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Advice with Apcoa PCN please
AlexPrince
post Sun, 14 Jan 2018 - 12:49
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Just after some advice. Where I live I have no resident parking but as I work in the day I only really have to worry about parking on a Saturday. This is usually in the car park
near my home. Therefore I would park up on a Friday evening, buy a ticket for the following day and that was that.
However back in August with the issue of the new pound coins the machines were updated and the new software did not allow you to prepay for a ticket either by machine or
online. This has meant that since then I have to make sure I'm up at eight every Saturday morning to buy a ticket. I did write to the council to complain and they said they would
chase up the contractors to get the software changed back as this was not acceptable. To date this has not been done and as such today my worse fears were realised as I
overslept and by time I went to pay for my ticket I had already received a PCN. This is by apcoa so I'm assuming they are acting for the council?

Now I'll hold my hand up and agree I didn't have a ticket for the time the PCN was issued and if needs be I'll pay the fine. However I want to make a complaint because the
software still hadn't been updated which would have allowed me to buy the ticket at the time I parked the car. I still have a copy of the e-mails between me and Forest of Dean
council relating to this.

Before I do fill in the challenge I would just like to ask for any advice in regards of what might be best to say and more importantly what not to say.
Also had this been the council itself I would have simply made the challenge but because it is an outside company and I know that sometimes there are issues surrounding them
so how 'legit' is this PCN. I've heard stories of additional charges afterwards so I'm worried about contacting them and giving them my address details.

Any advice welcome and thanks.








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PASTMYBEST
post Tue, 16 Jan 2018 - 21:55
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Far more detail and content than i would normally advocate for an informal challenge, But its to ACPOA so lets make them sit up


Dear Mr parking

Re penalty charge notice number xxxxxx
vehicle registration mark AB 23 CDE

I challenge the above PCN as follows.

I light of the correspondence (copies enclosed) with the local council I was somewhat surprised and aggrieved to receive this PCN. Because of this i took advice and undertook research into the issue of penalty charge notices.I find as follows

1:- The authority commit Procedural impropriety.


The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 schedule at (1) list the information that is required within the body of a PCN (1)(b) being "the name of the enforcement authority"

This information is clearly missing from the PCN. Failing to convey this information is a procedural impropriety as per 4(4)(f) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

3(5) defines procedural impropriety thus " In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum"

Regulation 7(2) of the same appeals regulations say this.

If, on an appeal under this regulation, the adjudicator after considering the representations in question together with any other representations made to the effect referred to in regulation 4(2)(b) and any representations made by the enforcement authority, concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal and may give such directions to the enforcement authority as he may consider appropriate for the purpose of giving effect to his decision, and such directions may in particular include directions requiring—

(a) the cancellation of the penalty charge notice;

(b) the cancellation of the notice to owner; and

© the refund of such sum (if any) as may have been paid to the enforcement authority in respect of the penalty charge.

The consideration of challenges and representations are the start of the legal process culminating in appeal. Where a ground is found proven at the challenge stage then the PCN should be cancelled at that stage. To do otherwise is to risk the incursion of costs that an appellant might reasonably seek to recover at appeal.


2:- Compelling reason to cancel the PCN


Regulation 4(2)(b)(ii) of the appeals regulations, states this

that, whether or not any of those grounds apply, there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should cancel the penalty charge and refund any sum paid to it on account of the penalty charge.


That the software upgrade created the fault within the system that prevented the timely payment of the parking fee. As per the correspondence from the local council, amounts to a compelling reason to cancel this PCN

3:- Procedural impropriety

A further impropriety is committed by a failure to convey the information required at 3(2)(b)(ii) of the appeals regulations.

The crucial part of this regulation is that even though a challenge has been made, if the appeals process is to continue The recipient of the notice to owner must make representations as directed.

