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William Morris Car Park Battery Charging Bay, PCN for Non Electric Car Parking
zexx
post Tue, 27 Nov 2018 - 16:00
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Hi All,

My wife parked in a bay reserved for electric cars. She thought the chargers were swipe and pay parking meters. Fallen leaves were covering the white car signs. She honestly didn't twig that the two spaces were only empty because they were meant for electric cars only. She purchased a ticket using the cash machine. I returned later that day and took photographs.

Do I have a chance of not paying this PCN?

Thank you in advance.





















This post has been edited by zexx: Wed, 28 Nov 2018 - 16:37
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post Tue, 27 Nov 2018 - 16:00
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hcandersen
post Thu, 29 Nov 2018 - 11:52
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or along the lines of:


My wife parked in accordance with the instructions on the noticeboard. On her return she read the PCN and noticed a sign in the adjoining parking space. She looked again at her circumstances and noticed that some of the bays, including the one in which she was parked, were marked on the ground, something which was not apparent when she parked due to the leaves.

With respect, if the council wish to limit parking within the car park to specified classes of vehicle, then this must be included in the terms and conditions on the noticeboard, a photo of which is included. Without this a motorist is not put on notice to look for markings on the ground or signs and the authority cannot, effectively without warning, seek to penalise motorists.
I would add and request that the authority do not seek to rely on the sign which in these circumstances has no legal effect off-street and which in any event does not indicate its scope. All the council need to do is to state clearly in the conditions that only 'X' cars may park in bays marked with a 'Y' symbol otherwise a penalty may be incurred. Without this, no penalty may be imposed. For the avoidance of doubt references to 'restricted areas' do not suffice without these beng defined, after all the whole car park is subject to restrictions in one form or another.

They'll probably reject, it's instinctive. But at least you've set out the argument.

This post has been edited by hcandersen: Thu, 29 Nov 2018 - 11:54
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Churchmouse
post Thu, 29 Nov 2018 - 12:08
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I'd put your last point first. But without the last sentence.

I think "restricted area" in the Ts&Cs sign's context probably refers to a "no parking" area within the car park, not to any area subject to any restriction (which, as you point out, actually applies to the entire car park, at all times). An argument can be made that "restricted area" means parking in an especially restricted area within the larger restricted area of the car park, and that such special restriction only applies when the wording on a sign located therein is not fully complied with, but I think that's a bit of a stretch. And the PCN doesn't even refer to that term/condition.

In any case, the strongest argument is that the contravention specifically cited on the PCN is not shown as a contravention under the Ts&Cs on the sign.

--Churchmouse

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Neil B
post Thu, 29 Nov 2018 - 12:41
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QUOTE (Wretched Rectum @ Thu, 29 Nov 2018 - 00:25) *
QUOTE (Neil B @ Wed, 28 Nov 2018 - 17:07) *
QUOTE (zexx @ Wed, 28 Nov 2018 - 16:44) *
Ts and Cs added.

HCA will be interested in that!

@HCA.
For info; these bays are very new: last 6 weeks or so.


IF Neil is right it explains why the car park notice boards have not yet been changed to reflect electric charging bays and there is a good chance that the parking places order has not yet been amended to reflect these new electric charging bays.

Order amended back in May but installation only recently I think.
I recall because the anti-motoring, cycling obsessed Deputy Council Leader gleefully announced it on Facebook.
As he does every time he closes roads, which locals are told they 'want'.
The only two spaces until recently were in Kirkdale Road E11.

Gazette Notice
https://www.thegazette.co.uk/notice/3027177


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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zexx
post Thu, 29 Nov 2018 - 21:02
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QUOTE
My wife parked in accordance with the instructions on the noticeboard. On her return she read the PCN and noticed a sign in the adjoining parking space. She looked again at her circumstances and noticed that some of the bays, including the one in which she was parked, were marked on the ground, something which was not apparent when she parked due to the leaves.

