Contravention 47 - Stopped in bus stop (BUT NO ROAD MARKINGS!), colchester special Options

[geordiemike]

Contravention 47 - Stopped in bus stop (BUT NO ROAD MARKINGS!)


Hi all I wonder if you could help please?

This is another Colchester special! , and is pretty well much the same as :

previous Colch Code 47

Incandescent and PeterUK kindly suggested its better to start a new thread

Colchester High Street, I stopped at a bus stop to let my girlfriend out, got snapped by the Spy Car going past. There are no yellow marking (or any markings) but there is a yellow "no stopping at Any Time except buses" plate. (my PCN and links to the google streetview are below)

I know that people have put work into this in the other post (DancingDad, MAd Mick V, PASTMYBEST) I summarised what I understood your comments are here:

1) ITs a Restricted Parking Zone so cannot have different styles of waiting and parking and bus stops throughout (in particular bus stop/stand):
"13.2 Waiting and loading restrictions, which must be uniform throughout the zone, are indicated by zone entry signs and time plates within the zone, but without yellow lines or kerb marks. Restricted parking zones are therefore suitable only for single streets or clearly defined small areas. They are not suitable for through routes with heavy traffic or facilities which create a demand for parking greater than can be accommodated in the on-street bays (unless convenient off-street parking is available). Unlike a pedestrian zone, there is no restriction on entry into a restricted parking zone."

2) The definition of a bus stop clearway in the TRO requires there to be road markings. No markings means the TRO has not been contravened.

3) The TSRGD also has not been contravened since Part 6 schedule 7 also requires there to be road markings (and there are no Variants to allow no road markings).


I tried to PM cserki (the OP ) directly to see if he had any luck , but no reply, so I dont know if he succeeded or not!

MIck had suggested in previous post a line of appeal as indicated further down this post - which looks great - unless there is anything different about my situation which i havent spotted?

I have a couple of newbie questions. (which have probably answered so many times before but cant find in FAQ)
1) do I do this using Informal Appeal first or is that just a waste of time - should I go straight to formal appeal
2) Will the penalty stay at 50% discount (£35) while I appeal ? I seem to remember they used to use this as a way to encourage not appealing as people weree happy to accept 50% . (letter is dated 30 Jan)
3) Can I send the appeal on the website, or legally must it be by post?


Thanks for helping , I am always amazed that this website has people this generous with their time!


Micks suggested letter is :
<<
Dear Sirs,

I wish to appeal against PCN number ????? which alleges I stopped on a bus stand.

This contravention cannot be sustained for the following reasons:-

1) There are no road markings or traffic signs denoting a bus stop/clearway as required by your traffic order and the traffic signs legislation;

2) The yellow plate which indicates a no stopping restriction except buses cannot constitute a bus stand situation;

3) If the Council regards this as a bus clearway, then the contravention given is incorrect it should be Code 46 "Stopped where prohibited (on a red route or clearway)";

4) The yellow plate denotes a stopping restriction, not a bus stand, therefore the use of camera enforcement is not permitted.

The signage at this location is totally inadequate and does not properly inform a motorist of whichever restriction is relevant. Had there been road markings I would not have stopped for less than a minute to drop someone off.

Overall the Council have failed in their duty not to confuse or mislead under Reg 18 The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.

Yours ....

---------------
See if others want to add anything.

>>>
















Image from Google maps:

https://www.google.co.uk/maps/@51.8896569,0...3312!8i6656


Its a restricted parking zone:
https://www.google.co.uk/maps/@51.8896933,0...3312!8i6656

Colchesters TRO:
colchester TRO

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[cp8759]

Are the specific dispensations given by the Secretary of State for the council to make its own signs/markings made publicly available as documents by the council?

They're all available here: http://www.dft.gov.uk/traffic-auths/index....arch=Colchester

[PASTMYBEST]

phone and ask for the authorisation their case falls apart without it and it is not listed here

http://www.dft.gov.uk/traffic-auths/?search=essex

That they reference TSRGD 2002 is wrong

[geordiemike]

Thanks for sharing that list.

It's frustrating in that I had tried to do a fairly exhaustive search and still not found it, but here it is. You are right, the signs are not on there. Perhaps it dates from before 2011?

