Contravention 27 - Whitstable Reeves Way Canterbury Options

[Phaeton55]

Hi there, great forum you got going here. I am glad to have found and hopefully, I can get some help with a PCN regarding a contravention 27.

This has PCN has been going on for a while now it was initially issued on 17/04/2018 at Reeves Way - Whitstable - Canterbury Council Kent Observation period 09:41 to 09:42

PCN copy here :
https://ibb.co/jLg6fK9

Parked here for about 15 minutes to collect goods from the office NHS region office. Within this short period of time, the PCN was issued.

Reeves Way is a dead end road leading to an industrial area at Harvey Drive with offices. There are loads of car parked on the street and the nearby car park.
Yellow lines are in place all over this area apart from the dropped footway where the car was parked during the alleged contravention. (although there is a second one further down with double yellow lines)

Location : https://www.google.com/maps/@51.3563434,1.0...3312!8i6656
(By toggling the years in the top left hand corner you can change see the dropped kerb)

I haven't got the original PCN and didn't receive a NTO. Once the Charge Certificate arrived on 22.06.2018, I enquired about evidence and CEO Notes.
Received a reply on 18.07.2018 with evidence and notes.
Photo evidence: https://ibb.co/frDSWnR

Reply and CEO notes: https://ibb.co/L6c9GmG

As there was no opportunity to appeal I have left it unchallenged and decided to wait to get it to go to make Witness state statement this took a couple of months I finally received it and submitted this on 19.02.2019.

On 27.02.19 I received the new Notice to Owner with cover letter including a reference to a recent Adjudication.

Copy NTO front and back
Front: https://ibb.co/CVMSTRM
Back: https://ibb.co/4VhtZYm

Cover Letter
https://ibb.co/dLg4Rpf

I took some time to get the information of the Traffic Penalty Tribunal but here is the copy of the recent adjudication case that the Council is referring too:
https://ibb.co/S0dPDSC

Hopefully, this will help to get the paper trail and events so far

In the CEO notes the is a remark that the car was blocking a wheelchair user doe this require for a CEO to record more evidence or should I request more ( telephone call records etc). It is very unlikely there was a wheelchair user present let alone any pedestrians in this road.
Should the CEO have waited longer than the 1-minute observation? I noticed there is a 20 minute period for loading and unloading. Also, the note states the car was fully parked on the dropped kerb. However, this was not the case.

A little further down the road there is also a dropped kerb with double yellow lines along it.
https://www.google.com/maps/@51.3560534,1.0...3312!8i6656

For some reason these yellow lines have not been put in place at the location of the contravention : https://www.google.com/maps/@51.3563408,1.0...3312!8i6656

Any grounds to appeal based on the documents provided? Or appeal and hope the council won't reply in time and try and get it cancelled that way?


Your help in this matter will be much appreciated.

This post has been edited by Phaeton55: Mon, 25 Mar 2019 - 13:17

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[Phaeton55]

Many thanks, guys for replying.

I have now lodged an appeal to review the adjudication decision.
(bit hard to make an appeal with max. 500 characters)

I also received a letter from the council. Just to complete the audit trail in this case:
Letter payment request Council

Will keep you updated with the final response.

This post has been edited by Phaeton55: Mon, 24 Jun 2019 - 15:19

[cp8759]

Send a further request for a review to the tribunal together with the latest letter from the council. Also send http://bit.ly/2HPEbld http://bit.ly/2DmNq7N and http://bit.ly/2UqVTSF

-----------

This is a further request for a review, under the ground provided at paragraph 12(b)(v) of the schedule to the appeal regulations, which provides that a review may be granted "where the decision was made without a hearing, new evidence has become available since the decision was made, the existence of which could not reasonably have been known of or foreseen".

The council issued the attached correspondence on 17 June 2019, indicating that if payment is not made before 17 July, the penalty will automatically be increased and a charge certificate will be sent. However regulation 21 of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides (my emphasis):

21.—(1) Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by the amount of the applicable surcharge.

(2) The relevant period, in relation to a notice to owner, is the period of 28 days beginning—
...
(d) in a case not falling within subparagraph (с) where there has been an unsuccessful appeal to an adjudicator under the Representations and Appeals Regulations against a notice of rejection, with the date on which notice of the adjudicator’s decision is served on the appellant.

In indicating that if payment is not made, the council will increase the charge and serve a charge certificate, the council has committed a procedural impropriety: the issue of a charge certificate is a discretionary step and it cannot be a foregone conclusion.

I rely on the following decisions as persuasive authorities:

In David Greenberg v London Borough of Barnet (216022028A, 29 June 2016) the adjudicator said: "I consider that there to be manifest distinction between 'may' and 'will' which is substantial as opposed to semantics."

In paragraphs 1g and h of Anthony Hall v Kent County Council (with Tunbridge Wells BC) (JU-00042-1810, 07 December 2018), adjudicator Jill Yates said that:

"g) The wording of the regulation makes it clear that the word ‘may’ applies both to the
increase in the penalty charge and to the taking of further steps in enforcement,
however, the PCN sent by the council does not reflect this and I therefore find that the
wording used does not correctly convey the meaning of the regulation.

h) I note that the council system means that the charge does not in fact increase until
the point when the charge certificate is issued, but, whilst this may mean that no
prejudice results, it does not alter the fact that the recipients of the notice are likely to
understand that the increase is automatic once the 28 days have passed."

In this instance, the council has unlawfully fettered its discretion and served a document that would lead the recipient to understand the increase is automatic once the 28 days have passed.

