Is there an official definition of 'Parking'? CCTV issues PCN whilst map-reading

[sassy-lassy]

Thursday Evening Update

This afternoon, the council's parking department left 2x messages on my answerphone:

* The first one told me that they'd received my letter and that, if I wanted to view the CCTV footage, this could only take place at the town hall - and that there is no alternative venue where it could be viewed

* The second message advised me that a copy of CCTV footage has been posted to me and the discount period extended until 9th February

 

So.. no trip to the other side of London tomorrow am, but it sounds as if I will be provided with my own copy of the footage in the post. Is it legitimate for the Council to sidestep its obligations in tis way? It is unclear in what format the footage will be provided, I'm not sure exactly how I'm expected to view it!

Edited January 26, 2012 by sassy-lassy

[FEP]

Thursday Evening Update

This afternoon, the council's parking department left 2x messages on my answerphone:

* The first one told me that they'd received my letter and that, if I wanted to view the CCTV footage, this could only take place at the town hall - and that there is no alternative venue where it could be viewed

* The second message advised me that a copy of CCTV footage has been posted to me and the discount period extended until 9th February

 

So.. no trip to the other side of London tomorrow am, but it sounds as if I will be provided with my own copy of the footage in the post. Is it legitimate for the Council to sidestep its obligations in tis way? It is unclear in what format the footage will be provided, I'm not sure exactly how I'm expected to view it!

 

No of course not. The requirement a) to advise you on the PCN of your right to view the video footage at a council office of your choosing and b) to then, within a reasonable time, let you see the footage at a council office of your choosing, is a non-negotiable and perfectly un-ambiguous statutory requirement.

 

However, like I've said before, don't expect the council to do anything but laugh at your detailed reliance on statute - after all they seem to be quite happy to ignore their statutory obligations in the first place. The problem you've got, given that you've been seduced by the discount, is that in the run up to any PATAS hearing, when your case gets considered by a slightly more experienced council officer, there's now a chance that they'll wise up and offer you the chance to view the video at the office of your choosing. Strictly speaking, that wouldn't fix the procedural impropriety of the PCN being contrary to statute, but it would be one less bullet in the magazine.

 

It's true, as alluded to on the other forum, that even an adjudicator MAY try to give the council some wriggle room on these points, arguing for instance that if you've been sent the footage at home then you haven't been prejudiced. Strictly that would be wrong and appealable / judicially reviewable. This then is why you should have only brought up the 'can I view at xxx office' a couple of weeks before a PATAS appeal. You make them jump through as many procedural hoops as possible - they will always mess up somewhere - that's if they don't just give up and roll over before the hearing.

 

Also, as correctly pointed out on the other forum, you've got the second class post PI. On the substantial issue the law is stacked against you. You have to use all these details to level the playing field.

[sassy-lassy]

Hmm... Generally, do many people win appeals purely on PI?

 

I am not working at present, so can't afford to take the risk of incurring the fine rising to £130 - mind you, I can't afford £65 either, particularly given I don't accept I've committed an offence

 

Guess I'll have to wait and see what turns up.

[green_and_mean]

Hmm... Generally, do many people win appeals purely on PI?

 

I am not working at present, so can't afford to take the risk of incurring the fine rising to £130 - mind you, I can't afford £65 either, particularly given I don't accept I've committed an offence

 

Guess I'll have to wait and see what turns up.

 

If you haven't commited the alledged contravention why are you bothering with PI?? Simply appeal on the grounds the contravention did not occur, its on CCTV so its going to be fairly obvious if you parked 50 cms from the kerb or not!

[sassy-lassy]

If I am being held to account for stopping for less than a minute, then I will take every opportunity I can to hold the council to account. Judging by other posts on this forum, I am certainly not the first person to take PIs into account when considering an appeal

Edited January 27, 2012 by sassy-lassy

[sassy-lassy]

OK - I have received the DVD from the Council in today's post.

