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refunds for tows?, from the Daily Wail - not sure how accurate their view is....
2cupsofcoffee
post Fri, 2 Apr 2021 - 22:29
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https://www.dailymail.co.uk/news/article-94...k-30-years.html

An incredible legal gaffe could result in millions of motorists launching appeals against parking penalties handed out over the past 30 years.

Enforcement powers relied on by police and local authorities were accidentally deleted from the statute book, the Mail can reveal today.

Powers to charge motorists for removing and impounding vehicles were introduced in 1984 but were 'inadvertently removed due to a drafting error' in 1991 – and no one noticed until now.

Those who paid the penalties may be able to take legal action.

The error was only admitted by the Government as it published a new Bill to restore legal clauses accidentally erased by two earlier Acts.

Cases will include cars towed away after a parking fine, as well as broken-down and abandoned vehicles.

Experts said motorists whose vehicles were towed away after 1991 could now bring an appeal because any charges imposed on them were unlawful.

Howard Cox, of the motoring pressure group Fair Fuel UK, said: 'Drivers who in the last 30 years have been charged illegally should demand their vehicle confiscation costs be repaid in full.

'They should be checking they have the historic paperwork to mount a legal challenge. This is not a question of their offences being right or wrong – it is down to governmental incompetence that is off the scale. 'The authorities and those responsible must pay for this idiocy.'

It means each driver who can prove their vehicle was unlawfully removed is likely to have been charged hundreds of pounds – and may now be able to claim those fees back.

Police forces, local authorities and other highways agencies could face bills running to millions, particularly if they are forced to compensate drivers for legal costs.

It is likely that a legal challenge will have to be brought as a test case before the full impact becomes clear.

The error on statutory charges for impounded vehicles only emerged in ancillary documents published alongside the Police, Crime, Sentencing and Courts Bill last month.

The Explanatory Notes to the Bill say: 'The police's power to charge for the removal, storage and disposal of vehicles within the meaning of 'civil enforcement areas for parking contraventions' seems to have been inadvertently removed due to a drafting error.

'At the same time, the powers of local authorities, the Secretary of State and strategic highways companies to charge for removal, storage and disposal of vehicles were also inadvertently removed.'

Jeanette Miller, of the Association of Motor Offence Lawyers, said it was 'a major error in the legislation that has resulted in goodness knows how many millions being charged to motorists without any lawful basis'.

She added: 'Where this leaves motorists in terms of seeking refunds is difficult to say. 'There is a limitation period of six years in pursuing a civil claim but this can start from the date of the breach or, crucially, date of knowledge.'

The Home Office said 'it has been right for the police to continue to charge for vehicle recovery', adding: 'This has avoided costs being borne by the taxpayer and has allowed police to continue to remove abandoned vehicles to keep roads safe.' A spokesman said there were 'no plans' for a review of how the powers had been used over the past 30 years.

It is understood that local government bodies are urgently seeking clarification about the legal error.
Official papers published alongside the new Bill say that 'to return to a statutory footing the legal basis to charge vehicle recovery, storage and disposal fees' it will amend the 1984 Road Traffic Regulation Act.
The power will not be restored until the Bill becomes law, expected to be later this year.
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post Fri, 2 Apr 2021 - 22:29
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southpaw82
post Tue, 20 Apr 2021 - 21:26
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QUOTE (reca @ Tue, 20 Apr 2021 - 22:21) *
What vital public interest is there, other than national security, that would prevail over a right to a fair hearing?


Law enforcement sources. The Supreme Court used it as an example, not a closed list.




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reca
post Tue, 20 Apr 2021 - 22:42
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QUOTE (southpaw82 @ Tue, 20 Apr 2021 - 22:26) *
QUOTE (reca @ Tue, 20 Apr 2021 - 22:21) *
What vital public interest is there, other than national security, that would prevail over a right to a fair hearing?


Law enforcement sources. The Supreme Court used it as an example, not a closed list.


Which para number?

What does law enforcement sources mean?
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cp8759
post Tue, 20 Apr 2021 - 23:16
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QUOTE (reca @ Tue, 20 Apr 2021 - 23:42) *
What does law enforcement sources mean?

He means that it is a lawful interference with your article 6 rights that evidence from a covert human intelligence source can be given in a trial against you, and if the court so decides you have no right to know who the witness is (this used to be - and probably still is - commonly referred to as public interest immunity).

Another example is in sexual offence cases, where by statute a defendant is deprived of the common law right to personally cross-examine his accuser. I'm sure SP can think of other examples. Then there's tax tribunals, where it's been held that article 6 doesn't apply at all.

