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Examples of adjudicators allowing appeals due to other procedural errors
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
222066902A
Splend Ltd
Transport for London
11 Mar 2022 14:59:00
Stanstead RD/Ravensbourne Rd
03 Feb 2023
Philippa Alderson
Appeal allowed
The Appellant is appealing a Penalty Charge Notice issued in respect of entering and stopping in a box junction at the above location.
The Enforcement Authority relies upon CCTV footage of the incident, together with a copy of the PCN.
The Appellant contends that the EA erred in initially sending the PCN to a third party whom it believed to be the hirer of the vehicle at the relevant time.
I have carefully considered all the evidence in this matter.
The Enforcement Authority's case is that the Appellant's vehicle entered the box junction and then stopped in the junction owing to stationary traffic impeding its exit from the box. Under Paragraph 11(1) in Part 7 of Schedule 9 to the Traffic Signs Regulations and General Directions 2016 a box junction marking conveys the prohibition that a person must not cause a vehicle to enter the box junction so that the vehicle has to stop within the box marking due to the presence of a stationary vehicle.
The CCTV evidence that the Authority has provided shows the vehicle stopping on the junction due to the presence of stationary traffic ahead. In entering the box junction before there was a space beyond the junction to receive the vehicle, the driver ran the risk of the contravention. The vehicle stopped in the junction due to the presence of stationary vehicles ahead. This is prohibited. In order to avoid the risk of a contravention, when the motorist enters a box junction, he/she should have a clear exit. This means not only a ""receiving"" space for her vehicle beyond the junction - but nothing ahead of him/her travelling through the junction.
It appears that the EA, having ascertained from the DVLA that the Appellant company was the registered keeper of the vehicle, sent the original PCN a purported hirer, having apparently been satisfied previously that liability for any PCNs should be transferred from the registered keeper to that hirer. This PCN was dated 15th March 2022, 4 days after the incident itself.
The EA contends that a formal representation was received on 9th May, and in light of this, the EA accepted that the third party was no longer the hirer of the vehicle as of 9th September 2020. I have had sight of a copy of this termination agreement. A further PCN was then issued and sent to the registered keeper, dated 10th May 2022, some 2 months after the date of the contravention.
I have not had sight of the document upon which the EA relied when it sent the PCN to the third party hirer. It appears however that the relevant hire contract had ended some 18 months prior to this incident taking place. In the first instance, an EA must issue a PCN to the registered keeper, within 28 days of the date of the contravention. The delay in serving the PCN on the Appellant (ie the registered keeper) was not due to any delay in obtaining the keeper's details from the DVLA, but rather due to the EA's decision to use the historic information relating to the hirer.
I find that the EA's actions in issuing this PCN to a third party on the basis of out-of-date records, and the late service of the PCN on the Appellant amounts to procedural impropriety and accordingly I allow this appeal.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
2220926789
Cherelle Reid
London Borough of Haringey
01 Nov 2022 18:25:00
Lordship Lane / Redvers Rd
16 Jan 2023
Andrew Harman
Appeal allowed
The appellant appeared before me today. This was an alleged box junction contravention. The appellant said that on the day she received the PCN she had written to the council twice, online, to request video footage of the incident and that in so doing she was not making representations. The council issued a rejection notice letter in response. What the council should have done was to write back to the appellant explaining how the footage could be viewed - either on its website or via an appointment at its offices. It in my view acted improperly in issuing a rejection notice letter when no representations had as I found been made it so doing I found in breach of the Regulations. I was satisfied that being so that enforcement may not be pursued. The appeal was accordingly allowed.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
2220717665
Ald Automotive Ltd
London Borough of Merton
23 Jun 2022 20:03:00
Raleigh Gardens / Glebe Court
28 Oct 2022
Henry Michael Greenslade
Appeal allowed
Under Paragraph 11(1) in Part 7 of Schedule 9 to the Traffic Signs Regulations and General Directions 2016 a box junction marking conveys the prohibition that a person must not cause a vehicle to enter the box junction so that the vehicle has to stop within the box marking due to the presence of a stationary vehicle.