This PCN only states that they MAY. If no response to the informal challenge has been received (and the regulation do not require one) then a person may well upon receipt of the NTO wait for a response to their challenge

The information required is not conveyed. case law has it that the wording of the regulations do not need be transcribed word for word, but the must convey the exact meaning. This PCN does not. Therefore Procedural impropriety is established

For any one or all of these reasons i submit that this PCN be cancelled now to avoid additional costs to both the authority and myself. I will surely seek recompense at adjudication if that route is needed.




This post has been edited by PASTMYBEST: Tue, 16 Jan 2018 - 22:14


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AlexPrince
post Tue, 16 Jan 2018 - 22:47
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Thanks for that. I will e-mail both apoca and the council tomorrow after work.
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Mad Mick V
post Thu, 25 Jan 2018 - 20:58
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This one shows how the EA should be stipulated on the PCN--notice the difference?

http://i66.tinypic.com/1jpwfq.jpg

Mick
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AlexPrince
post Sat, 27 Jan 2018 - 11:26
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Yeah that's a noticeable difference Mick.

A quick update. I have received a letter back from Apcoa saying they have carefully considered what I said but decided not to cancel the PCN.

Some stuff about needing a P&D ticket that needs to be clearly displayed.

Then it says Although you stated you attempted to pay for the parking out of hours it is the driver's responsibility to ensure that their vehicle is paid for when the restrictions apply.
Therefore the PCN was issued correctly.

I will post a photo of the letter later when I get back home. However there is no comments on the points about Procedural impropriety.
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DancingDad
post Sat, 27 Jan 2018 - 13:37
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Let's see the letter and what you wrote to them.

No surprise they would ignore the PI, won't have a clue how to answer it.
But have (pending what is in writing) handed you a strong point.
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cp8759
post Sat, 27 Jan 2018 - 14:53
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If they have ignored the procedural impropriety point, their failure to consider that is yet another procedural impropriety. Post the letter on here so we can confirm, but for now it appears you will just have to wait for the Notice to Owner so you can make formal reps, those are probably dealt with by someone a little more competent.


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AlexPrince
post Sat, 27 Jan 2018 - 21:33
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Ok this is the letter I received back from Apcoa.

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PASTMYBEST
post Sat, 27 Jan 2018 - 21:36
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I take it you are not going to pay?. That shows an abject failure to consider. Another PI


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cp8759
post Sat, 27 Jan 2018 - 23:11
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I think the rejection letter gives you two procedural improprieties. Firstly they have completely failed to consider grounds 1 and 3 of your appeal, secondly they have stated that a NtO will be issued "automatically". I would suggest this is an unlawful fetter of the council's discretion, see post 9 on this thread: http://forums.pepipoo.com/index.php?showtopic=118286

I would add, at the formal reps stage I would put forward your second ground of appeal as "the alleged contravention did not occur" rather than as compelling reasons to cancel, as you'd want to be able to argue this ground at adjudication (An adjudicator cannot allow an appeal due to compelling reasons).


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AlexPrince
post Sat, 27 Jan 2018 - 23:38
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So it still looks like I have strong grounds to still challenge this?

cp8759 - I'm not quite sure what you mean by "the alleged contravention did not occur". Could you elaborate a bit more please.
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cp8759
post Sat, 27 Jan 2018 - 23:57
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I think the replies from APCOA has made your chances of getting this cancelled better, because the person who replied to you obviously doesn't understand the relevant law, and doesn't understand their public law duty to properly consider all your representations. Even if the contravention had been banged to rights, a procedural impropriety can get an otherwise perfectly valid PCN cancelled.

Regarding your query, when you get the Notice to Owner, you will have several statutory grounds to appeal, these are listed at subsection 4 here: http://www.legislation.gov.uk/uksi/2007/34...gulation/4/made
You can also appeal where none of the grounds apply, but there are compelling reasons why the council should cancel the PCN (See subsection 2(i) in the link above).

