appeal a PCN - suspended bay, deciding whether to further appeal a PCN Options

[mikekzzz]

hi all
hopefully you can help in some way

so was looking for some PCN advice if at all possible

on 26 June 2018 I was given a PCN as I was parked in a bay that was suspended outside my flat

I replied to Camden council and noted that I was away – having left prior to the suspended sign going up and returning after it had been completed

Camden replied and said that if I can supply evidence of my being away they will take this into consideration.

I sent my travel documents to Camden and they acknowledged receipt of my support and accepted that they were happy I was away for the entire period in question – however for some reason they still my PCN

In the correspondence I was told it is my responsibility to be aware of suspensions but I had no way at all of being able to move my car at the correct time.

also i have a picture of when the actual sign was printed (as it said it at the bottom of the piece of paper stuck to the lamp post) and i was away even before this took place

They also told me that i should have signed up to the Camden alerts email that would tell me of upcoming suspensions

However there was also an issue with this part of the Camden website - i supplied Camden with a picture of the online site saying there was an error stopping me from signing up

I had tried to sign up to the alerts prior to going away and the site was down – however even if I had I still would have been away anyway and unable to move my car

I was told that I should have made arrangements for my car to be moved. I found this quite upsetting as I do not have anyone I can give my keys to who can move my car. I am the only person insured to drive my car and I don’t have any family nearby. Even if I did I wouldn’t want to do anything illegal but allowing people in my work car.

all of this formed part of my representation to challenge the PCN


this week i received a letter of a Notice of rejection of representations

they say that

'you have stated you were away when the advance warning sign was erected, and were therefore unaware of the suspension. However the terms and conditions for your resident permit explain that parking bays may be suspended from time to time. As such, it is the responsibility of the permit holder to consider what arrangements to make if leaving their vehicle when going away. if you are not aware, in addition to on-street notifications, we have an online register for parking suspensions where you can search by street name or Controlled Parking Zone. You can also sign up for our free courtesy email alert service for impending suspensions

i note you state you attempted several times to sign up, however the website came up with an error message, however as your permit was issued onb the 23/3/2019 it is reasonable to expect a driver to then contact the council to advise us that they are unable to sign up to the alert service. Please note that in the disclaimer for our e-alert service we explain "whilst we offer a courtesy email alert service, we cannot guarantee that all suspensions will be included. Suspensions booked at short notice are not likely to appear on the advertised list of planned suspensions. It remains the drivers responsibility to ensure they check on-street signage for upcoming suspensions or to ensure that where they intend to park, a suspension is not currently in operation". Given this and having checked that the signage for the suspension was clear, I am satisfied that the council have followed the correct procedure in the suspended bay for domestic removal'

they note that the sign was put up on the 26/6/19

however my support shows i was away when it went up

it says that i have to pay £130 in 28 days or if i disagree with the decision i can submit an appeal to the Environment and Traffic Adjudicators by following the instructions enclosed

if i choose to appeal an independent Adjudicator will consider my appeal based on the evidence. I should be aware that the Adjudicator can award costs in favour of either party if it is deemed that a party has acted in a vexatious, frivolous or wholly unreasonable manner





questions please


1 - do you think it is worth me going down the appeal route - or should i just pay the £130 and move on
2 - if i do appeal and i lose - will i just have to pay the £130 or will it be increased?
3 - is my case looked at in writing by the appeal personnel or do i have to attend some sort of hearing? or do i request a postal decision?


I do note that under 'grounds for appeal' i dont really fit in to any of them


so i guess i live in hope

thanks for taking the time to read this and for the advice!

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[mikekzzz]

Mick

The OP has confirmed by PM that the only NTO they have seen up until the evidence bundle is the one addressed to Hitachi so I am going to pursue that argument even though the council evidence is hard to refute.

I have advised the OP to ask for an adjournment

i have request a postponement based on the current climate
thanks

[PASTMYBEST]

Mick

The OP has confirmed by PM that the only NTO they have seen up until the evidence bundle is the one addressed to Hitachi so I am going to pursue that argument even though the council evidence is hard to refute.

I have advised the OP to ask for an adjournment

i have request a postponement based on the current climate
thanks

good the planned arguments have all had to be thrown out due to the council evidence so this is proving to be much trickier than expected, but still on target for later today

[hcandersen]

Can't access the evidence so I'm blind, I'm afraid.

