foreign registered cars and NTOs, Threads merged Options

[frenchgooner]

Hi,

My daughter recently borrowed our French registered mini whilst staying in London for a few months. The car is correctly registered to us as French residents, I remain the owner and she is insured and fully legal to drive the car.

Recently the car was removed by LBWF to the car pound whilst legally parked. Upon attendance at the car pound she was advised the car was removed as there are unpaid parking tickets. She was then advised there are 4 parking notices against the car, and one offence of being partially in a yellow box at a junction. As no physical ticket was issued both she and I had no knowledge of these offences. She was then forced to pay 650£ (450£ for the offences and £200 for the removal) to get the car back. She asked for the details of the offences at the pound, and was given the PCN numbers, but when we tried to look these up on the LBWF website, we could not access any details and the cases were marked as closed ( I presume as we had paid to get the car back).

I am annoyed as the car was removed for reasons we knew nothing about, no notices to owner was ever sent, and we have been denied the opportunity to contest or even review these offences.

Whilst I recognise the LBWF would have difficulty getting our French details for the notice to owner, this is not my fault. The EU Cross border enforcment directive exists for just this reason, but the UK does not use it. However surely the procedure is to issue a NTO, and If you do not do so that is a failure of procedure.

I have emailed them several times, but they have responded once and took 21 days to do so, and then completely failed to respond to any of my questions or requests.

Should I take the matter to the small claims court?

[Advertisement]

[frenchgooner]

can anyone suggest my way forward. do I appeal, if so how.

thanks

[Incandescent]

The car was towed, you paid to release, so presumably can submit reps to the council as normal, and if they refuse, appeal to London Tribunals. If a council tows a UK-registered car, it is very unlikely a Notice to Owner will have been issued, so one has to assume the procedure for submitting reps is valid for you as it is for the UK-registered vehicle. This includes the option to go to London Tribunals if reps are rejected.

However what is your argument for cancellation of what are several PCNs ? The plain fact is that if you merrily drive around London collecting PCNs and ignoring them, there are consequences one of which is the right of the council to tow the vehicle to force payment of the PCNs.

This post has been edited by Incandescent: Wed, 18 Sep 2019 - 21:15

[cp8759]

So, having accumulated 3 reg. 9 PCNs lawfully served but not paid the owner was liable to having their vehicle removed. It was removed. NTOs do not enter the equation as none was served nor needed to be served.

The NTOs do come into it, as one of the ground of appeal is:

(h) that, in respect of an outstanding penalty charge (other than in a case where subsection (4)(b) of the said section 14 applies), the owner of the vehicle did not receive a notice to owner (in the case where the penalty charge arose from a penalty charge notice in respect of which a notice to owner may be served);

The exception under para 4(b) of section 14 says a PCN can be "outstanding" if the PCN (moving traffic or reg 10) or NtO (where a reg 9 or 9A PCN has been served) has not been served, but only:

if a penalty charge notice has not been issued or served or (in an NTO case where a penalty charge notice has been issued or served), no notice to owner has been served—

(i)the penalty charge relates to a vehicle which, at the time the penalty charge was incurred, either fell within subsection (7) below or was registered but with no address or an incorrect address given for the registered keeper;

(ii)the London authority in question having taken reasonable steps have failed to ascertain the name and address of the person on whom a penalty charge notice or notice to owner, as the case may be, could be served; and

(iii)the penalty charge has not been paid before the end of the period of 35 days beginning with the day after the day on which the relevant time fell.

Under the current EU framework, there is no reason why the relevant London borough could not take reasonable steps to ascertain the name and address of the keeper in France, indeed companies like EPC will trace EU vehicle quite readily on behalf of local authorities or TFL. So, if the relevant London borough cannot show that it has taken reasonable steps to identify the registered keeper, then section 14(4)(b) does not apply and the statutory ground of appeal is made out.

I would email to the council now in the following terms (using the address on the release form), keep all italics text exactly as I've used it below:

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

Dear London Borough of Waltham Forest,

I hereby submit the following representation under paragraph 2 of schedule 2 to the London Local Authorities and Transport for London Act 2008 with respect to the removal fees of £200 and the 4 PCNs totalling £445.

In relation to the three parking PCNs (contravention code 12s), I submit the ground at paragraph 2(3)(h) of Schedule 2 is made out, namely that no Notice to Owner was received by the owner of the vehicle.

In relation to the moving traffic PCN (contravention code 31), I submit the ground at paragraph 2(3)(g) of Schedule 2 is made out, namely that no Penalty Charge Notice was received by the owner of the vehicle.

Your attention is drawn to the fact that where a vehicle is not registered with DVLA, a vehicle can be removed using the powers under London Local Authorities and Transport for London Act 2008 if and only if:

the London authority in question having taken reasonable steps have failed to ascertain the name and address of the person on whom a penalty charge notice or notice to owner, as the case may be, could be served

as per section 14(4)(b)(ii) of the 2008 Act. I have never received any Penalty Charge or Notice to Owner at the registered address for the vehicle, and had you taken reasonable steps to ascertain my name and address (for example under the relevant EU cross-border arrangements) there is no reason why these documents could not have been served on me. For this reason, the removal of the vehicle was unlawful and all charges paid must be refunded.

