Author Topic: PARKING ADJUDICATORS REPORT - extracts relating to CCTV parking enforcement  (Read 15395 times)

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Nigel W

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JOINT REPORT OF THE PARKING ADJUDICATORS FOR ENGLAND AND WALES 2009/10  21 September 2010
extracts relating to CCTV parking enforcement

http://www.manchester.gov.uk/egov_downloads/200910_Parking_Report_to_the_Joint_Committee.pdf

Camera enforcement of Parking Contraventions and Parking Penalty Charge Notices sent by Post
Introduction
When The Traffic Management Act 2004 and its associated regulations  came into force on 31 March 2008, councils became empowered in certain circumstances to send Penalty Charge Notices (PCNs) by post.
Regulation 10 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and Regulation 6 of the Civil Enforcement of Parking Contraventions (Penalty Charge Notices, Enforcement and Adjudication)(Wales) Regulations 2008 both provide that:
An enforcement authority may serve a penalty charge notice by post [where] -
1. on the basis of a record produced by an approved device, the authority has reason to believe that a penalty charge is payable with respect to a vehicle which is stationary in a civil enforcement area..."
Adjudicators have considered appeals from four English authorities (outside London) produced by an approved device, i.e. a film. Those authorities are Basildon, Bolton, Medway and Wirral.  Each of these authorities has a CCTV vehicle with a camera mounted like a periscope on the top of the vehicle.
There have been no appeals from authorities in Wales based on camera enforcement; we do not believe that camera enforcement has been adopted yet in Wales and so this section refers to `Regulation 10' PCNs (being Regulation 10 the English regulations).

Appropriate enforcement and evidence
While there have been examples of PCNs being correctly issued and served under Regulation 10(1)(a) and the ensuing appeals dismissed, there are also examples of successful appeals where enforcement by camera was found to be wrong in principle, ill considered in the circumstances, or the evidence inadequate.
In some of these cases, adjudicators have criticised quite severely the approach of councils involved.

Of course it must be borne in mind that the point of the appeal process means that adjudicators only see cases where there is a perceived or actual problem.
Looking at the rate of appeal it can be seen that only a small proportion of PCNs are disputed.
Having said that, significantly more appeals against camera enforcement PCNs have succeeded than against those issued in the traditional way by fixing them to the vehicle or handing them to the driver. Furthermore, a high proportion of these appeals are not contested by the Council, and in Medway's case, this amounts to more than 70%.
While most cases turn on their particular facts, some general points emerge from the allowed appeals. Where camera enforcement is relied upon, the ideal evidence bundle will include certain key items and, if one of more of them is missing or defective, the council is likely to have difficulty establishing its case. For example:
•   Film footage needs to be clear enough and of sufficient duration to prove the alleged contravention.
•   There should be a statement from the named civil enforcement officer or supervisor who reviewed the film and decided to issue a PCN.
•   There should be evidence (if necessary in addition to the film footage) that the carriageway markings and roadside signs are present and in order.
•   Where the camera or vehicle is in question, the council should be in a position to prove that the camera is an approved device (although this is not necessary if type approval is not in dispute).  (??)
•   There should be evidence of signs warning the public that camera enforcement is taking place.
•   The council should have and publish on their website a code of practice for camera enforcement.
•   The council should be able to explain why it was appropriate to enforce by camera rather than by civil enforcement officer.
•   The PCN and subsequent documents in the enforcement process must be accurate and in accordance with the Regulations.
The councils in the following appeals proved their cases successfully using CCTV evidence:
In BB05448E the appellant did not dispute having stopped in a restricted bus stop / stand as alleged; the council's evidence was in order and the appeal was dismissed. BB05491 D and BB05517F are similar.
The appellants in BB05530D, E105073K, E105111 G and BB05504D raised mitigating circumstances which were properly matters for the discretion of the council only. All these appeals were dismissed.

