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PCN while unloading building materials into 5th floor apartment, 3-minute observation time - third time in 2 years
X-treem
post Fri, 25 Jul 2014 - 00:33
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I have received another PCN for parking in front of my own property to unload items. The previous two (here and here) both went to PATAS and both appeals were allowed; although, only one went to a hearing; the other was DNC. Previously, it was luggage and grocery shopping. This time, it's building materials.

Here's the PCN and a photograph of the location:



I've drafted the following letter to send to Newham, which is almost identical to the one I sent for the previous PCN:

QUOTE
I was issued with a PCN number PN10605276 for an alleged contravention on [ROAD NAME], London on 13 July 2014 at 16:58. Please consider this letter as my representations against this PCN on the grounds that the alleged contravention did not occur.

At the time of the contravention, I was in the process of unloading building materials. I had to transport this up to my fifth floor flat, therefore three minutes observation time is certainly insufficient for this residence. This would be one and a half minutes each way, and I'm barely through the two coded security doors and in the lift before the first two minutes. I was parked as close to the property as possible; my car was parked only while I was solely engaged in the process of unloading, and I moved my car immediately when this activity was completed. Loading and unloading is a valid exemption for vehicles parked on double yellow lines unless ‘no loading’ markings are present which they were not in this case.

In support of my case, I have enclosed a document that consolidates a number of loading/unloading cases where observation periods have been contentious. In particular, it highlights the inadequacy of a two-minute observation period and this is reflected in a number of PATAS cases, details of which are in the enclosed document which I would like to include as evidence to support my case should this go to adjudication. My particular situation mirrors the cases where the appeal was allowed in that no loading activity was observed for at least two minutes and the Adjudicator accepted that loading was still taking place due to delay factors such as distance and nature of the items being carried. It is of particular note that the author of this document is an Adjudicator and states the following:

“…it must be said that the shorter the observation period the easier it will be evidentially for the motorist to establish that the exemption applies. If a delivery driver says he was taking a small packet into a nearby building he may easily be able to justify an absence of one or two minutes; but if the attendant observed the vehicle for ten or fifteen minutes with no sign of delivery or unloading taking place the driver will be in some difficulty. Whilst it may not be impossible for him to show that although he was away from his vehicle he was nevertheless engaged in the delivery/unloading process he will have far more of an uphill struggle than if he were justifying a two minute absence.



It is of course up to Local authorities whether they lay down a particular observation period for their Attendants before issuing a PCN. However, for my own part I would have thought that in the case of any commercial vehicle or other vehicle showing signs of possible delivery/unloading activity a zero observation period would inevitably lead to unnecessary correspondence and appeals. Whereas an observation period of, say, 5 or even 10 minutes in these cases would in some cases save the issue of a PCN at all and in the remainder the Local authority would be entitled to take a stricter line when considering explanations given for longer absences – always bearing in mind that each case must be considered on its own merits.”

Furthermore, I note from the Department for Transport’s ‘Operational Guidance to Local Authorities: Parking Policy and Enforcement’ document under the Traffic Management Act 2004 (November 2010 edition), paragraphs 8.48 through 8.52 refer to observation of a vehicle to ascertain whether loading or unloading activity is taking place. Paragraph 8.50 in particular states that “the standard procedure is for the CEO to note the vehicle details when they first see a possible contravention taking place and stay next to or near the vehicle, keeping it in sight at all times, for a set period (usually at least five minutes) to see if there is any sign of loading or unloading. If not, the CEO will issue a PCN.”

The period stated on the PCN is clearly less than the stipulated time period in the aforementioned policy document. Could you please provide me with the CEO’s notes for this PCN?

Based on the above, I respectfully request that you cancel this PCN forthwith.


As with last time, I've not presented my purchase receipts showing that I purchased the materials an hour earlier from the other side of the Thames. I'll leave them to request this on the basis that they might think I don't have any evidence if I haven't included it in my initial challenge. Such a request would almost put them in a situation where they must accept a challenge if the evidence requested is produced.

Any thoughts or comment? Nothing really spectacular about this one as far as I can see, but I am certain it will go to PATAS.


