Dartford PCN Code 23, possible wrong wording on pcn Options

[Joe R]

Never rains, but it pours...

Story goes....My daughter was collecting signed paperwork for their new flat from her boyfriend (he was at work) which she was going to hand deliver to their mortgage advisor.

My daughter is banged to rights (signage) and she drove off before the CEO gave her the PCN (she was sat in the car). If I'm not mistaken, code 23 doesn't require an observation time? But looking at the times on the pics, it seems the CEO had started to prepare the PCN before taking any photos, quite possibly before approaching car from behind as my daughter didn't see him.

The signage is enough for me to know it's a pay-up job, but the PCN possibly tells me otherwise. The PCN doesn't mention an NtO (unless this is the NtO) and it also uses 'will' instead of 'may'

I found this from cp8759, is this still useable? This case was an eventual winner.
http://forums.pepipoo.com/index.php?showto...120671&st=0

Dear Sir/Madam,

The alleged contravention is not disputed. However the Penalty Charge Notice states that if no payment is made, and no representations are made before the end of the 28 day period, the council will increase the penalty by 50% and it will issue a charge certificate. The council has a power to serve a charge certificate, but that power is discretionary. There is no duty or obligation on the council to serve a charge certificate. It has long been held that where Parliament has indicated an enforcement authority “may” carry out a step in the enforcement process, that discretion cannot be fettered and the outcome of that decision cannot be a foregone conclusion. I draw your attention to the decision of adjudicator Edward Houghton in London Tribunals case number 2110072817. In that case the adjudicator found that:

“The wording the Council has employed in its rejection notice departs materially from this. "Will" appears instead of "may", the 28 day period is not accurately stated, and in particular it is far from clear that if an appeal to an Adjudicator is made the Council may not issue a charge certificate. Why the Council felt unable to simply follow the mandatory statutory wording is a mystery. In the absence of a proper rejection notice it seems to me that payment may no longer be demanded.”

While that decision fell under the London Local Authorities and Transport for London Act 2003, the relevant wording of the regulations is (word by word) identical to the wording found in The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

The above amounts to a procedural impropriety which means that, although the alleged contravention occured, the PCN must nonetheless be cancelled.

Hugs and kisses

https://ibb.co/yPq13W9
https://ibb.co/dKkMnky
https://ibb.co/rHfmF3v
https://ibb.co/Tq3LyX4
https://ibb.co/cw0tDwf


Thanks in advance for your opinions and help
Joe

This post has been edited by Joe R: Thu, 26 Nov 2020 - 22:06

[Advertisement]

[PASTMYBEST]

Not necessarily y a pay up job the PCN is timed at the same time as the photo of the sign but IIUC a HHC will log the start time of the preparation of the PCN if he has not started there is no contravention

Also the PCN does not tell you what class of vehicle is prohibited

[Incandescent]

They have correctly issued a postal PCN after your daughter drove away before the PCN in preparation could be served. So, having issued a Regulation 10 PCN (for the driveaway) which is sent to the registered keeper as per the V5, no NtO will be issued. If you want to argue the toss on the will/may issue be aware that the council won't give way, so you will end up at adjudication. If Dartford is a London council, this will be London Tribunals, and the discount option will have gone, the full PCN penalty will be in play. Whilst this issue has won in the past it is not a guaranteed win, as adjudicators are not obliged to heed previous adjudications.

[Mad Mick V]

OP--this is a slam dunk on the will/may argument IMO.

It's not just "will issue a charge certificate" they go through the whole enforcement process with a series of "wills" right through to bailiffs fees.

Not just a procedural impropriety; the level of threat contained in that document is close to extortion.

Mick

This post has been edited by Mad Mick V: Fri, 27 Nov 2020 - 07:45

[Joe R]

Is the appeal in my original post good to use? Should I add more recent successful case files?

I'll add that should they choose not to cancel, to send me the CEOs notes, as the start time of the PCN could throw up some more ammo

Thanks

[SX4]

Not necessarily y a pay up job the PCN is timed at the same time as the photo of the sign but IIUC a HHC will log the start time of the preparation of the PCN if he has not started there is no contravention

Also the PCN does not tell you what class of vehicle is prohibited

When preparing a PCN the HHC doesn’t give an option of stating what class of vehicle is prohibited, that goes in CEOs notes.
As far of photos go they are usually taken after printing of PCN up to 4 minutes max

[cp8759]

Is the appeal in my original post good to use? Should I add more recent successful case files?

You can use that draft, the council will reject it no matter what you say but that will only make your case stronger. Don't worry about quoting more recent cases, we can refind the argument at the tribunal stage.

[Joe R]

Update....Received a NoR today with their version of events

https://ibb.co/6r5rvS1
https://ibb.co/mhWP9Nq
https://ibb.co/rsNtpbr
https://ibb.co/Zfww3Ng

I notice they now use the word 'may' in the NoR when referring to a Charge Certificate, but not on the PCN.

Does the time of the photo's in relation to the time on the PCN have any significance? I'm inclined to agree a car isn't a goods vehicle, but if there was items in the boot which were being delivered, does that make it a goods vehicle? I'm probably clutching at straws with that one, but it's not as if the signage had weight limits to define a goods vehicle.

