Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: Vamizi on October 13, 2024, 10:34:00 pm
-
Here's another case from yesterday. It's worrying because Newham issued this at 9:26 when the restriction ended at 9:30 and usually we'd think this is out of scope of appeal.
But the headteacher won the day on evidence she waited til 9:30.
-----------
2240392858
1. The Appellant is appealing a PCN issued in respect of failing to comply with the restriction on vehicles entering a pedestrian zone at the location.
2. The Appellant attended the hearing by telephone.
3. The Enforcement Authority relies upon footage of the incident, a copy of the PCN, a copy of the relevant legislation, location photographs and correspondence.
4. The Appellant contends that she did not enter the street until after the restricted period had come to an end. She is very familiar with the location and tends to drive into the street at different times. She is a headteacher in the locality, and on the day in question, was going to a different school on business. She has told me that she is well aware of the restrictions at the location, and on many occasions, if the restrictions are still in force, she has parked in the adjoining road for a short time, before entering, to ensure that she is not in breach of them. On this particular occasion, she parked in the adjoining street - which she believes is called Old Street - as it was shortly before 9.30am. She was listening to BBC Radio 6 and waited until she heard the announcement that it was 9.30am, before driving into the street. This announcement corresponded with both the clock in her car and also her FitBit clock, which she looked at in order to double check the time. She therefore contends that the clock on the CCTV footage did not show the correct time on the day in question.
5. I have carefully considered all the evidence in this matter, including the Appellant's oral evidence which I found to be credible and cogent.
6. The footage relied upon by the EA shows the vehicle turning left into the street. The restriction signage appears unambiguous, prominent and unobscured.
7. The EA contends in its Notice of Rejection that the cameras at the location are self-calibrating, and that, "they synchronise their times with a trusted time source (NPL/NTP)............ the units synchronise throughout the day multiple times, usually around 4 or 5 times". The NoR further states that the camera systems are certified as approved devices authorised by the Secretary of State. The Case Summary itself is not evidence, but a statement of the EA's position. The EA, despite being on notice that the Appellant was challenging the accuracy of the clock as set out on the CCTV footage, has not provided any detailed evidence in support of its contention that the CCTV clock was accurate at the relevant time.
8. Having heard the detailed oral evidence of the Appellant today, and in the absence of any evidence relating to the synchronising of the clocks, I find it more likely than not that the Appellant drove into the street during unrestricted hours.
9. I therefore allow this appeal.
-
While a contravention is usually a binary between yes or no as the law is written (there is no grace period for things like timed restrictions), adjudicators can apply common sense based on what a person can reasonably do given the information available to them. There tends to be a bit of common sense in local council decisions but you would probably lose if this were TFL and the congestion charge timing.
This case is a good one but the adjudicator is a friendly one I think.
------------------------------
218015398A
Contravention date: 08 Mar 2018
This PCN was issued for the alleged contravention of being stopped in a restricted area outside a school when prohibited. The alleged contravention occurred in Clovelly Avenue at 4.14pm on 8 March 2018.
I have looked at the CCTV footage and also the site images submitted by the Council. These show that Mr Byanouni's vehicle was stopped on entrance markings in front of Colindale Primary School. They also show that there is a sign at the location warning motorists that there is no stopping on the entrance markings between 2.45pm and 4.15pm Mondays to Fridays.
Mr Byanouni appeals because he says that he stopped to pick up his children from school. He says that he is well aware of the restrictions and that the clock in his car showed the time of 4.15pm. The Council says that its clock is calibrated according to the Atomic Clock, ensuring 100% accuracy. The CCTV timing shows the vehicle stopping at 4:14:18.
I accept the evidence of Mr Byanouni that the clock in his car showed the time of 4.15pm. I find that the alleged contravention did not occur. There must be some application of common sense. Motorists cannot all be expected to wear time pieces calibrated to the exact second according to the Atomic Clock. A motorist reading an ordinary watch will not be able to know the time calculated to the exact second.