This Penalty Charge Notice was issued under Section 4 of the London Local Authorities and Transport for London Act 2003
Section 4(2)(a) provides that the person appearing to be the owner of the vehicle, not the driver is liable for a Penalty Charge Notice issued in respect of it.
Under Section 2(2) of the 2003 Act the owner of a vehicle for the purposes of this Act, shall be taken to be the person by whom the vehicle is kept and it is further provided by Section 2(3) that in determining, for the purposes of this Act, who was the owner of a vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered under the Vehicle Excise and Registration Act 1994.
According to the Enforcement Authority, the Appellant Company were the party registered as keeper by the Driver and Vehicle Licensing Authority on the material date.
The Appellant Company do not dispute ownership but say they are a hire firm and that the vehicle was, at the material time, hired under a hiring agreement.
Paragraph 1(4)(d) of the Schedule to the 2003 Act makes provision for when the recipient is a vehicle-hire firm and (i) the vehicle in question was, at the material time, hired from a vehicle-hire firm under a hiring agreement.
However, the hiring agreement must comply with Section 66 of the Road Traffic Offenders Act 1988 and subsection 7 thereof provides that the Section only applies to a hiring agreement under the terms of which the vehicle concerned is let to the hirer for a fixed period of less than six months (whether or not that period is capable of extension by agreement between the parties or otherwise); and any reference to the currency of the hiring agreement includes a reference to any period during which, with the consent of the vehicle-hire firm, the hirer con-tinues in possession of the vehicle as hirer, after the expiry of the fixed period specified in the agreement, but otherwise on the terms and conditions so specified.
The present agreement appears to be a long-term lease in that the original fixed term is greater than the prescribed maximum.
However, the presumption under Section 2(3) of the 2003 Act is rebuttable, in which case (as set out above) the owner shall be taken to be the person by whom the vehicle is kept.
I find on balance that the Appellant Company were not the party by whom this vehicle was kept at the material date.
Accordingly, this appeal must be allowed and no other issue need be determined.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
2220793506
Nazma Jalil
London Borough of Waltham Forest
06 Sep 2022 10:38:00
High Rd Leytonstone / Bush Rd
01 Dec 2022
George Dodd
Appeal allowed
The Appellant attended the hearing of her appeal in person. The Authority were not in attendance, nor were they represented.
I asked the Appellant whether she had received the evidence pack from the Authority and she said that she had received nothing. I checked the case papers and the Evidence Checklist indicates that the covering letter sent to the Appellant with the evidence is contained in section E. However, on checking section E there is no such letter. I note that the Case Summary says a copy of the Case Summary and the evidence has been sent to the Appellant.
I am satisfied that the evidence pack has not been sent to the Appellant. She said that if she had seen the pack, in particular the CCTV footage, she may have taken a different view on whether to pursue her appeal. If she had decided not to pursue her appeal, she would not have attended the hearing with the inconvenience and cost that this has entailed. Accordingly, the Appellant has been potentially prejudiced by the Authority’s failure to serve their evidence on her. The fact that the evidence was available at the hearing does not remedy that prejudice.
I take the view that, in order for the Authority to rely on evidence at a hearing, that evidence must be served on the Appellant in advance of the hearing such that they can prepare adequately for the hearing or decide whether to proceed with the appeal. It is not sufficient to simply lodge the evidence with the Tribunal. As the evidence was not served on the Appellant in advance of the hearing, I am not prepared to admit that evidence. It follows that the appeal goes unchallenged and therefore, it is allowed.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
222083653A
Mourad Yousfi
London Borough of Waltham Forest
21 Sep 2022 10:40:00
Hoe Street / Selborne Rd
12 Dec 2022
Henry Michael Greenslade
Appeal allowed
Under Paragraph 11(1) in Part 7 of Schedule 9 to the Traffic Signs Regulations and General Directions 2016 a box junction marking conveys the prohibition that a person must not cause a vehicle to enter the box junction so that the vehicle has to stop within the box marking due to the presence of a stationary vehicle.
The Penalty Charge Notice was issued on 29 September 2022 under Section 4(1) of the London Local Authorities and Transport for London Act 2003 on the basis of information provided by a camera or other device.