[mikekzzz]

Can't access the evidence so I'm blind, I'm afraid.

give this a go

https://easyupload.io/2bw7c6

its a win zip file
thanks

[PASTMYBEST]

Mike

Fill in the relevant details read through the appeal amend if you wish ( but don't send without showing us your amendments ) then send all three docs

https://1drv.ms/u/s!AtBHPhdJdppVyFzj-8X...31cwb_?e=pCGfPu

wait a bit to see if other have a view but don't go beyond you deadline.

Have you got confirmation of adjournment ?

[Mad Mick V]

Nice one PMB!
I also think we should have a go at the Council's Case Summary which is absolute cod's.
Having read the Authority's Case Summary I take exception to the justification of their case:-
1) How can my absence be properly considered/decided on the basis of the CEO's notes?
2) The Authority concludes that transfer of liability occurred when I made representations against an NTO which is legally unsound;
3) I have not signed up for the Authority's suspension email alerts but, by its own admission, there is no evidence of one in this case;
4) Whilst an NTO may have been issued in my name it was never served and I responded to the Hitachi NTO which they sent to me.
Views?

Mick

[PASTMYBEST]

Nice one PMB!
I also think we should have a go at the Council's Case Summary which is absolute cod's.
Having read the Authority's Case Summary I take exception to the justification of their case:-
1) How can my absence be properly considered/decided on the basis of the CEO's notes?
2) The Authority concludes that transfer of liability occurred when I made representations against an NTO which is legally unsound;
3) I have not signed up for the Authority's suspension email alerts but, by its own admission, there is no evidence of one in this case;
4) Whilst an NTO may have been issued in my name it was never served and I responded to the Hitachi NTO which they sent to me.
Views?

Mick

You know Mick I only paid scant attention to the summery, I will draft a rebuttal to it later to add

[hcandersen]

The OP has confirmed by PM that the only NTO they have seen up until the evidence bundle is the one addressed to Hitachi


is totally at odds with the authority's evidence which includes:

A NTO addressed to the OP dated 7 Jan;
The OP's signature appended to this document and dated 14 Jan;
Untitled and undated Reps (apparently) from the OP date stamped 17 Jan.
A NOR which refers to representations received on 17 Jan.

OP, you have some explaining to do, I'm afraid.

I still think that the cited case is very helpful to the OP. The issue is who is the owner? Initially, the registered keeper may rebut the presumption under 2 separate grounds: I was never the owner/not the owner at the time or I am a vehicle-hire company etc. The decision makes it clear that as regards a 'vehicle hiring agreement', prescribed particulars are mandatory and that the limit is 6 months, but that even if these grounds are not available, then the alternative of not being the owner could apply because ultimately the equation is 'owner' = 'person by whom the vehicle is kept' and a long-term lease would satisfy the test of 'permanence' which the Court of Appeal stated was required.
I do not see how Hitachi transferred liability based on the driver's particulars only because their grounds could only be 'I was not the owner' which would require more proof than merely a driver's details.

Anyway, we have time to look at this, assuming of course the OP can deal with his and the authority's contradictory evidence.

This post has been edited by hcandersen: Thu, 19 Mar 2020 - 13:25

[PASTMYBEST]

The OP has confirmed by PM that the only NTO they have seen up until the evidence bundle is the one addressed to Hitachi


is totally at odds with the authority's evidence which includes:

A NTO addressed to the OP dated 7 Jan;
The OP's signature appended to this document and dated 14 Jan;
Untitled and undated Reps (apparently) from the OP date stamped 17 Jan.
A NOR which refers to representations received on 17 Jan.

OP, you have some explaining to do, I'm afraid.

I still think that the cited case is very helpful to the OP. The issue is who is the owner? Initially, the registered keeper may rebut the presumption under 2 separate grounds: I was never the owner/not the owner at the time or I am a vehicle-hire company etc. The decision makes it clear that as regards a 'vehicle hiring agreement', prescribed particulars are mandatory and that the limit is 6 months, but that even if these grounds are not available, then the alternative of not being the owner could apply because ultimately the equation is 'owner' = 'person by whom the vehicle is kept' and a long-term lease would satisfy the test of 'permanence' which the Court of Appeal stated was required.
I do not see how Hitachi transferred liability based on the driver's particulars only because their grounds could only be 'I was not the owner' which would require more proof than merely a driver's details.

Anyway, we have time to look at this, assuming of course the OP can deal with his and the authority's contradictory evidence.

I Know it is at odds which is why I do not make much ado about it, nor claim the PI as no notice to owner being served,

I think that in the normal course of events the council are entitled to accept a representation giving a contract start and end date and the tribunal have in the past and would likely again accept this. But Hitachi never exercised the rights or functions of keeper so transfer could not be made to them from Alphabet.