-
That's..not helpful (of the Adjudicators..not you of course).
I will send the appeal.
-
Thank you. Are you aware if "de minimis" has been defined anywhere? Is it 59 seconds..120 seconds?
There is no definition of 'de minimis', because it is subjective and depends on circumstances, but we all know it when we see it. Unfortunately adjudicators all have different viewes on what is and what isn't de minimis.. Some even refuse to recognise it at all, even though it is a well-established legal principle.
-
Thank you. Are you aware if "de minimis" has been defined anywhere? Is it 59 seconds..120 seconds?
-
You can't search by those terms - there is a list of key cases under various headings though.
Your reps look OK - I'm dubious about the idea of a public clock and Belinda Pearce is one of the more friendly adjudicators. The essence is timing so close as to be immaterial.
A better way of knowing times on the hour is to wait for the BBC time signal on one's radio.
-
BTW - how do you search the ETA website for keywords such as "de minimis" or "common sense"? It retuns 755 documents if you put in either string, none of which contain the search terms..
-
Please can you advise if this draft representation could be improved? Thank you.
"Dear Sir, Madam,
In brief background, I live in the street where the restriction which is the subject of this case is located and I always seek to respect it because I approved of its installation earlier this year to let school children cross more easily, which we use every day.
I make formal representations against the above PCN on the following grounds.
1) My car showed 9am
I distinctly remember the morning of the alleged contravention because I glanced at the clock in my car before making the turn to check whether I could use that route. It showed 9:00am or I would not have turned because I am aware of the 7-9am restriction. I even argued with a protester who opposed the restriction scheme when it was installed earlier this year because he had been sent from another borough, and didn’t understand the importance of the zebra crossing for school children in our road.
2) The authority should display a clock near a timed restriction
The crux of this case is the need for the authority to allow for reasonable variation between the time on the camera, and the time shown in one’s car.
In case 2240403896, the ETA Adjudicator Belinda Pearce, ruled that “the Enforcement Authority cannot expect motorists to be aware of the time upon which it itself relies unless that time is shown by way of public clock; in the absence of the same motorists are obliged to rely upon their own time pieces and the Enforcement Authority must thereby accommodate naturally occurring variances.”
That Adjudicator further comments “No evidence is adduced of a clock accompanying the signage demonstrating the time upon which reliance is placed by the Enforcement
Authority.” I note the absence of such a clock around the signage of the Boundaries Road scheme in my case and attach photos to prove such absence.
Further, in the council’s reply to my informal representations, they provided no evidence of the calibration of their camera despite mentioning that it was checked. I note this lack of proof but cannot comment further in the absence of a calibration certificate. Ms Pearce noted “No evidence is adduced as to the calibration of, or accuracy of, the camera recording equipment.”
From the above, I advance that there was an allowable variation between the official time and the time shown by my car’s clock which meant that I thought the turn was permitted.
3) The rule of de minimis applies
The same Adjudicator, Ms Pearce, ruled that “I find that if the 18 seconds incursion is accurate, it is such as to be a minimal incurrence; I import the principle of de minimis.” I propose that the same de minimis principle be applied here as the variation between my clock and the camera’s clock was approximately 39-40 seconds which is again within an allowable range and my turn was a minimal infraction, if it was one at all.
Based on the above, I contend that the infraction did not occur and that the authority should cancel the PCN.
I would add that I consider that the authority is being vindictive and acting without common sense here as I clearly didn’t seek to breach this restriction, and further, they should have applied a de minimis standard.
-
Thanks for others at pointing me in the right direction !
