Golden Square - PCN Contravention Code 21u - Parking in Suspended Bay

[smkhairat1]

Hi all,

 

I was recently issued a PCN by Westminster Council for an alleged contravention 21u - parking in a suspended bay.

 

So on the 19th February 2014 at approx 11:55 PM I parked in Golden Square, London for approx 20 mins to collect my wife from her friend's house. I returned at approx 12:20 AM to find a PCN under my windscreen wiper which had been issued by an enforcement officer.

 

Now I did not knowingly park in the suspended bay on purpose, I was in a rush and as it was dark I couldn't clearly see the signs, I do realise that I should have checked the sign properly but regretably I didnt.

 

I recall that afew years ago there was something mentioned in the press about Golden Square and several disputes between motorists and the council but I haven't been able to find anything online.

 

Is there any point in appealing this PCN as I don't think I have any argument in my favour, I really can't afford the £130 they are asking for and any help on this matter would be appreciated.

 

I have attached a copy of the PCN, appologies for the poor quality but the original PCN got wet in the rain and hence i've had to do a DIY job by cutting and pasting parts togethor.

 

 

 

Many Thanks in advance,

 

Sam

[smkhairat1]

I have had a challenge rejected by the council. Please see my appeal letter below:

 

"

Dear Sir or Madam,

I hereby make representations against PCN Number WM83934131 issued on the 20th of February 2014 at 00:14.

The PCN is invalid and unenforceable and therefore should be cancelled because the suspension sign used for the bay in question is non-compliant, nor the type of sign approved for bay suspensions by the Department for Transport.

In this regard I would reference the Campbell v Camden case (PATAS 2090523567) which states that whilst a sign might be clear it MUST comply with the legal permission for it to be used properly. That legal permission has been given by the DfT and having gone through that process and accepted the DfT ruling the Council has a duty to use the compliant sign on an exclusive basis. In this instance it has failed to do so.

Considering the above, unless the council can provide evidence that the suspension sign is authorised by the Secretary of State then the council should acknowledge that they have acted beyond their powers and cancel this penalty charge forthwith. Should the council doubt that their use of an unauthorised sign is ultra-vires then I direct the council to the following paragraph obtained from the DfT published Traffic Signs Manual Chapter 1.

1.18 The use on Public highways of

non-prescribed signs which have not

been authorised by, or on behalf of,

the Secretary of State, is illegal and

authorities who so use unauthorised

signs act beyond their powers.

Moreover, the use of intermediate times in the sign is redundant, all that's needed is: from (date/time)/to(date/time) in accordance with the requirement stipulated in the authorisation. The use of 0001 - 2359 could be regarded as an attempt by Westminster Council to establish a non-continuous suspension (and therefore restriction) where a continuous one currently exists, in order to justify the service of more than one PCN for a continuous period of a vehicle being stationary. Whether it's one minute or 60, the reality is that 0001 - 2359 is not in accordance with the designation of the parking place as conveyed by the traffic signs thus making the suspension sign non-compliant. Neither does the sign include a telephone number which is inconsistent with the DfT approval.

Therefore the sign is unclear and non-compliant and it is only the presence of a clear and compliant sign that creates the contravention at all. In the absence of a compliant sign the vehicle in this case was not in contravention and the PCN must be cancelled.

Should cancellation not be forthcoming, I require you to submit, with any rejection, the following documents or details:

a) A statement regarding which diagram you believe the suspension sign conforms to in the Traffic Signs and General Regulations 2002;

b) A copy of the document from the DfT that authorises Westminster Council to use the suspension sign used in this case;

c) A copy of the document that authorised the suspension in question;

d) A copy of the CEO's notes.

Please be aware that I fully intend to take my appeal to PATAS should this representation not be accepted. Inadequate responses to the above requests will be noted in my appeal and used as the basis for a claim for costs due to the vexatious nature of continuing to uphold a flawed PCN."

Ok Guys so this letter has been rejected and the dicount period has been re-offered, can anyone tell me what I should do next?

