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Offline The Bald Eagle

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TPT submissions to the Transport Select Committee
« on: 26 April, 2013, 03:36:09 PM »
This is brilliant! :aplude: :aplude: :aplude: :aplude: :aplude: :aplude:

I particularly like 9.1, which is firmly aimed at Medway council and the way they are dealing with the bus lane in Chatham. Rest assured, that paragraph is definitely going to feature in our next letter to Medway council and our representations to the District Auditor.

And as for that 1961 letter from Chief Constable Robert Mark, the TPT have hit the nail firmly on the head by questioning how far we've come since it was sent.

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Written evidence from Traffic Penalty Tribunal Adjudicators (PE 11)

1 Introduction.

1.1 This submission is sent on behalf of the Traffic Penalty Tribunal (“TPT”) Adjudicators. We have read the questions posed by the TSC and considered that many of the appeals we have heard provide examples of situations that impact on the TSC’s questions. We have made some general observations at the outset and then turned our attention those question we consider it appropriate to address. We would also observe that while the TSC refers to parking enforcement, we assume they will also consider the wider civil enforcement powers for moving traffic, particularly bus lanes outside London.

2 General Observations

2.1 The entire Civil Enforcement Scheme relies on the sensitive and important relationship between regulations, enforcement and policy.

2.2 While new technology has given authorities and contractors an ever increasing ability to detect minor contraventions – even where a vehicle may have come to a halt but not necessarily been stationary – the regulations upon which the vigorous and rigorous enforcement is about, have not been brought up to date or made fit for purpose.

2.3 The Road Traffic Regulation Act 1984 (“RTA”) was itself based on earlier legislation from the 1960s and many of the powers and terminology in relation to parking have not been amended or altered to take into account modern life. It must be remembered that in 1984 there were no mobile phones or sat-navs, and the internet had not been invented. The language that emanates from early legislation has even filtered through into the 2007 TMA regulations, which in places refers to parking as “allowing a vehicle to remain at rest”. (Imagine leaving the house saying, “Darling – where have you allowed the car to remain at rest?).

3 Traffic Regulation Orders (TROs)

3.1 Incomprehensible drafting frequently is used in the TROs that underpin the traffic management schemes. The 2006 TSC report considered TROs and made recommendations at pages 94 and 95. These have largely remained unheeded and many authority’s traffic regulations orders are still shambolic and unwieldy.

3.2 It is fundamental to both polices and enforcement that the regulations are expressed in plain. simple English, that the public can read and understand. Fleet operators should be able to check online when delivering is banned and where there are loading bays; disabled drivers should be able to see where there are bays near their destination. Neither group should have to rely on other people at the destination to tell them what the parking rules are.

3.3 It is also the case that the existing TRO and signing regime is not necessarily flexible enough to enable authorities to achieve their objectives. An example of this problem came before the adjudicators in appeals against a city where Friday and Saturday nights became a problem for the local authority and police alike. Most of the city centre was pay and display for daytime parking but the council wished to restrict parking, indeed stopping, altogether on Friday and Saturday nights. The only mechanism that the authority could come up with was to convert the pay and display bays to loading bays on Friday and Saturday nights, although loading and unloading at night would have exacerbated the problems. This was, possibly, a device to ensure that the bays were not used. Contraventions were rigorously enforced by towing away vehicles and inevitably these cases came before adjudicators.

4 Exemptions

4.1 The long-standing standard exemptions in TROs are for loading and unloading (delivering and collecting), and setting down passengers. These have survived through from the earliest road traffic legislation. However in the modern world people pull up to the side of the road for any number of reasons not envisaged in the old exemptions. . Many local authorities appear to believe there is no right to bring your car to a temporary halt where there is a waiting restriction in order to deal with one of these problems safely, whereas these modern-day occurrences call for sensible and considerate handling of representations. Adjudicators have, with some alarm, heard council officers say that Members have suggested a ‘zero-tolerance’ policy, which cannot be
appropriate.

4.2 A clue to these problems lies in the term “waiting” restriction. This is traditionally implied that the vehicle is there for more than a fleeting moment and has simply been brought to a halt and moved out of the flow of traffic (we have dealt with several appeals where the appellant has had to go through the process when it is apparent from the video that the vehicle is not stationary).

