hi, submitted a challenge against a PCN issued in Islington, which was rejected. Details below and attached.
I think the have not considered my challenge properly.
Is it worth taking this to the tribunal, given the arguments are quite technical? Are my arguments correct? Am I looking at the correct legislation?
PCN photos are clearly stamped 9.49 and 9.50.
Thanks
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My Challenge:
the Enforcement Officer failed to present the necessary evidence that the contravention occurred and therefore the PCN is invalid and must be cancelled, in that:
1. The relevant parking restrictions and charges have been introduced with effect from early 2023 under The Islington (Charged-For Parking Places) Order (Consolidation) 2023 (“Order”) and related legislation, as amended.
2. Article 13 of the Order provides (emphasis added):
Restriction on waiting by a vehicle in a parking place
13. (1) Notwithstanding the foregoing provisions of this Order, any vehicle may wait
during the permitted hours in any part of a parking place if the use of that part
of that parking place has not been suspended and if:
(a) the vehicle is waiting for a period not exceeding two minutes, or such
longer period as a police constable in uniform or a civil enforcement
officer may approve to enable a person to board or alight from the
vehicle or load thereon or unload therefrom his personal luggage:
Provided that if the said person is a person suffering from any
disability or injury which seriously impairs his ability to walk or
who is blind, the vehicle may wait for as long as may be
necessary to enable that person to board or alight from the
vehicle or load thereon on unload therefrom his personal
luggage; […]
3. It is a clearly established principle of legislative construction that punctuation marks such as commas are part of the statutory text and are presumed to have been placed there intentionally by the draftsman. It is accepted that a comma before ‘or’ indicates a separation between alternatives, so the clauses or phrases before and after ‘or’ are to be read as distinct and independent options, rather than one qualifying or limiting the other.
4. This principle is supported by the authorities in England and Wales and laid out in the leading textbooks and Court decisions, the key examples of which are cited below.
5. Bennion states: “The presence of a comma before ‘or’ is generally an indication that the alternatives are separate and distinct, such that the provision before the comma stands as an independent alternative to that which follows the ‘or’” (Bennion on Statutory Interpretation (6th edition, 2019), Chapter 7 (Disjunction and Conjunction), Section 7.5).
6. The House of Lords decision in Inland Revenue Commissioners v Duke of Westminster [1936] AC 1 (House of Lords) supports this view, in that the Court held that when “or” is preceded by a comma, it is natural to treat the clauses before and after as separate alternatives rather than connected or qualified.
7. Further, the Court of Appeal confirmed in R v Secretary of State for the Environment, ex p Ostler [1988] 1 WLR 1456 (CA) that a comma before "or" indicated a separation between alternatives, meaning the clause after "or" did not qualify or modify the clause before the comma, and that the wording before the ", or" was treated as an independent alternative. It was found that the comma before "or" signals a grammatical break, separating distinct alternatives. As such, the clause after "or" stands as an independent option, not as a qualifier or modifier of the earlier clause.
8. This approach ensures the statute’s meaning respects the natural reading of the punctuation and the legislature’s intention to create distinct alternatives.
9. In light of the above authorities, it is unequivocal that Article 13(1) of the order must be construed as follows (emphasis and comments added for illustration), resulting in two distinct alternatives:
13. (1) Notwithstanding the foregoing provisions of this Order, any vehicle may wait
during the permitted hours in any part of a parking place if the use of that part
of that parking place has not been suspended and if:
(a) the vehicle is waiting for:
a period not exceeding two minutes, [THE FIRST DISTINCT ALTERNATIVE]
or such longer period as a police constable in uniform or a civil enforcement officer may approve to enable a person to board or alight from the vehicle or load thereon or unload therefrom his personal luggage […] [THE SECOND DISTINCT ALTERNATIVE]
10. The cited authorities leave no doubt that the correct interpretation of Article 13(1) of the Order is that:
(i) the period of two minutes emphasised above is not qualified by any relevant conditions in Article 13(1) of the Order, so it is an independent alternative; and
(ii) the relevant period referred to Article 13(1) is two full minutes or less;
meaning that (subject to the relevant requirements elsewhere under Article 13 of the Order, which are not in question here because the photographic evidence submitted by the Enforcement Officer proves they have been met):
(a) a vehicle may remain in a parking place without making a payment for up to and including two minutes for any reason without a contravention being committed; and
(b) for a contravention to be committed, it must be proven that the vehicle remained in the parking place for longer than two full minutes without making a payment.
