It's a shame we didn't run this for Pool Motors! Expect CoW to to ask for a review.
Case Reference: 2130511206
Appellant: Mr xxxxxxxxxxx
Authority: Westminster
VRM: xxxxxxx
PCN:xxxxxxxxxxxxxxx
Contravention Date: 23 Aug 2013
Contravention Time: 13:44
Contravention Location: Porchester Road
Penalty Amount: £130.00
Contravention: Footway parking (one - four wheels on footway)
Decision Date: 15 Nov 2013
Adjudicator: John Hamilton
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice.
Reasons: It is for the enforcing authority (the Authority) to prove a contravention has occurred on the balance of probabilities. An appellant does not have to prove anything. However if the authority produces sufficient evidence to support its allegation and an appellant then makes factual assertions that it is said show a contravention did not occur, there will normally be a need for the appellant to provide credible evidence in support of those assertions. The law is clear that it is the responsibility of motorists to ensure they are aware of the restriction that operate in the areas they chose to drive and park.
My power to allow appeals is limited. I can only allow an appeal if the enforcing authority has acted illegally or failed to follow proper procedures. I cannot allow an appeal if the authority has acted within the law but I feel it has acted harshly, have sympathy for the motorist or because I would have given more weight to the mitigating circumstances put forward by a motorist.
The Authority relies on the notes and photographs taken by the Civil Enforcement Officer that record the appellant's vehicle parked on the footway.
The appellant does not dispute that he was the owner and driver of the vehicle at the time in question. He says that he was unloading and points to the fact that the photographic evidence shows the boot of his vehicle was open. He says the CEO saw him unloading. He explained to me that he did not leave the vehicle unattended. He was unloading kitchen units and having jammed open the front door of the premises where they were being delivered he was leaving them in the doorway. He was never more than a 4 paces away from the vehicle. The photograph taken by the CEO was taken from an angle where he was not visible as he was putting one of the units down in the doorway, which is slightly set back from the road. He said it was not possible to park anywhere else as the units were too heavy. He could not park on the road without causing an obstruction. When the traffic lights set a little further down the road were red, traffic built up in the lane opposite where he was parked and if his vehicle had been parked fully on the road large vehicles including emergency vehicles would not have been able to pass. He showed me a video on his phone taken at the relevant location which showed the sort of traffic jam caused when a vehicle parked fully in the road. In his video a bus was unable to pass the parked vehicle and vehicles in the opposite lane had to engage in difficult and somewhat dangerous reversing manoeuvres in order to make space to let it past.
I considered whether the Authority was prejudiced by being unable to see or comment on this video but looking at the evidence as a whole, I did not consider it was unfair to admit what was no more than a factual record of an event that rebutted its claim that the road had been wide enough to allow the appellant not to have to park with 2 wheels on the footway.
The law is clear under the Greater London Council (General Powers) Act 1974 s. 15 vehicles are forbidden from parking with one or more wheels on the footway at any time. Section 15(3) of the Act provides for a number of exceptions, including where footway parking has taken place in accordance with permission given by a constable in uniform, for the purpose of extinguishing a fire or dealing with any other emergency for an exception where a vehicle is loading or unloading and there is nowhere else it can safely park in order to load/unload and it is not left unattended. It should be noted that the contravention does not depend on whether the vehicle is or is not causing any or any significant obstruction.
Having heard the appellant I am satisfied that he was unloading and that he could not have parked elsewhere safely. I also accept that he did not leave his vehicle unattended. Accordingly he meets the requirements of one of the exemptions contained in s.15 of the 1974 Act and I allow the appeal on that basis.
Furthermore, I note that the PCN was served on the appellant under Regulation 10 of the General Regulations and therefore under the Civil Enforcement of Parking Contravention and Appeals Regulations 2007, it has to contain the same information as those required for a Notice to Owner. However it was apparent that this PCN was not so compliant.
Regulation 3 (3) clearly states that the NTO/PCN must contain in general terms, details about how to appeal to the Tribunal. This has clearly not been done. A similar situation was dealt with by my learned colleague Mr Houghton in appeal number 2130236316. In that decision he sets out a detailed analysis of the law. He concluded that stating that details of how to appeal will be provided in the future (ie with the notice of rejection) is not sufficient to comply with the Appeal Regulations which require the information to be in the NTO/PCN - not in some other document that will be supplied in the future. Even taking into account the approach to making findings of procedural impropriety set out in the "Lancashire Case", he concluded that this omission was a clear procedural impropriety that invalidated the NTO/PCN. I acknowledge I am not bound by his decision but his legal analysis cannot be faulted. I echo and endorse his conclusions and I suggest the Authority take this opportunity to read his decision and consider acting upon it.
For the reason given above, I find the failure to comply with Regulations 3(3) of the Regulations amounts to a procedural impropriety and I allow the appeal on that basis as well.
Case no. 2130236316 referred to above the appellant, Mr Wong, was repped by a Pepipoo stalwart, they don't like it up 'em!