With respect, if the council wish to limit parking within the car park to specified classes of vehicle, then this must be included in the terms and conditions on the noticeboard, a photo of which is included. Without this a motorist is not put on notice to look for markings on the ground or signs and the authority cannot, effectively without warning, seek to penalize motorists.
I would add and request that the authority do not seek to rely on the sign which in these circumstances has no legal effect off-street and which in any event does not indicate its scope. All the council need to do is to state clearly in the conditions that only 'X' cars may park in bays marked with a 'Y' symbol otherwise a penalty may be incurred. Without this, no penalty may be imposed. For the avoidance of doubt references to 'restricted areas' do not suffice without these being defined, after all the whole car park is subject to restrictions in one form or another.


Thank you very much indeed! biggrin.gif
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Longtime Lurker
post Fri, 30 Nov 2018 - 00:05
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QUOTE (hcandersen @ Thu, 29 Nov 2018 - 10:04) *
...would someone tell me what 'Electric vehicle recharging point only at all times / 8am - 6.30pm ' means?


Nothing, because you stopped reading half way through the sentence!
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hcandersen
post Fri, 30 Nov 2018 - 07:29
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...as 'Max stay 4 hours' doesn't bear upon or resolve the evident contradiction, I omitted it!

(Car park is an Arkwright with charging( biggrin.gif ) 9am - 5pm)

Clear as mud.

This post has been edited by hcandersen: Fri, 30 Nov 2018 - 07:59
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Longtime Lurker
post Fri, 30 Nov 2018 - 19:09
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QUOTE (hcandersen @ Fri, 30 Nov 2018 - 08:29) *
Clear as mud.


1) It's an electric vehicle recharging point only, at all times.
2) Between 8am and 6:30pm you can only stay there (and recharge your electric vehicle) for 4 hours. At other times you can stay and recharge your electric vehicle for as long as you like.

No contradictions or confusion there that I can see.

The real problem with that wording is that EV owners are required to accurately guess when their car will be fully charged, and be there to move it the very instant it stops recharging.

This post has been edited by Longtime Lurker: Fri, 30 Nov 2018 - 19:09
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hcandersen
post Fri, 30 Nov 2018 - 21:37
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This is not on-street where a sign stands on its own. This is a car park, subject to primary restrictions on a noticeboard.

The noticeboard makes no reference to max stays in any bays so this CANNOT be introduced through a rectangular piece of metal with writing masquerading as a traffic sign.
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zexx
post Mon, 10 Dec 2018 - 12:08
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Hi everybody, What do you think of their response? Cheers ohmy.gif






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Churchmouse
post Mon, 10 Dec 2018 - 14:19
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Big whopper in the last paragraph on the first page; actively misrepresents what the sign actually says.

--Churchmouse
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hcandersen
post Mon, 10 Dec 2018 - 15:07
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Write back for clarification.

Dear Sir,
Re:PCN **********

I refer to your letter dated *** rejecting my challenge against the PCN.

The purpose of this letter is to seek clarification on a matter of importance contained in the letter, namely that the authority believe that the Traffic Signs Regulations and General Directions 2016 prescribe signs and lines for use in off-street car parks and that their meaning is conveyed by virtue of those regulations alone, any further reference in the terms and conditions of use displayed at the car park being superfluous and unnecessary.

Please also confirm that no such references are included in the car park's displayed Ts and Cs.

I apshould be grateful for a response prior to me having to respond to any NTO.

Yours*******


Their letter suggests they're too stupid to know, but it's all grist to the mill.

This post has been edited by hcandersen: Thu, 13 Dec 2018 - 12:57
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zexx
post Thu, 13 Dec 2018 - 12:29
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Will do, thank you. Have been working overtime lately so delayed response...Will post their reply. Thanks again smile.gif
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zexx
post Tue, 8 Jan 2019 - 16:19
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I sent them this recorded delivery:

QUOTE
13/12/18
Dear Sir,
Re: PCN F*******

I refer to your letter dated 06/12/18 rejecting my challenge against the PCN.

