalty charge issued to a vehicle at this location.
For these reasons I allow this appeal.
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Thanks everyone! ;D :dancing: