Gulland Road - New Polzeath, Cornwall Council issued PCN Options

[Purbeck Fossil]

Hi everybody, I am currently appealing a PCN in this road which has bad signage, missing signage and ambiguous signage and no yellow lines, but the most damning evidence is that a Restrictive Zone sign has been removed and not replaced. I have photos that I took at the time showing no parking sign was present, and also an image from Google Earth that shows the sign, was, at some point, in place (between 2011 - June 2018). Photo B is my car with no sign, Photo C is form Google Earth showing sign prior to the offence.

My appeal is based on "The contravention did not happen" i.e. misleading signs, non-visible signs & markings.

If these images can be of use, please feel free to use them.

I am being pursued by the Cornish Council. I am happy to take this one all the way, even if the initial, generous offer of 50% reduction to £35, now £70, and could rise to £105 has to be paid.

Any advice welcome, but the intention of this post was to offer photographic assistance if anyone else has had a parking misfortune in this road. I have also requested PCN data under the freedom of Information act - You might think the council would just want me to "Go Away" One interesting fact is that PCNs in this road are 100% higher than a year ago. Could that be due to the missing sign?

Also, it has taken them 74 days to consider my initial appeal. From what I can google, it looks like Joe Public has 28 days but the Council can wilfully take up to 6 months to respond. One rule for me, another rule.........

Also, they have issued a "Notice to Owner", to my wife, to lodge an appeal, with instructions NOT to pass the Notice to anyone else i.e. me, the alleged Culprit. Surely, requiring an innocent person to defend the actions of another could also be tested legally?

Anyway, I look forward to their second set of deliberations, and thereafter, going to an Independent appeal - maybe 2019!

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[cp8759]

Purbeck Fossil again you seem to be misinformed on a couple of points.

Firstly, there is no expectation that restricted zone repeater signs are to be read whilst driving. You are entitled to park, get out of the car, read the sign and understand what it means, and then (if a restriction is in force) drive off again, and in so doing there is no contravention. Therefore the fact that you wouldn't be able to read a repeater sign while driving is irrelevant.

However, the council are not the finial decision makers here. You cannot appeal to the council, you only make representations. If they reject your representations, you can appeal to the Traffic Penalty Tribunal, which is independent of the council. The process is explained here: https://www.trafficpenaltytribunal.gov.uk/t...appeal-process/

When your representations are rejected the council will normally re-offer the 50% discount to entice you to settle without going to the tribunal. At that point you will need to decide whether to settle at the discount, or appeal to the tribunal against the full £70 penalty. IMO the 0845 ground, while very technical in nature, should succeed. There is also a chance the Notice of Rejection may contain some other technical flaw that can be used against the council.

In any event upload the Notice of Rejection when you get it and we'll advise on what your options are. Do not just pay the penalty without letting us check fist because once you pay, there is no right of appeal.

This post has been edited by cp8759: Sun, 18 Nov 2018 - 16:10

[Purbeck Fossil]

Purbeck Fossil I think hcandersen was a bit harsh saying you were verging on FMOTL stuff, I think you were just misinformed as to the law.

The PCN is compliant with all the standard stuff, but there's an 0845 number on the rear (5p per minute service charge) so as a last resort we can use that.

I suspect the tribunal would find the gateway sign to be substantially compliant, or the council may even have special authorisation for it. But this should be probed now IMO.

This is the council evidence:











The fact that there is a very clear repeater sign less than 30 seconds walk from the car does not help.

Upload the Notice to Owner in full, obscuring just name and address, so we can check whether it complies with the regulations. I'm afraid to say the formal representations are misguided, as has been said above the fact that you weren't aware of the meaning of the sign is not a defence.

Hello CP8759, I hope you have enjoyed the latter half of 2018. I have finally had my appeal turned down again, about 140 days after the offence. I have now received A NOTICE OF REJECTION OF REPRESENTATIONS (received a few days before Xmas - cynical or what! - and can submit my defence to the independent tribunal.

