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Southend on sea PCN - Contravention 85, Validate thoughts and previous post advice is applicable to me
Freddington
post Mon, 20 Jan 2020 - 00:34
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Hello,

I've been a long time lurker on Reddit's UK Legal advice pages, and remembered this website once I found a PCN on my windscreen today. I have searched these forums for previous cases and found one that seems very applicable to my case but will post my case details first, and thoughts on what could/couldn't apply to my case, and then link to the other case.

Images
I have blanked out identifying info from the images (Plate reg, PCN number, Date/Time) but if this is needed I can post in a reply. All images provided by Southend council online page @ https://imgur.com/a/akc4rsU
  • Images of the car in the spot
  • Image of one sign stating "Resident permit holders parking only past this point"
  • Image of the Southend council online page where images were retrieved from
  • Front and back of PCN left on the car
  • Annotated map of the "Resident area"


My context:
Where the car is parked used to be garages for the estate blocks, but these have been blocked off for some time. There is ample space to get past coming from either direction so there is no blocking way issues.
I have been visiting this estate for the last couple months or so with the car, and have seen cars parked in these places within the multiple garage arches so thought there was no issue with it.
I have never seen another car with a permit. I took several images of other cars in the designated "Resident area" and didn't see one permit, but accept this might not be a valid defence and maybe they are digital now.
As the resident I'm visiting is relatively new, I'm assuming they do not know about registering visitors. I'm choosing not to tell them about this specific PCN so they don't concern themselves with it, but instead advise I saw a warden roaming and to check about visitor parking.

Regarding the image of the sign the council have provided is from an alternative entrance that I take into the area.
21/01/20 - I've since seen there is a sign like this at the entrance/exit I use also so I couldn't dispute that there is no sign stating residential permit.

From the attached annotated map Orange = Resident area, Purple = Where the sign is likely based, Green = Where I enter/exit from the area. The garage arches area is the gray block with "The Storehouse" and "Southend Vineyard Storehouse" icons.
Is this one possible ground to dispute the PCN?

Separately, the PCN contravention code 85 refers to a permit bay, but as the images show the car itself isn't in a bay.
Is this a technicality to use to dispute?

From this point, I refer to a previous post on this forum I found, which might also be applicable to me - Title: Southend on sea PCN - Contravention 85 - Beechcroft Lower Car Park, Threads merged

Within the previous post and it's replies, 2 main points stuck out:
QUOTE
1) The PCN does not tell you that if you make informal representations, but the council serves a Notice to Owner anyway, the recipient of the Notice to Owner must make representations again in the form and manner specified in the Notice to Owner. This means the PCN does not comply with the requirements of regulation 3(2)(b)(ii) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 , see http://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

Maybe unsurprisingly from a council, the PCN template has not changed from the previous original posters PCN dated June '18.
Is this still applicable to my case to dispute the PCN?

QUOTE
2) The PCN gives an 0870 number which will in all likelihood include a service charge which is pocketed by the council. I have made an FOI request to confirm. If there is a service charge, the penalty charge exceeds the amount payable in the circumstances of the case, as any surcharge makes the PCN invalid even if other payment methods are offered, as per paragraph 29 of London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295.

While it's not possible for any one to directly charge card fees any longer, unless they relabel as "Service charge", the same 0870 number is still stated on the PCN notice. Reading the above point, it stats that even if other payment methods are offered, the charge occurred from using a 0870 number is still in effect.
Is this still applicable to my case to dispute the PCN?

Within the previous post, it seems the original poster was successful, if only because Southend council didn't bother disputing the tribunal.

Hopefully I've worded this all out correctly, and the images provided are ok. If specific details I've blocked out are required, I can post them here. If anything else is missing let me know.
Otherwise, thanks for getting this far in the post and appreciate any replies.

This post has been edited by Freddington: Tue, 21 Jan 2020 - 09:01
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post Mon, 20 Jan 2020 - 00:34
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cp8759
post Tue, 3 Mar 2020 - 08:05
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Slight revision:

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

RE: Formal representation for PCN number <<<PCN NO*>>>/ License plate <<<License plate>>>- Contravention 85 did not occur

The PCN alleges a contravention in Chiltern, Malvern and Pennine car park. The council has provided photographs of a sign which only has legal effect on a road and therefore cannot on its own convey a restriction in an off-street car park. As pointed out in the informal representations, I again refer the authority to the Traffic Signs etc. Regs 2016, item 5 of the Part 3 Sign Table to Schedule 5, and the definition of Permit Parking Area in Schedule 1 (Definitions).