 

It would appear that the 2x still shots on the PCN which suggested my car was stationary for under a minute, did not capture the total length of time involved. The DVD shows my car was stopped for 2 minutes and 8 seconds. After which, I indicated and moved into the outer lane.

 

It also appears that my vehicle was more than 50cm from the kerb, which had a single yellow line adjoined by a narrow band approx 2ft wide of cross-hatching (which I know one is prohibited from stopping in).

 

Just to reiterate, I cannot remember exactly what I was doing to be stationary, but I know I was unfamiliar with the route and stopped to check where I was on several occasions. There is no other reason why I would have stopped.

 

Furthermore, as the PCN's stated location covers a 2,000 ft length of Bethnal Green Road, it is difficult to tell exactly where I was when the alleged offence took place.

 

There are market stalls along the side of the road, and as it is double width at this point, traffic was able to pass without having to cross the central reservation.

 

As another poster has commented, it is ludicrous to issue a PCN when the driver is just trying to find his/her way and has temporarily stopped in a location where they are not causing a problem or delay to other drivers. Particularly given that the road in question is not a red route.

 

As I see it, the council has committed a number of Procedural Improprieties, namely:

1) Sending out the PCN in second class (28p), rather than first class post – I believe this is in breach of statute requirements and it is also in specific breach of the CCTV code of practice

2) Refusing me the option of viewing the CCTV footage at a council office of my choice (sure, they sent me a DVD, and I was able to find a machine to view it on, but if I am going to be held to account for such a minor infringement, then I expect the council to be similarly compliant) – I believe this is in breach of statute requirements

3) The images on the PCN were insufficient to demonstrate that an offence had taken place, as they showed the vehicle stationary for a period of 49 seconds, which may be regarded as deminimus – this is in breach of the council’s CCTV code of practice which requires authorities to ‘include such still images on the PCN to show sufficient grounds for the PCN being issued’

4) Location – I can’t tell whereabouts along the 2,000 ft stretch of Bethnal Green Road the alleged offence actually took place, as the PCN does not specify. There are any number of side roads along this stretch of highway which could have been used to pinpoint the exact spot. Is the description given precise enough to enable the council’s obligation to specify location in the PCN? (clearly as far as I am concerned it isn’t, as I have no idea where the alleged offence took place, but I cannot find a definitive answer as to what would be considered reasonable in this respect)

 

Secondly, there is the issue as to whether the alleged offence actually took place. In part, this comes back to my original question as to what constitutes ‘parking’. Is it reasonable, for instance, for the term to encompass drawing in behind other similarly parked vehicles to check one’s location, before indicating and rejoining the main traffic stream??

 

Any comments and thoughts on the above are welcome.

Thanks

[sailor sam]

You seem to have it pretty well sewn up yourself. However, I am a little confused with your opening sentences;

 

"It would appear that the 2x still shots on the PCN which suggested my car was stationary for under a minute, did not capture the total length of time involved".

 

then you state;

 

"The DVD shows my car was stopped for 2 minutes and 8 seconds. After which, I indicated and moved into the outer lane".

That would seem to me a pretty long time to be stopped and not considered to be 'parked' TBH.

[sassy-lassy]

@ Sailor Sam - the PCN included 2x still shots of my car, which were time-stamped less than a minute apart. As the code of practice states that there should be enough evidence on the PCN to confirm an offence has taken place, this is why I thought I had been stationary for under a minute. But when the CCTV arrived, it became apparent it was longer than that - 2 minutes and 8 seconds from what I observed. Given I could not even recall the alleged incident, I had taken the original PCN pictures as marking the start and finish of the time I had stopped.

Cheers

[steveod]

The case law states waiting and parking are the same thing, you were reading a map and not moving so you are obviously not driving therefore you must be parked.

 

wow, everytime I stop at a traffic light or stop sign i must be parking!!! wonder when they will put parking meters at each stop sign and traffic light, lol. Thats why they usually include waiting or stopping in the relevant statute as waiting or stopping do not constitute parking.