I was very interested in your comments that I might be able to appeal solely on the "use of an 0845 number to pay the fine but increase my costs above the statutory maximum."
I have attached a scan of the 4-page Notice of Rejection. Page 2 quotes the 0845 number for payment and Page 4 quotes "increasing the charge by 50%" if I take no action.

While I am still prepared to argue my case on unreasonableness, which may gain some sympathy from the adjudicator, but may still result in rejection, a procedural impropriety makes sense if I can use the 0845 case.

So, my question is: Do I stand a good chance of success just using the 0845 case, and, if so, is there a case I can quote where judgement has been successful in the past. Any wording to use would also be incredibly useful.



Thanks in advance for anything that would help - Purbeckfossil

I have scanned 4 pages, converted them to small jpg files but can only upload 1. Do I need to delete earlier files to make room for the other 3 - any advice gratefully received as I can't see where I can do this

Attached thumbnail(s)

 

[PASTMYBEST]

What date did you send your formal representations and how, it looks to me that the rejection may be to late post all using imgur or other external hosting site or I use a onedrive link

[Purbeck Fossil]

Hi PASTMYBEST, I have conformed to the deadlines issued by the Council concerned - They have just taken an age to respond on their side. I have used tinypic.com so hopefully this link will work for all pages of the Notice

[PASTMYBEST]

That doesn't answer my question. The council have 56 days to serve on you their response. This starts from the date the representations were served on them, so if by email or online form the same day or if by post first class 2 working days or second class 5 working days

The first page of the rejection has gone but IIRC they said they recieved on 12th of Nov so 56 days would be the 6th of Jan

If IUSC then the service is out of time and the representations are deemed to be accepted


edit Reps are now up, I notice date of posting 17th of 12th so when did you receive and can you prove this

This post has been edited by PASTMYBEST: Thu, 10 Jan 2019 - 21:44

[hcandersen]

? From post#22


. I have now received A NOTICE OF REJECTION OF REPRESENTATIONS (received a few days before Xmas - cynical or what! -..


Gives everything needed.

[PASTMYBEST]

? From post#22


. I have now received A NOTICE OF REJECTION OF REPRESENTATIONS (received a few days before Xmas - cynical or what! -..


Gives everything needed.

Thanks HCA

[cp8759]

While I am still prepared to argue my case on unreasonableness, which may gain some sympathy from the adjudicator, but may still result in rejection, a procedural impropriety makes sense if I can use the 0845 case.

So I would like to make sure you understand the legal position as fully as possible. The adjudicator can have all the sympathy in the world, but he cannot simply quash the pcn because he feels the council is being "unreasonable", quite aside from the fact that as far as parking law is concerned there is no evidence the council has been unreasonable at all. The adjudicator can only allow the appeal if one of the statutory grounds listed under regulation 4(4) is made out, reasonableness does not come into it: http://www.legislation.gov.uk/uksi/2007/34...gulation/4/made

As for the 0845 ground, have a look at this: http://forums.pepipoo.com/index.php?showto...p;#entry1432909

This post has been edited by cp8759: Thu, 10 Jan 2019 - 23:19

[Purbeck Fossil]

So, I have lodged my appeal for the independent tribunal to consider as follows:-

Grounds of Appeal:
The penalty charge exceeded the relevant amount.

The authority made a procedural error.

Explanation:

I am lodging the appeal on two points of evidence. The first is procedural which is explained below - the second is added evidence, under the heading "The Penalty Charge exceeded the relevant amount"

Procedural
The use of an 0845 number is a breach of Regulation 41 of the Consumer Contracts Regulations 2013 which became effective 13 June 2014. The 0845 number also breaches the industry Code of Practice.

Communicating an 084, 087, 09 or 118 number without declaring the call costs immediately alongside breaches Ofcom regulations, the 'conditions binding non-providers', effective 1 July 2015.

This is what Cornwall Council Parking have lodged - I have 7 days to take next action

The Council are satisfied that the penalty notice was issued and served correctly. Mrs Marsh’s vehicle was parked in a restricted area of Gulland road with a restriction of no stopping unless you have a valid disabled blue badge and clock on display or you are parked in the street parking places provided, these are indicated with a sign ‘P’. Mr Marsh has indicated that a zone should be clearly identified; the Council are obliged to place prominent ‘zone entry’ signs at the beginning of the zone. We may also provide smaller reminder signs although this is not a legal requirement. The signs take the place of road markings and there is no requirement for the Council to use single or double yellow lines. The restrictions are set out on the signs and apply throughout the zone until a vehicle has passed a ‘zone ends’ sign. The Council has provided large signs on the entry and exit of the zone, Gulland road has only one way in and out so Mr Marsh would have had to pass the entry signs as in evidence 13, these photos clearly indicates that the signs are substantially compliant and provide more than enough information to the driver that they are in a restricted zone and that there is parking available where the sign ‘P’ is showing. Mr Marsh has commented on a sign being 20 m from his vehicle, as previously stated Mr Marsh had sufficient warning/ information that was in a restricted zone and should have acted accordingly. As Mr Marsh chose to stay parked in the restricted area of the zone the council are satisfied that the contravention had occurred, Mr Marsh had not indicated why he did not use the car park that was also 20m from his vehicle if the street parking spaces were occupied. With regards to Mr Marsh’s appeal that the penalty charge notice has exceeded the relevant amount, this is not the case as there has been no payment made by Mr Marsh and that there are more than one option to make a payment if the recipient of the penalty notice chooses not to appeal. Therefore the Council are of the opinion that the penalty notice was issued correctly and that the appeal by Mr Marsh through the traffic tribunal has no relation to the contravention that is being considered.

So, I have lodged my appeal for the independent tribunal to consider as follows:-

Grounds of Appeal:
The penalty charge exceeded the relevant amount.

The authority made a procedural error.

Explanation:

I am lodging the appeal on two points of evidence. The first is procedural which is explained below - the second is added evidence, under the heading "The Penalty Charge exceeded the relevant amount"

Procedural
The use of an 0845 number is a breach of Regulation 41 of the Consumer Contracts Regulations 2013 which became effective 13 June 2014. The 0845 number also breaches the industry Code of Practice.

Communicating an 084, 087, 09 or 118 number without declaring the call costs immediately alongside breaches Ofcom regulations, the 'conditions binding non-providers', effective 1 July 2015.

This is what Cornwall Council Parking have lodged - I have 7 days to take next action

The Council are satisfied that the penalty notice was issued and served correctly. Mrs Marsh’s vehicle was parked in a restricted area of Gulland road with a restriction of no stopping unless you have a valid disabled blue badge and clock on display or you are parked in the street parking places provided, these are indicated with a sign ‘P’. Mr Marsh has indicated that a zone should be clearly identified; the Council are obliged to place prominent ‘zone entry’ signs at the beginning of the zone. We may also provide smaller reminder signs although this is not a legal requirement. The signs take the place of road markings and there is no requirement for the Council to use single or double yellow lines. The restrictions are set out on the signs and apply throughout the zone until a vehicle has passed a ‘zone ends’ sign. The Council has provided large signs on the entry and exit of the zone, Gulland road has only one way in and out so Mr Marsh would have had to pass the entry signs as in evidence 13, these photos clearly indicates that the signs are substantially compliant and provide more than enough information to the driver that they are in a restricted zone and that there is parking available where the sign ‘P’ is showing. Mr Marsh has commented on a sign being 20 m from his vehicle, as previously stated Mr Marsh had sufficient warning/ information that was in a restricted zone and should have acted accordingly. As Mr Marsh chose to stay parked in the restricted area of the zone the council are satisfied that the contravention had occurred, Mr Marsh had not indicated why he did not use the car park that was also 20m from his vehicle if the street parking spaces were occupied. With regards to Mr Marsh’s appeal that the penalty charge notice has exceeded the relevant amount, this is not the case as there has been no payment made by Mr Marsh and that there are more than one option to make a payment if the recipient of the penalty notice chooses not to appeal. Therefore the Council are of the opinion that the penalty notice was issued correctly and that the appeal by Mr Marsh through the traffic tribunal has no relation to the contravention that is being considered.