The whole point of the very valuable Belinda Pearce adjudication is that it at last points out that the only clock a motorist has, is the one in his possession, the council tells the motorist on the sign there is a time restriction but provides no clock for the motorist to see if he is allowed or not to pass the sign. I think this is the key paragraph: -
I acknowledge that even time-pieces calibrated to the Rugby atomic clock
become unsynchronized; the Enforcement Authority cannot expect motorists
to be aware of the time upon which it itself relies unless that time is shown
by way of public clock; in the absence of the same motorists are obliged to
rely upon their own time pieces and the Enforcement Authority must thereby
accommodate naturally occurring variances.
Obviously, if one passes a sign with one's clock 5 or 10 minutes out, then one has not been sufficiently diligent and an appeal is unlikely to succeed, but councils in their venality and rapacity serve PCNs when the time difference is less than one minute !! This is really wicked evil behaviour and needs to be called out as the adjudicator has now done.
-
Thank you again!
Interestingly in the appeal, the adjudicator says the authority showed no evidence of calibration, which was one ground I thought about raising.
Should I question this too, and put them to proof? As well as running the de minimis and lack of clock next to the signage argument?
-
This is the decision - there are others such as on timed no stopping zones I recall from the old forum.
https://drive.google.com/file/d/1kUnpR6AeimZ0uSMUcxhmIiK5j9eSHnka/view
-
Sorry on holiday at present in the island of Hippocrates; but I have seen a Sean Stanton-Dunne decision re Brent which invokes the maxim of common sense. I will try and dig it out. And a Belinda Pearce decision too.
The latter: 2240403896 cf: 2240196951
-
Thank you - I can't get results from the London Tribunals website as it shows no cases for 50R, or "clock" or "variation".
As you say, I hope someone can point me to the decision.
-
I would say, go for it and take them all the way !
Reason is that if the council want compliance to the exact second, why haven't they put a clock up at the sign ? We have them at railway stations after all ! A recent adjudication at London Tribunals ruled that without such a council clock, motorists have to rely on their own clock and these are mostly not synchronised with the national atomic clock and certainly never with the council clock. The decision was that councils, in the absence of a council clock displaying the time, cannnot therefore expect exact compliance, and must accept some variation. Of course the motorist is also expected to be reasonably diligent in keeping his clock as accurate as possible. If your clock had been 5 minutes out then you'd have a weaker argument.
The one thing you must NOT do in your reps, is claim the council CCTV clock is inaccurate, because they will easily refute this and you'll lose. Best to say that your clock showed it was OK to pass the sign, and how do the council expect you to know the time the council are relying on to serve a PCN, because there is no council clock at the sign
Hopefully, somebody on here will know the LT Case where this was very recently decided.
-
Mine is the white BMW i3.
PCN shows contravention at 08:59; notice of rejection at 08:59:19. But I actually cross the boundary at 08:59:20..
What are people's views?
I'm keen to take the risk of adjudication here as am very careful on that junction and this contravention was taken after I glanced at the clock in my car.
I can't find a "grace period" in the regs but maybe there isn't one..
-
Which is your car - both though are well into the last minute at 18-21 secs.
So good shout on de minimis (triviality).
(https://i.imgur.com/zCg2Vrj.gif)
-
Hello. Let me summarise:
-I got a 50R for turning right at 08:59 (no seconds shown in penalty notice, and timestamp illegible on the tiny photos)
-Reg YF63LBY and penalty notice WA90944130
-I live in the street and don't try to contravene that camera
-my car clock was showing 9:00 because I remember the occasion precisely
-appealed it on grounds of unknown calibration of their system and uncertainty over time
-Wandsworth rejected the appeal and now show more detail of contravention at 08:59:19
1) should I push to adjudication?
2) is there a "grace period" like there is for parking meters because of the possible timing difference between clock in car and their camera?
3) can I appeal on a procedural ground that original notice didn't show the seconds?
4) on any other grounds?
5) can I ask for proof of the time check they say they did at the moment of infraction and at the start of each day?
Thank you. This one feels very unfair as I always try to respect that rule.
https://postimg.cc/gallery/30Kx4tT