Could it be the case that Secretary of State can make authorisations, and its allowed to not be on that lists?

[PASTMYBEST]

See schedule 7 part 4 item 9 here

http://www.legislation.gov.uk/uksi/2016/362/schedule/7/made

Then read section 1 of part 6.

you see that a bus stop clearway is defined by the area and must have both components,(sign and markings) to omit either they must get authorisations. They say they have it and have sent it they must show this

[Mad Mick V]

Adding to PMB's post.

I don't believe an old DfT authorisation can be applicable since it would affect the use of cameras.

The legislation states that cameras can be used to enforce at "a bus stop clearway or bus stand clearway":-

http://www.legislation.gov.uk/uksi/2015/10...20151001_en.pdf

It goes on to give the following definition:-

“bus stop clearway or bus stand clearway” has the meaning given in paragraph 1 of
Schedule 19 to the Traffic Signs Regulations"

That's the TSRGDs 2002 which states---(a)“clearway” means an area of carriageway bounded by the continuous and broken straight yellow lines comprised in the road marking in diagram 1025.1, 1025.3 or 1025.4 and “bus stop clearway” means a clearway on which the words “BUS STOP” are marked"

Ergo a camera can only be used if those parameters are satisfied. Ministers can issue special directions to alter the TSRGDs but IMO cannot alter the terms of the The Civil Enforcement of Parking Contraventions (England) General (Amendment No. 2) Regulations 2015 without Parliamentary approval. So the use of cameras at this location cannot apply for the above reasons and therefore the PCN is unenforceable.

It would be interesting to see what Colchester offer by way of DfT authority but I think it matters not.

Mick

[jdh]

Any mileage in the dates given in the CC in http://forums.pepipoo.com/index.php?s=&...t&p=1374184 , it claims the PCN was served on a sunday?

[geordiemike]

jdh: Not sure what you mean, but - the there is a no stopping sign, but it doesn't mention any time, so prob would include Sundays . I had forgotten what day it was myself

Mick: there is an interesting case here, not sure how relevant, but it claims that there are limitations on how the Sec of State can redefine what is written in the Traffic Signs regulations / Statutes

I have phoned them today and requested the copy of the Sec of State Auth . I also asked where these kept online, as surely they are public documents?

[cp8759]

jdh: Not sure what you mean, but - the there is a no stopping sign, but it doesn't mention any time, so prob would include Sundays . I had forgotten what day it was myself

Mick: there is an interesting case here, not sure how relevant, but it claims that there are limitations on how the Sec of State can redefine what is written in the Traffic Signs regulations / Statutes

I have phoned them today and requested the copy of the Sec of State Auth . I also asked where these kept online, as surely they are public documents?

It's odd that they said in a previous letter "These have been approved by the Secretary of State, which has given special authorisation a copy of which is enclosed", I assume they didn't actually enclose anything?

[Mad Mick V]

OP----yes you have it-----an administrative decision would be ultra vires if it did not comply with the core legislation or sought to alter core legislation parameters. Likewise IMO the Council would be in abuse of process if it tried to enforce on the basis of a dud authorisation which allowed them to use cameras illegally.

Mick

[PASTMYBEST]

My thinking is that you need to wait for the order for recovery. You cannot appeal as you are out of time. Once that pain has been negotiated then your appeal points.

You entered a restricted zone with big clear no waiting restrictions.

All restrictions within a RPZ should be the same a restricted zone allows for the omission of yellow lines

you are allowed to board/alight in a restricted zone just as you would be on yellow lines.

You could not know when stopping that the restriction there is different, You would be entitled to time to read and understand the sign in place, That your passenger alights while you do this matters not to your entitlement

the no stopping sign creates just that a no stopping restriction. this should not be in place in a RPZ but even if it is it creates only a no stopping restriction it does not create a bus stop clearway. This cannot be done without the yellow markings.( like having a yellow box junction but not putting the markings down) as such the use of camera enforcement is ultra vires

The use of the word will rather than may

chase the authorisation whilst waiting on the OfR

[geordiemike]

Thanks PMB, Mick, cp. I have the Authorisation which I attach below

It is signed in the year 2000 , which is why it didnt show on the DfT traffic authorisation database. IMHO the main claim here is Paragraph 10 which says they don't need to put down the markings for 1025.1 (the bus stop ones)