At paragraphs 11 and 12 of Ammar Abdul Hadi v Coventry City Council (CV00067-1902, 05 April 2019) adjudicator Annie Hockaday said:

"11. The Council submit that ‘will result’ is acceptable. But when they post the Notice, they cannot foresee
the future. The owner/driver might submit further overwhelming evidence of compelling mitigation, or
contact the Council about paying only a day late or appealing to TPT only just out of time.

12. It is not a foregone conclusion that a charge certificate will be issued, but a possibility."

Once more, the council in this case have served a demand for payment which indicates the increase in the charge is a foregone conclusion, but it is not so: The owner or driver might submit further overwhelming evidence of compelling mitigation, and even at this late stage the council retains a power of discretion to cancel the penalty; or he might contact the council about paying the penalty just one day late, or he might apply to the tribunal for a review. Therefore an increase in the charge is not, even at this late stage, a foregone conclusion, it is only a possibility.

I submit that in fettering its discretion in this manner the council has committed a procedural impropriety. The council is not at liberty to commit a procedural impropriety once the original appeal is rejected, the requirements of the regulations must still be obeyed. It is obvious that this issue could not be raised at the original adjudication as the procedural impropriety was only committed after the decision of the original adjudicator was served, therefore I ask that, under the provisions of paragraph 12(b)(v) of the schedule to the appeal regulations, the tribunal grant this request for a review. This provision was no doubt included in the regulations to cater for, amongst other things, procedural improprieties committed by the enforcement authority after the adjudicator has served notice of his decision.

This post has been edited by cp8759: Mon, 24 Jun 2019 - 15:34

[Longtime Lurker]

It might be worth adding a little bit to the second paragraph just to make it really clear that this is new evidence:

from
"The council issued the attached correspondence on 17 June 2019, indicating that if payment is not made before 17 July..."

to
"The council issued the attached correspondence on 17 June 2019 (XXX days after the adjudicator made their decision), indicating that if payment is not made before 17 July..."

[cp8759]

It might be worth adding a little bit to the second paragraph just to make it really clear that this is new evidence:

from
"The council issued the attached correspondence on 17 June 2019, indicating that if payment is not made before 17 July..."

to
"The council issued the attached correspondence on 17 June 2019 (XXX days after the adjudicator made their decision), indicating that if payment is not made before 17 July..."

Yes that seems sensible.

[Phaeton55]

UPDATE - Review Refused

Please find the Adjunction Review Decision here:
https://docdro.id/F2VGyyX

The second ground for the request to review has not been touched upon at all.

[cp8759]

Well it's up to you if you want to take it to judicial review.

[Longtime Lurker]

Perhaps send them something along the lines of:

Thanks for letting me know you've refused one of the two grounds on which I asked for a review. When will you consider the second grounds?

[Phaeton55]

Quick update

Still in talks with Traffic Penalty Tribunal regarding the second ground ( new evidence ) that has not been reviewed by the adjudicator.
To my surprise, I receive a letter from the Council informing me about the dismissed appeal and requesting settlement of the fine.
Any thoughts on the "will" part in this letter:

https://ibb.co/nB9mSJK - Front
https://ibb.co/RHzGKXj - Back




Many thanks

[PASTMYBEST]

Quick update

Still in talks with Traffic Penalty Tribunal regarding the second ground ( new evidence ) that has not been reviewed by the adjudicator.
To my surprise, I receive a letter from the Council informing me about the dismissed appeal and requesting settlement of the fine.
Any thoughts on the "will" part in this letter:

https://ibb.co/nB9mSJK - Front
https://ibb.co/RHzGKXj - Back




Many thanks

you have to pay. Even if you decide on a JR. You would be refunded if you were to win

[cp8759]

Quick update

Still in talks with Traffic Penalty Tribunal regarding the second ground ( new evidence ) that has not been reviewed by the adjudicator.

What talks? Have you got anything in writing?

[Phaeton55]

They still need to update me about why the second ground has not been considered in the review.

I have copies of email, message and recorded phone conversations

Would it be worth adding this last letter to the case too? Again they mention will sent charge certificate and fine will increase.

[hcandersen]

OP, pl drop this before it gets out of hand.

1. The council's letter is purely administrative and has nothing to do with will/may/what if within the regulations. It forms no basis for any complaint or action on your part.

2. A request for a review does not impose a moratorium on proceedings i.e. the authority would be within their regulatory power to pursue you for the penalty although arguably if a request has merit then it could be argued as being unfair to pursue the matter while it is still the subject of an appeal, albeit extended one.

But you are beyond this now. You cannot just fire off letters to the tribunal requesting A, B, C and require the authority to halt proceedings. And if they have told you the time limit for paying then abide by it,

It's not what you want to hear, but I fear for your finances if you ignore their demand to pay. The deadline is 11 Sept. This gives you a 3+ week window in which to do whatever you want with the tribunal. But do not go beyond the deadline.

[Phaeton55]

Thanks for your response hcandersen, the funds for the fine are in place. Just want the procedures to be correct and in line with the law and challenge them where required, with the kind help of this great forum.

[Phaeton55]

Well, we have come to the end of the Adjudication stage. It's been a blast and thanks very much for your help guys.

The only last option to challenge this PCN will be to take it to the High Court. Could be costly I take it.

To keep you all informed on the entire process, please find below the part of the dismissal that wasnt initially reviewed. I hope this might help with further cases.


Final letter Adjudicator's Decision: https://docdro.id/B9NaRoA

This post has been edited by Phaeton55: Tue, 20 Aug 2019 - 14:25

[cp8759]

Well if you want to pursue this further, the court fees for a judicial review are roughly 1k. To be honest I'm sceptical that the High Court would uphold the whole will / may concept and I don't think this is worth taking further.

[Phaeton55]

[PCN PAID] TOPIC CLOSED

https://ibb.co/JyW6dWQ

Thanks for your help and advice gents. Much appreciated