unlawful PCN issued by Islington

[Shakenandstirred1977]

This is my first post so please excuse the length of the thread and the incorrect use of paragraphs, it was just to make the post clearer and easier to follow.

 

I received a PCN from Islington council in December of last year. I was half parked on a double yellow line and half in an out of hours residents bay on a residential road.

 

It was a Sunday evening in a commercial vehicle (under 3.5 tonnes) and I was unloading and making a delivery to a house. The unloading was constant and I did not leave the vehicle unattended for more than 5 minutes at a time and overall I was there for under 40 minutes.

 

I returned to the vehicle to find a ticket issued at 20.29. I challenged the PCN within 2 weeks requesting photographic evidence as this was, and,still is unavailable on the website.

 

Within 10 days I received the photos indeed showing that the rear wheels were on the yellow lines, but, the photos showed they were taken at 20.30 (first 3) and 20.31 (last 3).

 

I immediately wrote back saying that the rules on the website clearly state that for a ticket to be issued, the vehicle must be observed unattended for a full 5 minutes. I then pointed out that the ticket was issued and then 6 photos were taken 1 and 2 minutes later respectively. Therefore the civil enforcement officer had only spent 3 minutes with the vehicle and had not observed the vehicle unattended for 5 minutes before issuing the ticket

 

I received a reply to this within 10 days simply saying they were satisfied that the vehicle had been observed (from 20.23) for a full 5 minutes before the ticket was issued, and that the photos were taken at 20.30 and 20.31, therefore the officer had spent a total of 7 minutes with the vehicle.

 

I politely pointed out that that 20.23 to 20.31 equates to 8 minutes and could they provide notes or photos or proof of this as I dispute this fact because I would have been there.

 

To cut an already long story short, they have failed to produce any evidence that the vehicle was observed before the ticket was issued and have now said that the onus is on me to prove that the vehicle was not observed for 5 minutes!

 

Is it just me or is that the most ridiculous demand ever?? The civil enforcement officers are equipped with PCN machines and cameras both of which record the date and time.

 

I am equipped with neither nor am I required to be by law. Surely the onus is on them to prove a contravention has occured, otherwise they could just go around issuing tickets willy nilly without any chance of appeal.

 

I read up on the case of Ronald Kendrick Douglas VS The London Borough Of Brent where it was judged by the adjudicator that the burden of proof was on the council. I assume this applies at this stage also?

 

This has now been going on for 2 months and the council are just stonewalling my appeals and refusing to budge

 

Some advice on my position and who bears the burden of proof would be much appreciated.

[sailor sam]

Hi and welcome to CAG

 

What was the contravention code on the PCN? And can you give the location so we can check street view please.

 

Please Note

 

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[Shakenandstirred1977]

Dear Sailor Sam,

 

Thanks for the reply. The contravention code is 01 which appears to be correct. It was on Dresden Road, N19 and the photos do show the rear wheels on a double yellow. My dispute is that I was not given the 5 minutes observation time for loading and unloading. It is clearly a commercial vehicle - a company branded Renault van - and I have produced a copy of the invoice/delivery note. It was only after I brought this up that the council claimed that the CEO had been with the vehicle for 5 minutes prior to issue. They then provided me with an image of a PC screen allegedly showing this but it is dated 25/1/2013 and has the name of the person dealing with it printed below. Basically they have read my claim, then created a page some 6 weeks later which conveniently addresses the points.

[Jamberson]

On the PCN itself, it should say you were observed "from xxx" and "to xxx". These are the correct and only meaningful observation times.

 

If you were indeed gone more than five minutes, according to those times, you can still appeal, but will have to offer something more than a technical objection relating to the photos.

[Shakenandstirred1977]

Thanks Jamberson,

That is the exact point I have been trying to make to islington PCN services but have been stonewalled. The PCN only shows the issue time as 20:29 and then the subsequent photos show 20:30 and 20:31. There is nothing on it in regards to a 5 minute observation time.

[Jamberson]

OK - I've been looking at Isligton PCNs and it seems they don't print observation times any more.

 

According to what you were told, the council has a log of the vehicle at 20.23? And the PCN was issued at 20.29? If this is on record, then it will stick. You might want to ask the council by what means the 20.23 is recorded. If it is a digital download from the CEO's hand-held, then it's reliable. If it's just in the written notes, it is much less so.

[Shakenandstirred1977]

I have attached the downloads. Are these downloaded directly from the hand held or are they just filled in by a member of the dispute team at a later date?Note this evidence was not given to me until Jan 25th 2013 after I had requested it several times. The date of the PCN was 9 December 2012

[Shakenandstirred1977]

p.s. I have asked that very question, i.e. what was the source of the downloads.they did not answer that question.

[Jamberson]

Obviously I don't know their software system, but these do look very much like hand-held downloads.The left hand colum headed "Time" does not look like manual typing - it looks exactly like computerised data. That means it would be adequate for the council to rely on if you did pursue the challenge. In general the data on the hand-held gadgets cannot be tampered with. They just press a button and the time and date are automatically recorded - and there they are. Compare with the date and time logged for these forum messages - you can't alter them!

[Shakenandstirred1977]

Fair enough. Thanks for the input and advice on the matter. I may have to concede on ths issue although I have sent them a copy of the delivery note and I do still have the grace period. I could argue what is reasonable. I found a PDF with recommendations from the adjudicator that a grace period of 10-15 minutes may be reasonable when loading and unloading heavy items from a commercial vehicle. I also still have until the 25th to pay the reduced rate.

 

Thanks again.

[crem]

If you were genuinely loading then you should maintain that the contravention did not occur, coz it didn't!

 

The observation times, I believe, are guidelines to allow a "reasonable" likelihood that the driver will be seen going to or from the vehicle but are not definitive. i.e. "if the driver isn't back at the vehicle in 5 minutes then he isn't loading".