My thoughts (in addition to the excellent points raised above)
1. The auth was written in 2000 and refers to the 1994 version of the regulations. - don't know if that has a bearing due to updates in regs etc?
2. It is an extremely tortuous process for me to know what does and doesn't apply here, when dropping off. It has been difficult for me to obtain these dispensations, and now even that they have been provided - the map is unreadable.
3. I don't if the RPZ was created afterwards - but there are inconsistencies as PMB says in what is required within RPZ and what is authorised here.
4. There is no direction in the Authorisation, that the Sign D , "No Stopping at Any Time Except Buses", should indicate any bus stop situation, or indication that it is a replacement for the missing 1025.1 road markings

PMB, what do you mean by "will" vs "may"

[Mad Mick V]

That authorisation clearly states that it is only extant on a without prejudice basis. In other words it falls if another statute has precedence as I have demonstrated with the camera legislation.

Mick

[geordiemike]

Does "without prejudice" in this context, mean that it can no way supercede/override any other "statutory provision" where that provisiion would apply to the same set of circumstances ("like effect")?

[cp8759]

My thoughts:

My thoughts (in addition to the excellent points raised above)
1. The auth was written in 2000 and refers to the 1994 version of the regulations. - don't know if that has a bearing due to updates in regs etc?

I doubt this helps. The 2002 regulations had a saving provision under regulation 3:

"3.—(1) Subject to paragraph (2), any traffic sign which immediately before the coming into force of these Regulations was placed on or near a road shall be treated as prescribed by these Regulations, notwithstanding any provisions of these Regulations to the contrary, provided that—

(a)it is a sign prescribed, or to be treated as if prescribed, by the 1981 Regulations or by the 1994 Regulations; and
(b)it continues to comply with those Regulations,
as if those Regulations had not been revoked."

The 2016 regulations have a similar provision. The authorisation itself is made under sections 64 and 65 of the Road Traffic Regulation Act 1984 which is still in force.

2. It is an extremely tortuous process for me to know what does and doesn't apply here, when dropping off. It has been difficult for me to obtain these dispensations, and now even that they have been provided - the map is unreadable.

The first part of this won't help at all. If you wanted to get an authoritative copy of the 70 miles per hour, 60 miles per hour and 50 miles per hour (Temporary Speed Limit) Order 1977, you may well have to make an appointment to visit the Parliamentary Archives and see the original, or buy a print copy from Her Majesty's Stationery Office, as there is no digital copy available. As far as I know nobody has ever challenged the national speed limit on the basis that getting sight of an authoritative copy of the order is difficult and IMO any such attempt is doomed to fail.

I would however go back to them and ask for a higher resolution of the map. If it is impossible to work out from the original map which signs goes where, the authorisation becomes void and the council's case falls apart.

3. I don't if the RPZ was created afterwards - but there are inconsistencies as PMB says in what is required within RPZ and what is authorised here.
4. There is no direction in the Authorisation, that the Sign D , "No Stopping at Any Time Except Buses", should indicate any bus stop situation, or indication that it is a replacement for the missing 1025.1 road markings

These are your strongest points. The allegation is that you were stopped in a bus stop clearway and the signs and authorisation do not create such a restriction. I don't think it's true such a restriction can only be created by using yellow markings: If the SoS's authorisation stated the diagram 974 creates a bus stop clearway, you'd be bang to rights. However the authorisation says no such thing, it merely states that sign 974 may be used without the yellow markings.

In fact the authorisation itself clearly states that its purpose is to give notice of "the waiting restrictions along High Street", the authorisation does not mention any no stopping restrictions at all.

Without the yellow markings, you're not put on notice that there is a bus stop clearway, so as PMB says you must be allowed sufficient time to read the sign. It follows that if you only stopped for as along as is necessary to read the sign, the contravention did not occur. As the authorisation only relates to the giving notice of a "no waiting" restriction, as long as you were stopped but not waiting, you did not contravene the signs authorised by the authorisation.

That authorisation clearly states that it is only extant on a without prejudice basis. In other words it falls if another statute has precedence as I have demonstrated with the camera legislation.