CCTV vehicles
Most of the appeals decided so far relate to mobile CCTV cameras although fixed devices may also be permitted (WL05300B being an example of an appeal from a fixed site CCTV camera).  Either way, the camera must be an "approved device" in accordance with the Civil Enforcement of Parking Contraventions (Approved Devices) (England) Order 2007.
Bournemouth and Basildon have similar CCTV cars that recognise the relevant parking restriction by virtue of references to the TRO-mapped provisions reflected on an OS base map with the grid references. Therefore the technology within the vehicle recognises the restriction and identifies vehicles parked in apparent contravention and films the VRM.
The workings of this type of CCTV car system were explained in BB05476L:
"...the PCN was issued by post as the alleged contravention was identified through use of an unattended mobile camera operated on the Council's Automatic Number Plate Recognition Vehicle known as RoadFLOW....
The Council has explained the operation of the mobile camera and has produced the Standard Operating Procedures for the RoadFLOW system together with a copy of the approval of the device by the Secretary of State dated 9 June 2009.
Unlike where a PCN is issued to a vehicle or driver by a Civil Enforcement Officer (CEO), the RoadFLOW camera automatically records vehicles while the camera vehicle is following a prescribed route with no consideration by a human mind whether a penalty charge is payable in relation to a stationary vehicle.
 It is not until the video evidence is reviewed by a "Civil Enforcement Officer Supervisor" that the Council can have reason to believe that a penalty charge is payable with respect to a vehicle which is stationary in a civil enforcement area."
However, the road markings or signs may not accurately or adequately reflect the terms of the TRO shown by reference to the grid. In El 05065M the loading restriction kerb markings had faded and were not apparent to the appellants who had parked displaying a Blue Badge. It transpired that the County Council repainted the defective kerb markings sometime after the event, and the adjudicator found that although the CCTV car had recognised that there should be a loading restriction at that point, it was not properly signed.
The Medway CCTV car operates a different way. The car is manned by an operator in addition to the driver and the occupants decide to film vehicles they spot parked in contravention. This has given rise to considerable criticism from the citizens of Medway as well from adjudicators in some cases.
One of the principle difficulties is that the driver of the CCTV vehicle parks is for anything up to five minutes while the operator points the camera at the offending vehicle. Appellants have questioned why the council CCTV car can park for five minutes on a double yellow line while they are having penalties imposed on them for the same practice. Adjudicators have noticed that in some of the correspondence the council has claimed that the TMA provides an exemption from parking restrictions for a CCTV vehicle. This is not the case - there are no provisions in the TMA or any of its regulations that create exemptions to parking restrictions in TROs for vehicles engaged in camera enforcement.