A lot of ECHR rights get banded about as absolute, but very, very few of them are (off the top of my head I can only think of article 3). It's not exactly hard to find this out, see the guide at https://www.echr.coe.int/documents/guide_Art_6_eng.pdf:
87. The “right to a court” and the right of access are not absolute. They may be subject to limitations,
but these must not restrict or reduce the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired (Philis v. Greece (no. 1), § 59; De Geouffre de la Pradelle
v. France, § 28; Stanev v. Bulgaria [GC], § 229; Baka v. Hungary [GC], § 120; Naït-Liman v. Switzerland
[GC], § 113).3

Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue
a legitimate aim and if there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (Lupeni Greek Catholic Parish and Others v. Romania
[GC], § 89; Naït-Liman v. Switzerland [GC], § 115).
So the test here is this: does the requirement of UK law that you must pay the release fee before you can exercise your right to a hearing before an impartial tribunal amount to a proportionate interference with your Article 6 rights that pursues a legitimate aim? The answer IMO would be yes. Requiring the release fees to be paid up-front is a proportionate remedy in at least some circumstances (say parking on a red route, or repeat or persistent offenders), and it pursues a legitimate aim (the enforcement of traffic regulations and maintaining free-flowing traffic, without the burden of towing costs falling on the tax payer - clearly a legitimate aim).

It might be possible to bring a challenge to an individual instance of towing in a minor contravention case (say parked on a single yellow line on a quiet side street for just a few minutes past the start of the restriction) on the basis of a disproportionate interference with the right to use of one's property under Article 1 of Protocol 1, but that would be a challenge against the authority's decision to tow in an individual case.

The idea that the European court would strike down the entire legal framework as unlawful is for the birds. I think the domestic courts are likely to reach exactly the same conclusions.


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reca
post Wed, 21 Apr 2021 - 00:59
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QUOTE (cp8759 @ Wed, 21 Apr 2021 - 00:16) *
QUOTE (reca @ Tue, 20 Apr 2021 - 23:42) *
What does law enforcement sources mean?

He means that it is a lawful interference with your article 6 rights that evidence from a covert human intelligence source can be given in a trial against you, and if the court so decides you have no right to know who the witness is (this used to be - and probably still is - commonly referred to as public interest immunity).

Another example is in sexual offence cases, where by statute a defendant is deprived of the common law right to personally cross-examine his accuser. I'm sure SP can think of other examples. Then there's tax tribunals, where it's been held that article 6 doesn't apply at all.

A lot of ECHR rights get banded about as absolute, but very, very few of them are (off the top of my head I can only think of article 3). It's not exactly hard to find this out, see the guide at https://www.echr.coe.int/documents/guide_Art_6_eng.pdf:
87. The “right to a court” and the right of access are not absolute. They may be subject to limitations,
but these must not restrict or reduce the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired (Philis v. Greece (no. 1), § 59; De Geouffre de la Pradelle
v. France, § 28; Stanev v. Bulgaria [GC], § 229; Baka v. Hungary [GC], § 120; Naït-Liman v. Switzerland
[GC], § 113).3

Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue
a legitimate aim and if there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (Lupeni Greek Catholic Parish and Others v. Romania
[GC], § 89; Naït-Liman v. Switzerland [GC], § 115).
So the test here is this: does the requirement of UK law that you must pay the release fee before you can exercise your right to a hearing before an impartial tribunal amount to a proportionate interference with your Article 6 rights that pursues a legitimate aim? The answer IMO would be yes. Requiring the release fees to be paid up-front is a proportionate remedy in at least some circumstances (say parking on a red route, or repeat or persistent offenders), and it pursues a legitimate aim (the enforcement of traffic regulations and maintaining free-flowing traffic, without the burden of towing costs falling on the tax payer - clearly a legitimate aim).

It might be possible to bring a challenge to an individual instance of towing in a minor contravention case (say parked on a single yellow line on a quiet side street for just a few minutes past the start of the restriction) on the basis of a disproportionate interference with the right to use of one's property under Article 1 of Protocol 1, but that would be a challenge against the authority's decision to tow in an individual case.

The idea that the European court would strike down the entire legal framework as unlawful is for the birds. I think the domestic courts are likely to reach exactly the same conclusions.



So the test here is this: does the requirement of UK law that you must pay the release fee before you can exercise your right to a hearing before an impartial tribunal amount to a proportionate interference with your Article 6 rights that pursues a legitimate aim?