Edited January 30, 2012 by steveod

[green_and_mean]

wow, everytime I stop at a traffic light or stop sign i must be parking!!! wonder when they will put parking meters at each stop sign and traffic light, lol. Thats why they usually include waiting or stopping in the relevant statute as waiting or stopping do not constitute parking.

 

If you are going to try and be clever you should at least ensure you are correct! If you are waiting at traffic lights it is for reasons beyond the drivers control which would be exempt from a waiting restriction, since waiting and parking have been deemed to be interchangeable in the High Court you obviously seem to know more about legislation than a High court judge so are obviously wasting your talents here!!

[Annoyed-in-SW18]

Statutory guidance tells the LA that they should only use CCTV enforcement where CEO enforcement is dangerous / unpractical. LA's must 'have regard' to this guidance. If you can satisfy the adjudicator that they didn't have regard, you should win. But of course that would be a difficult thing to prove but if at a PATAS hearing (which the LA almost definitely wont attend), if they have not bothered in their evidence to pick up this point and don't make the point that they did have regard - you (should) win.

 

A CCTV camera used for enforcement purposes must be an approved device. In your case it may well be, but if the LA have tripped up with this, they lose. There is a deeper issue around that questions the validity of ALL CCTV approvals as approved devices, but that's probably best left alone for now.

 

There is also an argument that the use of 'unnecessary' CCTV (they should have used a CEO), renders the processing of your DATA unfair for the purposes of the Data Protection Act. This is particularly so if there weren't adequate signs in the immediate vicinity of the camera warning you that your data was being processed, by whom and for what purpose. DPA breaches won't per se invalidate your ticket, but they may make the LA think carefully when considering your representations.

 

FEP - very interested in your posts above as I have found myself caught by a CCTV in a loading bay on a Sunday, not having left the car or turned the engine off. Unfortunately the LA in question has offered a council office of my choice to view the footage, but i can see no reason why the use of a CEO could be seen as either dangerous or impractical. Would you be able to point me in the direction of the statutory guidance that you are referring to.

 

Hopefully that is enough, but I may need to pursue the data protection act argument if not.

 

Many thanks

[Jamberson]

i can see no reason why the use of a CEO could be seen as either dangerous or impractical.

 

Ask them.

[green_and_mean]

Statutory guidance tells the LA that they should only use CCTV enforcement where CEO enforcement is dangerous / unpractical. LA's must 'have regard' to this guidance. If you can satisfy the adjudicator that they didn't have regard, you should win. But of course that would be a difficult thing to prove but if at a PATAS hearing (which the LA almost definitely wont attend), if they have not bothered in their evidence to pick up this point and don't make the point that they did have regard - you (should) win.

 

A CCTV camera used for enforcement purposes must be an approved device. In your case it may well be, but if the LA have tripped up with this, they lose. There is a deeper issue around that questions the validity of ALL CCTV approvals as approved devices, but that's probably best left alone for now.

 

There is also an argument that the use of 'unnecessary' CCTV (they should have used a CEO), renders the processing of your DATA unfair for the purposes of the Data Protection Act. This is particularly so if there weren't adequate signs in the immediate vicinity of the camera warning you that your data was being processed, by whom and for what purpose. DPA breaches won't per se invalidate your ticket, but they may make the LA think carefully when considering your representations.

 

 

FEP - very interested in your posts above as I have found myself caught by a CCTV in a loading bay on a Sunday, not having left the car or turned the engine off. Unfortunately the LA in question has offered a council office of my choice to view the footage, but i can see no reason why the use of a CEO could be seen as either dangerous or impractical. Would you be able to point me in the direction of the statutory guidance that you are referring to.

 

Hopefully that is enough, but I may need to pursue the data protection act argument if not.

 

Many thanks

 

If there was no CEO at the loading bay then surely it could not have been practical for one to issue a PCN? The guidance has actually been quoted wrongly it states.

 

The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical.