I have done some research at it seems that the Council had its suspension signs approved by the DfT but continues to use the older non approved type. I have provided a link below of the approval. Also the contravention code has the suffix "u" which means mobile phone payments. It is not a flaw in the PCN but I wonder why the CEO bothered to include it.

 

Can anyone provide any feedback?

 

the council's Approval is below

[Jamberson]

I think your appeal letter was not great. It's so detailed and technical it's difficult to understand. Plain English is always better I think.

 

Anyway, the gist of this seems to be that the council is authorised to use a specific design on suspended bay signs. The one in use is not the authorised design and so is not valid. [by the way, that's pretty much all you needed to say in your original letter!]

 

The question is, does the sign in use differ in any meaningful way from the authorised one. As I see it, the sign has "Warning" at the top, rather than "Notice". And at the bottom it has the extra condition, "No stopping". Otherwise, it's a good match.

 

If you are going to waive the discount and take this to adjudication, the adjudicator will weigh up whether these are significant or not. Obviously no-one can say with certainty what he will rule, but he might apply the de minimus rule, if he thinks these are unimportant. I'd say your chances are 50/50, but that's just my impression.

 

I'm assuming I've not missed anything.

[smkhairat1]

@ Jamberson: Thank you for your promt response. Yes I must agree that I had the same thoughts i.e. would an adjudicator regard the differences in the actual sign to the authorised one as major enough to warrant the sign non-compliant.

 

But what about the dates on the actual sign: it says that the suspension is in effect from 6th January till 22nd Feb but excluding 24th February. This does not make any sense as it is obvious that the suspension doesn't include the 24th Feb as its after the 22nd Feb !!!!!

 

Also the sign states that the bay is suspended between 00:01 to 11:59, again this doesnt make any sense, how can the bay be suspended for 23 hours and 59 minutes?

 

Any feedback on the above points??

[smkhairat1]

Perhaps the council got the dates on the sign wrong and what they actually meant to say is that the bay is suspended from 6th Jan to 24th Feb but excluding 22nd Feb??

 

Just a thought!

[Jamberson]

Well certainly, the more errors you find the stronger your case becomes. I can't read the dates from the photo, but if what you say is correct then the dates are written incorrectly on the sign. That is a promising line of appeal.

 

I presume you have a good, readable image of the sign to double check? What you can do is phone the council and ask for someone who deals with bay suspensions. Ask them to confirm the exact days the bay was suspended, which they will have documented somewhere. Assuming the sign disagrees with the actual dates then it is wrong, and that's something to take forward to adjudication.

 

The 00:01 to 11:59 one is questionable in my opinion. Although what you say about it is correct, it may be standard practice not to say 00:00 for some reason. But if you're going ahead with the appeal, then chuck it in. It could be that on their own these issues wouldn't win the case, but they have a cumulative effect on the accuracy of the notice. You might as well raise them all.

[smkhairat1]

Hi Jamberson,

 

Just a quick update, I called Westminster Council asking them to explain why the suspension sign says: From 6th Jan to 22nd Feb (excluding 24th Feb). A person from the bay suspension team said that the sign was originally suspended from the 6th January to 22nd Feb and the suspension was then extended from 23th Feb till 31 March (exluding 24th Feb).

He agreed, hesitantly, that the original suspension sign was not 100% correct and that there appears to be a mistake on the sign as the "excluding 24th Feb" should have been on the second extension sign not the original one.

However, a woman in the PCN department insisted that the PCN is enforceable bec even though it contains an error, the PCN was issued within the period specified on the sign.

I have noted her name and time of the call as all their lines are recorded, surely Westminster council have just shot themselves in the foot?

[Jamberson]

They have admitted, which they were bound to do, that there is an error on the sign. It's possible this, and the other factors, will get you a result. I would completely disregard what the woman said about the PCN being enforceable. It's just her individual opinion, not having seen an appeal letter from you or looked into the case. Whoever deals with the case may or may not agree with her - you can't say.