You contention that "the software upgrade created the fault within the system that prevented the timely payment of the parking fee" should be put forward on the statutory ground that "the alleged contravention did not occur", rather than "there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should cancel the penalty charge" as you have done in your informal reps.

The reason for this is simple: Adjudicators have been known to rule that the alleged contravention did not occur where the enforcement authority has made it impossible to pay the pay&display charge. This is by no means a guaranteed win (because the council could argue that you should have returned to the pay&display machine to pay the following morning), but a sympathetic adjudicator might allow the appeal on this ground. On the other hand, an adjudicator cannot allow an appeal due to "compelling reasons", even if he thinks the PCN should be cancelled. All he can do in these circumstances is direct the council to reconsider your compelling reasons. Obviously if you can get the adjudicator on side, you want to make sure the point is raised under the statutory ground that the contravention did not occur, so he can simply allow the appeal and direct the council to cancel the PCN.

Having said that, I think you have a winning appeal anyway for the procedural improprieties.


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AlexPrince
post Sun, 28 Jan 2018 - 00:12
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Ok I see what you mean now. Thanks for that.

As a side note I did write to the person at the council again to ask about my original complaint but so far have not received a reply from them.
I'm hoping they will come back with something useful as well.
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PASTMYBEST
post Sun, 28 Jan 2018 - 10:38
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QUOTE (cp8759 @ Sat, 27 Jan 2018 - 23:11) *
I think the rejection letter gives you two procedural improprieties. Firstly they have completely failed to consider grounds 1 and 3 of your appeal, secondly they have stated that a NtO will be issued "automatically". I would suggest this is an unlawful fetter of the council's discretion, see post 9 on this thread: http://forums.pepipoo.com/index.php?showtopic=118286

I would add, at the formal reps stage I would put forward your second ground of appeal as "the alleged contravention did not occur" rather than as compelling reasons to cancel, as you'd want to be able to argue this ground at adjudication (An adjudicator cannot allow an appeal due to compelling reasons).


yes they can, compelling reasons are not mitigation. The contravention occurred but due to a failing by the council, breaching there common law duty


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cp8759
post Sun, 28 Jan 2018 - 11:53
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QUOTE (PASTMYBEST @ Sun, 28 Jan 2018 - 10:38) *
QUOTE (cp8759 @ Sat, 27 Jan 2018 - 23:11) *
I think the rejection letter gives you two procedural improprieties. Firstly they have completely failed to consider grounds 1 and 3 of your appeal, secondly they have stated that a NtO will be issued "automatically". I would suggest this is an unlawful fetter of the council's discretion, see post 9 on this thread: http://forums.pepipoo.com/index.php?showtopic=118286

I would add, at the formal reps stage I would put forward your second ground of appeal as "the alleged contravention did not occur" rather than as compelling reasons to cancel, as you'd want to be able to argue this ground at adjudication (An adjudicator cannot allow an appeal due to compelling reasons).


yes they can, compelling reasons are not mitigation. The contravention occurred but due to a failing by the council, breaching there common law duty

That's not what the regulations say: http://www.legislation.gov.uk/uksi/2007/34...gulation/7/made provides under sub-section 2 that if the adjudicator is satisfied one of the statutory grounds is made out, "he shall allow the appeal", while sub-section 4 provides that: "If the adjudicator does not allow the appeal but is satisfied that there are compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled he may recommend the enforcement authority to cancel the notice to owner". The authority must then consider the adjudicator's request, but they can just turn around and say "having considered this, we have decided not to cancel the NtO".

However, to play it safe, AlexPrince could simply say this:
"Ground 2: I contend that that the contravention did not occur because the software upgrade created the fault within the system that prevented the timely payment of the parking fee, as confirmed by the correspondence from the local council. However, if it is not accepted by the tribunal that for this reason the contravention did not occur, it is nonetheless submitted that the fault in the parking software amounts to compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled".

This provides the widest possible scope for a favourable outcome.


