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PCN & NtO Received in Council Car Park
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post Wed, 23 Jan 2019 - 15:57
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I inadvertently parked in a disabled bay in a council car park in central Milton Keynes as I could not see the signage indicating it was a disabled bay.

I challenged the PCN on the grounds that the signage was insufficent as the painted word "Disabled" has been eroded and made illegible. This was rejected by the council who pointed to a small sign mounted on a pole nearby. I don't believe this signage is sufficient either as its not behind the bay and its at a height that I did not notice is (either when I parked, or even after I returned to my car and saw the ticket).

Do I have grounds to appeal the Notice to Owner on the basis that the signage is insufficent (because the painted word wasn't easily spotted and the signed placed too high to be noticed)?

Here's links to images of the informal appeal rejection letter and Notice to Owner

https://imgur.com/XLmCQyV
https://imgur.com/xcttoTT
https://imgur.com/8bejo2d

Thanks in advance.

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post Wed, 23 Jan 2019 - 15:57
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post Tue, 12 Feb 2019 - 11:50
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QUOTE (hcandersen @ Mon, 11 Feb 2019 - 18:47) *
You paid?

I see PMB in post #2 said 'let's start at the beginning', but without success!

Let us try again.

I parked in what I knew from prior knowledge of the layout of parking along Silbury was a parking place. I left the car and went to the nearest P&D m/c - pl don't tell me this was next to the disabled sign but hopefully in the opposite direction or even opposite. I purchased and displayed a ticket for a x-hour stay.

On my return, I found the PCN indicating that I was parked in a bay reserved for disabled badge holders. Only when my attention was drawn to this did I see the remnants of the word disabled marked outside my bay. I also noticed a traffic sign beyond the adjacent bay which referred to disabled badge holders only.

Enclosed pl find a GSV snapshot of the location dated **** and an earlier snapshot from ****.
I also refer to the CEO's photos.

The older GSV shot shows that the council have tried to indicate the separate bays by the use of white lines but the more recent shows that they have been allowed to deteriorate such as to be hardly visible. Indeed, it would not be unreasonable to consider that this degradation is part of a deliberate policy to allow the markings to wear away naturally as clearly no effort has been made to maintain them to a standard which could be considered to be substantially compliant.
In my case, the authority claim that it is not necessary for them to place a traffic sign in my bay because the sign two bays away has effect, however, it is for the authority to prove this point: the default position is that a traffic sign should be placed in the bay to indicate the restriction or alternatively that the word 'Disabled' is clearly marked on each of several bays and that a traffic sign may be placed within or at the end of these adjacent bays.
Neither case applies here.


Should I mention in my response, that the 2nd traffic sign in front of the bay (showing it was for disabled badge holders) was present in June 2015, but subsequently removed from 2017 as per the GSV images (possibly removed indavertently during the construction work shown in the JUne 2017 GSV image)? I'm just thinking that that would prove that originally the council must have deemed that sign necessary, but then it was taken down, potentially by mistake and not replaced?
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cp8759
post Tue, 12 Feb 2019 - 12:06
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QUOTE (Interact @ Tue, 12 Feb 2019 - 11:50) *
Should I mention in my response, that the 2nd traffic sign in front of the bay (showing it was for disabled badge holders) was present in June 2015, but subsequently removed from 2017 as per the GSV images (possibly removed indavertently during the construction work shown in the JUne 2017 GSV image)? I'm just thinking that that would prove that originally the council must have deemed that sign necessary, but then it was taken down, potentially by mistake and not replaced?

Yes you should make that point.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Fri, 15 Feb 2019 - 09:08
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So I have received a "notice of rejection of representations" letter from the council which is rejecting my appeal.

The odd thing about this is that the letter was received on Tuesday (12th Feb) and dated the 11th. However I didn't even post my appeal letter until the Monday (11th) night so it wouldn't have even been received by them before the 13th at the earliest. So the council rejected my appeal before they even received it! Is that reasonable? (Unfortunately I didn't send by registered post, so I can't prove the date).