Mick

That's not quite what without prejudice means here: The without prejudice part says that the authorisation itself ceases to have effect one month after the Secretary of State gives notice to the council that he is revoking the authorisation, but this is without prejudice to any other enabling authorisation. This means that, if the SoS gives notice that the authorisation is being revoked, the council have one month to take the signs down, but any signs which were authorised by the authorisation but are also authorised by some other enabling legislation (such as the TSRGD) can remain in place (i.e. the notice of revocation does not require the revocation of a sign which, by the time the revocation is made, is also authorised by the TSRGD or some other equivalent authorisation).

This post has been edited by cp8759: Tue, 1 May 2018 - 12:29

[Mad Mick V]

I am happy with my interpretation of "without prejudice" in the authorisation. It means the signs or lack of signs can be continue to apply UNTIL something else (not known at the time of authorisation) comes along which alters the application of the authorisation. That it mentions another statutory provision as being that something else is pretty obvious.

Mick

[geordiemike]

@cp - the fact that the stated auth purpose is for "Waiting Restrictions" rather than stopping, or other offences, - could that be regarded as de minimis, by an adjudicator (ie they would say I am vexatiously splitting hairs here) ?

[cp8759]

I am happy with my interpretation of "without prejudice" in the authorisation. It means the signs or lack of signs can be continue to apply UNTIL something else (not known at the time of authorisation) comes along which alters the application of the authorisation. That it mentions another statutory provision as being that something else is pretty obvious.

Mick

We'll have to agree to disagree on this one. The "without prejudice" statement in the authorisation is only relevant if the SoS gives notice that the authorisation is revoked (As geordiemike, it's without prejudice to any other authorisation with "like effect"). Until such a revocation is issued, frankly paragraph 12 of the authorisation is irrelevant. What you say about camera enforcement appears correct to me, but I really wouldn't mention the "without prejudice" bit when making this argumet as it would just confuse matters.

@cp - the fact that the stated auth purpose is for "Waiting Restrictions" rather than stopping, or other offences, - could that be regarded as de minimis, by an adjudicator (ie they would say I am vexatiously splitting hairs here) ?

No waiting and no stopping are different in law and I think the issue is substantive. You can argue that if the council has asked for an authorisation for "no stopping" signs, the SoS would never have made an authorisation in those terms.

PMB, what do you mean by "will" vs "may"

Have a read of the will/may cases posted here: http://forums.pepipoo.com/index.php?showtopic=90145

The NoR wrongly states they "will" increase the charge.

[Mad Mick V]

@cp8750

Glad you think the camera ground is worth taking forward.

We'll have to disagree on the without prejudice issue. Anyhow, since we disagree, it would be best not to mention the phrase in any appeal as you suggest.

I think the OP has strong grounds to win this case.

Do you fancy a go at the appeal draft?

Mick

[cp8759]

Do you fancy a go at the appeal draft?

This could be a fun one, I'll have a go later tonight.

@geordiemike, any luck asking for a better copy of the map?

[cp8759]

I've taken the kitchen sink approach with this one, happy for others to chip in.

Ground 1: The alleged contravention did not occur: Diagram 1025.1 is absent from the road surface and this diagram is required to support the alleged contravention:

The authority’s allegation is that my vehicle was stationary at a restricted bus stop or stand, contrary to article 6 of The Essex County Council (Colchester Borough) (Permitted Parking and Special Parking Area) Order 2014, this being the only provision of the TRO which creates a no stopping restriction in relation to bus stops.

For this contravention to be established, the authority would need to show that my vehicle was in contravention of diagram 1025.1 of the Traffic Signs Regulations and General Directions 2016, which, pursuant to Paragraph 1 of Part 6 of Schedule 7 to those regulations, conveys the prohibition that a person driving a vehicle must not cause it to stop within the clearway during its times of operation.

Diagram 1025.1 is not present at the location in question, as shown by the council’s own photographic evidence, therefore the contravention has not been established and for this reason alone, the PCN should be cancelled.

Ground 2: The alleged contravention did not occur: Motorists are entitled to stop for a brief but reasonable amount of time to read signs and understand any applicable restrictions before driving away:

The authority avers that the sign with the words “No stopping at any time except buses” is capable, on its own, of creating a no stopping restriction. Even if this were true, it is trite law that a motorist is entitled to a brief but reasonable amount of time to read the restriction on any such sign in order to understand the restriction.

