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Parked on an access road, been given ticket quoting Code 85
daibhidh
post Fri, 25 May 2018 - 15:45
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Hi all,

I'm looking for some help in appealing a Rotherham Metropolitan Borough Council issued PCN issued in April.
Unfortunately, due to personal reasons, this ticket went undealt with but I have now received a postal notificaton threatening an increase from £70 to £105 within 28 days of the date of receipt.

I attended the Callflex Business Park for work but was unable to gain access to my work car park, so instead parked on the roadside behind two other cars (on the access road to the business park). There are no yellow lines, nor are there any marked bays for parking, on the access road. On finishing work I returned to my car to find that I, and the other two vehicles, had been issued parking tickets. Mine stated Code 85. (85) Parked in a permit bay without clearly displaying a valid permit.

Having since returned to the site, I now see a parking restriction sign which I didn't notice on my previous visit due to running late for the meeting (having been unable to access the car park....)

The signage states 'no parking on access roads'. Although this is obviously where I have gone wrong surely Code 85 is an inappropriate and incorrect contravention to quote? Is this grounds for appeal?

Perhaps a more relevant point to make is that it appears that the signage has changed from when I received my PCN. In their photographic evidence, there are two specific photographs which show the parking restriction sign - one with the sign in the background and my car in the foreground and the other a closer pic of the sign. The wording on the sign is:

Callflex Business Park
Private Property
Permit Holders Only
A penalty charge notice may be issued to vehicles not displaying a valid permit
Rotherham MBC
Traffic Management Act 2004

No mention of not parking on access roads, as is now the case. Is this suitable grounds for appeal and does anyone think that the recent signage change is suggestive of others' challenges being successful?

Thanks in advance for any help that can be offered.

Dave
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Mad Mick V
post Fri, 8 Jun 2018 - 06:39
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Yep------ they've c*cked it up with a will/may issue. This case is relevant:-

http://forums.pepipoo.com/index.php?showto...t&p=1112582

Mick
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cp8759
post Fri, 8 Jun 2018 - 11:47
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It seems like a really simple case to be honest, their rejection letter says there are signs indicating the parking restrictions, but the sign they rely on does not state that parking is only allowed in marked bays.

More importantly, even if there were adequate signage (such as double yellow lines) on the access road, the contravention says you were parked in a marked bay, but their photos show you were not parked in a marked bay at all. Put a draft of your appeal on here before submitting it to the tribunal. Personally I would add that it would be wholly unreasonable for the council to contest the appeal and if they chose to contest, you will be seeking a costs order against them.


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daibhidh
post Mon, 11 Jun 2018 - 16:54
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So my argument is based on the lack of appropriate signage restricting parking, neither yellow lines on the road or marked bays? Additionally, the statement that RMBC will issue a CC is misleading, as opposed to 'may', and there is an issue with the timescales they document?

I've been back to Callflex today and taken some pics of the current sign - as can be seen, this has indeed changed from what was on display on the day of my PCN.

Attached Image
Attached Image


This post has been edited by daibhidh: Sun, 17 Jun 2018 - 23:49
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cp8759
post Mon, 11 Jun 2018 - 20:00
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I would make the following arguments:

1) The contravention on the PCN is an off-street contravention, however you were parked on what quite clearly looks like a road. It might well be an access road that only goes to one place, but it is a road nonetheless. You had not passed any signs indicating you were in a "car park" and therefore the contravention code is wrong.

2) Even if the above is wrong and you were in a car park, the allegation is "Parked in a permit bay...", as you were not parked in any sort of bay, the alleged contravention did not occur and is unsustainable. Furthermore for the council to contend that you were in a parking bay, or to contend that you can be penalised for a parking bay contravention even if you car was nowhere near a parking bay, is wholly unreasonable (it's important you include this as it will help you make a claim for costs later on).

3) If the council wants to prohibit parking on access roads to a car park, it should use appropriate signage, such as double yellow lines (which are normally used on access roads into car parks). There were no signs capable of creating a no waiting restriction along the entire length of the access road. But even if there had been double yellow lines along the road, the alleged contravention did not occur because you were not parked in a permit bay, or any other type of bay.