--------------------


Notable Victories:
  • Richard Rippon (2008): Clamped by Richard Rippon's firm Redroute. Successfully sued him in court resulting in an intense media and legal battle that eventually saw his downfall. See the success story here.
  • Luton Airport (2013): Clamped by Ontime Parking Solutions at London Luton Airport where the police assisted in the illegal clamping of my vehicle on private land, directly in contravention of the Protection of Freedoms Act 2012 eventually leading to all towing and clamping operations at the airport being ceased for several weeks. See the success story here.
  • Huntingdonshire District Council (2012): ECN from HDC in in Huntingdon which I contested in the Magistrates' Court. The matter was publicised in the local newspapers and HDC were shown to be wasteful of public money on a minor matter. See the success story here.
Current parking tally since 2001 (Council | Private):
  • UK: 87 | 15 tickets (inc. 5 | 9 clamps, 3 | 0 tows). Of those: 60 | 12 contested, 54 | 11 won, 0 | 1 pending.
  • NL: 3 | 0 tickets (inc. 0 | 0 clamps, 0 | 0 tows). Of those: 1 | 0 contested, 1 | 0 won, 0 | 0 pending.
I am also proud to be in the top 10 longest-serving members on this forum that have been active this year.
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post Fri, 25 Jul 2014 - 00:33
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hcandersen
post Fri, 25 Jul 2014 - 07:35
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Why don't you stop after your secnd para. which includes a clear statement of the law and why you are entitled to rely on the unloading exemption and why the authority must cancel the PCN.
The rest of the reps are arguing a different point, albeit perhaps unintentionally. You're referring to why you think the PCN should not have been issued in the first place. But the fact is that it has been. I suggest you read all the guidance in this area where it clearly recognises and differentiates between the steps a CEO is able to and should take, but accepts that they cannot know what is happening as regards events taking place away from the vehicle. Your reps fill in this gap for the authority who are then required to consider the full picture and not just their CEO's notes.
Their reasoning must be:
1. Do they accept your account of what you were doing while the vehicle was parked?
2. If yes, then does this amount to an exemption?
3. If yes, then the PCN must be cancelled.

This post has been edited by hcandersen: Fri, 25 Jul 2014 - 07:36
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Chaseman
post Fri, 25 Jul 2014 - 10:25
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You've quoted the "standard text" on loading/unloading i.e. Jane Packer Flowers and highlighted the key point i.e. that just because it wasn't observed doesn't mean it wasn't happening and the shorter the observation period the greater the likelihood of a wrongly issued PCN. If I were in your shoes I would quote the Carlo Gabrielle case as being the closest to your situation. Were you on your own or can you get any witness to attest to your movements? Clearly delivery notes and the like (so often demanded by LAs) are irrelevant in this case. Many seem to think that only commercial deliveries are covered by the loading exemption which is patently not the case.

BTW, just how much and what sort of building materials can you get into a Porsche? smile.gif

This post has been edited by Chaseman: Fri, 25 Jul 2014 - 10:27


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DancingDad
post Sat, 26 Jul 2014 - 23:43
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I don't understand why you don't put in the receipt?
I was unloading building materials. Process was continuous and time taken was needed as they were being taken to the 5th floor.
Here is the receipt for the materials.

If they cancel fine, if they don't, there is then additional ammo to take forward.
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Gan
post Sun, 27 Jul 2014 - 07:59
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+1

Copy of the receipt

This post has been edited by Gan: Sun, 27 Jul 2014 - 07:59
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hcandersen
post Sun, 27 Jul 2014 - 08:22
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But the OP wants to try and trip up the authority by not providing this info in the first instance and then seeing if a loosely worded rejection but with the offer to reconsider could play to his advantage i.e. you said you'd cancel if I produced a receipt, well here it is, a receipt for 100 nails and two paint brushes, both of which are building materials - and both of which would fail the test of goods established by the various authorities quoted in the Jane Packer judgment because they can easily be carried by the person and the vehicle is no more than a convenience.
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DastardlyDick
post Sun, 27 Jul 2014 - 09:40
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IMHO the OP is just being vexatious - he's had several PCNs for parking at this location, so he knows he'll get another one if he parks there again.
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The Rookie
post Sun, 27 Jul 2014 - 09:46
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Hardly vexatious if truly availing himself of a statutory exemption is it? Following the rules for this site we have to assume what he has told us is a true and accurate account, as such the council is vexatious for not having learnt from the two previous successful appeals surely?