Here's a copy of the letter: https://imgur.com/a/rdX32Az

I think this is a clerical error on their side, as I emailed them 3 times to ask for the CEO's photos. They eventually replied on Monday (11th) saying:

"Good Morning

Thank you for your email relating to the issue of the above Penalty Charge Notice.

We note from the case that a response was sent to you 27/12/2018 and the Notice to Owner was then sent on 15/01/2019. This allows you to further appeal the ticket.

As the case has now reached the formal stage we have responded to you by letter today enclosing a copy of the letter sent in December."


I replied again the same day, saying what I needed was the full resolution photos sent to me. They then replied the same day with:

"Good Morning

Thank you for your further email I can confirm that as previously advised as the case has now reached the formal stage all correspondence should now be written via letter.
We have included copies of all the photos on the response posted to you today, however please see photos below."


So I think rather than just sending me the photos as requested, they sent me the rejection letter.

So right now I'm unclear where I stand. I don't believe they have responded yet to my dispute of the NtO, yet I have received a rejection, telling me my next steps are to pay the fine (50% off) or to go to the independent adjudicator.

Just to be clear about the chronology of the events:

16/12/18 - Date of alleged contravention
17/12/18 - I made informal appeal by email
27/12/18 - Informal appeal rejected
~20/1/19 - NtO received
24/1/19 - I emailed to request CEO photos
30/1/19 - I emailed again to request CEO photos
11/2/19 - I emailed again to request photos. Received above responses


Any advice?

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cp8759
post Fri, 15 Feb 2019 - 11:45
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Show us redacted screenshots of the three emails you sent and their replies. It looks like they might have committed a procedural impropriety which could win on its own.

This post has been edited by cp8759: Fri, 15 Feb 2019 - 11:46


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Fri, 15 Feb 2019 - 13:36
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QUOTE (cp8759 @ Fri, 15 Feb 2019 - 11:45) *
Show us redacted screenshots of the three emails you sent and their replies. It looks like they might have committed a procedural impropriety which could win on its own.



Here you go: https://imgur.com/a/vjxfMYp

This post has been edited by Interact: Fri, 15 Feb 2019 - 13:37
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cp8759
post Fri, 15 Feb 2019 - 16:18
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I think the procedural impropriety is maybe your strongest point. In principle this is the same as Giles Fisher v London Borough of Hackney (case reference 2160248915):

"It does seem to me how that the appellant has made a good point, a procedural one about the notice of rejection arising from what should have been interpreted simply as a request to view. I have accepted there has been some prejudice from that and I have recorded the appeal as allowed.

This case I hope demonstrates to the Council that there is a distinction between something which is simply and unequivocally solely a request to view and something which is in, or also has the character of representations.
"

Here the council has wrongly treated a mere request for information as a representation. You wanted the photos in order that you could make the strongest and most detailed representations possible, but by issuing a Notice of Rejection the council has effectively deprived you of that opportunity. In issuing a Notice of Rejection without having received a formal representation, the council has committed a procedural impropriety.

Show us the other pages on the Notice to Owner.

This post has been edited by cp8759: Fri, 15 Feb 2019 - 16:19


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Fri, 15 Feb 2019 - 21:15
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QUOTE (cp8759 @ Fri, 15 Feb 2019 - 16:18) *
I think the procedural impropriety is maybe your strongest point. In principle this is the same as Giles Fisher v London Borough of Hackney (case reference 2160248915):

"It does seem to me how that the appellant has made a good point, a procedural one about the notice of rejection arising from what should have been interpreted simply as a request to view. I have accepted there has been some prejudice from that and I have recorded the appeal as allowed.

This case I hope demonstrates to the Council that there is a distinction between something which is simply and unequivocally solely a request to view and something which is in, or also has the character of representations.
"

Here the council has wrongly treated a mere request for information as a representation. You wanted the photos in order that you could make the strongest and most detailed representations possible, but by issuing a Notice of Rejection the council has effectively deprived you of that opportunity. In issuing a Notice of Rejection without having received a formal representation, the council has committed a procedural impropriety.