4) The issue around the will/may issue is that the council has fettered its discretion, and where Parliament has given a council a discretionary power, they cannot fetter that discretion. You can adapt what I've written here: http://forums.pepipoo.com/index.php?s=&...t&p=1386792


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cp8759
post Wed, 13 Jun 2018 - 11:39
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To top it all off, the Traffic Regulation Order that creates the parking restrictions doesn't mention the access road *at all*, I asked specifically for the order applicable to the access road and this is all they could find:

https://www.scribd.com/document/381701874/C...Business-Centre

At this point it would be wholly unreasonable for the council to pursue this to tribunal and if they do, you have a fairly decent chance of getting an award for costs.


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daibhidh
post Sun, 17 Jun 2018 - 14:05
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Thanks for the help guys. I haven't drafted my appeal yet but hopefully I'll get it done over the next few days.

Annoyingly I've now received a second PCN, code 85, and have started a new topic about it here ohmy.gif . I'd appreciate your advice on this one too please.

Dave
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daibhidh
post Mon, 18 Jun 2018 - 11:12
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My draft appeal.

Please accept this as an appeal against the penalty charge on the following grounds:
1) Contravention did not occur
2) Procedural impropriety

1) Contravention did not occur

a. The contravention on the PCN, Code 85, is an off-street contravention. The vehicle was parked on a road and, although this may be an access road to a specific destination, it is a road nonetheless. Having not passed any signs to indicate being in a car park the contravention code is wrong.
b. Regardless of the above, whether the vehicle was in a car park or not, the alleged contravention refers to being ‘parked in a permit bay’. As the vehicle was not parked in any sort of bay the alleged contravention did not occur and is unsustainable. Furthermore, for the council to contend that the vehicle was in a parking bay, or to contend that you can be penalised for a parking bay contravention even though the vehicle was nowhere near a parking bay, is wholly unreasonable.
c. Should parking be prohibited on access roads leading to a car park it is required that appropriate signage, such as double yellow lines, be used. There were no signs capable of creating a no waiting restriction along the entire length of the access road. Even if appropriate signage was visible, the alleged contravention did not occur because the vehicle was not parked in a permit bay, or indeed any other type of bay.

2) Procedural impropriety

With reference to the Notice of Rejection dated 07/06/2018, it is stated 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, whether the alleged contravention occurred or not, the PCN must nonetheless be cancelled.


I look forward to your response.

Yours faithfully


I'd appreciate any further suggestions. Would it be beneficial for me to highlight your point, cp8759, that the TRO doesn't even mention the access road?
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cp8759
post Tue, 19 Jun 2018 - 23:07
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I would mention that the TRO doesn't mention the access road, although I suspect they'll reject it anyway. Other than that the draft looks good.


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daibhidh
post Mon, 25 Jun 2018 - 09:42
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Thanks cp8759
Appeal to the parking adjudicator submitted....

This post has been edited by daibhidh: Mon, 25 Jun 2018 - 09:43
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cp8759
post Mon, 25 Jun 2018 - 23:41
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Upload the council's response once it's uploaded to the tribunal website, I'm waiting with trepidation...


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daibhidh
post Fri, 6 Jul 2018 - 13:07
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biggrin.gif

The authority has decided not to contest your appeal. This means that you have won your appeal and the case is closed.

The reasoning:
At the time the PCN was issued the information/wording on the signs was not correct, however these signs have now been replaced with the correct wording.

Thank you everyone for your help and guidance thumbsup.gif
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cp8759
post Fri, 6 Jul 2018 - 15:44
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QUOTE (daibhidh @ Fri, 6 Jul 2018 - 14:07) *
biggrin.gif

The authority has decided not to contest your appeal. This means that you have won your appeal and the case is closed.

The reasoning:
At the time the PCN was issued the information/wording on the signs was not correct, however these signs have now been replaced with the correct wording.

Thank you everyone for your help and guidance thumbsup.gif

This begs the question why they didn't cancel the PCN earlier if they know the signs were not correct...


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daibhidh
post Fri, 6 Jul 2018 - 17:08
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...... because they hope motorists will just give up when they receive the NOR and pay the charge perhaps? unsure.gif
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cp8759
post Sat, 7 Jul 2018 - 15:41
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QUOTE (daibhidh @ Fri, 6 Jul 2018 - 18:08) *
...... because they hope motorists will just give up when they receive the NOR and pay the charge perhaps? unsure.gif

Personally I would make a complaint to the council, asking why they didn't cancel the PCN sooner. If they spew out further BS as to how the decision to cancel was made by a senior person, and more junior staff dealt with the earlier challenges, I would make a further complaint asking why the junior staff has inadequate training. But I'm a litigious person, you may well decide to leave it at that.


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