Sorry, left out the following of point 2 of appeal

I attach a scan of the relevant page of the NOTIFICATION OF REJECTION OF REPRESENTATIONS

The Penalty Charge exceeded the relevant amount
"The cost of calling 0845 numbers is made up of two parts: an access charge going to the phone company, and a service charge set by the organisation you are calling, which they receive.
In the case of Cornwall Council Parking Services, the number used, 0845-452-4538, incurs both an access charge and a service charge. This service charge is paid to Cornwall Council.
As such, the Council is demanding a sum to discharge the motorist's liability which is greater than that prescribed by law (£70)
I enclose an extract of a High Court ruling that is pertinent to this excessive charge.

When calling the council's 0845 number, the caller is charged a service charge, which is set by the organisation being called, in this case the City of London Corporation. In London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) at paragraphs 28 and 29 the High Court ruled as follows:

"28. Mr Coppel submits that the only form of payment that the Council are obliged to accept as a matter of law is cash in legal tender, unless they agree otherwise. As a matter of strict theory that may be right, although I venture to suggest that a Council which required parking contraveners to pay cash in notes, or coins of £1 or higher value (current legal tender) would be vulnerable to a challenge on grounds of rationality. Nobody is forced to pay by credit card. The Council suggest that it is not increasing the penalty charge but rather recovering an external cost associated with making a convenient method of payment available to those guilty of parking contraventions. Mr Coppel accepts that if this argument were right (and subject always to the vires to make any charge), then so far as the parking enforcement regime was concerned, the Council could recover by way of administrative fee the cost of dealing with any mechanism of payment except cash presented in denominations which were legal tender. There was no evidence before me of any external costs to a merchant associated with payment by debit card or cheque but such facilities are rarely free. There is clearly a significant cost in staff time and systems administration involved in accepting any form of payment. Cheques are especially labour intensive and costly. No doubt any enforcing authority could easily identify the global costs of collecting penalty charges by category and then attempt to divide those costs by the number of penalty charges they expect to recover to determine an administration fee appropriate to each. Yet that is far from the limit of the administrative charges that an inventive enforcing authority might seek to add to the penalty charge authorised by law. Civil enforcement officers must be employed, paid and equipped. There will, in addition, be an administrative superstructure which costs money. It is, submits Mr Coppel, only because the Parking Adjudicators failed to understand that there is a critical difference between the penalty charge and the costs of recovering that charge that they fell into the error of concluding that the penalty charge exceeded the amount prescribed by the statutory scheme. Mr Rogers, who appears for the Parking Adjudicators, submits that whatever label the Council attempt to attach to the 1.3% fee, it is in substance a surcharge that results in a demand for payment of a sum which exceeds that authorised under the statutory scheme.

29. I am unable to accept Mr Coppel's argument that for the purposes of regulation 4(4)(e) the 1.3% fee can be separated from the penalty charge. As is common ground, an enforcing authority is not at liberty to set its own penalty charges but is limited to the sums set under the statutory scheme. The substance of what the Council did was to increase their penalty charge if payment were to be made by credit card to 101.3% of the sum authorised under that scheme. On Mr Coppel's argument the Council might just as well have introduced other administrative charges and added those too. It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge. It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law."

In this instance, by imposing a service charge for telephone payments, the council is offering a payment method which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme. It follows that even if the grounds above lack all merit, the appeal must be allowed.