4.3 An example of how exemptions need to be realistically interpreted is the setting down exemption. It is widely recognised today that a driver can no longer just pull up and tell a small child or infant to get out of the car ring the door bell of adjacent premises - they need to be escorted to the custody of another adult. So when setting down an infant with a push-chair and baggage the driver needs to get out of the car and take the child in. This also applies to the infirm and disabled and the very elderly. However there is no formal exemption for this and traditionally setting down was confined to two minutes. Therefore the interpretation of this exemption has had to widen.

4.4 he problem of a traditional narrow interpretation of the setting-down exemption was highlighted in the High Court case of R(Makda) v The Parking Adjudicator [2010] EWHC 3392 (Admin,) where Mr Justice Burnett readily recognised that the setting down and picking up exemption nowadays allows a mini cab, having been booked to collect a fare, to wait or leave the car to find the passenger. This is not the thin edge of the wedge about relaxing parking restrictions but recognises the realities of modern life and the importance of private-hire vehicles and taxis as a public service in the traffic management.

5 Applications to the High Court

5.1 The Makda case raises another important issue – in that case it was the PHV drivers who had apply to the High Court to challenge the adjudicator’s strict interpretation of the exemption. However, an application to the High Court brings the risk of significant costs.

6 Good Vehicles

6.1 Another example is that of goods vehicles. The definition of goods vehicles – that vehicle has been made, constructed or adapted for the carriage of goods, is not thought by authorities to embrace vehicles with 5 doors such as hatch-backs and people-carriers. It is clear that a vast amount of commercial business is now conducted from these types of vehicles which are not truly goods vehicles in the old fashioned sense. And yet many authorities refuse to accept that a vehicle that has the back seat down and is being used for a commercial purpose constitutes a goods vehicle. Therefore there is an urgent need for this to be addressed preferably in legislation that otherwise in better guidance for the government.

7 The Law Commission

7.1 All in all there appears to be an urgent need for a new and fit for purpose Road Traffic Regulation Act. It has long been the view of the adjudicators that parking enforcement both public and private should be subject to the scrutiny of the Law Commission. Whenever we have raised this we have been met with the response that the Law Commission has better things to do than consider something so trivial as parking, yet they have recently produced an important and significant report on taxi and private hire vehicles, which clearly demonstrates the complexity of the area of law relating to road traffic, highways and the functions of local authority.

7.2 The problems that have recently been raised about parking on private land demonstrate clearly the legal complexity of parking enforcement. Parking on private land has always been subject to the common law of tort (trespass), and in the case of privately operated car parks, the law of contract. However the Protection of Freedoms act has endeavoured to impose the quasi-regulatory scheme on the enforcement of undesirable parking on private land. Those provisions were never truly intended to be a tool for car park operators to use but that is a consequence, intended or not. This is a complex area of law that should properly be considered by the Law Commission, in a wider reaching report.

7.3 The Law Commission could also consider whether authorities should be able to serve notices electronically on, say, registered keepers who have indicated on the registration at DVLA that they will accept service in an electronic format. While the regulations permit the tribunals to serve and accept communications from the parties in electronic format, the enforcement authorities are obliged to send all notices by first class post, notwithstanding that the vehicle owner may have submitted representations by email. Not only does this add significantly to the cost (especially with the new rates and size provisions introduced by the Royal Mail), it cannot really be said to be any more reliable than the new forms of email where service can be established by the sender.

Continued below:
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Offline The Bald Eagle

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Re: TPT submissions to the Transport Select Committee
« Reply #1 on: 26 April, 2013, 03:36:39 PM »
Continued:

8 Guidance

8.1 The Statutory Guidance issued by the Secretary of State under the Traffic Management Act is little more than a recitation of the regulations themselves. The more useful guidance has been issued as Operational Guidance but this does not carry the weight of statutory guidance. Adjudicators have come across numerous occasions where councils do not follow the Guidance in particular and more recently in relation to the use of camera enforcement. It bewilders, and indeed annoys, appellants when the adjudicator has found that a council has disregarded Guidance, but cannot allow the appeal. The only redress is to refer the case back to Chief Executive of the Council, thus delaying the outcome of the case with no certainty for the appellant that they will be absolved from paying the penalty. Not surprisingly, they point to the fact that a small mistake on a driver’s part will result in a penalty being imposed.