Show us the other pages on the Notice to Owner.


Unfortunately I no longer have the Notice to Owner as I had to fill it in and send it back as part of my appeal.
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cp8759
post Fri, 15 Feb 2019 - 21:30
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QUOTE (Interact @ Fri, 15 Feb 2019 - 21:15) *
Unfortunately I no longer have the Notice to Owner as I had to fill it in and send it back as part of my appeal.

Where did you sent the Notice to Owner, when, and why?

Your timeframe you gave us all of 12 hours ago was:

16/12/18 - Date of alleged contravention
17/12/18 - I made informal appeal by email
27/12/18 - Informal appeal rejected
~20/1/19 - NtO received
24/1/19 - I emailed to request CEO photos
30/1/19 - I emailed again to request CEO photos
11/2/19 - I emailed again to request photos. Received above responses


How does sending the NtO anywhere fit in?


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Sat, 16 Feb 2019 - 08:42
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QUOTE (cp8759 @ Fri, 15 Feb 2019 - 21:30) *
QUOTE (Interact @ Fri, 15 Feb 2019 - 21:15) *
Unfortunately I no longer have the Notice to Owner as I had to fill it in and send it back as part of my appeal.

Where did you sent the Notice to Owner, when, and why?

Your timeframe you gave us all of 12 hours ago was:

16/12/18 - Date of alleged contravention
17/12/18 - I made informal appeal by email
27/12/18 - Informal appeal rejected
~20/1/19 - NtO received
24/1/19 - I emailed to request CEO photos
30/1/19 - I emailed again to request CEO photos
11/2/19 - I emailed again to request photos. Received above responses


How does sending the NtO anywhere fit in?


Apologies - the rest of the timeline was in my earlier post yesterday.

The NtO I received had to be returned to the council as part of my appeal (the form to complete was part of the NtO I received and I had to fill it in and return it.

Here's the updated timeline:

16/12/18 - Date of alleged contravention
17/12/18 - I made informal appeal by email
27/12/18 - Informal appeal rejected
~20/1/19 - NtO received
24/1/19 - I emailed to request CEO photos
30/1/19 - I emailed again to request CEO photos
11/2/19 - I emailed again to request photos. Received above responses
11/2/19 - Letter rejecting my representations sent by council
12/2/19 - (morning) I posted my formal appeal & NtO form to council (based on input from this forum)
12/2/19 - I received letter from council rejecting my representation
13-14/2/19 - Assuming this is when my formal appeal was actually recieved by the council.
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hcandersen
post Sat, 16 Feb 2019 - 09:05
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IMO, the NTO is a distraction.

OP, your options are clear: fight or flight(AKA pay the discount).

I would fight.

Contravention did not occur..as per previous posts....from which the council's singular attitude to signage extends to

Sending an unlawful NOR (by virtue of purporting to serve a NOR when no reps had been received) which itself is replete with procedural improprieties regarding the mandatory elements of a such a notice(the repeated use of an incorrect '28-day period' materially and adversely jeopardises the owner with regards to their rights to appeal and liability to a surcharged penalty).

Should be enough to be going on with!

This post has been edited by hcandersen: Sat, 16 Feb 2019 - 09:05
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cp8759
post Sat, 16 Feb 2019 - 13:03
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You should definitely appeal, IMO you cannot lose at this point. It would have been better if you hadn't posted the NtO, but we are where we are.

Your grounds of appeal are:

1) The contravention did not occur due to the positioning of the signage (Personally I'm not convinced this is a very strong argument, but it should still be made)
2) Sending a Notice of Rejection when no representations had been made is obviously prejudicial and a serious procedural impropriety, this should win the case no matter what.

Put a draft of your appeal on here.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Wed, 20 Feb 2019 - 11:37
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Thanks for the advice.