I ALSO HAVE AN IMAGE of the PCN which shows no charges against the 0845 number which I have also submitted as evidence.

I did have a communication from "gwekk" before xmas who replied that he had successfully used the 0845 grounds and the ticket had been cancelled.

[PASTMYBEST]

they sat you an appeal against the ground that the penalty exceeds etc cannot succeed because no payment is made Laughable. point that out but don't over egg it.


They also say it doesn't matter because there are other ways to pay. highlight the last 3 sentences of paragraph 29 of the ruling

Also submit a copy of the case transcript

https://1drv.ms/b/s!AtBHPhdJdppVqjEARxqMTF9hqQXs

[hcandersen]

17 Dec was a Mon, therefore presumed served 19th, which was day 1 of the 28-day period which ended on 15 Jan. Today is 25th, day 38.

OP posted that 'I have lodged my appeal'.

I don't know what this means, OP pl explain.

If you have only just applied to register your appeal, then it might not be registered and you would be s*****d, like the proverbial kipper. Alternatively, if your are simply supplying additional evidence post-registration, you would be OK.

So, when did you register your appeal and has it been registered i.e. you have received written or online confirmation from TPT?

[Purbeck Fossil]

Hi, I am fine with the dates - 12 January. I lodged the appeal within the time limit. The text on previous post is my appeal and, subsequently their response (today).


Just to further clarify - my appeal was to the Traffic Penalty Tribunal i.e. the last fence on this extended race

[cp8759]

The Consumer Contracts Regulations 2013 have no bearing as this is not a contractual matter. Also, what industry codes of practice? And why do you say the service charge is set by the City of London Corporation? I'm sorry to say that I fear your appeal may be unsuccessful, not because it doesn't have merit but because you've decided to go it alone and didn't ask us to check your appeal wording before submitting it.

[peterguk]

The Consumer Contracts Regulations 2013 have no bearing as this is not a contractual matter. Also, what industry codes of practice? And why do you say the service charge is set by the City of London Corporation?

I'm sorry to say that I fear your appeal may be unsuccessful, not because it doesn't have merit but because you've decided to go it alone and didn't ask us to check your appeal wording before submitting it.

The dangers of blindly cutting and pasting from the interweb without understanding what you're doing.

[cp8759]

Purbeck Fossil if you want us to draft something that might work, let us know. If you prefer to go it alone, that is your option, but I am almost certain you will lose.

[Purbeck Fossil]

Firstly, thanks for all the comments regarding my case. I am pleased to report that after 223 days, the Independent Adjudicator has found in my favour and no money will be passing from the Bank of Mum & Dad. I am summarising the decision by the adjudicator so it might help others in their quest for fair treatment.

Initially, I reasons were based on poor signage, no yellow lines etc. Several forum members suggested that I had no defence as I had driven past a RPZ sign and "should know better" but I might be able to use an appeal on 0845 grounds. Taking this on board, when I got to the submission for the Independent Adjudicator, I stated that I was solely appealing on 0845 grounds and attached the High Court Ruling in my defence.

However, the adjudicator took my earlier appeals into consideration, i.e. the original submission to the ticket and the follow-up NTO.

This is the decision

Mrs xxx is the owner of the vehicle and therefore responsible for the payment of any penalty charge which is due, but it seems that at the time the PCN was issued the car was being driven by her husband.

In the representations to the Council, Mrs xxx suggested that the signing of the waiting restriction was not adequate but in her appeal, she suggests that there has been a procedural impropriety on the part of the Council because of the use, for payment of the penalty charge, of an ‘0845’ telephone number.

She suggests that the use of the 0845 number, without information about what she says would be additional costs incurred, breaches ‘Ofcom Regulations’.