 

I guess you have to decide whether to pay the discount or gamble on winning the long game. Personally, I'm split over what's the best option to take.

 

If you do decide to fight it, then you need to wait for a Notice to Owner (I'm assuming you are the registered keeper?) then submit a formal written challenge, with all the points raised here. In the event they reject it, then you will have a right to an adjudication hearing (free) in which you can present your arguments. It's possible you will win, if you are up for it.

[green_and_mean]

Unless the dates affect you I cannot see that winning, if you got a PCN on lets say the 3rd of Feb and the sign said suspended 1st to 30th Feb, the fact that Feb hasn't got 30 days would have nothing to do with you parking on the 3rd. As for the time the Council can suspend a bay for what ever period they like provided its signed correctly, why its signed from 00:01 is anyones guess but since you didn't park at 00:00 you still parked during suspended hours.

[smkhairat1]

Hi All,

 

Thanks for everyones feedback. From my research I have come up with two questions that need answering before I decide whether to take the PCN to the next stage in the appeal process.

 

1. Does a suspension sign containing errors / incorrect information make it non-compliant?

2. Does the actual sign used by the council differ from the sign approved by the Dft in 2013 (u can see the sign on the DfT approval form in the link contained in my second post) - i can see very small differences but not sure if the sign should be an exact copy of the approved one??

 

I found a recent case that is very similiar to mine where an Adjudicator ruled in favour of the OP due to the signs not being authorised. (link below)

 

What would you guys do in my situation, what are the chances of be winning this case based on the above points?

 

Many Thanks

[green_and_mean]

Hi All,

 

 

1. Does a suspension sign containing errors / incorrect information make it non-compliant?

 

non compliant with what? The sign needs to be lawful but the contents of the restriction have nothing to do with complying with any law. There is no traffic order required for a suspension they are suspended using a provision in the original TMO so there is nothing to get correct what is says is what it means. If it said monday the 5th and monday was the 6th then it would be unenforceable but the fact that it has a minute each day you can park has got nothing to do with your case despite you thinking it should be suspended 24hrs, they can suspend it for a minute or a year provided the PCN is issued during the suspended period as stated onthe sign you are in contravention.

[Jamberson]

My view is that the answer to both questions depends on the nature and extent of the errors/discrepancies. It isn't absolute because a very trivial difference or mistake would be ovelooked, whereas a major one would be a more serious issue. I don't think in this case it's very easy to say what view an adjudicator would take, and that's what your appeal hinges on.

 

I think it's a gamble. Would I go for it if it were me? I really don't know.

 

Not much help, I guess!

[smkhairat1]

This how I see it. The sign doesn't look like the authorised one and it does not comply in several respects.

 

I don't think an adjudicator can rule that there is substantial compliance and as stated in the Campbell case:-

 

"In the absence of a compliant sign the vehicle in this case was not in contravention".

 

Just not sure what to do now?

[smkhairat1]

Also this from the Campbell case:

 

The Council in its TMO has specifically required itself to erect not a clear sign but a compliant one, and it is only the presence of a compliant sign that creates the contravention at all. In the absence of a compliant sign the vehicle in this case was not in contravention and the Appeal must be allowed.

 

The sign as photographed includes the words "no stopping" that do not appear in the authorised version and omits the telephone number that does. Hence it is non-compliant. There's also the rather ludicrous wording that the suspension supposedly runs up to 22 February and excludes 24 February. Yes and it excludes 1 April as well! Also i refer to the sign quoting the hours 00.01 to 23.59. I don't think there is any confusion that the sign is intending to suspend the bay for 24 hours - unless you felt like chancing my luck with parking from 23.59 to 00.01 for all of two minutes!

 

I reckon I got a strong case on the above points.

[green_and_mean]

You have been given plenty of views on here and another site the only way to find out if you have a strong case is to contest it. Your argument in my view is weakened because you never even read the sign before you got the PCN so trying argue its confusing dates led to the PCN is not true and to say it was would be lying.