Surely any successful appeal of the may/will argument regardless being from PATAS should have some clout? If the ball crosses the line, its a goal, right?

Now to prepare for an appeal, I'm going to need some assistance putting this together and ticking the correct boxes.

Thanks in advance

This post has been edited by Joe R: Sun, 6 Dec 2020 - 22:50

[Incandescent]

Does the time of the photo's in relation to the time on the PCN have any significance? I'm inclined to agree a car isn't a goods vehicle, but if there was items in the boot which were being delivered, does that make it a goods vehicle? I'm probably clutching at straws with that one, but it's not as if the signage had weight limits to define a goods vehicle.

You are clutching at straws on that one. The V5 defines if a vehicle is a goods vehicle, and is usually a vehicle buult for the carriage of goods or that has been permanently altered for such

[Joe R]

Does the time of the photo's in relation to the time on the PCN have any significance? I'm inclined to agree a car isn't a goods vehicle, but if there was items in the boot which were being delivered, does that make it a goods vehicle? I'm probably clutching at straws with that one, but it's not as if the signage had weight limits to define a goods vehicle.

You are clutching at straws on that one. The V5 defines if a vehicle is a goods vehicle, and is usually a vehicle buult for the carriage of goods or that has been permanently altered for such

That's fair enough

Having re-read the NoR a few times, I'm not sure why they've mentioned Road Traffic Act (1984) 'We wish to advise you that all of our correspondence comlies with the statutory guidelines and falls within the remit of the Road Traffic Act (1984) and subsequent leglislation.' The PCN is served under the provisions of TMA 2004. Is the mention of RTA an error or does it have some relevance?

The legislation is clear enough so could their reply be deemed misleading?

As for 'Please be aware....' paragraph I note from the TPT case file UW 05060M
The various decisions from PATAS that I have been referred to take a strict approach. They state that the wording to be adopted by the Council is set down in the statutory regulations, and any variation from it will amount to procedural impropriety. It should be noted that the decisions of PATAS are in no way binding upon me, but they may be persuasive.

This post has been edited by Joe R: Mon, 7 Dec 2020 - 17:48

[hcandersen]

'so could their reply be deemed misleading?'

..as misleading as your daughter's account in which she claims that 'the CEO had started to prepare the PCN before taking any photos, quite possibly before approaching car from behind as my daughter didn't see him.'?

Didn't see him when, according to the CEO's notes, she was asked to move on, sat there then sped off before being served and in her haste narrowly avoided a pedestrian!

You might want to raise these points with her.

Yes, the PCN is as near to a slam-dunk win on the grounds of procedural impropriety as I've seen. But adjudicators can be a fickle bunch and when faced with what are absolutely conflicting accounts of events might conclude that the person whose account they disbelieve does not deserve the support of the court..look up the maxim of Clean Hands.

[Joe R]

'so could their reply be deemed misleading?'

..as misleading as your daughter's account in which she claims that 'the CEO had started to prepare the PCN before taking any photos, quite possibly before approaching car from behind as my daughter didn't see him.'?

Didn't see him when, according to the CEO's notes, she was asked to move on, sat there then sped off before being served and in her haste narrowly avoided a pedestrian!

You might want to raise these points with her.

Trust me, I did.

Yes, the PCN is as near to a slam-dunk win on the grounds of procedural impropriety as I've seen. But adjudicators can be a fickle bunch and when faced with what are absolutely conflicting accounts of events might conclude that the person whose account they disbelieve does not deserve the support of the court..look up the maxim of Clean Hands.

Thanks HCA, that's a good read.

[Joe R]

I'm putting together a first draft which I'll post for a scrutiny when it's done. Am I right in thinking I have just the one ground for my appeal which is procedural impropriety against the PCN?

Has the NoR thrown up any further points?

Thanks
Joe

[cp8759]

If you'd like me to represent you drop me a PM, but the short version is that the council is banged-to-rights on the will / may issue, they don't understand what a persuasive authority is and their NOR is basically a pile of drivel.

[cp8759]

So apparently adjudicator James Richardson thinks everyone else is wrong.

Alice Rogers v Kent County Council (with Dartford BC) - KD00009-2012

[Mad Mick V]

Misled himself because the words are not interchangable if discretion is involved. This is conditional on one word but not the other.


Mick

[Incandescent]

This adjudicator clearly is completely ignorant of the English language, and one must ask how he could have possibly passed any legal exams. If 'will' is the same as 'may' why have two words ?

I would say the adjudicator has erred in law.

https://www.google.co.uk/search?q=will+and+...sclient=gws-wiz

[PASTMYBEST]

So apparently adjudicator James Richardson thinks everyone else is wrong.

Alice Rogers v Kent County Council (with Dartford BC) - KD00009-2012

AKA Michael Burke

[cp8759]

Maybe so but we know a review won't succeed, so it would be off to the High Court. We can do a judicial review for just under £1,000 if we do everything ourselves, does anyone here really think it's worth the risk?

Bearing in mind that if the council and the tribunal both take a neutral stance, the court fees are not recoverable so Joe could win and still be almost £1,000 out of pocket.