I've already submitted my appeal to the adjudicator (I wasn't able to get on this site earlier in the week). Below is what I submitted (was limited to 500 words), though I can make amendments and also provide additional details (I posted the GSV images, but not the email chain images).

"
I was unable to determine what the relevant parking restrictions were because there was no clear signage to explain what they were.
I left the car and went to the nearest Pay & Display machine and between said parking bay and the machine there was only one traffic sign which does not refer in any way to any restrictions or disabled parking bays. I purchased and displayed a ticket for a 2-hour stay.

On my return, I found the PCN indicating that I was parked in a bay reserved for disabled badge holders. Only when my attention was drawn to this did I see the remnants of the word disabled marked outside my bay. I also noticed a traffic sign beyond the adjacent bay which referred to disabled badge holders only.

The June 2015 Google Street View (GSV) image shows that the council have tried to indicate the separate bays by the use of white lines but the more recent shows that they have been allowed to deteriorate such as to be hardly visible. Indeed, it would not be unreasonable to consider that this degradation is part of a deliberate policy to allow the markings to wear away naturally as clearly no effort has been made to maintain them to a standard which could be considered to be substantially compliant.

It is also clear from the June 2015 GSV shot that a 2nd and much more prominent traffic sign was originally in place at that time, which clearly indicated that the said parking bay was only for disabled badge holders. The June 2017 GSV image shows on-going construction around the bay, and likely as a result the traffic sign in front of the bay has been removed to allow for the construction. As shown in subsequent GSV images, the traffic sign has not been replaced. One can rightly assume that in its original design (pre-2015) that the Council deemed two traffic signs necessary rather than just one and that removal of the more prominent sign has made the signage insufficient.

In my case, the authority claim that it is not necessary for them to place a traffic sign in my bay because the sign two bays away has effect, however, it is for the authority to prove this point: the default position is that a traffic sign should be placed in the bay to indicate the restriction or alternatively that the word 'Disabled' is clearly marked on each of several bays and that a traffic sign may be placed within or at the end of these adjacent bays. Neither case applies here.

I would also like to claim that the Council has made a procedural error in this case. It issued and sent the Notice of Rejection of Representations before I had made my formal appeal, and before the end of the 28-day period. The Notice to Owner was issued on 15/1/19. I emailed to request the CEO’s photos (on 24/1, 30/1 and 11/2) to be sent to me, but instead of being sent the photos, the Council instead issued Notice of Rejection of Representations on 11/2. My formal appeal was not posted to the council until 12/1 and likely received by them 2-3 days after they had already issued the Notice of Rejection of Representations."

Any advice would be appreciated. I believe the current status is that the adjudicator is putting my appeal to the Council and they are at the stage of deciding if they will contest it or not.

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cp8759
post Wed, 20 Feb 2019 - 13:40
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Well your appeal could be made a lot stronger, you had till 12 March to register your appeal so I'm not sure why you rushed into it. I'll draft something in a bit.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Wed, 20 Feb 2019 - 14:22
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QUOTE (cp8759 @ Wed, 20 Feb 2019 - 13:40) *
Well your appeal could be made a lot stronger, you had till 12 March to register your appeal so I'm not sure why you rushed into it. I'll draft something in a bit.



OK thanks. I can add additional comments to the appeal so please let me know if you have some suggested wording. Thanks
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cp8759
post Wed, 20 Feb 2019 - 15:42
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Here's some wording for the procedural impropriety (note: you must upload all the screenshots of the emails (unredacted) to the tribunal website, your appeal depends on this):

------------------------
I received the Notice to Owner on 20 January 2019, and on 24 January I sent an email to the council asking for the CEO's photos. I obviously wanted to avail myself of these before submitting representations. On 30 January, having received no reply, I sent a further email chasing a response, again this request went unanswered so I sent a further chaser on 11 February, when the council finally sent the CEO photos at 12:13 pm.