[Jamberson]

Where did he argue that the confusing dates led to the PCN? He said he didn't read it, but thinks it might be invalid because it's not as approved.

[smkhairat1]

Guys,

 

What about if I appealed the PCN on the basis that the sign photographed includes the words No Stopping (not present on the authorised sign), the to and from dates are incorrect (excluding 24th Feb is an error), the times are confusing and don't make nay sense (from 00:01 to 23:59) and that there is no phone number present on the sign (as required by approved version) to call incase one needs to clarify the sign or has any questions?

 

Is this a strong appeal and whats the chances of winning?

Edited March 6, 2014 by smkhairat1

[Jamberson]

Yes. Those are exactly the points you need to raise, if you are going to take it on. You will be forfeiting the discount of course.

[smkhairat1]

Hi,

 

Just a quick update, so I have received a copy of the council's letter rejecting my original appeal. They are claiming that they do not need to obtain DfT approval for their suspension signs as these signs are not prescribed within the TSRGD 2002 and therefore do not require approval.They go on further to say that as their Traffic Orders make no reference to Section 64 of the Road Traffic Regulation Act 1984, their suspension signs do not require DfT approval and they have no obligation to obtain it.

Now to me the above sounds like complete nonsense and incorrect.

 

Can anyone confirm if the above point made in their letter is correct or not?

 

I have posted a copy of the letter below, any feedback would be appreciated.

 

Thanks

[smkhairat1]

Sorry here is a clearer copy of the first page

[Jamberson]

I hate to say it, but their letter does sound like they know what they are talking about. If you wanted to prove them wrong, you'd need to get the TMO, find out what it says about authorisation of the signs. You may uncover something, but their letter sounds like they are on firm ground with this one.

[smkhairat1]

Thanks Jamberson, you have got me worried now ...

 

Do you know how I can go about obtaining the TMO?

[Jamberson]

Not sure, but if you call the parking people in the council they should be able to at least point you in the right direction.

[smkhairat1]

Hi Jamberson,

 

I have looked at Section 30 of the TMO and can't seem to find any reference to authorisation?

 

Do you think you could hvae a quick look and see if u can maybe find something about it? You can find it at the link below under Zone G.

 

In the meantime I am going to include the below paragraph in my appeal letter once the NTO arrives:

 

"The Council states in it’s letter rejecting representations that as its Traffic Orders do not mention the appropriate section of the Road Traffic Regulations Act 1984 and therefore it is under no obligation to obtain Department for Transport approval for its suspension signs.

 

The fact that an Act is not mentioned in its Traffic Orders does not invalidate that Act nor absolve the Council from proper regard to it's provisions.

 

Indeed by reference to the Secretary of States Statutory Guidelines (para 32) the Council must have proper regard to this Act. --” A parking contravention is often a breach of a provision of a TRO, which must have been made under the correct section of the Road Traffic Regulation Act 1984 (RTRA). Flawed orders may be unenforceable, and can damage both the aims of CPE and the public perception of how it is managed”

 

 

The Council’s letter demonstrates wilful neglect of this guidance. Furthermore the Council has fettered its discretion by asserting that it does not have an obligation to obtain DfT approval for its suspension sign when, in the absence of such a sign under TSRGD 2002, it has a clear obligation to seek such approval under s64 of the RTRA.

 

The fact that the Council obtained DfT approval for such signage on 09/07/2013 demonstrates the dichotomy of its actions and statements. The DfT approval for suspension signs is both restrictive and exclusive. It restricts the use of any other sign and means that the approved sign must be used on an exclusive basis. Clearly that has not happened in this case and therefore the sign used does not comply with the Departmental approval.

 

Any thoughts?

 

Thanks

[smkhairat1]

Sorry here is the link to the TMO:

 

http://westminstertransportationservices.co.uk/tmo/

 

Then go to Zone G, section 30.