Cameras and enforcement policy
The Department for Transport' s Operational Guidance to Local Authorities: Parking Policy and Enforcement recognises that camera enforcement is different from enforcement by civil enforcement officers on foot. Paragraph 8.78 states that:
"Motorists may regard enforcement by cameras as over-zealous and authorities should use them sparingly. The Secretary of State recommends that authorities put up signs to tell drivers that they are using cameras to detect contraventions.
Signs must comply with TSRGD or have special authorisation from DfT .
The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical. Approved devices should not be used where permits or exemptions (such as resident permits or Blue Badges) not visible to the equipment may apply".
Motorists may be unaware that their vehicles are being photographed and challenge the penalty because they do not understand or recall how it came to be incurred.
The time delay between the alleged contravention and receipt of the regulation 10 PCN may mean that evidence supporting the motorist's right to park may no longer be at hand.
Councils should be aware of these factors in deciding when and where to use camera evidence and should formulate proper policy, as the operational Guidance advises (paragraph 8.82).
"An essential and integral part of any system is a code of practice.
This sets out the objectives of the system and the rules it will follow. Authorities should ensure that they produce (or adopt) and follow a code of practice. The code should make sure that staff deal properly with issues such as privacy, integrity and fairness. It should set minimum standards to help ensure public confidence in the scheme."
In MW06157C the council produced its code of conduct but the chief adjudicator found it to be inadequate, not least because the PCN was issued for stopping for a mere 46 seconds so that the driver and passenger could change places. This was, she found, de minimis and did not amount to a contravention. She said:
"The Council has produced in its evidence a full copy of its own Code of Practice for CCTV enforcement.  I can find nothing in that lengthy document dealing with integrity or fairness. Had those important principles been addressed then the Council might have stopped to consider whether it was fair to impose a penalty upon [the appellant]".
Adjudicators have observed that a PCN should not be issued by post using video evidence if it could perfectly easily have been issued and served in the usual way under Regulation 9. The appeal in MW06166D was allowed for other reasons (below), but the adjudicator commented that:
"I cannot understand why the Council considered it appropriate to use the CCTV car to detect this so-called contravention. There is no reason why the civil enforcement officer could not have got out of the CCTV car and walked over to [the] car and placed a PCN on the windscreen."
The adjudicator may require the council to explain why camera enforcement and the issue of a PCN by post were considered appropriate in the circumstances.  In MW06082F the appellant parked a commercial vehicle, clearly marked as such, outside the company's own premises.  He said he was entitled to park because he was loading at the time but was unable to produce independent evidence. The adjudicator criticised the council for using the CCTV car in these circumstances and said:
"It appears the Council's CCTV car was itself hovering around the ... car for five minutes and did not film any activity. It is not clear why the civil enforcement officer did not get out of the car and attach a penalty charge notice to the ... car in the usual manner.
Had that happened [the appellant] would have been put on immediate notice of the alleged contravention and would have had evidence of the unloading to hand. However, because the Council chose to send the PCN by post eleven days later I am not surprised that [the appellant] no longer had any evidence to provide to the Council or with his appeal. ...
Given that the [appellant] has been prejudiced by the Council taking the curious decision to issue a postal PCN for a breach of a restriction that carries the loading/unloading exemption I accept [the appellant's] evidence that the vehicle was engaged in that activity and therefore no contravention occurred."
In MW06159J the council failed to explain why the PCN could not have been issued by a civil enforcement officer. The adjudicator said:
“If it is intended to rely on CCTV evidence, then the rules really must be followed by this Council and evidence given in the form of a proper witness statement in order to try and support the contention that a CEO could not be deployed in Best Street on one of the very limited grounds specified."
In BB05476L the film was very dark and unclear and there was no statement from the civil enforcement officer who reviewed the video.  In WL05219F the evidence included a statement from the civil enforcement officer who reviewed the film and decided to issue the PCN but it did not give his name; further, the council officer who attended the hearing was unable to confirm the contents of the council's policy for camera enforcement.
« Last Edit: 09 October, 2011, 02:52:42 PM by Nigel W »