Having said that I don't know how one person gets so many tickets, I've only had three in 30 years, one paid two successfully challenged.

Three tickets is not several.

This post has been edited by The Rookie: Sun, 27 Jul 2014 - 09:47


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DancingDad
post Sun, 27 Jul 2014 - 10:24
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QUOTE (hcandersen @ Sun, 27 Jul 2014 - 09:22) *
But the OP wants to try and trip up the authority by not providing this info in the first instance and then seeing if a loosely worded rejection but with the offer to reconsider could play to his advantage i.e. you said you'd cancel if I produced a receipt, well here it is, a receipt for 100 nails and two paint brushes, both of which are building materials - and both of which would fail the test of goods established by the various authorities quoted in the Jane Packer judgment because they can easily be carried by the person and the vehicle is no more than a convenience.


Doesn't matter if receipt is first or last, if it is for two packs of nails and a paintbrush, authority can reject with ease virtually no matter how rejection is worded.
But as I've said before, OP has a knack of finding pressure points and getting PCNs cancelled so perhaps I should bow to his tactics when challenging
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hcandersen
post Sun, 27 Jul 2014 - 12:37
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Not quite my point.
A challenge which included a receipt for the items I posited would fail in law if submitted as proof of the goods 'unloaded' because the goods would fail the tests set by the courts.
So if the OP has a receipt for goods which would pass the test, then IMO this should be submitted because this should bring the issue to an end as soon as possible. And as this is a duty which falls on the EA, why shouldn't the motorist be obligated similarly, particularly one so well-versed in the ways of the system.
As regards stopping to unload, then a motorist is entitled to do this as often as they drive on the road because it's not a contravention. It's not it is but they have a defence, it isn't a contravention in the first place.
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X-treem
post Sun, 27 Jul 2014 - 17:34
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QUOTE (hcandersen @ Fri, 25 Jul 2014 - 08:35) *
Why don't you stop after your secnd para. which includes a clear statement of the law and why you are entitled to rely on the unloading exemption and why the authority must cancel the PCN.
The rest of the reps are arguing a different point, albeit perhaps unintentionally. You're referring to why you think the PCN should not have been issued in the first place. But the fact is that it has been. I suggest you read all the guidance in this area where it clearly recognises and differentiates between the steps a CEO is able to and should take, but accepts that they cannot know what is happening as regards events taking place away from the vehicle. Your reps fill in this gap for the authority who are then required to consider the full picture and not just their CEO's notes.
Their reasoning must be:
1. Do they accept your account of what you were doing while the vehicle was parked?
2. If yes, then does this amount to an exemption?
3. If yes, then the PCN must be cancelled.

The whole lot is referring to why I think the PCN should not have been issued in the first place, not just everything after the second paragraph. I'm providing background which the Adjudicator himself referred to when one of the two previous cases went to a PATAS hearing, particularly given the fact that I had included the reference to the Jane Packer Flowers and Others document in my reps. Even if the EA take no notice of it now, the Adjudicator certainly does (from experience) when it goes to PATAS - read what I wrote in the last sentence of the second paragraph of this post regarding that PATAS hearing. So, I think it certainly adds weight (as it were) to my unloading case (as it were).

QUOTE (Chaseman @ Fri, 25 Jul 2014 - 11:25) *
You've quoted the "standard text" on loading/unloading i.e. Jane Packer Flowers and highlighted the key point i.e. that just because it wasn't observed doesn't mean it wasn't happening and the shorter the observation period the greater the likelihood of a wrongly issued PCN. If I were in your shoes I would quote the Carlo Gabrielle case as being the closest to your situation. Were you on your own or can you get any witness to attest to your movements? Clearly delivery notes and the like (so often demanded by LAs) are irrelevant in this case. Many seem to think that only commercial deliveries are covered by the loading exemption which is patently not the case.

