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Cashless payment delay - Code 12 PCN
BahHumbug19
post Thu, 5 Sep 2019 - 21:24
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Hello all,

Can you please give any advice as to how this PCN would best be challenged?

Driver parked around 1:30 pm and walked from vehicle to nearest machine. Tariff had increased since last visit (over a year ago) and correct cash was unavailable. Due to delays accessing the cashless parking facility, payment was not made until 1:49 pm. By this time a PCN had been issued at 1:41 pm, following a 6 minute observation. Driver unaware until returning within paid time.

Mitigating factors:
  • Mobile website of cashless parking facility took driver longer than expected to find and was slow to load. (Official status check confirms network was busy in that location/time and might lead to slower data).
  • Driver prevented from completing transaction on first try due to an error on submitting the form (payment facility later confirmed this error might be due to incorrect form entry but no record of error. Driver has screenshot from different session). Page refresh again delayed access to mobile website and reset all the fields. Required two attempts before success. (VAT receipt available.)


Code 12 wording does not state a specific contravention for payment made by cashless facility. I.e. no physical ticket to display. Is this useful?

Penalty charge seems both unfair and unreasonable as driver made reasonable efforts to pay. Unexpected technical issues delayed that happening. Surely discretion could and should be used?

--
Supporting material:
1 x PCN front, 1 x PCN rear, 1 x signage pic (machine pic could be obtained), 1 x status check, 1 x error



This post has been edited by BahHumbug19: Fri, 6 Sep 2019 - 21:48
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post Thu, 5 Sep 2019 - 21:24
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cp8759
post Tue, 10 Sep 2019 - 19:34
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The problem I see is this: The P&D machine is here https://www.google.co.uk/maps/@51.3846819,-...6384!8i8192 to the right. It's hard to imagine that if you were stood by the machine trying to make payment, you wouldn't notice the CEO stood by your car for a whole six minutes, which is quite a generous observation period.

On the contrary, if I were in that position I would probably keep a keen eye on the car to make sure a CEO didn't slap a ticket on it, and if one approached I'd walk back to the car to explain that I was in the process of trying to make a payment but encountering difficulties.

So, why was a CEO not seen? They're not exactly inconspicuous and he would have been walking round your car to take photos so it seems odd you didn't notice him.


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hcandersen
post Wed, 11 Sep 2019 - 07:55
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The problem is the OP's lack of relevant info.

There are TWO machines;
The closer is not in the parking place;
The sign does not carry an arrow;
If the OP went to the further and this was not in sight, then how the hell did they know this was even there, let alone the one to use?
And en route to the further, the OP would have passed another relevant traffic sign pointing them back in the direction from whence they'd come.

The OP doesn't seem to want to share the facts, possibly because they fear that in doing so they would undermine their argument. Their mistake is in thinking that their argument is a defence and underestimating our ability to find stronger argument(s) based on the facts.

Hey ho.
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BahHumbug19
post Wed, 11 Sep 2019 - 21:54
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@hcanderson--To answer your points:

1. Council photo had not yet been supplied. First post included an older--but identically worded--image to demonstrate signage used.

2. Correct. That is the first and only sign that I saw.

Agreed. The further parking machine ("on the right") was indeed the one visited. I have been to the area before and this seemed the only one visibly relevant to the parking place used. As you say yourself, the other machine (closer to vehicle but on the left) does not seem to be for the parking place in question. The small sign with arrows in both directions was not seen at the time of parking. Too small (and coincidentally, as on GSV, partially obscured).

Your continued assertion of my not wanting to share facts is wrong and more importantly unhelpful. No firm argument to 'undermine'. I do not intend to argue I was not parked there, or the unintentional contravention. Factual evidence was given based on first-hand knowledge of the driver (me). Council photos were added right away when available.

@cp8759-- Not at all. It was never stated that I was next to the machine the entire time. I was further down this street, away from the vehicle. (Very reasonably, staring at your phone for 10/15 mins trying to get a website to load when it will not, and payment to be accepted when error messages are received is a sufficient distraction! Either way my field of view, while a fact, is circumstantial)


@hcanderson--Am I right in concluding that in my letter of informal representation to the Council, you would primarily draw attention to the signage and machine confusion, plus incorrect payment dates?

Thank you for your replies..

This post has been edited by BahHumbug19: Thu, 12 Sep 2019 - 07:01
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cp8759
post Thu, 12 Sep 2019 - 08:43
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To be honest if you did not stay in the immediate vicinity of the car or the machine, your case is hopeless as far as statutory grounds go. Sorry if this is not what you want to hear, but you came here for legal advice and that is the legal position. All you have left is discretion, but with BANES I really wouldn't hold my breath.


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BahHumbug19
post Thu, 12 Sep 2019 - 16:59
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@cp8759--I appreciate your honest input from your point of view. While I agree it is probably an uphill battle, hopeless seems a stretch. That is what they count on.

HCAnderson has correctly pointed out errors with their PCN and signage (seems probable grounds for impropriety). The delay was in large part to technical failures directly relating to their own cashless payment facility (which was difficult to find and access), therefore outside of reasonable control.

I fully expect their initial response to be a rejection as would appear to usually be the case.
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hcandersen
post Fri, 13 Sep 2019 - 07:47
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I'm still confused.

Have we seen council photos of the sign on which they are relying or not? (this is why it is unhelpful to post GSV because this is not the council's evidence and can, as here, mislead).

But presuming for the moment that the council's evidence sign is the one seen i.e. without an arrow, then the following apply:

I parked and I saw the sign in the council's evidence. This stated that parking was permissible and that between the hours of 8am to 7pm Mon-Sat restricted to permit holders or subject to a charge, payment of which must be evidenced by the display of a pay and display ticket.

The sign gave no indication as to where the ticket machine could be located, although I could see that there wasn't a machine in the remaining section of the parking place which lay ahead of my car.

I walked in the opposite direction. As the authority will see, in this direction there is a second traffic sign which indicates that a ticket machine could be found in the direction from which I had come and further ahead in the direction I was headed. The only logical meaning of the arrow towards my car would be that either a machine had been removed or I had missed it or that the other machine could be used. GSV shows no evidence of a machine ever having been located in the area between my car and this sign, therefore it could only be referring to the machine which GSV shows is not in this section of the parking place.

I finally found a machine, however I did not have correct change.

...and here your account is unclear. Neither of the signs refers to PBP, so what do you mean by 'cashless payment facility'? Is it that the machine would accept payment by card or were there instructions on the machine regarding payment by an alternative, non-P&D, method. We must be absolutely clear which, if either, applies.

This post has been edited by hcandersen: Fri, 13 Sep 2019 - 07:48
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BahHumbug19
post Sat, 14 Sep 2019 - 03:31
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@hcandersen—Thank you for your helpful reply.

Yes you have. The above CEO/Council photos of the vehicle include an image of the sign on which they are relying. (GSV was my error. I thought it would be useful to show the sign as it was identically worded)

The machine did not accept direct card payment. Instead it provided PBP options through their payment provider, Mi Permit:
1. calling and creating an account (future sessions can be setup via text)
2. downloading an app and setting up an account (both of which I thought would be much slower)
3. using the mobile website of their payment provider instead

Using this last method, I learned you can pay without creating or remembering an account. This was the option I chose as I expected it to be the quickest.

This post has been edited by BahHumbug19: Sat, 14 Sep 2019 - 03:34
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hcandersen
post Sat, 14 Sep 2019 - 08:30
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The requirement to display a ticket cannot be amended by a machine which offers PBP, it is not permissible.

They are idle, lazy and ignorant. They place misleading traffic signs and then ignore one of the common components - a requirement to display a ticket - because it suits them.

Anyway, back to what I understand is the legal position.

