6 February 2017

It is always the motorist's fault, even council failure

Barnet Council worry about their reputation, with parking being one of the lowest regarded performers, and is it any wonder, based upon this lost tribunal Appeal which was won on Review. Less determined motorists than this Appellant are easy to find and the council would have unfairly gained £60.

The Appeal

Neither party to the proceedings attended.

I now determine the appeal on the papers before me.

There is no dispute that this vehicle was parked without payment of the parking charge.

The appellant's case is that on seeking to pay the charge by phone there was a recorded message stating that the system was out of order and that she should try again later. This she did without success. She says that she did not then re-park the vehicle because she assumed given it was a system error that all bays would be affected.

I note what is said but I am not satisfied on the council's case it providing confirmation from its Pay by Phone service provider that there was no down time on its payment system on the relevant day that there was any fault with it.

I find the contravention proved.

The appeal is refused.

The Review

By a Decision dated 13th October 2016, made after a consideration of the papers, the Adjudicator, Andrew Harman, dismissed the Appeal.

The Appellant attended a Personal Hearing before me today,16th November 2016, to make a Review Application in respect of that Decision, and explain her contention personally.

There is no right of further Appeal from an Adjudicator's decision under the Road Traffic Act 1991, although an Application under paragraph 12 (3) of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 may be made if one (or more) of the Grounds set out in the Regulations applies.

Those grounds are very restricted in scope, as the inherent part of the Adjudication scheme is to ensure the finality and conclusiveness of an Adjudicator's Decision.

Accordingly the party seeking a Review must first establish the existence of a ground so to do; this is the initial 'Application' stage. It is only if this is established that a ‘Review,’ i.e. review and then revocation or upholding of the original Decision of the afore-mentioned Adjudicator, can take place.

The Application

The original Decision was made on the Personal Hearing date, after an examination of the argument on the papers, due to the non-attendance of the Appellant.

The Appellant had indicated her preference for a Personal Hearing on the Appeal form, by ticking the appropriate box. In addition, the Appellant had annotated the form with dates clearly stating her non-availability.

Notwithstanding the same, a Hearing had been re-scheduled to such a date.

Further, the email notification of that scheduling had not been received into the Appellant's email address in-box; having, unbeknownst to the Appellant, been diverted to 'junk.'

The Decision letter itself, was the Appellant's first knowledge that a Hearing date had been set, and missed by her.

I accepted that there was sufficient reason for a Review Hearing; for the Appellant's benefit I explained that a Review Hearing is in effect a hearing of the Appeal matter de novo.

Since no new issues arise requiring a response from the Enforcement Authority, I will proceeded with the Hearing.

The Review

There is no dispute as to the whereabouts of the vehicle, at the relevant time, on the material date; namely at a location subject to a restriction requiring the purchase of parking time by telephone/text payment.

The Enforcement Authority assert the absence of payment in respect of the said vehicle.

The Appellant denies liability for the ensuing Penalty Charge Notice on the basis of the prevailing circumstances as stated in her written representations, which she reiterated and comprehensively detailed at the Hearing.

The Enforcement Authority who assert that the said vehicle was so parked contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, and contemporaneous notes made by the Civil Enforcement Officer together with photographic evidence: still frames revealing the said vehicle in situ and the applicable signage notifying motorists of the restriction.

I note that the restriction at the location does not afford the motorist an alternative means [e.g. machine/meter payment] of compliance with the purchase of parking time regime.

The Enforcement Authority adduce an annotated map/plan and image; these are of limited, if any, evidential value since (1) the knowledge of the annotator is unknown and (2) the annotation relates to a permit holder restriction.

The Enforcement Authority also adduce computer generated printouts and an email exchange from the telephone payment service provider regarding the suggestion of a 'fault' in the system at the material time; the appellant had not raised the issue of a 'fault' but rather had recounted that the automated instruction was to 'try again' with which she complied.

I am concerned that the Enforcement Authority appear to criticize the Appellant for not submitting 'supporting evidence' when none had been requested.

The Appellant indicated the purpose of her business at the location and described a sequence of events consistent with her endeavouring to comply with the parking regime. The Appellant informed that she was a long-standing registered user of the telephone payment scheme who regularly parked in the vicinity and was adept at utilising the service.

On the particular occasion the recorded voice instructed her to 'try again' and that is what she did in order to complete the transaction.

A motorist must be afforded sufficient reasonable time to comply with the requirements of a parking regime, whether that be attending at a voucher-dispensing machine or obtaining and completing a visitor's permit, or indeed completing a telephone/text payment transaction.

The Appellant bought to the Hearing a copy of her relevant mobile device bill itemising calls and establishing the times and durations of calls to the pertinent number on the date in question.

I find the Appellant's evidence to be cogent and credible and I accept it in its entirety, making a finding that the Appellant was in the process of an activity consistent with endeavouring to effect compliance with the parking regime at the point of issue of the Penalty Charge Notice.

Evidentially I am not satisfied that a contravention occurred, accordingly I set aside the Decision of 13th October 2016 and I allow this Appeal.

Sometimes what the council do beggars belief. The evidence shows that the motorist concerned is a regular user of the PayByPhone system, a model citizen you might think, and the only reason they had not paid before the PCN was issued was because the council's chosen system was 'out of order'.

Mr Mustard thinks that the other thing that was out of order was the council in rejecting representations from a law abiding motorist doing their best to pay and putting them to the time and trouble of making probably two lots of representations, then completing the Appeal form and then requesting a Review, having to pay the PCN and then get their money back after the Review, then having to get themselves up to Chancery Lane for a hearing along with the attendant stress when all they have done wrong is to be in Barnet, where the council claims on letterheads from parking that reject your perfectly good representations, that it is 'Putting the community first'. Mr Mustard thinks they must have meant community chest having muddled up what they are doing with Monopoly and the council is the banker.

Behaving as you do Barnet Council offends the public's sense of injustice and Mr Mustard thinks that it is a grave injustice to punish those who seek to comply with the stupid system which has been imposed in Barnet. With meters this sort of thing didn't happen. If the first meter was broken you simply paid at the next one.

It is OK to offer PayByPhone as a choice but even the BPA recognise its deficiencies, so don't let it be the only choice.

This damage to your reputation, Barnet Council, is 100% self inflicted. 

Best choose reputation or revenue, you can't have both.

Yours frugally

Mr Mustard

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