The Appellant made then original representations to the Enforcement Authority following which the Enforcement Authority issued a Notice of Rejection on 21 October 2022.
The Appellant paid the reduced penalty and also lodged an appeal with the Environment and Traffic Adjudicator on 11 November 2022.
The Enforcement Authority were notified of this in the usual way and submitted their evidence on 17 November 2022.
However, on 23 November the Enforcement Authority issued a Charge Certificate to the Appellant, seeking the sum of £130, being the full penalty charge plus the 50% Charge Certificate surcharge, less the £65 already received.
It is not open to the Enforcement Authority to make this unwarranted demand by which the penalty charge then exceeded the amount applicable in the circumstances of the case.
Accordingly, this appeal must be allowed.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
2220864896
P K Motors Shahid Imran
London Borough of Waltham Forest
01 Oct 2022 21:05:00
Hoe Street/ Selborne Rd
24 Dec 2022
Henry Michael Greenslade
Appeal allowed
This Penalty Charge Notice was issued under Section 4 of the London Local Authorities and Transport for London Act 2003
Section 4(2)(a) provides that the person appearing to be the owner of the vehicle, not the driver is liable for a Penalty Charge Notice issued in respect of it.
Under Section 2(2) of the 2003 Act the owner of a vehicle for the purposes of this Act, shall be taken to be the person by whom the vehicle is kept and it is further provided by Section 2(3) that in determining, for the purposes of this Act, who was the owner of a vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered under the Vehicle Excise and Registration Act 1994.
According to the Enforcement Authority, the Appellant Company were the party registered as keeper by the Driver and Vehicle Licensing Authority on the material date.
The Appellant Company do not dispute ownership but say they are a hire firm and that the vehicle was, at the material time, hired under a hiring agreement.
Paragraph 1(4)(d) of the Schedule to the 2003 Act makes provision for when the recipient is a vehicle-hire firm and (i) the vehicle in question was, at the material time, hired from a vehicle-hire firm under a hiring agreement.
However, the hiring agreement must comply with Section 66 of the Road Traffic Offenders Act 1988 and subsection 7 thereof provides that the Section only applies to a hiring agreement under the terms of which the vehicle concerned is let to the hirer for a fixed period of less than six months (whether or not that period is capable of extension by agreement between the parties or otherwise); and any reference to the currency of the hiring agreement includes a reference to any period during which, with the consent of the vehicle-hire firm, the hirer continues in possession of the vehicle as hirer, after the expiry of the fixed period specified in the agreement, but otherwise on the terms and conditions so specified.
The present agreement appears to be a long-term lease in that the original fixed term is greater than the prescribed maximum.
However, the presumption under Section 2(3) of the 2003 Act is rebuttable, in which case (as set out above) the owner shall be taken to be the person by whom the vehicle is kept.
I find on balance that the Appellant Company were not the party by whom this vehicle was kept at the material date.
Accordingly, this appeal must be allowed and no other issue need be determined.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
2220674314
Mc&C Utilities Ltd
London Borough of Barking and Dagenham
11 May 2021 14:42:00
New Rd
07 Nov 2022
Carl Teper
Appeal allowed
The Authority was successfully notified by the Tribunal that the appeal would be heard on or after the 31 October 2022.
The Authority has failed to produce a copy of the Penalty Charge Notice or any other evidence.
Without a copy of the Penalty Charge Notice there is no evidence that a contravention occurred.
I must therefore allow this appeal without consideration of any of the issues raised by either party.
Case ref
Appellant
Authority
Date & time
Location
Decision Date
Adjudicator
Decision
2220753465
Howdens Joinery Ltd
London Borough of Barking and Dagenham
03 Nov 2021 15:51:00
Whalebone Lane North
30 Nov 2022
Andrew Harman
Appeal allowed
This incident occurred on 03 11 21, over a year ago. The appellants complain of delay. I acknowledge that there was a previous transfer of liability in this case, and I note the council's submissions on the point, but having examined the papers I am not satisfied that the council has evidenced its implied claim that it has complied with all applicable statutory time limits in its conduct of these proceedings, and I accordingly find that enforcement may not be pursued.