What legitimate aim is being pursued? As Bogsy has made clear, the demand for payment of a release charge for a non-abandoned vehicle is not what the RTRA requires. And until the matter is subject to authority, that is that. I have posed the same question over and over and sceptics have no reply - what happens if the owner cannot pay the release charge? I'll wait.

This post has been edited by reca: Wed, 21 Apr 2021 - 00:59
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cp8759
post Wed, 21 Apr 2021 - 20:15
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QUOTE (reca @ Wed, 21 Apr 2021 - 01:59) *
I have posed the same question over and over and sceptics have no reply - what happens if the owner cannot pay the release charge? I'll wait.

The car gets sold or scrapped and the owner can be pursued for any outstanding balance, I've answered this before.


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southpaw82
post Wed, 21 Apr 2021 - 20:33
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QUOTE (reca @ Wed, 21 Apr 2021 - 01:59) *
As Bogsy has made clear


Is there any reason we’re receiving his thoughts second hand?

QUOTE
I have posed the same question over and over and sceptics have no reply - what happens if the owner cannot pay the release charge? I'll wait.

You may find that you get more positive engagement if you are less passive aggressive.


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cp8759
post Wed, 21 Apr 2021 - 20:55
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QUOTE (reca @ Wed, 21 Apr 2021 - 01:59) *
What legitimate aim is being pursued?

Ensuring that motorists liable for towing charges cannot seek to evade payment (whether due to lack of realisable assets, by leaving the country, becoming untraceable or whatever).

It's exactly the same legitimate aim pursued by the fixed penalty roadside deposit scheme that was introduced a few years ago, to ensure that foreign drivers caught by police speeding, on the phone or going through a red light couldn't just sail off on the ferry and throw the fine in the bin knowing they would not be pursued. I've not heard anyone suggest that that particular scheme is unlawful. Maybe you think it is?


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southpaw82
post Wed, 21 Apr 2021 - 20:58
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QUOTE (cp8759 @ Wed, 21 Apr 2021 - 21:55) *
It's exactly the same legitimate aim pursued by the fixed penalty roadside deposit scheme that was introduced a few years ago, to ensure that foreign drivers caught by police speeding, on the phone or going through a red light couldn't just sail off on the ferry and throw the fine in the bin knowing they would not be pursued. I've not heard anyone suggest that that particular scheme is unlawful. Maybe you think it is?

What happens under that scheme if the driver cannot pay?


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cp8759
post Wed, 21 Apr 2021 - 21:30
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QUOTE (southpaw82 @ Wed, 21 Apr 2021 - 21:58) *
QUOTE (cp8759 @ Wed, 21 Apr 2021 - 21:55) *
It's exactly the same legitimate aim pursued by the fixed penalty roadside deposit scheme that was introduced a few years ago, to ensure that foreign drivers caught by police speeding, on the phone or going through a red light couldn't just sail off on the ferry and throw the fine in the bin knowing they would not be pursued. I've not heard anyone suggest that that particular scheme is unlawful. Maybe you think it is?

What happens under that scheme if the driver cannot pay?

If the driver cannot pay the vehicle is immobilized and can ultimately be sold or destroyed, see The Road Safety (Immobilisation, Removal and Disposal of Vehicles) Regulations 2009. Quite aside from the scheme the police obviously have the option of just arresting the driver and putting him before the courts, but that's unlikely to be warranted for most minor offences.

This post has been edited by cp8759: Wed, 21 Apr 2021 - 21:31


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southpaw82
post Wed, 21 Apr 2021 - 22:07
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QUOTE (cp8759 @ Wed, 21 Apr 2021 - 22:30) *
If the driver cannot pay the vehicle is immobilized and can ultimately be sold or destroyed, see The Road Safety (Immobilisation, Removal and Disposal of Vehicles) Regulations 2009. Quite aside from the scheme the police obviously have the option of just arresting the driver and putting him before the courts, but that's unlikely to be warranted for most minor offences.

And is the driver charged with an offence so that he appears before a court? What I’m getting at (because I’m sure others will) is, if the deposit isn’t paid does court action follow, or can court action follow without payment? If so, it seems from what people are saying that the situation is different to the towed vehicle scenario, where lack of payment gives no access to the relevant tribunal.


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cp8759
post Thu, 22 Apr 2021 - 08:15
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QUOTE (southpaw82 @ Wed, 21 Apr 2021 - 23:07) *
QUOTE (cp8759 @ Wed, 21 Apr 2021 - 22:30) *
If the driver cannot pay the vehicle is immobilized and can ultimately be sold or destroyed, see The Road Safety (Immobilisation, Removal and Disposal of Vehicles) Regulations 2009. Quite aside from the scheme the police obviously have the option of just arresting the driver and putting him before the courts, but that's unlikely to be warranted for most minor offences.