8.2 If, for example, camera enforcement is used contrary to Guidance, where there is no loading ban (and we have several such cases) a vehicle that has stopped, say for the driver to consult the sat-nav, in the old days of the CEO, the CEO would see the driver of the vehicle and the driver would see the CEO, and they may have a conversation. This would not result in the CEO issuing a PCN. However if the vehicle is filmed by CCTV and the vehicle owner is sent a PCN a fortnight later, at first they may not remember the brief incident where they pulled over. They then have to make representations to which the authority, more likely than not, will simply say that there is no exemption to pull over to consult the sat-nav. The trouble is that once the PCN is issued many authorities tend to treat it as a ‘debt’ which can only be set aside in exceptional circumstances.

8.3 Have we really come so very far from the principles laid out by Chief Constable Robert Mark (later Sir Robert Mark, Commissioner of the Metropolitan Police) when he introduce traffic warded in Leicester as a pilot in 1961?

Chief Constable’s Office,
Charles Street,
Leicester,
April, 1961.

INSTRUCTIONS TO TRAFFIC WARDENS

1. YOUR PRIMARY ROLE — PREVENTION
You are clearly to understand that your primary function is to help vehicle drivers in streets in the centre of Leicester where waiting is prohibited. You are to do so by:
(i) preventing the unwitting commission of ‘waiting’ offences; and
(ii) informing vehicle drivers of the parking facilities available to them.
Your efficiency will not be determined by the number of prosecutions you initiate, or by the number of fixed penalty forms you issue, but by the freedom of your patrol area from vehicles parked in contravention of the law.

2. COURTESY
You must always be polite to all vehicle drivers notwithstanding that at times you may feel that you are not accorded by them the civility and co-operation that you are entitled to expect. Remember that many of the people with whom you will deal will have little or no knowledge of the laws relating to parking and waiting. Some of them will have no knowledge at all, of their own obligation to avoid causing inconvenience to others and some may consider that their own interests should prevail over those of the public. Try to maintain a courteous attitude notwithstanding that you may be subjected to much provocation. Never invoke for any retaliatory reason the power of enforcement with which you are invested by law. If you decide that it is your duty to invoke it, do so firmly but without departing from the high standard of politeness and good manners expected of a public servant.

3. YOUR SECONDARY ROLE — IMPARTIAL ENFORCEMENT
Your secondary purpose is to enforce the law in respect of waiting offences when you have not been able to prevent them; to that end you must be firm and impartial. You must remember that everyone in this country is equal before the law and that only when faced with a claim for diplomatic immunity need you be concerned about the identity of the person with whom you are dealing. You should invite the claimant to give his name and address and to specify the diplomatic mission to which he belongs. If you act firmly and politely when dealing with vehicle drivers, you are unlikely to give any serious cause for complaint.


9 The TSC’s questions

9.1. How effective is the Traffic Penalty Tribunal?

This question is principally addressed in the submission made on behalf of TPT as an organisation. In particular we are pleased that our initiative of dealing with appeals where either party wants an oral hearing, on the telephone. At first it may seem strange that they are so successful, but adjudicators particularly appreciate the participation of council officers, as do the appellants. This is especially the case where the appellant wishes to explain the full circumstances and the council officer has an opportunity to hear the evidence and ask questions. Often these cases result in suitable discretion being exercised to the satisfaction of both parties. However we are not deaf to the constant criticism of TPT, and probably PATAS, that adjudicators are inconsistent. First, there is perceived, and a certain amount of actual, inconsistency in all jurisdictions; otherwise there would not be a need for a strata of higher courts. As a first instance tribunal, adjudicators cannot bind one another’s decisions, nor are they bound to follow the decision of a fellow adjudicator. Having said that adjudicator endeavour to apply a consistent interpretation to the fundamental legal provisions of the jurisdiction.

A particular area of concern to councils and adjudicators alike is where an authority embarks on, say, bus lane enforcement, or introduces a new scheme, or alters an existing one. The first few appeals may be dismissed because the authority produces ‘library’ picture of the signs, which initially appear reasonably to reflect the restriction. However, in some areas ‘hot spots’ develop where there are progressively more appeals, and it emerges from appellants’ descriptions of, for example, how they approached the restriction, that the positioning of the signs are far from adequate. Therefore later decisions about a site might appear to be inconsistent with earlier ones. This is not inconsistency, but a proper consideration of inevitably different evidence from appellants. It is of concern that there are examples of authorities ignoring the later decisions, but persisting in sending drivers copies of the earlier ‘dismissing’ decisions.