BTW, just how much and what sort of building materials can you get into a Porsche? smile.gif

I was on my own, but I have the receipts to attest to me being a distance away purchasing building materials and reams of evidence to show I am having extensive building work done in the flat.

And you'll be surprised how much you can get in a Cayman. It has a front boot, rear boot, space above the engine and of course the passenger seat. I've managed to move home with all of my and my girlfriend's essentials (and the cat's essentials) in one trip before.

QUOTE (DancingDad @ Sun, 27 Jul 2014 - 00:43) *
I don't understand why you don't put in the receipt?
I was unloading building materials. Process was continuous and time taken was needed as they were being taken to the 5th floor.
Here is the receipt for the materials.

If they cancel fine, if they don't, there is then additional ammo to take forward.

QUOTE (hcandersen @ Sun, 27 Jul 2014 - 09:22) *
But the OP wants to try and trip up the authority by not providing this info in the first instance and then seeing if a loosely worded rejection but with the offer to reconsider could play to his advantage i.e. you said you'd cancel if I produced a receipt, well here it is, a receipt for 100 nails and two paint brushes, both of which are building materials - and both of which would fail the test of goods established by the various authorities quoted in the Jane Packer judgment because they can easily be carried by the person and the vehicle is no more than a convenience.

hcandersen, I demand to know your sources. Who told you it was for 100 nails and two paint brushes?

QUOTE (Gan @ Sun, 27 Jul 2014 - 08:59) *
+1

Copy of the receipt

Here they are:


12.5 kg of grout and several lengths of 2-2.5 metres of metal trim can be heavy and cumbersome to carry.

QUOTE (DastardlyDick @ Sun, 27 Jul 2014 - 10:40) *
IMHO the OP is just being vexatious - he's had several PCNs for parking at this location, so he knows he'll get another one if he parks there again.

I think The Rookie answered this quite well for you. I've clearly parked there legally in the past (as proven through the appeal process), so why should I not park there again in the same manner if I'm parking legitimately? It's not my fault the local CEOs continue to be frivolous, bordering on vexatious.

QUOTE (The Rookie @ Sun, 27 Jul 2014 - 10:46) *
Hardly vexatious if truly availing himself of a statutory exemption is it? Following the rules for this site we have to assume what he has told us is a true and accurate account, as such the council is vexatious for not having learnt from the two previous successful appeals surely?

Having said that I don't know how one person gets so many tickets, I've only had three in 30 years, one paid two successfully challenged.

Three tickets is not several.

Yes, it's interesting I get so many tickets, but I also drive everywhere in London and a lot. Don't know if you live in London, but London has very limited parking in most places and the CEOs are very hot on the case. Just a week and a half ago, I got one on my windscreen only minutes after paid time expired, then another one in the same spot less than half an hour later (despite not moving), and while I was talking to the CEOs about them (having removed them from my windscreen), another one arrived on a motorcycle and starting writing a third one out! They're like flies round sh*t certainly in that area.

QUOTE (hcandersen @ Sun, 27 Jul 2014 - 13:37) *
Not quite my point.
A challenge which included a receipt for the items I posited would fail in law if submitted as proof of the goods 'unloaded' because the goods would fail the tests set by the courts.
So if the OP has a receipt for goods which would pass the test, then IMO this should be submitted because this should bring the issue to an end as soon as possible. And as this is a duty which falls on the EA, why shouldn't the motorist be obligated similarly, particularly one so well-versed in the ways of the system.
As regards stopping to unload, then a motorist is entitled to do this as often as they drive on the road because it's not a contravention. It's not it is but they have a defence, it isn't a contravention in the first place.

Whether the motorist should be obligated the same as the EA is another discussion. The fact of the matter is, they are not. And the 'defendant' has a right to use whatever means to defend themselves including presenting evidence in their defence at any point right up until the latter stages. The reason for this is clear and is better explained using criminal law as an example. The defendant has everything to lose, possibly even their very liberty and livelihood. The prosecution has nothing to lose. For this reason, in the criminal court system, the prosecution must disclose all evidence at an early stage to give the defendant a chance to defend against it. The defendant can present their evidence at any point because the prosecution should in theory have no need to react to it with more evidence as they should have presented all their evidence to begin with and already have their case prepared on its own merits, not based on what the defence might present. This is one reason I was acquitted in an assault case against me at a Magistrates' Court in 2007 when I presented a mobile phone audio recording in the middle of the trial. It was allowed to be admitted, it was played to the court (40 minutes long) and the prosecution's case collapsed, and the "victim" then investigated for perjury.