However, even if that is the case, I am satisfied that is not a reason for the appeal to be allowed. The definition of a procedural impropriety is included in Regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

This is a failure by the Council to observe any requirement imposed by the 2004 Traffic Management Act or the Regulations made under it.

Therefore, any breach of rules may be a matter of complaint to the regulatory body, but it is not a procedural impropriety.

Mrs xxx also refers to the decision of the High Court in London Borough of Camden v The Parking Adjudicator [2011] EWHC 295 (Admin). The basis of this decision is that because the Council imposed a fixed percentage service charge, to cover the administrative costs of processing a payment made over the telephone using a card. The fee was standard 1.3% and the High Court decided that this meant that the penalty charge exceeded the amount applicable in the circumstances of the case, which is a specific ground of appeal in Regulation 4(4)(e) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

Mrs xxx suggests that the cost of calling an 0845 number includes an access charge payable to the phone company and a service charge by the Council. She does not however suggest what the service charge costs would be and whether it is a fixed cost applicable to every call or a variable charge depending on the duration of the call.

If, as I would expect, the charge is variable, in order to make a judgement about its significance it would be necessary to know the average time taken to make a card payment and the service charge element applicable to the duration of the call.

It can only be the service charge element to which objection is made because there will always be a cost of postage, a standard rate telephone call or the cost of travel to pay in person.

However, in any particular case, any service element may be very small, if payable at all, and so likely to require consideration of the legal principle of ‘de minimis’.

My view that a small variable cost is not in the same category as a fixed percentage charge.

I would not therefore allow the appeal based on these considerations alone.

However, it seems to me there is more merit in Mrs xxx’s original points about the signing.

The vehicle was parked in a Restricted Parking Zone (RPZ), the point of which is that if each and every access point to the zone is signed with an entry sign giving details of the uniform restriction within the zone, the Council is not obliged to use a yellow line marking on the carriageway.

This RPZ appears to cover a large area, although the Council has used repeater signs along the roads within it.

The photographs taken by the Civil Enforcement Officer do not clearly show the position of the repeater signs relative to the location of the vehicle and the map is not sufficiently detailed or large scale to demonstrate that the only entry to the RPZ was on Bishops Hall Road.

It is for the Council to demonstrate that the signing of the restriction, taken as a whole, was adequate, particularly when the quality of the signing has been raised in the appeal. On the basis of the evidence that I have, I am not satisfied that they have done so and so I allow the appeal. I emphasis that this is on the basis of the information currently available and is not to be taken as a decision by me that the RPZ is generally unenforceable. However, in future appeals I would suggest that the Council takes care to provide clear evidence about the area of the RPZ and the entry points.

I would also add that I have had some difficulty in interpreting the relevant Traffic Regulation Order. This is in evidence tab ‘15’ and has a note the Council says they rely on ‘part 3 8.2 third schedule 6(a)(i)’.

In fact, part 3 appears to relate to the ‘restrictions on use of parking places’ and 8.2 relates specifically to parking places.

However, I have allowed the appeal on the basis of the evidence about the signing and the penalty charge is not payable.
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So, in some ways I am fortunate that the earlier facts were considered. Also, I could have taken the offer of a drafted appeal by forum members for the 0845 grounds if I had more time. It seems the cost of the call to pay the fine is important. I did call the number from a vodafone controlled landline, listened to the preamble up to the point of making the payment, and checked my account to see that the call had cost 68p to that point. So, if anyone is considering this line of defence, specific cost information may be required. I am still a bit miffed that the high court text was not sufficient to dismiss the fine.

Anyway, thanks CP8759, DANCINGDAD, hcandersen peterguk, PASTMYBEST & zwekk et al - and keep up the good fight!

[cp8759]

Sounds to me like the council messed up the evidence pack, but a win is a win. As for the 0845 issue, the adjudicator is right about some things and wrong about others, but he can't be faulted as the correct legal arguments were not put forward. For anyone interested, the key points are outlined in this review application: http://bit.ly/2E7bg94