Appellant evidence also explains other examples of apparent consistency; in one case the adjudicator might allow the appeal because the appellant is credible whereas in a similar case from the council’s point of view, the appeal is dismissed because the appellant is not believed.

9.2 Should parking policy in London be subject to separate provisions and guidance, given, in particular, its large parking revenue surpluses, its more integrated public transport network and the number of foreign registered vehicles in the city?

The whole point of civil enforcement is that powers exist to enable each authority to devise policies, introduce regulations and enforce them to the level required to tackle the problems in their own area, whether it is Westminster or Weston-super-Mare. There are sufficient powers available to all authorities to manage traffic in ways appropriate to their locality and meet the needs of their citizens and visitors. To give London authorities additional powers not only detracts from the fundamental principle of the Traffic Management Act in creating a single enforcement regime and framework for authorities to enforce minor traffic contraventions, but serves to confuse, for example, fleet operators, who have to remind themselves of the jurisdiction that has given rise a particular penalty. The London Local Authority Private Acts of Parliament, that are not subject to consultation, can confound motorists’ understanding of what conduct is subject to a penalty in different areas of the England, of which London is still a part.

9.3 How can local authorities strike a balance between using parking policy to manage congestion and using it to encourage people into town centres?

We have received numerous appeals recently where councils have extended charging hours into the evening, and visitors, without realising, have parked as usual going off without reading the pay and display machine. Many have said that if they have to pay for parking in the evening they might as well stay at home and not go out for their affordable treat to take advantage of the ‘early bird’ deals in restaurants and bars. A restaurant owner explained that the ‘early’ diners effectively covered the staff wages, and if that trade dried up the restaurant would probably close. Appellants question if the extended hours are introduced for traffic management purposes. We have also had appeals where car-park charging hours have been extended in rural areas where people walk their dogs. Regular dog walkers ask why.

9.4 Are there steps local authorities can take, while managing congestion, to make it easier for businesses to trade and make deliveries?

An important measure would be to ensure that the TROs actually allow trade vehicles to deliver to business premises. For example, adjudicators encountered problems in one city where a row off licensed chain restaurants were on the side of the main road where loading was banned at all times. On the other side of the road was a church adjacent to a single yellow line with no loading ban (presumably for funerals). So deliveries to the bars could only lawfully be done by the drivers crossing the busy road with loaded trollies, or by unlawfully parking adjacent to the premises to which they were delivering. The authority, of course, had licensed the premises as well as making the TRO.

The problem may be that is it is long-winded and costly to change regulations, yet it must be right that they cannot be changed on an ad hoc basis. However, it is clear that effective and properly thought out TROs are essential to enable commercial, and indeed leisure, activities to take place in all communities.

A further problem for deliveries is that there are no clearly expressed rules as to where loading and unloading can take place, for example, it has traditionally been presumed that these activates can take place in permit bays (how else are home deliveries achieved?), yet some authorities maintain that, even though there may be very long permit bays, unloading is not allowed. In our view the Department for Transport needs to issue unequivocal guidance about these matters.

9.5 Are parking signs clear and comprehensible? To what extent are unclear signs and instructions the cause of breaches of parking control?

On the whole parking signs are well known and recognised across the nation. The Highway Code and the written driving test reinforce familiarity. Increasingly schemes are introduced where there is an entry sign to, for example, a permit zone, without road markings thereafter. There are meant to be adequate repeater signs, but it is not clear what is regarded as adequate. Residents, of course, know about the permit parking arrangements and are not concerned with the signs, which are principally there for visitors. If, for whatever reason a driver misses the (small) entry sign, and there are no road markings, how can they know that all parking is for permit holders? The answer is: by sensitive enforcement that explains the restrictions to those who misunderstand them for the first time, rather than inflexible enforcement that tends to turn ordinary lawabiding folk into campaigners. Additionally, both delivery vehicles and blue badge holders can be confused as to whether they can park in these areas, so it is incumbent on the authority to make it clear what rules actually apply.

March 2013
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Offline The Bald Eagle

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Re: TPT submissions to the Transport Select Committee
« Reply #2 on: 26 April, 2013, 04:06:25 PM »
And just in case you have the time and inclination, here is a link to the rest of the submissions.

