I don't see any advantage in withholding the 'time to pay' challenge as there are numerous cases allowing this at appeal, while the parking without paying is not a sure thing at tribunal but can probably win with correct argument.
Where there is a chance of getting a cancellation at first stage we should suggest it in my view as otherwise things can go awry later (eg with keeper issues).
As for the free parking issue, this refused case (no surprise by Mr Burke although it isn't clear if the 'charge' issue was properly raised) was overturned on appeal so I agree this should be solid ground but there is only reason to go with this alone if there is nothing else IMO.
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Case Details
Case reference 2240306448
Appellant Shabana Tasleem
Authority London Borough of Redbridge
VRM AV17LVL
PCN Details
PCN AF07320475
Contravention date 13 Apr 2024
Contravention time 17:00:00
Contravention location High Street
Penalty amount GBP 80.00
Contravention Parked without payment of the parking charge
Referral date -
Decision Date 17 Sep 2024
Adjudicator Michael Burke
Appeal decision Appeal refused
Direction Full penalty charge notice amount stated to be paid within 28 days.
Reasons The allegation in this case is that the vehicle was parked without payment of the parking charge. Miss Tasleem does not dispute this. She explains that the pay and display machines were out of order. She tried to explain to a passing Civil Enforcement Officer that she was locked out of her mobile phone but he just ignored her. She was helping her mother shopping after an injury. Her mother’s mobile phone cannot be used outside the home. She questions what problem she has caused given that the first hour’s parking is free. Miss Tasleem has provided screenshots and video footage as supporting evidence.
The Civil Enforcement Officer’s record confirms that the pay and display machine was out of order. However, it is not unusual for a pay and display machine or payment or validation system to be out of order for one reason or another. In such circumstances the motorist must find an alternative way to park legally, whether by using an alternative machine or payment method or validation method or parking elsewhere.
I cannot know whether an Enforcement Officer heard and ignored Miss Tasleem in the way she alleges. However, even if he did, this would not affect the validity of the PCN.
Miss Tasleem has not established anything which goes beyond mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion. An Adjudicator has no power to direct cancellation on the basis of mitigating circumstances.
Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.
Decision Date 14 Oct 2024
Adjudicator Anthony Chan
Previous decision Appeal refused
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons The Appellant seeks a review of the adjudicator's decision.
The Appellant said that the payment machine was out of order and she was unable to pay by phone.
The adjudicator accepted that the machine was out of order. He found, correctly, that the motorist must find an alternative way to park legally, whether by using an alternative machine or payment method or validation method or parking elsewhere. The adjudicator went on to find, also correctly in my view, that being locked out of one's phone is not a defence.
The point which the Appellant took in this application is that there is no charge for parking for the first hour, it cannot be said that a motorist was liable to a charge so the contravention of parking without payment of the parking charge has not occurred.
The Authority's case is that: " even if a sesslon (sic) is 'free' this still requires to be booked. I note images were taken of the machine however, regardless of the images there was effectively no session to permit parking."
This is not a play on semantics or "mincing on words" as suggested by the Appellant, not least because she is using the same argument in reverse.
The point is that the contarvention is defined by a Traffic Management Order. The Traffic Management Order can define what payment means and it is entitled to go beyond the literal meaning of the word as long as it is reasonable.
For example, Traffic Management Orders requiring "pay and display" can define evidence of payment as displayed in the vehicle or as displayed on the CEO's electronic device to cover payment by phone or app.
It follows that a TMO should say, if it be the intention of the Authority, that a failure to book a free session amount is deemed to be parking without payment. I have therefore directed the authority to make submissions by reference to the Traffic Management Order as to:
• whether there is no charge for the first hour of parking
• what Article in the TMO obliges a motorist to register a free parking session
• how it is argued that a failure to register a free parking session amounts parking without payment.
The Authority has not responded.
Even if the TMO requires the booking of a free session, the requirement needs to be signed. Contrary to the Authority's submission, there were in fact no images taken of the machine and no evidence that motorists have to book a free session.
I am not satisfied that the contravention occurred. I allow the appeal.