[hcandersen]

I Know it is at odds which is why I do not make much ado about it,

IMO, this goes to the heart of the OP's credibility - with us as much as an adjudicator.

And the PI, which was based solely upon the assurances given by OP, cannot be applicable because prima facie it is predicated on an untrue claim.

[mikekzzz]

Mike

Fill in the relevant details read through the appeal amend if you wish ( but don't send without showing us your amendments ) then send all three docs

https://1drv.ms/u/s!AtBHPhdJdppVyFzj-8X...31cwb_?e=pCGfPu

wait a bit to see if other have a view but don't go beyond you deadline.

Have you got confirmation of adjournment ?

hello

so i have downloaded the 3 documents you uploaded - it is just the word document that i have updated - i have put in the case number
i have uploaded this document here again

the other 2 pfd i havent re-uploaded again as there seemed to be no editing required of them


regarding my fact line - i did only receive one NTO in an email from Hitachi which had their name on it

thanks so much


also my hearing was a postal one - so told me tonight that it will go ahead tomorrow and that i need to upload my evidence tonight online


upload didnt work this is a link to the document

https://1drv.ms/w/s!AsFGipaD2NtKhget3Sl...BNxPMe?e=L78Wik

This post has been edited by mikekzzz: Thu, 19 Mar 2020 - 17:16

[PASTMYBEST]

Mike

Fill in the relevant details read through the appeal amend if you wish ( but don't send without showing us your amendments ) then send all three docs

https://1drv.ms/u/s!AtBHPhdJdppVyFzj-8X...31cwb_?e=pCGfPu

wait a bit to see if other have a view but don't go beyond you deadline.

Have you got confirmation of adjournment ?

hello

so i have downloaded the 3 documents you uploaded - it is just the word document that i have updated - i have put in the case number
i have uploaded this document here again

the other 2 pfd i havent re-uploaded again as there seemed to be no editing required of them


regarding my fact line - i did only receive one NTO in an email from Hitachi which had their name on it

thanks so much


also my hearing was a postal one - so told me tonight that it will go ahead tomorrow and that i need to upload my evidence tonight online


upload didnt work this is a link to the document

https://1drv.ms/w/s!AsFGipaD2NtKhget3Sl...BNxPMe?e=L78Wik

as long it is with the tribunal then it is what it is Two strong points and one not so strong so fingers crossed. I did not make much of the NTO to you because it is hard to dispute given the rules of service. Let us know as soon as you hear good luck

[hcandersen]

regrading my fact line - i did only receive one NTO in an email from Hitachi which had their name on it


OP, look at their evidence. It contains a clear statement that you made reps which would fit in with the timeline of you receiving their NTO.

In addition, YOUR signature is on this NTO addressed to you.

You cannot just ignore this evidence as you are doing.

Your line of ...I only received one NTO flies in the face of their evidence and cannot just be ignored, so don't.

Is it your signature?
What did you sign?

Etc.

[PASTMYBEST]

2200082662

he Authority's case is that the Appellant's vehicle was parked in a suspended bay when in Fitzjohns Avenue on 26 July 2019 at 09.30.
The Appellant's case is that he was on vacation at the time the suspension warning notice was first displayed and at the time the suspension was in operation for a domestic removal. He also argues that it was not possible to determine if his vehicle was parked in the suspended area.
I have considered the evidence and I find that Appellant's vehicle was parked in a suspended bay when in Fitzjohns Avenue on 26 July 2019 .
I am satisfied on the Authority's evidence that the suspension notices was posted well in advance of the suspension.
Further, it is the responsibility of a permit holder to ensure that their vehicle is checked on a regular basis in case a suspension comes into force.
If a permit holder is unable to ensure that a relative or friend checks the bay their vehicle is in, the vehicle should be moved to a council car park.
I find that a vehicle cannot just be left for a matter of weeks without any supervision in relation to suspensions they may come into force.
I find the Civil Enforcement Officer's record to be accurate and credible. I have reached this conclusion bearing in mind that it is contemporaneously recorded and is supported by photographic evidence.
Furthermore, I find that the bay in question had in fact been lawfully suspended, that the terms of the suspension were correctly indicated on the suspension signage, that the signage was clear, and that the vehicle was in fact parked within the parking space covered by the terms of the suspension.

All such matters raised by the Appellant also go to mitigating circumstances, which have already been considered by the Authority; they do not provide a defence or raise an exemption.
The Adjudicator decides appeals by making findings of fact and applying the law as it stands. The Adjudicator has no power to quash a penalty charge on the basis of mitigation submitted.
The appeal is refused.

This is not a decision based on my appeal draft

[mikekzzz]

thank you for trying to help