[Annoyed-in-SW18]

G&M many thanks.

 

Excuse my ignorance - is a CEO what one might have called a Traffic Warden in the past? ie. an individual who could have walked, cycled or even used a motorbike to attend the scene and give a PCN? If so, I am not sure what would have prevented it being practical.

 

Re the actual phrasing that you have kindly added - what strength does the Secretary of State's recommendation carry. Do LA's get away with flaunting the SoS's recommendation?

 

Thanks

[green_and_mean]

G&M many thanks.

 

Excuse my ignorance - is a CEO what one might have called a Traffic Warden in the past? ie. an individual who could have walked, cycled or even used a motorbike to attend the scene and give a PCN? If so, I am not sure what would have prevented it being practical.

 

Re the actual phrasing that you have kindly added - what strength does the Secretary of State's recommendation carry. Do LA's get away with flaunting the SoS's recommendation?

 

Thanks

 

Its a recomendation only that so you cannot really flaunt a suggestion. Wandsworth is a huge place it could be argued its not practical to employ staff to watch every single parking restriction across the whole borough on foot all the time particularly on a sunday. A cctv operative can cover a much larger area and respond to a car parked in contravention much quicker, in areas where checking tickets or permits is required a CEO on foot is more practical but for enforcing restrictions such as bus stops and loading bays across the borough cctv is far more practical. If you were loading there is far more chance it will show up on cctv than in the notes a CEO on foot makes, if you weren't loading then you really have no one to blame but yourself.

[FEP]

If there was no CEO at the loading bay then surely it could not have been practical for one to issue a PCN? The guidance has actually been quoted wrongly it states.

 

The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical.

 

Indeed, I was quoting the gist of the guidance from memory - thank you G&M for the clarification.

 

Here is the link to the statutory guidance.

 

dft.gov.uk/publications/tma-part-6-cpe-statutory-guidance

 

G&M, your cunning advocate's line of thinking may be right, but I note that the use of the word 'and' in the section that you quote. Surely that would mean that the LA would need to show not only the impracticality of enforcement at the loading bay, but also how CEO enforcement would have been 'difficult' or 'sensitive'. Alternatively of course, the LA could just point out that they don't have to follow the Statutory Guidance, but as already stated, arguably they'd have to show that they had 'had regard' to it.

 

The following comes from the Operational Guidance to Local Authorities: Parking, Policy and Enforcement

 

(dft.gov.uk/publications/tma-part-6-cpe-guidance/)

 

 

"Enforcement on trunk roads and other high speed roads

 

13.17 It has, in the past, been considered inappropriate for local authorities to

use their enforcement powers on high speed roads (including trunk roads)

because of the dangers to CEOs. However, the power given in the TMA to use

approved devices, which are best suited for use in situations such as on high speed roads where stopping and parking are banned, makes local authority

enforcement of parking on these roads more practical. Some authorities may

now wish to include some high speed roads in their designation orders."

 

Of course it has even less weight than the Statutory Guidance, though I would argue that if you end up in the higher courts, arguing a Judicial Review of the adjudicator's failure to accept your appeal, the judge would be entitled to consider such guidance in formulating his/her understanding of the statute and the Statutory Guidance.

 

Good luck

[zafira59]

the definition of parked is, the vehicle must not have the engine running and be unattended

[Michael Browne]

the definition of parked is, the vehicle must not have the engine running and be unattended

Another urban myth, it matters not whether the engine is running or not or whether the vehicle is unattended or not.

[sailor sam]

the definition of parked is, the vehicle must not have the engine running and be unattended

 

Can you please qualify this statement so we can advise people they can stop on pedestrian crossing zig zag markings and clearway bus stops etc as long as long as they leave the engine running.

[green_and_mean]

the definition of parked is, the vehicle must not have the engine running and be unattended

 

How come there is a contravention of 'parked with the engine running where prohibitted' then if you cannot be parked if it is??