Also, the spirit of parking enforcement is not practised by the EA from ground level. The CEOs are known to be frivolous (plenty of media coverage for this as well as personal experience of myself and other forum members), and EAs put down a hard line on appeals, especially the routine rejection of challenges by some EAs using the discounted charge period to scare people into paying only to be successfully appealed later. So, why should motorists not be equally tactical? And that's what I am doing.

This post has been edited by X-treem: Sun, 27 Jul 2014 - 17:35


--------------------


Notable Victories:
  • Richard Rippon (2008): Clamped by Richard Rippon's firm Redroute. Successfully sued him in court resulting in an intense media and legal battle that eventually saw his downfall. See the success story here.
  • Luton Airport (2013): Clamped by Ontime Parking Solutions at London Luton Airport where the police assisted in the illegal clamping of my vehicle on private land, directly in contravention of the Protection of Freedoms Act 2012 eventually leading to all towing and clamping operations at the airport being ceased for several weeks. See the success story here.
  • Huntingdonshire District Council (2012): ECN from HDC in in Huntingdon which I contested in the Magistrates' Court. The matter was publicised in the local newspapers and HDC were shown to be wasteful of public money on a minor matter. See the success story here.
Current parking tally since 2001 (Council | Private):
  • UK: 87 | 15 tickets (inc. 5 | 9 clamps, 3 | 0 tows). Of those: 60 | 12 contested, 54 | 11 won, 0 | 1 pending.
  • NL: 3 | 0 tickets (inc. 0 | 0 clamps, 0 | 0 tows). Of those: 1 | 0 contested, 1 | 0 won, 0 | 0 pending.
I am also proud to be in the top 10 longest-serving members on this forum that have been active this year.
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hcandersen
post Sun, 27 Jul 2014 - 17:53
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What help do you actually want from us, if any?



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X-treem
post Sun, 27 Jul 2014 - 18:01
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QUOTE (hcandersen @ Sun, 27 Jul 2014 - 18:53) *
What help do you actually want from us, if any?

Any that can be given. But I can sense you're upset because I refuted your comments by back-referencing the previous two cases and a criminal case I was involved in. Chillax, man, it's all good - I still love ya smile.gif

However, I do recognise there is very little scope for improvement on this case given the two previous cases and their success. So, it's more a force of habit I suppose, and to provoke discussion amongst forum members as well as demonstrate an emerging pattern in Newham regarding parking situations they seem to be completely ignoring the PATAS cases they're losing. It almost verges on negligence on the part of the council that they continue to operate without any change to their procedures despite the PATAS cases they've lost, especially as to this particular area. I bet no discussion was even had about it or any sort of briefing with the CEOs undertaken.


--------------------


Notable Victories:
  • Richard Rippon (2008): Clamped by Richard Rippon's firm Redroute. Successfully sued him in court resulting in an intense media and legal battle that eventually saw his downfall. See the success story here.
  • Luton Airport (2013): Clamped by Ontime Parking Solutions at London Luton Airport where the police assisted in the illegal clamping of my vehicle on private land, directly in contravention of the Protection of Freedoms Act 2012 eventually leading to all towing and clamping operations at the airport being ceased for several weeks. See the success story here.
  • Huntingdonshire District Council (2012): ECN from HDC in in Huntingdon which I contested in the Magistrates' Court. The matter was publicised in the local newspapers and HDC were shown to be wasteful of public money on a minor matter. See the success story here.
Current parking tally since 2001 (Council | Private):
  • UK: 87 | 15 tickets (inc. 5 | 9 clamps, 3 | 0 tows). Of those: 60 | 12 contested, 54 | 11 won, 0 | 1 pending.
  • NL: 3 | 0 tickets (inc. 0 | 0 clamps, 0 | 0 tows). Of those: 1 | 0 contested, 1 | 0 won, 0 | 0 pending.
I am also proud to be in the top 10 longest-serving members on this forum that have been active this year.
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The Rookie
post Tue, 29 Jul 2014 - 04:56
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In criminal cases it is no longer acceptable for the defence to ambush the prosecution they have a similar disclosure duty now.....