Further to this the council has no evidence the car was parked within a permit bay. Within the CEO's photos, the car is shown but regardless of whether the car is or isn't in contravention, it is clear beyond doubt that the car was not parked in a marked bay of any sort. Therefore the alleged contravention 85 “Parked in a permit bay without clearly displaying a valid permit” could not have occurred because the car wass not parked in a bay at all, permit or otherwise.

Finally if the authority still persists in claiming that use of the 'car park' is subject to such terms and conditions as may be prescribed, there is a burden on the council to show that the car park's tariff board clearly and prominently displayed the car park's terms and conditions; no such tariff board is visible in the council's photos and I have been unable to locate one on subsequent visits to this alleged car park.

To date, the council response to my informal representation was direction to the Southend council website, rather than provide evidence of these terms and conditions being displayed clearly, prominently and lawfully on site.

In light of the above, the contravention did not occur and the PCN must be cancelled.

Please direct any response via letter, to the address as stated at the top of this letter.

<<<NAME>>>


--------------------
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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Freddington
post Sat, 7 Mar 2020 - 00:01
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QUOTE (cp8759 @ Tue, 3 Mar 2020 - 08:05) *
Slight revision:

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

RE: Formal representation for PCN number <<<PCN NO*>>>/ License plate <<<License plate>>>- Contravention 85 did not occur

The PCN alleges a contravention in Chiltern, Malvern and Pennine car park. The council has provided photographs of a sign which only has legal effect on a road and therefore cannot on its own convey a restriction in an off-street car park. As pointed out in the informal representations, I again refer the authority to the Traffic Signs etc. Regs 2016, item 5 of the Part 3 Sign Table to Schedule 5, and the definition of Permit Parking Area in Schedule 1 (Definitions).

Further to this the council has no evidence the car was parked within a permit bay. Within the CEO's photos, the car is shown but regardless of whether the car is or isn't in contravention, it is clear beyond doubt that the car was not parked in a marked bay of any sort. Therefore the alleged contravention 85 “Parked in a permit bay without clearly displaying a valid permit” could not have occurred because the car wass not parked in a bay at all, permit or otherwise.

Finally if the authority still persists in claiming that use of the 'car park' is subject to such terms and conditions as may be prescribed, there is a burden on the council to show that the car park's tariff board clearly and prominently displayed the car park's terms and conditions; no such tariff board is visible in the council's photos and I have been unable to locate one on subsequent visits to this alleged car park.

To date, the council response to my informal representation was direction to the Southend council website, rather than provide evidence of these terms and conditions being displayed clearly, prominently and lawfully on site.

In light of the above, the contravention did not occur and the PCN must be cancelled.

Please direct any response via letter, to the address as stated at the top of this letter.

<<<NAME>>>


Thanks for the read over and corrections, will send tomorrow. Lets see how it goes!
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Freddington
post Wed, 18 Mar 2020 - 12:26
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Considering recent developments generally and what seems like modern society grinding into lockdown, I'm sure it may be of no surprise that parking teams within councils may still go on. However in this instance it was for the better as some good news in the context of these forum topics (and for me personally) Southend Council have decided to cancel the PCN!

https://imgur.com/a/xySFR1T

Interestingly, this response has the first mention of the resident permit zone, and my interpretation of their argument was the signage was applicable regardless of it being a car park / on a road / or not. "Complies with Traffic Sign Regulations and the Traffic Sign Manual chapter 13.10.5"

Ultimately it came down to the contravention stating the car was in a permit bay, when it was not within any bay at all. So it should have been put against a different contravention. (Thanks cp8759 for including that point!)

Otherwise, thanks for all your help. I'll lurk around on the forums if there's ever something I could add.
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Mad Mick V
post Wed, 18 Mar 2020 - 14:36
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OP----Well done for sticking with it---not an easy case.

Mick
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cp8759
post Thu, 19 Mar 2020 - 12:59
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QUOTE (Freddington @ Wed, 18 Mar 2020 - 12:26) *
Interestingly, this response has the first mention of the resident permit zone, and my interpretation of their argument was the signage was applicable regardless of it being a car park / on a road / or not. "Complies with Traffic Sign Regulations and the Traffic Sign Manual chapter 13.10.5"

That's interesting because the TSM chapter 3 says under "Introduction":

1.1 General
1.1.1.  The Traffic Signs Manual (the Manual) offers advice to traffic authorities and their
contractors, designers and managing agents in the United Kingdom, on the use of traffic signs
and road markings on the highway network.


I'd be tempted to write back and ask whether the car park is part of the "highway network", but I suspect the council would miss the point.


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