And is the driver charged with an offence so that he appears before a court? What I’m getting at (because I’m sure others will) is, if the deposit isn’t paid does court action follow, or can court action follow without payment? If so, it seems from what people are saying that the situation is different to the towed vehicle scenario, where lack of payment gives no access to the relevant tribunal.

The driver doesn't have to be charged, the police can just have the vehicle and let him on his way (presumably this would happen if the value of the vehicle is enough to cover the deposit amount).

Actually I think the scheme is more draconian: the police might simply let the driver on his way and keep the vehicle, but there seems to be no right to recover the vehicle without paying and I cannot see that the outcome of any trial has any impact on that or on any towing charges. It looks like you can only challenge the charges if the regulations are not complied with. If the regulations are followed correctly, it appears you have to pay the fees to get your vehicle back, and I can't see anything that provides for a refund even if the driver is subsequently acquitted of all charges. At least with a PCN, you can get a full refund by winning the subsequent tribunal appeal.

Regardless, I think the idea that requiring payment before you can appeal would be struck down under article 6 is remote in the extreme, as virtually ever signatory state to the convention seems to do this and to my knowledge the european court has never needed to consider an article 6 challenge about this.

This post has been edited by cp8759: Thu, 22 Apr 2021 - 08:17


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reca
post Thu, 22 Apr 2021 - 10:00
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QUOTE (cp8759 @ Wed, 21 Apr 2021 - 21:15) *
QUOTE (reca @ Wed, 21 Apr 2021 - 01:59) *
I have posed the same question over and over and sceptics have no reply - what happens if the owner cannot pay the release charge? I'll wait.

The car gets sold or scrapped and the owner can be pursued for any outstanding balance, I've answered this before.



Wrong, only abandoned vehicles can be disposed of. Notice must be sent to the reg keeper and if they reply there cannot dispose.

You are saying someone can lose their vehicle without due process? Law does not work like that.

FPNs are not relevant, that is criminal. Stick to the RTRA
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phantomcrusader
post Thu, 22 Apr 2021 - 14:58
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Bogsy’s critical points appear to be this

QUOTE
Schedule 7 of the TMA 2004 affirms that the contravention stated on a PCN is a road traffic contravention subject to civil enforcement. It is an indisputable fact that Part 6 of the TMA 2004 regulates civil enforcement. This is why the PCN refers to the TMA 2004. Despite this, with removal PCN's, councils make the payment timescale of the penalty charge subject to the RTRA 1984 and representations against the penalty charge also subject to the RTRA 1984.


And this

QUOTE
Everything about s.102 works in harmony with the TMA 2004 whereas s.101A does not at all.

I can understand that vehicles that appear to be abandoned need to be treated differently. In many cases the vehicle is not registered or carries no VRM. In such cases it's not possible to identify the owner on whom to serve a NTO thus thwarting the TMA 2004 process. S.101A fits perfectly in these cases.

S.101A is an extension of s.101 which concerns the process of dealing with vehicles that appear to be abandoned. s.101A replaced s.101(4) & (4A). Where a vehicle does appear to be abandoned, s.101A enables the owner to prevent disposal by making payment but what is the payment process for vehicles that never appear to be abandoned? I believe the answer is s.102.

s.102 advises that it applies where a vehicle is removed from a road or other land in pursuance of regulations under section 99 of this Act.

A PCN’d vehicle is removed in pursuance of the aforesaid regulations so s.102 is applicable.

Subsection 2A enables a CEA council to recover from the "person responsible" the removal and storage charges set in accordance with schedule 9 TMA 2004.

Subsection 3 enables a council if need be, to recover the sum payable as a civil debt through the courts

Subsection 4 regulates who has the right to retain a removed vehicle until the payable sum is paid. The right is not given to councils who operate parking under the civil enforcement process.

Payment of the penalty charge is excluded from s.102 as the TMA 2004 regs already provide a process for payment or challenges.


The points made do raise reasonable questions.

Why is no regard given to the TMA 2004 when a parking contravention under Part 6 TMA 2004 is the offence?

We are told you cannot pay & appeal civil parking penalty charges and yet this is exactly what is happening.

Why does s.102 regulate who can retain possession of a car until payment is made if all recovery is supposed to be under s.101A?

What validity does a PCN have if what it says is given no effect?