When you park you must make a prompt and diligent effort to comply with the restriction.
You did so to the extent of finally finding a machine, despite the best efforts of the traffic signs to either leave you in ignorance or mislead.
When you finally found the machine you realised that you did not have the wherewithal using the prescribed method.
According to the traffic sign you should have returned to your car. However, the P&D machine referred to a PBP option for which which you had not prepared yourself because this was not a method prescribed in the signs.
Rather than return to your car immediately you decided to try the PBP method which in the event turned out to be anything but easy and straightforward. However, this was completed at ***.
You returned to your car to find that a PCN had been issued at 1.41pm.
You estimate that at 1.41pm you had just found the P&D machine and were in the process of deciding whether to return to your car or not.*

*I'm not certain whether your PBP efforts can be referenced to time or not.

The above is the gist of what I would send as a challenge citing contravention did not occur.
I would end with 'if the authority are not minded to cancel the PCN under these grounds then I would respectfully request that they do so using their discretionary power.'

This post has been edited by hcandersen: Sun, 15 Sep 2019 - 15:10
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BahHumbug19
post Sat, 14 Sep 2019 - 17:28
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That's very helpful. Thank you. Two final quick questions if you don't mind:

Do you suggest citing 'contravention did not occur' as most appropriate due to the poor signs? Or because no physical ticket is given when paying by phone? (Council will likely argue the contravention did occur—I.e. there was, rightly or wrongly, no ticket displayed at the time of observation—and of course discretion can only be asked when something happened).

Also, would you suggest this is a good time to mention incorrect dates on the PCN?
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DancingDad
post Sat, 14 Sep 2019 - 17:59
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QUOTE (BahHumbug19 @ Sat, 14 Sep 2019 - 18:28) *
.........Also, would you suggest this is a good time to mention incorrect dates on the PCN?


What incorrect date on PCN???
Why is it incorrect ?
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BahHumbug19
post Sat, 14 Sep 2019 - 22:30
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The PCN states: "must be paid not later than the last day of the period of 28 days beginning with the date this PCN was served" (emphasis mine).

It prescribes the final date of payment as 1/10/2019. This is wrong. 28 days from, and including, 3rd is in fact 30/9/2019. Same issue with 14 day notice.

Payment would be late if made on dates provided.

This post has been edited by BahHumbug19: Sun, 15 Sep 2019 - 05:34
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cp8759
post Sun, 15 Sep 2019 - 14:50
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Why have you taken the PCN photos down?


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hcandersen
post Sun, 15 Sep 2019 - 15:15
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OP, I would add the dates as helpful feedback!

I would also like to draw your attention to the incorrect dates printed in the PCN to indicate the last days of the respective 14 and 28-day periods. These are given as 17 Sept and 1 Oct respectively when for a PCN served on 3 Sept. these should be 16 Sept and 30 Sept.

Hugs

This post has been edited by hcandersen: Sun, 15 Sep 2019 - 15:18
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BahHumbug19
post Mon, 16 Sep 2019 - 01:24
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Thank you @hcandersen, that's well worded. I'll report back when I've heard.

@cp8759—Images are still live. Both for me and as a logged out user. Present in original post, and my later one.
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cp8759
post Mon, 16 Sep 2019 - 09:41
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BahHumbug19 I think imgbox must have been down last night, as the images have now reappeared. The problem you face is that unfortunately the tribunal has at least on one occasion disregarded the wrong dates given on the PCN. A more tactical approach might be to check whether the discounted penalty is still available on 17 September.


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BahHumbug19
post Sat, 16 Nov 2019 - 16:52
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Hello all,

After an 8 week delay (large number of cases), I received good news that this PCN has been cancelled.

For future reference, I sent a letter closely following advice by @hcandersen in post 28. The authority acknowledged the difficulty in accessing their MiPermit app, compounded by signal issues. They made no comment about problems with their signage. Instead advising "it is the motorist's responsibility to ensure they have either sufficient coinage to purchase a ticket or an alternative method of payment prior to occupying a bay."

Thank you @hcandersen and @cp8759 for your help. Much appreciated, and I hope this case might be helpful to others.
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Incandescent
post Sat, 16 Nov 2019 - 18:43
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Well done ! When a council admits error, I am certain the world will cease to revolve on its axis !
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