On the morning of 12 February 2019, having had a chance to consider the council's evidence, I made formal representations by completing the representations section of the Notice to Owner and duly posting this back to the council. To my horror later that day I received a Notice of Rejection in the post, dated 11 February, purporting to reject my formal representations. The only possible conclusion is that the council wrongly treated my mere requests for information as if they were a representation, even though this is self-evidently not the case.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 only allows for a Notice of Rejection to be issued "Where representations are made under regulation 4", there is no power for the council to serve a preemptive Notice of Rejection. Nothing in my emails to the council could reasonably be taken to be a representations of any sort and they were simply a request for the CEO photos, this does not amount to a representation. The premature issue of a Notice of Rejection is a procedural impropriety.

The council would have received my formal representations on 13 or 14 February, but there is no evidence these were given any consideration whatsoever, contrary to the authority's duty under appeal regulation 5 to "consider the representations and any supporting evidence which the person making them provides". This failure to consider is a further procedural impropriety.

Finally I draw the tribunal's attention to the prejudicial effect of the council's actions. The tribunal has no power to exercise discretion to cancel the penalty, that discretionary power rests solely with the council. By depriving me of my right to have my formal representations considered, the council has also deprived me of the chance that the council may, in light of my representations, decide that although in its view the contravention occurred, the PCN should nonetheless be cancelled.

The mistakes made by the enforcement authority are serious and significant and amount to clear and prejudicial procedural improprieties, in light of this the appeal must be allowed.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Thu, 21 Feb 2019 - 10:43
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Great - thanks for the wording. I have amended my appeal. Fingers crossed.
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post Wed, 6 Mar 2019 - 13:08
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So I'm pleased to say that I won the appeal. Thanks all for your help.

"There is nothing to pay and the authority will cancel the penalty charge

This is because the authority did not submit any evidence."

It is a little frustrating that the council did not even bother responding to my appeal. The fact that they are in the default position of being in the right and do not even need to respond seems wrong to me. Also a little frustrating that I still believe the signage in my case to be insufficient and I suspect dozens of other people will have/will be fined for the same unintentional offence and will just pay the fine, whilst the council coins it in.

Anyway, thanks to those that helped me on this.
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cp8759
post Wed, 6 Mar 2019 - 18:26
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QUOTE (Interact @ Wed, 6 Mar 2019 - 13:08) *
So I'm pleased to say that I won the appeal. Thanks all for your help.

"There is nothing to pay and the authority will cancel the penalty charge

This is because the authority did not submit any evidence."

It is a little frustrating that the council did not even bother responding to my appeal. The fact that they are in the default position of being in the right and do not even need to respond seems wrong to me. Also a little frustrating that I still believe the signage in my case to be insufficient and I suspect dozens of other people will have/will be fined for the same unintentional offence and will just pay the fine, whilst the council coins it in.

Anyway, thanks to those that helped me on this.

Well contact the tribunal and make an application for costs:

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

This is an application for costs against the enforcement authority, made under paragraph 13 of the schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, which provides that:

13.—(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to subparagraph (2) make such an order—

(a) against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b) against an enforcement authority where he considers that the disputed decision was wholly unreasonable.


In particular this is an application under the second limb, i.e. that the enforcement authority's disputed decision was wholly unreasonable. The attention of the tribunal is drawn to the fact that under 13(b), there is no requirement to consider the conduct of the enforcement authority in the adjudication proceedings: if the disputed decision was wholly unreasonable, the tribunal is empowered to make an order for costs even if the authority's subsequent conduct (for example in choosing not to resist the appeal) is entirely reasonable. In other words, an order for cost under 13(b) can be made even if the criteria under 13(a) are not met.

In this instance, it is submitted under 13(b) above that the decision of the enforcement authority to issue a Notice of Rejection when no representations had been submitted at all, cannot be anything other than wholly unreasonable. While the rationale behind a decision to reject representations may often be hotly contested, rejecting representations that have never been made and do not exist cannot be anything other than wholly unreasonable.

In the circumstances, an order for costs in the amount of £76 is sought, this represents four hours at the litigant in person rate of £19 per hour, this being the time I have had to spend researching the law and preparing my submissions.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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