Nigel W

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Proving the contravention
As in any other case, the council has the burden of proving the facts of the contravention on the balance of probabilities.
In some cases, camera evidence is perfectly adequate to prove the contravention. For example, in BB05504 the Council produced a copy of a video recording that showed the vehicle parked in a marked bus stop (i.e. a clearway bus stop) with the passenger door open.
In BB05492G video film and still photographs clearly established that a security vehicle had stopped in a marked bus stop to make a delivery (stopping is prohibited in a CWBS).
There have been a number of cases, however, where the council has failed to prove the contravention. 
In E105062C the PCN was issued for stopping on a red route clearway. The photographs showed the vehicle stationary in a bus stop in a lay-by to the side of the red route. It seemed that the CCTV vehicle was not programmed to recognise adjacent restrictions and the appeal was allowed because the authority was endeavouring to impose a penalty for the wrong contravention.
In E105119J the film showed the car parked outside the zig-zags of a pelican crossing even though the prohibition on stopping only applies within the restricted area bounded by the zig-zags.
In E105109E the appellant denied that his car, in which he was a passenger, had parked; he said he took the opportunity to alight when the car stopped to allow another vehicle to come out of the service road where they were intending to park. The CCTV footage clearly showed the indicator flashing and the driver present in the car, which was not positioned as close to the kerb as one would expect if it were parked.
The adjudicator said:
"The evidence confirms [the appellant's] account and tends to show to me that the vehicle has just dropped off a passenger. Because it was filmed for less than one minute there is no means of knowing whether the car drove into the service road or not. The Council is wrong to assert that it unlawful to stop where there is a loading ban; the setting down and picking up of passengers is permitted."
Similarly, in MW06159J analysis of the video supported the appellant's account of events. Approaching the entrance to his destination, he did not park but had to manoeuvre out of the way of another vehicle, wait for a pedestrian to move aside then reverse to allow another car to drive out before himself driving in. The photographs clearly showed that the reversing lights were on as well as confirming the presence of the other car and the pedestrian. The appeal was allowed. The adjudicator said:
“I have no hesitation in finding that the Appellant was not parked - it is quite obvious that he was engaged in reversing out of the way of the grey car seen in the photographs with reversing lights showing and a male pedestrian getting in his way."
In BB05496H the council failed to establish from the video evidence that the car had actually stopped. The short video showed the car indicating to pull out and the adjudicator observed that it would have done so sooner had it not been blocked by the passing CCTV car.
By contrast, the video evidence in E105118F showed the vehicle stationary with its brake lights on and wheels straight, apparently waiting for another car to vacate a space. This tended to disprove the appellant's evidence that he had been pulling away from the kerb when the film was taken. The appeal was dismissed.
When reviewing the CCTV footage, councils should take into account the possibility that a vehicle has stopped legitimately for a purpose that is actually permitted.
There have been examples of councils treating areas where a loading ban is in force as if they were subject to the "no stopping" restriction of a red route clearway.
In particular, a brief stop to drop off a passenger, while unlawful on a red route, is permitted where a loading ban is in force.
In E105066D the driver stopped briefly on a yellow line with kerb markings while his passenger got out. He then reversed into the adjacent car park. The video clip showed the reversing lights to be illuminated. The adjudicator found:
"first, that the vehicle was stopped momentarily to set down [the passenger], which is permitted, and secondly, that thereafter it was reversing and consequently not waiting." No contravention occurred.
E105109E (above) is similar.
Sometimes, the video footage is too short to establish the position one way or another. The adjudicator said in MW06159J:
"This is yet another case where this Council seek to establish a contravention on the basis of CCTV footage, providing photographs covering – and providing no evidence at all to justify the use of CCTV evidence rather than that of a CEO."

Signage
As in any other case, the restriction said to have been contravened must be properly signed. Evidence about signage has been an issue in a number of cases involving camera enforcement.
Sometimes, when it comes to establishing the presence of the required signs, the images produced by a moving camera are not as clear or comprehensive as still photographs taken by a civil enforcement officer on foot.
In B005805B the photographs showed a yellow line but did not establish the presence of the kerb markings which are necessary to signify a loading ban.
The appeal was allowed. In E105113B and EI05119J, the moving camera footage showed a single yellow line and kerb markings to indicate a loading ban at certain times but because of the camera angle, provided no evidence of the presence of roadside time plates.
The council's evidence in BB05531G failed to establish the presence of the prescribed signage.
The photographs in MW06157C appeared to have been taken in moonlight and were barely discernible. All three appeals were allowed.
The adjudicator pointed out in MW06157C that the council could have supplemented the CCTV footage with still photographs of the site or other evidence of the presence of signage, but had not done so.

Bus stop signage
As the adjudicator said in E105105D, evidence about signage is particularly important when the contravention relates to a restricted bus stop or stand (i.e. a bus stop clearway or a bus stand clearway).
This is because it is the signage itself, not an underlying TRO, which creates the restriction.
In BB05496H the video evidence established that the proper Bus Stop/Stand signage was missing.
In E105105D the video footage showed the carriageway to be properly marked but, because of the angle of the camera, failed to establish the presence of the roadside time plate.

The adjudicator made no finding of fact as to the adequacy of the signage at the location but concluded that the evidence was insufficient to satisfy him of its adequacy on this occasion.