Where the restriction is imposed by a sign, rather than by road markings, there is no generally no expectation that a motorist will be able to read, understand and comply with the sign while in moving traffic. Similarly to the situation which might occur when reading the time-plate used in conjunction with a single yellow line, motorists are entitled to stop for a few seconds to read the sign, understand the restriction, and drive away if a restriction is in force. Those who do so without delay are deemed not to be in contravention of the sign.

The only signs which do not allow for such brief stopping time are signs which, by their very nature and design, are meant to be read and understood my motorists in moving traffic. This is the case, for example, for clearway signs, urban clearway signs, double red lines and so on. An obvious example of such a sign is diagram 1025.1, which is designed to be seen and understood by a motorist without the need to stop. The sign relied on by the council is not designed to be seen, read, understood and complied with by motorists without stopping.

As I stopped for no longer than necessary to read the sign before driving off, the alleged contravention did not occur.

Ground 3: The alleged contravention did not occur: The sign relied on by the council is not capable of creating a no stopping restriction:

The sign as used by the council is not authorised by any current or past version of the Traffic Signs Regulations and General Directions, instead the council rely on an authorisation issue by the Secretary of State on 21 December 2000. The opening paragraph of the authorisation states that it is being made for the purpose of “informing road users of the waiting restrictions along the High Street, Colchester”.

The authorisation was not therefore made for the purpose of informing road users of a no stopping restriction. Indeed, had the council sought an authorisation from the Secretary of State to inform users of a no stopping restriction, it is obvious that the Secretary of State would have framed the authorisation differently in order to ensure that motorists would be able to read and understand the authorised signs without the need to stop.

As the Secretary of State only authorised the highways authority to use the signs for the purpose of informing road users of a no waiting restriction, that authorisation cannot be relied on in order to enforce a no stopping PCN. It follows that the alleged contravention did not occur and the council acted ultra-vires in issuing the PCN, which must therefore be cancelled.

Ground 4: The alleged contravention did not occur: The map attached to the authorisation is unreadable:

The authorisation specifically provides that the signs may only be placed at or near the locations noted on the attached map. The map provided by the authority is unreadable and does not allow the reader to understand where the authorised signs may be placed.

An authorisation which is unreadable and cannot be understood cannot have force of law, it follows that, unless the authority can produce a readable copy of the map, the authorisation must be held to be bad on its face, in the same way as it would be if the authority had not produced the map at all.

Therefore if the authority is unable to produce a readable copy of the map originally attached to the authorisation, the consequence is that it cannot be established that the signs are authorised under sections 64 and 65 of the Road Traffic Regulation Act 1984, and it cannot therefore be established that a contravention occurred.

Ground 5: There has been a procedural impropriety on the part of the enforcement authority: It is ultra-vires for the council to serve a postal PCN in the circumstances of the case:

The PCN was served by post, there was no attempt on the part of the CEO to serve or to attempt to serve a PCN either by fixing it to the vehicle or by handing it to the person appearing to be in charge of the vehicle. It is therefore implicit that the authority is relying on regulation 9A(6) of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007, which provides as follows:

“(6) The circumstances referred to in regulation 9A(3)© are that a vehicle is stationary in a civil enforcement area on—

(a)a bus lane;
(b)a bus stop clearway or bus stand clearway;
©a carriageway outside a school entrance which is marked in accordance with diagram 1027.1 of Schedule 6 and diagram 642.2A of Schedule 2 to the Traffic Signs Regulations; or
(d)a red route.”

The authority does not allege that my vehicle was stationary in a bus lane, a bus stop or bus stand clearway, a carriageway outside a school entrance or a red route; indeed the Notice of Rejection clearly states that “stopped within a clearway” would not be an accurate description of the alleged contravention. Therefore the authority acted ultra-vires in serving a postal PCN because the conditions set out in regulation 9A(6) are not met. This is a procedural impropriety which means the PCN must be cancelled.