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PASTMYBEST
post Sun, 28 Jan 2018 - 12:01
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QUOTE (cp8759 @ Sun, 28 Jan 2018 - 11:53) *
QUOTE (PASTMYBEST @ Sun, 28 Jan 2018 - 10:38) *
QUOTE (cp8759 @ Sat, 27 Jan 2018 - 23:11) *
I think the rejection letter gives you two procedural improprieties. Firstly they have completely failed to consider grounds 1 and 3 of your appeal, secondly they have stated that a NtO will be issued "automatically". I would suggest this is an unlawful fetter of the council's discretion, see post 9 on this thread: http://forums.pepipoo.com/index.php?showtopic=118286

I would add, at the formal reps stage I would put forward your second ground of appeal as "the alleged contravention did not occur" rather than as compelling reasons to cancel, as you'd want to be able to argue this ground at adjudication (An adjudicator cannot allow an appeal due to compelling reasons).


yes they can, compelling reasons are not mitigation. The contravention occurred but due to a failing by the council, breaching there common law duty

That's not what the regulations say: http://www.legislation.gov.uk/uksi/2007/34...gulation/7/made provides under sub-section 2 that if the adjudicator is satisfied one of the statutory grounds is made out, "he shall allow the appeal", while sub-section 4 provides that: "If the adjudicator does not allow the appeal but is satisfied that there are compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled he may recommend the enforcement authority to cancel the notice to owner". The authority must then consider the adjudicator's request, but they can just turn around and say "having considered this, we have decided not to cancel the NtO".

However, to play it safe, AlexPrince could simply say this:
"Ground 2: I contend that that the contravention did not occur because the software upgrade created the fault within the system that prevented the timely payment of the parking fee, as confirmed by the correspondence from the local council. However, if it is not accepted by the tribunal that for this reason the contravention did not occur, it is nonetheless submitted that the fault in the parking software amounts to compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled".

This provides the widest possible scope for a favourable outcome.


Wouldn't argue with that. Where an adjudicator has more scope is that if the council fail to consider compelling reasons, where they are put to them then they can find under 5(2)(a)


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AlexPrince
post Thu, 22 Feb 2018 - 18:40
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Ok so I have had the NtO come through.












So what's the next step guys.
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Mad Mick V
post Thu, 22 Feb 2018 - 19:17
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This is getting juicy if the first time the Forest of Dean enters the fray is at the NTO stage.

Subject to the views of others I would keep the appeal simple--duff PCN and failure to consider.

If an appeal to TPT is necessary then I am sure we can draft something which echoes the Fosbeary ruling.

Mick
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PASTMYBEST
post Thu, 22 Feb 2018 - 22:29
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QUOTE (Mad Mick V @ Thu, 22 Feb 2018 - 19:17) *
This is getting juicy if the first time the Forest of Dean enters the fray is at the NTO stage.

Subject to the views of others I would keep the appeal simple--duff PCN and failure to consider.

If an appeal to TPT is necessary then I am sure we can draft something which echoes the Fosbeary ruling.

Mick


Any one got a link


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DancingDad
post Thu, 22 Feb 2018 - 22:45
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QUOTE (PASTMYBEST @ Thu, 22 Feb 2018 - 22:29) *
QUOTE (Mad Mick V @ Thu, 22 Feb 2018 - 19:17) *
This is getting juicy if the first time the Forest of Dean enters the fray is at the NTO stage.

Subject to the views of others I would keep the appeal simple--duff PCN and failure to consider.

If an appeal to TPT is necessary then I am sure we can draft something which echoes the Fosbeary ruling.

Mick


Any one got a link


Somewhere.... I think may also beeen in cases to assist sticky and was in news or flame pit so worth a search
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Mad Mick V
post Thu, 22 Feb 2018 - 23:17
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http://forums.pepipoo.com/index.php?act=at...st&id=30363

Mick
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