The recent case below has some relevance in that the key case is cited and also no evidence was provided of the permit and terms about checking.
I asked the OP if there was anyone who could take care of the car while they were away but if not it seems the only remedy is to store or put the car where there is no possibility of a suspension while on a holiday of 2-3 weeks, which seems contrary to natural justice and of course some authorities recognise that and relocate not impound.
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Case reference 2240499669
Appellant xxxxxx
Authority London Borough of Hackney
VRM XO55DEE
PCN Details
PCN QZ19092876
Contravention date 17 Sep 2024
Contravention time 10:30:00
Contravention location St. Thomas Square
Penalty amount N/A
Contravention Parked wholly/partly in a suspended bay or space
Referral date -
Decision Date 17 Jan 2025
Adjudicator Carl Teper
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons The Appellant attended by telephone for her appeal on 16 December 2024, as a consequence of that attendance I adjourned the case back to the Authority for their comments, the adjournment notice was expressed in the following terms, and is self-explanatory:
"Appeal hearing adjourned by the Adjudicator, Mr Teper, who has made a finding that the Appellant's vehicle was parked at this location from late August 2024, and remained parked until the day of the suspension. He has also made a finding that the vehicle was parked at the same location on 12 September 2024. He has preferred the evidence of the Appellant to that of the Authority's.
In light of these findings Mr Teper requests that the Authority re-considers the exercise of its discretion and to no longer pursue this PCN. The Appellant has a permit to park in this bay and was on holiday from late August until returning in mid/late September 2024."
I note that the Authority has not responded to my adjournment notice.
The Authority's case is that the Appellant's vehicle was parked in a suspended bay when in St Thomas Square on 17 September 2024 at 10:30am.
The Appellant's case is that the suspension was not on display when her vehicle was towed to the bay on 22 August 2024, that she went on holiday on 28 August and returned on Tuesday, 10 September 2024. She discovered the PCN on Tuesday, 17 September 2024, the suspension notice having been erected five days before on Thursday, 12 September 2024. It follows that even if she had checked her vehicle on the 10 or 11 September, she would not have been aware of the suspension.
In the case of Nottingham City Council, R (on the application of) v Bus Lane Adjudicator & Ors [2017] EWHC 430 (Admin) it was held by Mrs Justice Lang DBE that:
“38. It is well-established that a failure to comply with the regulation 18 duty as to signage
is a proper ground on which an adjudicator may allow an appeal against the issue of a
penalty charge notice on the ground that the alleged contravention of the relevant
traffic regulation order did not occur. (See R (London Borough of Camden) v. The
Parking Adjudicator [2011] EWHC 295 (Admin), per Burnett J. at [50] – [51]).”
The regulation 18 duty must as a matter of law refer not only to whether the signs are adequate by reason of their size, number and visibility, but also (especially in the case of temporary restrictions) that they are placed far enough in advance of a restriction coming into force that motorists have an adequate amount of time to become aware of the restrictions.
If this were not the case, an Authority could install suspension signs adjacent to a permit bay with no notice at all, and then issue PCNs to all vehicles parked in the bay, and then tow them away 15 minutes later. In my judgment this would not be right and cannot have been what the legislature intended when it used the word “adequate”.
Further, the decision of Adjudicator Houghton in case 2180194309 records as follows:
“The Council’s evidence appears to show that 10 signs were erected in or near this road on the 16th. However there seems to me to be no clear evidence to show that the particular sign relied on was one of them , nor is there any evidence ( such as a photograph) to show the sign remained place shortly before the vehicle was parked. On balance I prefer the evidence of the Appellant and find that the sign was not in place at the time of parking.
The Appellant has understandably assumed that if this is so no contravention can occur and this appears to be accepted by the Council. Although I share this view I have to note that the law is perhaps not so clear cut. In a recent decision of the Court of Appeal (Camden LBC v Humphreys [2017] EWCA Civ 24) a similar issue fell to be decided in the case of a motorcyclist who left his motorcycle in an unsuspended bay which was subsequently suspended incurring a PCN. The motorist succeeded in a |Judicial review hearing in the High Court at which the Council unaccountably did not appear. The Council subsequently appealed to the Court of Appeal. They failed, but purely on the basis that they were too late and should have made their submissions to the High Court at the original hearing. The Court of Appeal, however did express a provisional view as to what the law was in this type of situation. The majority view was that the Council is only required to prove that the bay was suspended and that the vehicle was parked within it for a contravention to occur. The view of the remaining Lord Justice of Appeal was that some form of notice of the suspension would be required. The Court emphasised that the views expressed were only provisional pending the law being fully argued in some subsequent case; and therefore technically the views expressed are not binding on me. With great respect I agree with the minority view; it seems to me a principle of all parking law that the motorist should have some notice of a restriction or prohibition when deciding whether to park.
As I am not satisfied adequate notice of the suspension was given the Appeal is allowed.”
I have considered the evidence in this case and I find as follows:
First, I find that the Appellant's vehicle was already parked at the location as seen in the CEO's photo shots on 12 September 2024, when the suspension notice was erected.
Second, I find that the Authority has not produced any evidence, such as the terms and conditions that her permit was granted to her, which provides any guidance as to how often a motorist must check the bay where the car is located, whether it is broken down or not.
Third, I find that whilst the Authority erected the suspension notice on Thursday, 12 September this only allowed a motorist 5 days warning of the upcoming suspension on Tuesday, 17 September 2024 with a weekend in between.
Fourth, applying the test of adequacy at paragraph 38 of the Nottingham City Council, R (on the application of) v Bus Lane Adjudicator & Ors I find, as a fact, that a 5 day warning of a suspension is inadequate in the circumstances of this particular case.
Fifth, I find that a suspension notice should be erected as soon as an Authority becomes aware of the need to suspend a particular bay and that it must erect the signs early enough to give adequate notice of the suspension.
Sixth, I find that resident/motorists are entitled to adequate notice to enable them to relocate their vehicle, whether it be to another permit bay or to a garage.
Seventh, the reason this bay was suspended was due to 'Highway maintenance', however, there is no evidence as to when the Authority became aware of the requirement to suspend this bay or how urgent the highway maintenance was.
Eighth, as stated above I find a 5 day notice, which included a weekend in between, is inadequate to warn a motorist of an upcoming suspension.
In light of the above, I find that this contravention cannot be upheld because I find it has not been proved by the Authority, with whom the burden rests.
The Appellant, however, should be aware that if the Authority had produced evidence in relation to how often a permit holder or otherwise is obliged to check the status of where their vehicle is parked, and especially in relation to suspensions, the decision in this case might not have been the same.
The appeal is allowed.