Personally I'd have included the receipts at first appeal, but i think I see you want to make them have to do more work, perhaps as you feel they haven't learnt from the first two?

I don't live in London or any other city (I'm more of a country boy) so yes, I don't have the same parking pressures, I understand that!


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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X-treem
post Tue, 29 Jul 2014 - 11:09
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QUOTE (The Rookie @ Tue, 29 Jul 2014 - 05:56) *
In criminal cases it is no longer acceptable for the defence to ambush the prosecution they have a similar disclosure duty now.....

Personally I'd have included the receipts at first appeal, but i think I see you want to make them have to do more work, perhaps as you feel they haven't learnt from the first two?

I don't live in London or any other city (I'm more of a country boy) so yes, I don't have the same parking pressures, I understand that!

I didn't realise the criminal playing field had changed in that sense since 2007. I've only had four cases in the criminal courts since then (all but one motoring-related offences), so I'm a bit out of touch with the procedure these days.

Re the receipts, it's not so much I want to make them do more work; it's as I already said - tactical. And also because I want to follow the exact same appeal process that worked the previous two times (as I have little way of knowing what parts of my tactics contributed positively or negatively those times).

This post has been edited by X-treem: Tue, 29 Jul 2014 - 22:11


--------------------


Notable Victories:
  • Richard Rippon (2008): Clamped by Richard Rippon's firm Redroute. Successfully sued him in court resulting in an intense media and legal battle that eventually saw his downfall. See the success story here.
  • Luton Airport (2013): Clamped by Ontime Parking Solutions at London Luton Airport where the police assisted in the illegal clamping of my vehicle on private land, directly in contravention of the Protection of Freedoms Act 2012 eventually leading to all towing and clamping operations at the airport being ceased for several weeks. See the success story here.
  • Huntingdonshire District Council (2012): ECN from HDC in in Huntingdon which I contested in the Magistrates' Court. The matter was publicised in the local newspapers and HDC were shown to be wasteful of public money on a minor matter. See the success story here.
Current parking tally since 2001 (Council | Private):
  • UK: 87 | 15 tickets (inc. 5 | 9 clamps, 3 | 0 tows). Of those: 60 | 12 contested, 54 | 11 won, 0 | 1 pending.
  • NL: 3 | 0 tickets (inc. 0 | 0 clamps, 0 | 0 tows). Of those: 1 | 0 contested, 1 | 0 won, 0 | 0 pending.
I am also proud to be in the top 10 longest-serving members on this forum that have been active this year.
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X-treem
post Tue, 16 Sep 2014 - 00:13
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Received a challenge rejection letter from Newham. Judging from another rejection letter I received, it looks like Newham have changed their tack on dealing with appeals and are using a different template that sounds a little more convincing. Not convincing enough, though, when two letters are largely identical apart from some wording separating the fact that one was from a CEO and one was from CCTV.

For this one, it looks like they've just ticked the box that says no loading or unloading was observed, and it's inserted the fourth paragraph. They appear to have not considered the evidence I provided in the form of receipts and timings, etc., just like the previous two PCNs I received in the same spot for unloading, both of which were successfully appealed.

They might've changed their letter generation template, but the status quo is the same. Newham are sh*t at dealing with appeals and it will no doubt go the same way all other Newham PCNs go. In the circular file via a PATAS DNC.

Will just wait for the NtO on this one - then wash, rinse, repeat.


