Case Reference: 2130538199
Appellant: Miss xxxxxxxxxxxxxxxxxxxx
Authority: Barnet
VRM: xxxxxxxxxxxxxxxxxxxx
PCN: AG12535525
Contravention Date: 31 Aug 2013
Contravention Time: 15:24
Contravention Location: Sunny Gardens Road
Penalty Amount: £110.00
Contravention: In a permit bay without a permit
Decision Date: 07 Dec 2013
Adjudicator:
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The Appellant attended together with her representative Mr xxxxxxxx. The Authority did not attend and it was not represented.
Mr xxxxxxxxxx submitted that "event day" is not defined in the Traffic Management Order so the TMO does not define with sufficient clarity when a motorist may park in the bay. I accept this submission.
There are other evidential gaps. There was no proof that the day was an event day, however it may be defined. There was also no proof that there was signage indicating that the day was an event day. The Authority said that it had conducted a site visits and taken photographs. It has not in fact submitted any of these photographs.
I am allowing the appeal.
--------------------------
Costs Decision
Application By Appellant
Decision Date 2/15/2014 1:25:05 PM
Adjudicator Anthony Chan
Decision Allowed
Direction The Local Authority is directed to pay a sum of £63.00 to the Appellant
Reasons This is an application for costs by the Appellant. The application was scheduled for a personal hearing today. The Appellant has indicated that the hearing can proceed in her absence.
The Authority did not attend and it was not represented. It has provided written submissions which I have considered.
I have at a previous hearing allowed the Appellant's appeal involving her parking without a permit on a vehicle in what the Authority said was a permit space which required an event day permit pursuant to the creation of a Traffic Management Order covering parking in the vicinity of the grounds of Saracens Rugby Football Club. I have identified evidential weakness in the Authority's case in that it had failed to provide any evidence that the day in question was an event date and that there was appropriate signage. There was also a fundamental flaw in the TMO in that it failed to define what an event day was.
The Authority now submits that the day in question was in deed an event day and the signage was correctly displayed. That is not really the point. The evidence was not placed before me at the hearing. Furthermore, the Authority has still not provided evidence to support its assertion.
The Authority cannot claim that it had been taken by surprise. There have been decisions since 3 July (some four months before the Authority prepared a response to the appeal) concerning the inadequacies of the signage evidence as well as the lawfulness of the signage.The Authority had seemingly ignored all these decisions. I would refer to two of them by way of example.
On 15 August, an Adjudicator pointed out that publishing event days on the Authority's website is not good enough. Other Adjudicators have made the same point yet this argument is still being used to resist this application for costs. In the beginning of October, I delivered a decision pointing out that the Authority's bare assertion that the signage was always adjusted after an event day to show the next was unsustainable as the Appellant had provided unchallengeable evidence to the contrary. It is therefore of some surprise that the Authority is still maintaining this point without the production of evidence.
The point that engages the question of costs even more is whether a lawful restriction existed. The Authority said that the TMO was valid. I have pointed out in my decision that the TMO does not contain a definition of an "event day so", in effect, there can be no contravention of not displaying a permit on an event day. The Authority has not addressed this point, nor has it challenged the decision of the Adjudicator Mr Edward Houghton on the same point in the appeal of Kadkhodael (no. 2130573189). Mr Houghton had in fact remarked that: "The Council appears to be in some difficulty in these cases and needs to consider more carefully the legal basis of the allegation, and the evidence required to prove it. Unless it does so, the question of costs may fall to be considered in the future." While this decision pre-dates mine and would not have helped the Authority in setting out its case in the appeal, the Authority's submissions on the question of costs would suggest that it had not heeded the decision either.
The Authority issued a PCN for a contravention that cannot be proven. It then sought to enforce the PCN to the appeal stage in a manner for which it has been criticised over and over again, I cannot see how it can be said that their action to continue with enforcement proceedings to be anything but wholly unreasonable, vexatious and frivolous.
I am allowing the cost application, to the amount claimed.