11. Therefore, in order to prove that a contravention occurred, the Enforcement Officer must, at the very least, provide evidence that the vehicle was in the parking place for more than two full minutes without making a payment. Only then can a contravention be established and a penalty charge notice validly issued.
12. The Enforcement Officer did not provide any evidence that the vehicle was in the parking place for more than two minutes.
13. The photographic evidence available on the Council’s portal in connection with the PCN merely indicates that the vehicle was in the space for a maximum of two minutes. The photographs are all marked as having been taken at 09:49 or 09:50. So, even if the first was taken at 09:49.00 and the last one at 09:50.59, which is by no means proven by the evidence, but those would be, respectively, the earliest and the latest times possible, this would not amount to two full minutes.
14. Therefore, there is no evidence that the two minute threshold, which under Article 13(1) of the Order must exceeded for a contravention to occur, was exceeded.
15. Accordingly, because no evidence of this has been provided, it is impossible to establish that the vehicle in question remained in the parking place for more than two minutes, which in accordance with Article 13 of the Order is necessary for the contravention to occur. In fact, the aforementioned photographs only serve as evidence that the vehicle was in the parking place for a maximum of two minutes, so in light of Article 13 of the Order, they may only be treated as evidence that no contravention occurred.
16. Therefore, for the reasons set out above, it is clear that the PCN is invalid and should be cancelled because:
(i) no evidence has been presented proving that the vehicle remained in the parking place for a period exceeding two minutes, as required under Article 13(1) of the Order; and
(ii) on the evidence that has been provided, pursuant to Article 13 of the Order, no contravention occurred.
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Legislation:
https://www.islington.gov.uk/-/media/sharepoint-lists/public-records/transportandinfrastructure/parking/2023-consolidation-order/charged-pps.pdf?la=en&hash=1907141AFD31AF323BE63A057C70F40D3C5A1E4C ---------------------------------------------------------
Islington's Response:
Thank you for contacting us about the above Penalty Charge Notice (PCN).
We have considered the challenge you submitted and have found no grounds for
cancellation of the penalty charge.
The PCN was issued as your vehicle was parked in a pay by phone bay without payment of
the parking charge.
There is no obligation for a Civil Enforcement Officer (CEO) to allow an observation period to
private vehicles parked in pay by phone bays and a PCN may be issued immediately.
In some situations, such as when vehicles are parked in resident bays where a different
contravention occurs, an observation period is required, and for this reason the ticket
includes a section where the observation times may be entered by the CEO. As an
observation period is not required for this type of contravention, the times shown in this
section will be the same as the time the PCN is issued.
We note your comments regards the change to charge vehicles parked in motorcycle bays
which were introduced in 2023. However we are not obliged to contact potential users of a
bay directly to make them aware of changes to restrictions. The time plate of a bay is the
primary source of information for drivers. We would expect the driver to check any signage
each time they park to ensure they have made themselves aware of any changes to the
restrictions in operation in the bay since the vehicle was last parked.
We appreciate the circumstances you have described and understand this may have been a
mistake, however this does not provide sufficient reason to cancel the PCN. Having
considered your appeal and the evidence available we are satisfied that the contravention
occurred and the PCN was issued correctly. As we have found no compelling grounds for
cancellation of the PCN we are upholding the penalty charge.
You should now choose one of the following options:
Pay the penalty charge. We will accept the discounted amount of £55.00 in settlement of
this matter, provided it is received by 26 July 2025. After that date, the full penalty charge of
£110.00 will be payable.
Or
Wait for a Notice to Owner (NtO) to be issued to the registered keeper of the vehicle,
who is legally responsible for paying the penalty charge. Any further correspondence
received prior to the NtO being issued may not be responded to.
The NtO gives the recipient the right to make formal representations against the penalty
charge. If we reject those representations, there will be the right of appeal to the
Environment and Traffic Adjudicator.
You can make a credit or debit card payment on our automated payment line on 020 7527
8000 at any time. You can also pay online at
www.islington.gov.uk. If you prefer to pay by
cheque, please make it payable to LB Islington and send it to the address at the top of this
letter. Please write the PCN number on the back of the cheque. You may also send postal
orders (quoting the PCN number).
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