 

When claiming your are loading/unloading then this task also has to allow time to do associated functions such as load checking and signing and receiving paperwork. It is possible therefore that the driver may be away from the vehicle for more than 5 minutes but is still classed as "continuously loading".

 

Equally, it is not reasonable to expect a CEO to stand by the vehicle for 20 - 30 minutes to absolutely validate that you were loading, so I would expect afer the "reasonable" 5 minute observation time that a PCN would be issued so the CEO can continue on his route. However, if when you appeal you produce proof that you were actually loading, then I would expect that appeal to be accepted.

[Shakenandstirred1977]

Ah, ok. Well I have spoken to the client whome I made the delivery to and she is happy to email the PCN service and confirm this. I have already sent them the relavent paperwork so fingers crossed. Legend! Ill let you know how it goes.

[starfarer]

From Islington Enforcement Protocol

 

Loading and Unloading

Where there are no loading restrictions you may park on yellow lines or in a bus lane while loading heavy or bulky goods for as long as necessary, but this is generally limited to 40 minutes and the activity must be continuous. This does not include activities such as buying a newspaper, using a cashpoint, or shopping. A Penalty Charge Notice (PCN) will be issued to those who leave their vehicles parked.

 

In same document, under contravention code 01:

Exemptions to Enforcement

1.Where evidence of loading/unloading, a 40 minutes casual observation period will be given to commercial vehicles.

 

Not sure how CEO missed it but you stated that unloading was "continuous". Yes a letter from your client and any other delivery notes will help. Was the back/side door of van open? just an indication that the vehicle was engaged for the purpose. Even if it was closed, you can still claim that due to other valuable items present in van, it need to be locked. You need CEO's handwritten pocket book which may show that he was engaged in other enforcement duties after making a note of your van. Anyway, this is an extract of letter I wrote couple years back:

 

I'm in receipt of PCN ISXXXXXXXA for alleged contravention of parked in a restricted street during prescribed hours.

 

I was loading goods of substantial weight for which the receipt is attached.The whole process of loading the goods including of finalising any relevant paperworks unfortunately took more than 5 minutes. On my return, PCN was already attached and issuing CEO explained to me that the observation of 5 minutes were made and CEO didn't noticed any sign of loading WITHIN those observed period. Loading process was clearly visible to issuing CEO immediately after PCN was already attached. CEO advised me to make an appeal based on loading exemption.

 

Parking Services Enforcement Protocol guide for London Borough of Islington allows for exemption described as Loading. Under Contravention Code 01:

“Traffic Management Orders allow for loading activity for as long as necessary before 11am. There is no restriction on the nature of goods for commercial vehicles loading activity”

Also under title Exemptions to Enforcement:

“1.Where evidence of loading/unloading, a 40 minutes casual observation period will be given to commercial vehicles.”

Also referenced was the document published by Parking and Traffic Appeals titled “Jane Packer Flowers and Others,Adjudication” by E.J.W.Houghton, Parking Adjudicator. The alleged contravention did not happen. The waiting was for the permitted purpose (i.e. Loading of good) and for no longer than necessary. Explanation as above and attached proof of good loaded.

[Shakenandstirred1977]

Many thanks for the advice starfarer. The client has forwarded the invoice so just waiting to hear back. No I did not leave the door open whilst loading. I never do out of habit because I often carry a lot of expensive alcohol in the van. We are a mobile cocktail bar events company. I will post on here when I get a reply.

[starfarer]

Not sure whether you understood me correctly, but I was just repeating what crem wrote on post #12. Observation time of 5 minutes is allowed to establish the contravention. On places where no exemptions (eg no loading/unloading) are allowed, the PCN's are issued without any observation as contravention has occurred as soon the vehicle is stopped on the place. Where observation time are given, it usually means that there are certain exemptions (mostly loading/unloading but few others as well where driver need to be away from his car to get parking ticket etc) allowed and CEO has to ascertain that the vehicle is not in activity covered by exemptions before putting on lovely yellow PCN. The time to observe vary ranging from 2 to 5 mins in most councils. So your initial line of appeal based on observation time given less than 5 mins will not stand a chance and council will be happy to dig bigger, deeper and wider hole.

 

You only need to establish 2 things: that the contravention code allows for exemptions such as loading and the purpose of vehicle parked on that road was for loading. As posted above Islington parking policy allows loading/unloading for PCN issued under code 01. Other thing that need now, is for you to prove that the vehicle there was for the purpose of loading/unloading. Usually delivery/dispatch note etc. A description of load in numbers usually helps lot.

 

The question still remains on "evidence of loading/unloading" and "continuous". Crem already pointed out that even signing of paperworks or load count is still classified as "continuous" and may take longer than 5 minutes. I would suggest a quick look on Jane Packer flowers and Others - Adjudication on rough guide what you can put an excuse of taking a bit longer than 6/7 minutes while CEO's heart was pounding excitedly on finally nailing another victim. Why there was no loading/unloading evident to CEO? Well every time I take a load to client's premise, it has to be placed only in certain area, accessed only by lift to basement which is also constantly used by other staffs of the building and report the count once placed. I was unable to unload whole order in one process and finally involves the paperwork to be signed by client. There are many examples in that link

 

There are other minor things too but don't want the post to be longer and confusing. Hope this was a bit clear to you .

[Shakenandstirred1977]

Hi starfarer. Thanks for the post. I did understand what you were saying before and appreciate the time you've taken to answer. I sent a copy of the delivery note to the parking services as did the client under my request and I'm pleased to say that Islington has now cancelled the PCN so this ends this chapter. Thanks to everyone who helped out.

 

All the best,

SHAKENANDSTIRRED1977

[crem]

Nice to see a happy ending