The purpose of this letter is to seek clarification on a matter of importance contained in the letter, namely that the authority believe that the Traffic Signs Regulations and General Directions 2016 prescribe signs and lines for use in off-street car parks and that their meaning is conveyed by virtue of those regulations alone, any further reference in the terms and conditions of use displayed at the car park being superfluous and unnecessary.

Please also confirm that no such references are included in the car park's displayed Ts and Cs.

I would be grateful for a response prior to me having to respond to any NTO.

Yours,
Mr. ********


This is what they wrote back:







This post has been edited by zexx: Tue, 8 Jan 2019 - 16:23
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John U.K.
post Tue, 8 Jan 2019 - 16:43
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"When your informal representation was rejected, our letter advised you how to make an appeal to the independent adjudicator if you wanted to take the matter further . . .
I regret we cannot deal with further correspondence at this stage. The Traffic Management Act 2004 lays down firm procedures for processing parking penalties . . ."


Words fail me...
See what others say, but I think L.Maynard may have shot himself in the foot.

This post has been edited by John U.K.: Tue, 8 Jan 2019 - 16:44
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cp8759
post Tue, 8 Jan 2019 - 16:58
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QUOTE (John U.K. @ Tue, 8 Jan 2019 - 16:43) *
"When your informal representation was rejected, our letter advised you how to make an appeal to the independent adjudicator if you wanted to take the matter further . . .
I regret we cannot deal with further correspondence at this stage. The Traffic Management Act 2004 lays down firm procedures for processing parking penalties . . ."


Words fail me...
See what others say, but I think L.Maynard may have shot himself in the foot.

+1, they have unlawfully fettered their discretion. This needs to be challenged as a procedural impropriety as the Notice to Owner stage.


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Neil B
post Tue, 8 Jan 2019 - 19:22
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+1

For the benefit of zexx >

Appeals Reg 3 (2)
(b)that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served
(i)those representations will be considered;

(my bold and u/l)



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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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zexx
post Sat, 19 Jan 2019 - 15:48
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What should I do next?

Thank you very much biggrin.gif
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cp8759
post Sat, 19 Jan 2019 - 18:02
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Well the situation is not ideal, because although section 35B of the RTRA 1984 gives the SoS a power to make regs about what information must be displayed in a car park, as far as I can ascertain the SoS has never bothered making any such regulations. Still, I think here's a strong case. Here's my draft, make sure you keep all bold and italics formatting exactly as I have used it below:

--------------------------------
Dear Sir or Madam,

I contest the penalty charge on the following grounds:

Ground 1: The alleged contravention did not occur:
The Terms and Conditions board posted in the car park specify a number of contraventions for which a Penalty Charge Notice may be issued, these include:

Parking in a disabled bay without displaying a blue badge
Parking an oversized vehicle
Parking in a car park when closed
Parking in restricted areas
Parking beyond bay markings

There is no mention on the car park terms and conditions that a PCN may be issued for parking in an electric charging bay without charging. The informal rejection letter issued on 6 December goes on to explain that an electric vehicle charging place is a restricted area, but this argument is without foundation for two reasons:

Firstly, bays designated for certain vehicles are not restricted areas, they are designated parking places. Where, for example, a vehicle parks in a blue badge pay without displaying a blue badge, a PCN will be issued for "87 - Parked in a disabled person’s parking space without clearly displaying a valid disabled person’s badge", restricted areas of a car park are areas normally marked with hatch markings and no vehicles of any description may park there.

But even if I am wrong, and the electric charging bays are restricted areas, then a PCN should be been issued for "81 - Parked in a restricted area in a car park", but this is not the contravention alleged on the PCN.

As the contravention alleged is not supported by the terms and conditions board posted in the car park, the allegation is unfounded and the PCN must be cancelled.

