Case Number FD 05594D
Adjudicator’s Decision
Amie Tolson (Johnson)
and
Sheffield City Council
Penalty Charge Notice FD29520168 £70.00
Appeal allowed on the ground that the alleged contravention did not
occur.
I direct the Council to cancel the Penalty Charge Notice and Notice to
Owner.
Reasons
The PCN was issued on 24 March 2009 at 14:28 to vehicle YA07 CXE in Norfolk
Street for being parked in a loading place during restricted hours without loading.
I am asked to consider this case as a postal decision based on the written
submissions and documents provided by both parties.
The basis of Ms Tolson’s appeal is that because she had displayed her Blue
Disabled Parking Badge and Clock on the dashboard of the vehicle she was
entitled to park it in the loading bay.
The Council’s case, in line with the guidance given in the literature issued with
the Blue Badge is that the use of the badge does not permit a vehicle to park in a
loading or other restricted bays and that Regulation 8 of the local authority’s
Traffic Orders (Exemption for Disabled Persons) (England) Regulations 2000
should be read as applying only to a single or double yellow line restriction.
The photographs taken by the Civil Enforcement Officer at the time the PCN was
issued show that Ms Tolson’s vehicle is parked in a roadside bay which is
delineated by a raised kerb on three sides and on the other by a line of narrow
flagstones adjacent to the carriageway. Next to the bay is a sign in the form of
diagram 660.4 in Schedule 2 of the Traffic Signs Regulations and General
Directions 2002.
Norfolk Street is within a Restricted Parking Zone which has been established,
with the consent of the Department for Transport in order to protect the
environment of the area.
The point of a Restricted Zone is to establish a uniform restriction within it so as
to remove the need for further carriageway markings.
In this case the relevant entry to the Zone is signed to show that parking is
restricted at all times except within the marked bays.
The authority given by the DfT does not specifically permit the absence of bay
markings although the Traffic Signs Manual suggest that these need not be used
where the bay is defined by kerbs.
Although I have considered the argument as to whether the signing at the
entrance to the restricted Zone establishes an exemption to the general waiting
restriction in the areas which are designated as loading bays (which then would
permit the use of the Blue Parking Badge) I conclude that the relevant Traffic
Order does establish in Part E of Section 3 and in Schedule 11.01(15) a bay
which permits vehicles to park only when loading or unloading and indeed this is
confirmed by the form of the roadside plate.
Regulation 8 of the 2000 Regulations provides that:-
“(1) This Regulation applies to an Order made under Section 1, 6, 9, 35,
45 or 46 of the 1984 Act which includes a provision which:
prohibits (except for the purposes of loading or unloading) the waiting of vehicles
or any class of vehicles in a road at all times of day or during one or more
specified periods of the day….”
The Council argues that Regulation 8 only applies only to a yellow line restriction
on those parts of the road where there is no loading ban.
The power for the Council to regulate parking on a road is included in Section 1 of
the 1984 Road Traffic Regulation Act to which Regulation 8(1) refers.
Section 32 of the 1984 Act gives power to the local authority to provide parking
places either on or off street and Section 35 permits the authority to make
provision as to:
“(i) the use of the parking place and in particular the vehicles or class of
vehicles which may be entitled to use it.
(ii) the conditions on which it may be used.
(iii) the charges to be paid in connection with its use (where it is an off
street one) and
(iv) the removal from it of a vehicle left there in contravention of the order
….”
Section 45 permits the provision of on street parking places where payment is
required and Section 53 which is headed “Designation Orders outside Greater
London” provides that
“(i) a designation order made in respect of highways in any area outside Greater
London may include such provisions:
for any of the purposes specified in paragraphs (a) to (c) of Section 2(2) of this
Act or
for authorising the use without charge (subject to such if any conditions as may
be specified in the order) on any part of a road as a parking place for vehicles or
for vehicles of such classes as may be specified in the order as the authority
making the order may consider appropriate in connection with the designation
order. …”
Section 2(2) provides for a Traffic Order to include any provision:
“(c) prohibiting or restricting the waiting of vehicles or the loading and
unloading of vehicles”.
The relevant Traffic Order in this case is “The Sheffield City Council
(Consolidation) (On Street Parking and Prohibition of Waiting) (City Centre
Controlled Parking Zone) Order 2008”. The heading to the Order states that it
has been made by the Council under “Sections 1, … 35(1) … 53 … of the Road
Traffic Regulation Act 1984”.
Whilst it is possible for the Council to have made the Order designating the bay
where Ms Tolson’s vehicle was parked as a loading bay under either Section 35 or
Section 53 of the 1984 Act it seems to me more likely because the Order imposes
a condition on which the parking place may be used and there is no reference to
there being a “designation” order that I should conclude it has in fact been made
under Section 35. I am reinforced in that view by the fact that Section 53
specifically refers to a Designation Order which is defined in Section 142 of the
1984 Act as being an Order made under Section 45 which is headed “Parking on
the Highway for Payment”.
I must therefore conclude that the bay, which is one which prohibits parking
except for the purposes of loading and unloading at all times of the day should be
included in Regulation 8(1)(a) of the 2000 Regulations.
The reference to Section 35 in Regulation 8 means that the Council’s submission
that the exemption applies only to a yellow line restriction, which would clearly be
made under Section 1 of the 1984 Act cannot be correct.
Although it may be difficult to see why the Regulation should permit disabled
persons vehicles to park in designated loading bays and indeed this is contrary to
the instruction given in the badge holders handbook because Regulation 8
specifically refers to Section 35, without further qualification to restrict the
reference only to Section 35(1) (iii) it cannot relate only to yellow line restrictions
as the Council suggests.
Even if there is an ambiguity as to what section the Traffic Order has been made
under in circumstances where Regulation 8 specifically refers to a prohibition on
parking except for the purposes of loading and unloading in my view I should
resolve that ambiguity in favour of the Appellant.
I therefore find Ms Tolson’s submission to be correct and because her vehicle
was, with the appropriate display of the badge, entitled to park in the loading bay
I am not satisfied that the contravention occurred.
The appeal is allowed.
Stephen Knapp
Adjudicator 4 January 2010