If a person pays up-front and then makes reps but gets no notice of rejection, how is this resolved when no order for recovery will be served to make possible the filing of a witness statement?

Does section 3 HRA 1998 compel councils to interpret the RTRA 1984 so that effect is given to s.102 so that access to a fair hearing is not discriminatory to those unable to pay up-front?

There are many questions like these, buggered if I know the answers though. One thing I think we can all agree on. If s.102 were to be applied, everything a PCN says would remain 100% applicable as there is no diversion from the TMA 2004. This leaves the matter of the removal charges. If not paid, the recovery route is via the courts like any other debt. Nothing out of the ordinary with this. It's what a council has to do with other debts owed.

This post has been edited by phantomcrusader: Thu, 22 Apr 2021 - 19:18
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reca
post Thu, 22 Apr 2021 - 22:54
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If you CAN pay then you get a reps form and when you receive the nor from the ea you can appeal to the pa.

So, if you have money you get due process.

If you dont have money you dont have access to justice AND your vehicle is disposed of? rolleyes.gif

Anyone who thinks that was the intention of Parliament is living in a dreamworld

Access to a parking adj, is always free, just like access to Mags court for criminal jurisdiction offences under s35 RTRA

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Wretched Rectum
post Thu, 22 Apr 2021 - 23:40
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The right to retain a removed vehicle is explicitly regulated under section 102 RTRA 1984 and the right is not given to civil enforcement authorities working under the TMA 2004.


This post has been edited by Wretched Rectum: Fri, 23 Apr 2021 - 09:06
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reca
post Fri, 23 Apr 2021 - 11:53
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QUOTE (Wretched Rectum @ Fri, 23 Apr 2021 - 00:40) *
The right to retain a removed vehicle is explicitly regulated under section 102 RTRA 1984 and the right is not given to civil enforcement authorities working under the TMA 2004.



Correct. Somehow parking under tma and release fee became conflated. this is due to the dept of transport not issuing guidance under the rtra.

Reg 14 of the Removal Regs proves Bogys is correct

14. Period during which owner may remove vehicle before it can be disposed of
For the purposes of section 4(1)©(ii) of the 1978 Act and section 101(3)©(ii) of the 1984 Act,
the period during which a person on whom the notice referred to in paragraph (1)(a)(ii) or (2) of
regulation 12 of these Regulations has been served shall be required to remove the vehicle of which
he appears to the authority serving the notice to be the owner from their custody shall be 7 days
from the day when that notice is served on him.

The above clearly refers only to abandoned vehicles. Under the 1978 Act vehicle was towed for being abandoned, Under 1984 Act vehicles was ticketed and towed and appeared abandoned as well. Power can also be used for ticketed vehicle which has not been claimed after say 3 months. So now appears to be abandoned. The scheme is perfect is correctly executed.

The correct way for council to recover removal and storage charges is the small claims court. If the abandoned vehicle is sold for scrap or at auction, the proceeds must be set off against what is owed
FOR THE REMOVAL AND STORAGE CHARGES ONLY not for a pcn.

This post has been edited by reca: Fri, 23 Apr 2021 - 12:10
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Wretched Rectum
post Fri, 23 Apr 2021 - 14:33
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These regulations are a good indicator.

https://www.legislation.gov.uk/uksi/2008/2367/contents/made

Regulation 15 includes no requirement that the notice to owner letter give any information about upfront payment. You would expect this to be a statutory requirement in the letter if upfront payment is a condition for releasing the vehicle.

The heading of regulation 16 is noteworthy.
QUOTE
Period during which owner may remove vehicle before it can be disposed of.

"Before it can be disposed of" means that the legal criteria for being seen as an abandoned vehicle has not yet been met. It it had been met, the vehicle can be disposed of.

If a vehicle is not claimed within the 7 day notice period, the vehicle can now officially be viewed as abandoned and disposal can proceed.

It is only when disposal can proceed that the regulations require the s.101A upfront payment to be made in order to stop the disposal and retake possession.

QUOTE
Period during which owner may remove vehicle before it is disposed of

18. For the purpose of section 101A, where a person—

(a)satisfies the Secretary of State that he is the owner of a vehicle; and

(b)has paid the relevant charges,

he shall be permitted to remove the vehicle from the Secretary of State’s custody within the period of seven days beginning with the day on which the Secretary of State became satisfied that he was the owner.


Where the vehicle is recovered "before it can be disposed of" the charges to apply are those under s.102(2A) RTRA 1984 but there is no right for a civil parking council to retain until payment is made.

This post has been edited by Wretched Rectum: Fri, 23 Apr 2021 - 15:29
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