We are at PE27.

It's only 294 pages so shouldn't take you long. :rotfl:

http://www.parliament.uk/documents/commons-committees/transport/PE%20Memos.pdf

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EDW2000

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Re: TPT submissions to the Transport Select Committee
« Reply #3 on: 27 April, 2013, 04:40:40 PM »
Tell a patas adjudicator about the need for consistency and they use the 'we are not bound by other Adj. decisions'
as some sort of weird badge of honour.

There is also a potentially very important patas decision pending on the quality of decisions given
and the need to fully answer the points raised along with whether what the meaning of

'have regard to' means S.87 TMA 2004

with regard to following stat' guidance and use of cctv for parking.


« Last Edit: 27 April, 2013, 06:02:50 PM by EDW2000 »

Offline The Bald Eagle

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Re: TPT submissions to the Transport Select Committee
« Reply #4 on: 18 June, 2013, 10:15:53 AM »

http://www.parliament.uk/documents/commons-committees/transport/PE%20Memos.pdf


I can't make this bloody link work. :bashy: :bashy: :bashy:

Heeeeeeeeeeeeeeeeeeeeeeeellllllllllllllllllllllllllllllllllllllllllllllppppppppppppppppppppp!!!!!!!!!!!
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Offline Ewan Hoosami

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Re: TPT submissions to the Transport Select Committee
« Reply #6 on: 18 June, 2013, 01:14:13 PM »
Thanks for those (very fine) links EDW. I have a small suggestion. Patrick Troy (or Pat Trickus Troyus as The Bald Eagle knows him or simply filthy lying cocksucker to the rest of you.) prepetuates the myth that no money is made from enforcement. 

Quotus bullshitus: "It is worth saying as an aside that many local authorities do not make a surplus, despite what the media might have us believe."

Now let's assume for one moment that Patrick Troy is telling the truth. The council's will back him up because they are often singing from the same song sheet. If the money from PCNs were to be diverted to the treasury this would save the weasels an absolute fortune. They can't even have a legitimate reason why they would want to be burdened with it at all. After twenty odd years, no one has made a single penny. It's clearly not working out so the entirety of the current regime might like to consider a career change. I understand copious amounts of bullshit is an advantage in farming.
Appealing to the council is like playing chess with a pigeon. You might be a chess grand master but the pigeon will always knock all the pieces over, shit on the board and then strut around triumphantly.

EDW2000

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Re: TPT submissions to the Transport Select Committee
« Reply #7 on: 18 June, 2013, 02:08:35 PM »
Page 16, para 3, I wonder who caused that bit of refund mischief? :dancing:


We now have a very unsatisfactory situation with Islington where they have a road
junction that has caused many problems. A parking appeal a month or two months ago
decided that the traffic order was not correct.
They agreed that they had not updated it. Apart
from the difficulties, that was a genuine and quite innocent mistake of carelessness. They
have agreed that they are going to refund the money, so that is very good, except that they
have put a little advert on the website that nobody knows about and nobody will know about.
I can tell you from experience that they will get no more than a 1% response to that. What
they have not realised is that none of that money belongs to them and they cannot do as they
like with it. They must dispose of it. The only way is to refund it to those who paid. The
situation of importance there is that they know everybody who has paid it. They have all the
details of who paid it, when and how much they paid.
The second thing is that the reality is that they have said to every one of those people,
“You contravened the regulations. You owe us £70,” and they paid up. They must then
correct themselves by saying, “We apologise. You did not owe us £70 and the money is
available to refund. You may claim or apply for a refund.” They do not have to appeal for it;
there is nothing to appeal. They have to be notified of the opportunity to obtain a refund. That
means that they must be made aware of it; it is as simple as that. If I found your handbag that
you dropped on the bus and it has your name and address in it so I know whom it belongs to,
the onus is on me to contact you to say, “I have your handbag. Would you like it back?” It is
up to you to say, “Yes, I want it back,” strangely enough, but I cannot keep it to myself if I
know whom it belongs to. It is just the same situation with the refunding.
I should say that in our note there was a reference to the Fraud Act, which is very
unlikely. That is only in certain cases, but it certainly engages the Theft Act because it is a
dishonest appropriation of property, with the other simple conditions that apply.
« Last Edit: 18 June, 2013, 02:27:50 PM by EDW2000 »

 


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