Conclusion
The experience of those authorities that have led the way in using camera enforcement has demonstrated five important points:
1.   For a penalty to be imposed for a parking contravention the vehicle must be stationary. In a significant number of appeals the film does not prove that the vehicle was stationary and in some cases actually supports the appellant's contention that it was moving. In these cases the driver and sometimes a passenger can be identified in the film. It follows that in many of the appeals that have been dismissed the vehicle is clearly unattended thus proving it was stationary.
2.   There are only limited locations where camera enforcement is suitable. The Council cannot simply rely on the CCTV vehicle being an approved device , it is how and where it used that matters. They can be used effectively outside schools and on clearways  but should not be used where there are exemptions for loading with an exemption for a Blue Badge holders. Even a loading ban does not restrict a vehicle from stopping to set down and pick up a passenger.
3.   Both types of CCTV vehicle have their drawbacks - the difficulty with the moving CCTV vehicle filming as it passes by is that it may not capture the full picture for long enough to establish what was happening; whereas the problem with a CCTV operated by a CEO passenger is that it may have to stop in contravention of the restrictions for quite a time to direct the camera appropriately.
4.   Camera enforcement should not be used as substitute for a CEO-issued PCN. There is little or no justification for the vehicle to be parked for five minutes filming a vehicle when the CEO in the vehicle could get out and issue the PCN.
5.   Enforcement authorities should regularly remind themselves of the Secretary of State's Guidance and ensure that the use of the CCTV enforcement is properly supporting their transport objectives and that it is being applied fairly and with integrity.
  COMMENT:  The ONLY camera signs prescribed by the TSRGD 2002 relate to moving traffic observation, in particular speed monitoring and red-light-jumping at traffic lights.  There is no camera sign prescribed by the Regulations to advertise stationary parking enforcement so the (necessary) signs must be specially authorised by the DfT. 
In particular, the simple traffic sign prescribed by Regulations Diagram 879 (showing just a camera) is a REMINDER sign prescribed for use ONLY as a reminder/repeater of an initial moving-traffic camera enforcement warning sign that has already been passed by the driver.
Stationary parking enforcement by CCTV seems inevitably to require warning signs that include information such as details of the enforcement authority, as set out in s. 9 of the ‘CCTV Code of Practice’ issued by the Information Commissioner’s Office (ICO).  That would require the appropriate signs to be authorised (being non-prescribed signs) by the DfT before placement on the highway. See:    http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/ico_cctvfinal_2301.pdf
  COMMENT:  Although the meaning is clear, a mobile enforcement ‘vehicle’ can never be an Approved Device.  It is the camera equipment installed, together with all related CCTV image processing equipment (usually referred to as a ‘system’) that constitutes the ‘device’ which must be an Approved Device to enable lawful enforcement operations.
  Stopping at school keep-clear zigzags and at clearway bus stops or clearway bus stands (at the times of operation) is prohibited by the Regulations, even briefly for boarding and alighting (but it should not be a contravention to stop briefly to ascertain the times of operation from the upright sign!).   
« Last Edit: 01 January, 1970, 01:00:00 AM by Guest »

Offline news shopper martin

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That was very interesting reading nigel can see u been a busy bee m8 u herd anything from bexly? 
« Last Edit: 01 January, 1970, 01:00:00 AM by Guest »
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Nigel W

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Quote from: "news shopper martin"
That was very interesting reading nigel can see u been a busy bee m8 u herd anything from bexly?
I have sent an email to The Chief Executive. No reply as yet.
« Last Edit: 01 January, 1970, 01:00:00 AM by Guest »

Offline Bonkers

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Quote from: "Nigel W"
Quote from: "news shopper martin"
That was very interesting reading nigel can see u been a busy bee m8 u herd anything from bexly?
I have sent an email to The Chief Executive. No reply as yet.
I am not aware of anyone who has had a reply from Bexley's CEO. The best I have had is “Thank you for your email to the Chief Executive. The contents of your email have been noted."
« Last Edit: 01 January, 1970, 01:00:00 AM by Guest »

 


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