--------------------


Notable Victories:
  • Richard Rippon (2008): Clamped by Richard Rippon's firm Redroute. Successfully sued him in court resulting in an intense media and legal battle that eventually saw his downfall. See the success story here.
  • Luton Airport (2013): Clamped by Ontime Parking Solutions at London Luton Airport where the police assisted in the illegal clamping of my vehicle on private land, directly in contravention of the Protection of Freedoms Act 2012 eventually leading to all towing and clamping operations at the airport being ceased for several weeks. See the success story here.
  • Huntingdonshire District Council (2012): ECN from HDC in in Huntingdon which I contested in the Magistrates' Court. The matter was publicised in the local newspapers and HDC were shown to be wasteful of public money on a minor matter. See the success story here.
Current parking tally since 2001 (Council | Private):
  • UK: 87 | 15 tickets (inc. 5 | 9 clamps, 3 | 0 tows). Of those: 60 | 12 contested, 54 | 11 won, 0 | 1 pending.
  • NL: 3 | 0 tickets (inc. 0 | 0 clamps, 0 | 0 tows). Of those: 1 | 0 contested, 1 | 0 won, 0 | 0 pending.
I am also proud to be in the top 10 longest-serving members on this forum that have been active this year.
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X-treem
post Wed, 15 Oct 2014 - 22:00
Post #17


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I have received the NtO from Newham. I've drafted the reps below, which is a part-copy of the reps I used in a previous similar case in the same location. However, I've removed much of the procedural impropriety grounds that I used previously (courtesy of other members of the forum) as it looks like Newham have rehashed their NtO and made it more compliant. The part in red is specific to this case.

QUOTE
I am in receipt of the Notice to Owner in relation to PCN number PN10605276 for an alleged contravention on Channelsea Road, London on 13 July 2014 at 16:58. Please consider this letter my formal representations against this PCN on the grounds that the alleged contravention did not occur and also procedural impropriety on the part of the London Borough of Newham in dealing with this PCN.

Contravention did not occur

At the time of the contravention, I was in the process of unloading building materials. I had to transport this up to my fifth floor flat; therefore, three minutes observation time is certainly insufficient for this residence. This would be one and a half minutes each way, and I’m barely through the two coded security doors and in the lift before the first two minutes. I was parked as close to the property as possible; my car was parked only while I was solely engaged in the process of unloading, and I moved my car immediately when this activity was completed. Loading and unloading is a valid exemption for vehicles parked on double yellow lines unless ‘no loading’ markings are present which they were not in this case.

In support of my case, I have enclosed a document that consolidates a number of loading/unloading cases where observation periods have been contentious. In particular, it highlights the inadequacy of a two-minute observation period and this is reflected in a number of PATAS cases, details of which are in the enclosed document which I would like to include as evidence to support my case should this go to adjudication. My particular situation mirrors the cases where the appeal was allowed in that no loading activity was observed for at least two minutes and the Adjudicator accepted that loading was still taking place due to delay factors such as distance and nature of the items being carried. It is of particular note that the author of this document is an Adjudicator and states the following:

“…it must be said that the shorter the observation period the easier it will be evidentially for the motorist to establish that the exemption applies. If a delivery driver says he was taking a small packet into a nearby building he may easily be able to justify an absence of one or two minutes; but if the attendant observed the vehicle for ten or fifteen minutes with no sign of delivery or unloading taking place the driver will be in some difficulty. Whilst it may not be impossible for him to show that although he was away from his vehicle he was nevertheless engaged in the delivery/unloading process he will have far more of an uphill struggle than if he were justifying a two minute absence.



It is of course up to Local authorities whether they lay down a particular observation period for their Attendants before issuing a PCN. However, for my own part I would have thought that in the case of any commercial vehicle or other vehicle showing signs of possible delivery/unloading activity a zero observation period would inevitably lead to unnecessary correspondence and appeals. Whereas an observation period of, say, 5 or even 10 minutes in these cases would in some cases save the issue of a PCN at all and in the remainder the Local authority would be entitled to take a stricter line when considering explanations given for longer absences – always bearing in mind that each case must be considered on its own merits.”

Furthermore, I note from the Department for Transport’s ‘Operational Guidance to Local Authorities: Parking Policy and Enforcement’ document under the Traffic Management Act 2004 (November 2010 edition), paragraphs 8.48 through 8.52 refer to observation of a vehicle to ascertain whether loading or unloading activity is taking place. Paragraph 8.50 in particular states that “the standard procedure is for the CEO to note the vehicle details when they first see a possible contravention taking place and stay next to or near the vehicle, keeping it in sight at all times, for a set period (usually at least five minutes) to see if there is any sign of loading or unloading. If not, the CEO will issue a PCN.”

