23 August 2017

The foresight saga

Who knows what the yellow suspension sign said? no-one.

Mr Mustard knew from the off that he was going to beat the PCN in question, it just took a while, partly because the Notice to Owner failed to arrive and so a witness statement had to be made to the TEC to drag the PCN back from £165 to £110

The trouble started on 20 January. His client, Mrs B, parked as above and made the following informal challenge in response to the PCN.

I paid for my parking and ran* to the pharmacy as I was feeling unwell due to being 8 months pregnant.

Unknown to me due to the unclear signage the bay I parked at was suspended and I got a ticket. I appealed to Barnet explaining my situation including proof of parking payment and medical proof of pregnancy and mentioned how unclear it was.

* Mr Mustard thinks a more accurate word may have been 'hurried' but as he has never been 8 months pregnant he can't be sure..

Firstly, Mr Mustard noted the complete lack of work going on in Bell Lane (as that is the location in question, which seems to have almost permanent suspensions in 2017) and questions whether PCN should even, in fairness, be given out at a suspended bay if no trouble is caused. Any fair minded person would say not.

Secondly, the terms of the suspension are not known as the traffic warden failed to photograph the sign. Thus the council have no proof that the bay was suspended, when and why. That was how Mr Mustard could have the foresight to say that the PCN would eventually get cancelled.

Thirdly, the council accepted a payment to park which validated the parking notwithstanding the suspension.

Of course the council failed to notice their glaring error and rejected the informal challenge.

'At this stage' makes Mr Mustard think they will later. The words might though simply be space fillers with no real meaning.

Now we know the dates of the suspension and the parking occurred 2/3rds of the way through the suspended period so the reason for the suspension may have been fulfilled. You can phone up and ask for the sign to be removed or put a sticker over the dates (not really naughty if you know from the council they don't need the suspension any longer, you are just helping out) or do what Mr Mustard does in his own road after a removal van has left which is to cut the sign down and leave it somewhere visible for the council to pick up later.

Mr Mustard doesn't think the suspension supersedes (https://en.wiktionary.org/wiki/supercede) the normal operational hours i.e. you cannot suspend a bay outside of those hours as there is nothing to suspend but he knows that adjudicators will be against him on that one as it creates practical difficulties.

This is a pay bay so permits were never valid.

It is the council's responsibility to mount clear signs and for their traffic wardens to photograph them.

The council do not mean 'cannot' be accepted as a reason. They can accept any reason they wish. What they mean is they 'will not'. Councils should not shilly shally, they should use clear & direct words.

Mrs B had not paid for "an hours parking", she had paid for "an hour's parking". If apostrophe use is beyond you, simply say "Mrs B had paid to park for an hour".

Fast forward to June 17 and the replacement Notice to Owner arrived. Mr Mustard made the formal representations:

The council cannot accept payment, as they have, and also suspend the bay and issue a PCN for said suspension. That is unfair and I rely on the persuasive support of the decision in case 2130229773. (tribunal decisions are not binding precedents).

Please also reconsider the informal challenge made by my client prior to my being instructed.

About a month later the council inevitably rejected the representations. The letter was of the usual standard, pretty woeful.

Oh, here we go, 'at this stage' again. There is just one more stage to go, the tribunal.

The 2002 edition of The Traffic Signs Regulations (plural) and General Directions was replaced on 22 April 2016 by the 2016 Regulations coming into force. The PCN was issued in 2017 and so the 2016 Regulations apply (even for old no longer used signs which are saved by the 2016 Regs if the sign was valid under the 2002 Regs). Oh, the TSRGD isn't an 'Act', the clue is in the name, 'Regulations' which are made by the Secretary of State.

Which signage? The Pay by Phone sign or the Suspension sign, or both? The compliancy of the signs was not in play so why are the council rejecting non-existent representations? To make you think you don't stand a chance at the tribunal, is why.

Was only part of a bay suspended in this case? The informal rejection said 'Nearby signage indicates the bays are suspended' so why the formal Notice of Rejection introduces doubt about only part of a bay being suspended is either lazy cut and paste or obfuscation to dissuade you from going to the tribunal. The whole bay being suspended, payment should not have been possible; in the old days the meter would have been bagged over for the duration of the suspension.

Were the signs also approved especially under the Road Traffic Regulation Act 1984 - sections 64 and 65 - authorisation of traffic signs and special directions, which is the 'approved' which the council are vaguely referring to. Well, as it happens, Mr Mustard knows they both were so why even mention the TSRGD which cannot therefore apply, as only non-standard signs need such approval?

Oh dear, the 'payment system relies on motorists...' but motorists rely on the council to be honest and not accept payments they are not entitled to. This is what the adjudicator said in case 2130229773 back in 2013

The council claim some unproven responsibility on the motorist to check the signage for the whole bay. If an entire bay is extended and it is long and has 3 pay signs then 3 suspended bay signs should also be erected in order to meet the test of adequacy and in order to be procedurally fair.

Mr Mustard finds that Barnet Council are very keen on the responsibilities, onuses and duties of motorists.

They never seem to be keen to mention their own legal duties.

Following on from the Notice of Rejection Mr Mustard completed the Notice of Appeal and handed it in at the tribunal on 12 July during one of his vists. The case was listed for an in-person hearing on 6 September. On 21 August, Barnet Council threw in the towel and cancelled the PCN having needlessly incurred a £30 tribunal fee. Had they considered his formal representations properly, they could have cancelled earlier and saved the loss to the taxpayer.

Sorry, a bit of a saga but a lot for you to learn from and reuse.

Yours frugally

Mr Mustard

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