[Moosa]

How about the fact that other Rules in the Highway Code prohibit "stopping" and "waiting" and "parking" as separate and distinct actions? Does this not preclude a council from interpreting "parking" as meaning the same as "stopping" or "waiting"?

 

 

Here's an appeal I just wrote... wonder what you guys think about it?

 

 

To whom it may concern:

My husband took my car to drive my father-in-law to the station. My father-in-law is aged 81 and himself has chronic health problems which leave him short of breath if he has to walk too far. My husband drove onto the pavement to be close to the entrance of the station, genuinely thinking this was permitted because he stopped the car outside a minicab station where many cars were parked. At no time did my husband "park" the car; the engine was running and he only waited less than 2 minutes for my father-in-law to alight.

Therefore my husband "waited" in the car (as in Rule 238 of the Highway Code) and arguably he may have "stopped" the car (as in Rules 240 and 243), but my husband did not "park" the car and Rule 244 prohibits "parking", it does not prohibit waiting or stopping. While acknowledging there is no binding legal definition of "parking", but if required I will argue in Tribunal that the fact that the Highway Code speaks of "waiting" and "stopping" and "parking" separately in various Rules within the same subsection of the Highway Code strongly suggests that these are different actions and it would therefore be incorrect to interpret Rule 244 as prohibiting a person from waiting for less than 2 minutes with the engine running while an elderly disabled passenger alights from a car. Furthermore, it is clear from Rule 244 that the rule's raison d'etre is to prevent obstruction, and my husband was careful to ensure that no pedestrian or other person was obstructed from passing during the 2 minutes he was waiting for my father-in-law to alight and it is clear from the CCTV footage that no pedestrian was obstructed. To levy a charge on me therefore seems to simply be a way to raise monies rather than a genuine attempt to uphold the Highway Code and prevent obstruction to pedestrians.

Lastly, I hope that you will look favourably on my representation and bear in mind the duty we all have to care for and help our elderly and disabled residents within the limits of the law and while always being careful not to curtail or unfairly impinge on the rights of others, which my husband was careful not to do.

[Jamberson]

I don't think you'll get anywhere with it. The first thing to realise is that the Highway Code carries very little weight. It's just a lay person's summary of the regulations - if it uses one word or another, that doesn't matter. You are not held to be in contravention of what the Highway Code says, but of various traffic acts etc.

 

Also, I think you are wrong to say the Highway Code uses "parking" "waiting" and "stopping" as different actions. It may change the words from sentence to sentence, but it doesn't define them as different things. That's just the reader's interpretation.

 

You'd probably be better off on the health and safety/equalities angle for justification, and hope they agree.

[Moosa]

You may well be right I'll not get anywhere with it, especially as if push comes to shove, it's not worth my time and effort going to Tribunal.

 

 

Having said that, rule 238 says an interesting sentence "You MUST NOT wait or park, or stop to set down and pick up passengers, on school entrance markings".

 

 

Surely this means there is a distinction between waiting and parking and stopping in this rule. Otherwise, why not just say "you must not park on school entrance markings"... if parking covers it all?

[Jamberson]

Because someone could reason that they weren't "parked" if they were in the car waiting for a passenger. So they say don't "wait", or "park", or "stop" so all bases are covered and the situation is clear.

 

Really though, the Highway code is of no real importance. It's just a book which has nothing to do with whether you were in contravention. It could say anything - it's not significant.

[Moosa]

But if that's the case, then the Highway Code should likewise say don't "wait" or "park" or "stop" and cover all bases in Rule 244 also, to make it clear that a person can't stop his car for 2 minutes with wheels on the pavement to allow a disabled person to alight from the car.

 

 

I'm interested in what you say about the legal significance of the Highway Code, though. I'm confused that if it has no legal significance, then: (a) why does the Council cite the Highway Code when it fines me, rather than citing the relevant legal provision, (b) would you be able to point me to the significant legal provision, so that I can see if I can argue against the fine from that angle?

 

 

Best wishes and thanks for your patience with me on this one.