Ground 2: There has been a procedural impropriety on the part of the enforcement authority: The informal rejection letter shows that the wrong statutory framework was considered, and the terms and conditions of the car park were interpreted in a manner contrary to their obvious meaning:

In her rejection letter of 6 December, Lorraine Maynard states that the signs employed by the authority comply with the Traffic Signs Regulations and General Directions 2016, however those regulations were enacted under sections 64 and 65 of the Road Traffic Regulation Act 1984, which relates specifically to traffic signs intended for "traffic on roads", self evidently a car park is off-street and cannot be a road. As such while the authority can choose to use signs similar to those found in the TSRGD, there is no requirement to do so and the authority is not constrained by the TSRGD within the confines of a car park. Ms Maynard's assertions that issues around he content and style of the signs can only be taken up with the Department for Transport are therefore misconceived, the council has a discretion to use any adequate signage to convey restrictions within a car park.

This is clearly demonstrated by the Terms and Conditions board, which does not comply with any sign found in the TSRGD (and this is understandable, as the TSRGD do not apply to car parks).

Ms Maynard's other assertion, that the sign conveys that vehicles parked in restricted areas i.e. "electric vehicle charging place" is actively misleading, as no mention of electric vehicle charging places is made anywhere within the terms and conditions of the car park. The rejection therefore is based on reading words into the car park terms and conditions which are not there, and on an inexplicable reliance on the regulations for on-street traffic signs, which are irrelevant in this context.

In reaching her decision, Ms Maynard relied upon the wrong regulations and a reading of the car park terms and conditions which is at odds with their clear wording, this amounts to a procedural impropriety which means that the PCN must be cancelled.

Ground 3: There has been a procedural impropriety on the part of the enforcement authority: The authority has unlawfully fettered its discretion:

Regulation 3(2)(b) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides:

(b) that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i) those representations will be considered;


In her letter of 27 December Ms Maynard asserted that "You have now written again to the council and I regret that we cannot deal with further correspondence at this stage. The Traffic Management Act 2004 lays down firm procedures for processing parking penalties and if you wish to take the matter further you will need to wait for the NtO which will be sent to you shortly if you are the registered keeper."

Ms Maynard's expressions of regret sound rather hollow in the circumstances, but it is more concerning that her understanding of the legislation is deeply flawed. Firstly, the Traffic Management Act 2004 doesn't really lay down any procedures at all, it is simply an enabling Act and the procedures she claims to have knowledge of are actually found in the subordinate regulations. Secondly, as per regulation 3(2)(b) above, the council is required to consider representations that are received before a Notice to Owner is served.

There is no provision of law that says a motorist only gets one chance to make informal representations, on the contrary the duty of the council is to consider such representations as may be received before a Notice to Owner is served. Of course there is no explicit duty on the council to respond to any informal representations at all as long as they have been considered. However what the council cannot do is disregard representations without giving them any consideration.

In stating that she "cannot deal with further correspondence" Ms Maynard has unlawfully fettered her discretion, as plainly she had a power in law at that stage to decide whether or not to cancel the PCN. She also had a power to consider the representations and reject them again, or issue a response clarifying the matters alluded to in my second communication to her. Of course, she could have also considered my correspondence and chosen not to reply. But what was not permissible was for her to think that she had no ability to consider the correspondence at all: Nothing in the legislation says that once an informal rejection has been issued, council officials lose their powers to consider the case further until an NtO is served.

This unlawful fettering of discretion, contrary to regulation 3(2)(b) above, is a procedural impropriety. It follows that at this stage the PCN must be cancelled.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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zexx
post Tue, 22 Jan 2019 - 09:04
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This is so good thumbsup.gif Very much appreciated. Will report back
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zexx
post Wed, 3 Apr 2019 - 12:51
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Got this letter today:





What should I do next?

Thank you.
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