Ground 6: There has been a procedural impropriety on the part of the enforcement authority: The council completely ignored my representations about the lawfulnesses of a postal PCN:

My representations to the council included the following: “The yellow plate denotes a stopping restriction, not a bus stand, therefore the use of camera enforcement is not permitted”

The Notice of Rejection is entirely silent on the matter. While previous adjudications are not binding, they can be persuasive and I submit that the decision of adjudicator Edward Houghton in appeal number 2170256432 before the London Tribunal is relevant in this instance. In that decision, adjudicator Houghton stated, in so far as is relevant:

“The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed”.

In this case the Notice of Rejection should have included words to the effect that the council believes camera enforcement is (for whatever reason) lawful in the circumstances of the case, but the issue is not mentioned at all. It follows that the council could not have properly considered the representations made, and this failure to consider amounts to a further procedural impropriety. It follows that even if the contravention had occurred, the Penalty Charge Notice should now be cancelled.

Ground 7: There has been a procedural impropriety on the part of the enforcement authority: The authority considered the wrong legislation when considering my representations:

The Notice of Rejection mentions diagrams 1025.3 and 1025.4, there are no such diagrams in the Traffic Signs Regulations and General Directions 2016. The authority also quoted regulation 29, but there is no regulation 29.

It appears the council, when considering my representations, only considered the provisions of The Traffic Signs Regulations and General Directions 2002, which, by virtue of Part 1 of Schedule 19 to The Traffic Signs Regulations and General Directions 2016, were revoked in their entirety on 22 April 2016. The council decision maker did not therefore apply her mind to the correct legislation in force on the day of the alleged contravention.

The council’s notice of rejection does not, for example, suggest that any of the signs in question were authorised by the 2002 regulations and they continued to be authorised by virtue of the saving provision in regulation 14 of the 2016 regulations. On the contrary, the decision maker did not appear to be at all aware of the fact that the 2002 regulations have been revoked in their entirety.

A public authority which does not apply its mind to the relevant legislation cannot have given due consideration to the representations made. Failure to consider the legislation in force at the time of the alleged contravention is a procedural impropriety and it follows that, even if the PCN was correctly issued, it must now be cancelled.

Ground 8: There has been a procedural impropriety on the part of the enforcement authority: The authority has unlawfully fettered its discretion and it has failed to convey the meaning required by the regulations in the Notice of Rejection:

In the Notice of Rejection the council states that “Failure to pay, or to lodge an appeal within 28 days beginning with the date of service of this Notice of Rejection, will result in a Charge Certificate being served which will increase the original charge by 50% to £105. If the Charge Certificate is not paid within 14 days beginning with its date of service, legal proceedings will be commenced to recover the money”.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that:

“Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a)state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—

(i)the penalty charge is paid; or
(ii)the person on whom the notice is served appeals to an adjudicator against the penalty charge;”

While there is no need for the wording in the regulations to be copied verbatim, the meaning must be correctly conveyed. The regulations state that the authority “may” serve a charge certificate, there is no legal duty on the authority to do so. Therefore the authority has a discretion, it can chose whether or not to issue a charge certificate.

The incorrect use of the word “will” in the Notice of Rejection is therefore an unlawful fetter of the council’s discretion: as the council has a power to decide whether or not to issue a charge certificate that decision cannot be a foregone conclusion. In this regard I submit that the adjudication in London Tribunals case 2130049862, while not binding, is in this instance persuasive authority:

“In addition the appellant contends that the Notice of Rejection misrepresents the position as it states that if the penalty charge is not paid or an appeal made a Charge Certificate will be served. The appellant correctly points out that Regulation 6 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that under the circumstances specified a Charge Certificate may be served. The relevant parts of Regulation 6 provides:

"Where representations are made under regulation 4 and the enforcement authority serves a Notice of Rejection …..that notice shall

(a) sates that a Charge Certificate may be served unless….."

The appellant refers to several decisions of other adjudicator in support. I am not bound by the decisions of other adjudicators but I find them to be persuasive.

Having considered the matter I agree with the appellant that the Notice of Rejection fails to comply with a mandatory requirement of the legislation. I find that this amounts to a procedural impropriety on the part of the Authority.

Accordingly I allow the appeal.”

The notice of rejection in this case wrongly uses the word “will” instead of “may”, in fettering its discretion and in failing to convey the meaning required by the regulations, the council has committed a procedural impropriety which means the PCN must now be cancelled.

This post has been edited by cp8759: Wed, 2 May 2018 - 14:40