The period stated on the PCN is clearly less than the stipulated time period in the aforementioned policy document.

I have enclosed a copy of my shopping receipts showing the purchases I made shortly before the alleged contravention with the last purchase timed at 16:06 at Wickes in Charlton SE7. Given that the journey from the purchase location to my property involved travelling through Blackwall Tunnel during rush hour, it is reasonable to say that it would take 49 minutes to make this journey including loading the building materials into my car while at Wickes. I can confirm that I arrived at the property at 1 Channelsea Road just before 16:55 and completed the unloading process shortly after 16:58 after which I immediately moved my car to another location.

Procedural impropriety

Your challenge rejection letter dated 09 May 2013 fails to address some points I raised in my challenge letter and you have not given any consideration to my explanation that the CEO’s observation time is insufficient for my particular residence. You have also failed to provide me with the CEO’s notes for this PCN which I specifically requested in my previous letter. This is procedural impropriety as you have failed to provide me with evidence I am entitled to in order to defend myself against an allegation you have made.

Could you please now provide me with the CEO’s notes for this PCN as I have already requested previously?

Based on the evidence I have presented, I respectfully request that you cancel this PCN forthwith.


Thoughts or comments greatly appreciated as usual.


--------------------


Notable Victories:
  • Richard Rippon (2008): Clamped by Richard Rippon's firm Redroute. Successfully sued him in court resulting in an intense media and legal battle that eventually saw his downfall. See the success story here.
  • Luton Airport (2013): Clamped by Ontime Parking Solutions at London Luton Airport where the police assisted in the illegal clamping of my vehicle on private land, directly in contravention of the Protection of Freedoms Act 2012 eventually leading to all towing and clamping operations at the airport being ceased for several weeks. See the success story here.
  • Huntingdonshire District Council (2012): ECN from HDC in in Huntingdon which I contested in the Magistrates' Court. The matter was publicised in the local newspapers and HDC were shown to be wasteful of public money on a minor matter. See the success story here.
Current parking tally since 2001 (Council | Private):
  • UK: 87 | 15 tickets (inc. 5 | 9 clamps, 3 | 0 tows). Of those: 60 | 12 contested, 54 | 11 won, 0 | 1 pending.
  • NL: 3 | 0 tickets (inc. 0 | 0 clamps, 0 | 0 tows). Of those: 1 | 0 contested, 1 | 0 won, 0 | 0 pending.
I am also proud to be in the top 10 longest-serving members on this forum that have been active this year.
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Incandescent
post Wed, 15 Oct 2014 - 22:48
Post #18


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Well, what can we say ? Hope you win, basically, as you seem well familiar with appealing. Newham are a notoriously venal and rapacious council and it works for them as so few people appeal all the way, (about 1%), and there are no penalties on them for being so.
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Enceladus
post Fri, 17 Oct 2014 - 09:08
Post #19


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They try to make a point about parking too close to the junction, which I would argue is ofuscation. If you cannot load/unload, where you were parked, then they should have imposed a loading restriction. Ultimately you are not accused of obstructing the junction. So it's irrelevant comment and does not provide, to the CEO, "reasonable cause to believe" that the contravention actually alleged had occurred. The CEO/council cannot substitute a contravention just because somebody believed you were guilty of something else, but they were seeminly unaware of an official sanction for it.

Then we have "It seems you were parked for longer than you needed for the loading or unloading that you did." So they admit you were engaged in exempt activity. That being the case they either have to cancel the PCN or explain why the exemption does not apply. In your case you "took longer than you needed". However how do they know? How do they justify it? The very next sentence says "Also, the CEO watched your vehicle and saw no loading or unloading taking place."

That contradicts the earlier sentence. If they didn't see you unloading, how can they claim you were too tardy about it? In a nutshell, it is evident from their own letter that they did not actually consider your representation at all.

This post has been edited by Enceladus: Fri, 17 Oct 2014 - 13:35
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Incandescent
post Fri, 17 Oct 2014 - 09:31
Post #20


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Joined: 22 Apr 2012
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And "did not actually consider your representation at all" equals "failure to consider", a procedural impropriety. So take them all the way to PATAS.
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