Yours faithfully,

This post has been edited by cp8759: Wed, 18 Sep 2019 - 21:17

[hcandersen]

No.

A NTO could not be served and was not served and but for the fact that the driver continued to flout the law at least 3 times, possibly 4, and still inhabit the same authority's area and was caught before the 6-month period for pursuing penalties had elapsed, then they'd have been in the clear.

But they were caught.

A NTO is NOT required, the penalty was owing and required to be paid by the legally alternative means of removing the car under the banner of persistent evader and making the otherwise untraceable Mohammed come to the authority's mountain as opposed to the normal alternative of serving a NTO.

NTOs were not required for the 3 PCNs, presumably lawfully served for actual contraventions, which continued to be outstanding thus giving rise to the authority's power to classify the vehicle's owner as a persistent evader. A penalty does not lapse simply because a NTO is not served within 28, 48, 68 days....up to 6 months.

Amy protestations by the owner to the contrary would fail, IMO. They need better arguments, if any exist.

[cp8759]

No.

A NTO could not be served and was not served and but for the fact that the driver continued to flout the law at least 3 times, possibly 4, and still inhabit the same authority's area and was caught before the 6-month period for pursuing penalties had elapsed, then they'd have been in the clear.

But they were caught.

A NTO is NOT required, the penalty was owing and required to be paid by the legally alternative means of removing the car under the banner of persistent evader and making the otherwise untraceable Mohammed come to the authority's mountain as opposed to the normal alternative of serving a NTO.

NTOs were not required for the 3 PCNs, presumably lawfully served for actual contraventions, which continued to be outstanding thus giving rise to the authority's power to classify the vehicle's owner as a persistent evader. A penalty does not lapse simply because a NTO is not served within 28, 48, 68 days....up to 6 months.

Amy protestations by the owner to the contrary would fail, IMO. They need better arguments, if any exist.

I've literally quoted chapter and verse of the legislation that proves you're wrong, do you have any authoritative source for what you're saying or are you just making it up?

[frenchgooner]

following on from the following link
http://forums.pepipoo.com/index.php?act=po...30&t=130246

I sent in a letter, using the information provided, and I've now had a reply from LBWF, which is again evasive and does not respond to my request to appeal. What do I do next. TIA

[frenchgooner]

Hi, What to do next, I sent the letter as kindly detailed by cp8759. I've had a response from LBWF, they avoided my request to appeal the charges, but did give me the £200 towing fee back.

[cp8759]

Show us the rest of the letter.

[frenchgooner]

sorry for the delay, here is a link to the additional pages of the response from LBWF

https://imgur.com/a/2Bj9Wtv

Tia for all your help, and advice in what to do next

[cp8759]

Is that all of the letter? There should be some more pages.

[frenchgooner]

No, that is everything that was sent. Thx

[cp8759]

Well the letter is dated 11 October so the 28 day appeal period expires on 11 December, so you have a bit of time.

Write back to the council, as usual keep all italics formatting exactly as I've used it below:

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

Dear London Borough of Waltham Forest,

Thank you for your letter of 11 October 2019 in which the council rejected my representations made under paragraph 2 of schedule 2 of the London Local Authorities and Transport for London Act 2008.

Paragraph 2(7) of that schedule states:

Where a relevant authority serve notice under sub-paragraph (5)(b) above that they do not accept that a ground has been established, that notice shall—
(a) inform the relevant person of his right to appeal to an adjudicator under paragraph 3 below;
(b) indicate the nature of the adjudicator’s power to award costs against any person appealing to him under that paragraph;
(с) describe in general terms the form and manner in which such an appeal is required to be made; and
(d) provide such other information as the relevant authority consider appropriate.

Paragraph 3(1) states:

Where a relevant authority serve notice under paragraph 2(5)(b) above that they do not accept that a ground on which representations were made under paragraph 2 above has been established, the person making those representations may appeal to an adjudicator against the authority’s decision, before—

(a) the end of the period of 28 days beginning with the date of service of the notice; or
(b) such longer period as an adjudicator may allow following consultation with the relevant authority.

For some reason the council did not inform me of my right to appeal to the independent adjudicator, nonetheless now that my representations have been rejected, I am entitled to appeal to the adjudicator. I therefore request that you provide an online appeal code so that I may appeal to the tribunal. If you are unable to provide an online appeal code, please would you provide a paper appeal form.

[hcandersen]

She was then advised there are 4 parking notices against the car.

Parking, therefore TMA.

And their NOR refers to 'persistent evader' status under the LLA.

And the OP has not posted complete NORs!

And the Appeals Reg makes no specific reference to NTOs, contrary to opinion expressed by others.

So we have the council citing incorrect legislation, the OP pursuing a matter under the TMA while claiming exemption from goodness knows what legislation.





The Appeals Regs at 11(5) state:

The grounds referred to in paragraph (4)(a) are—
(a)that the vehicle had not been permitted to remain at rest in a civil enforcement area for parking contraventions in circumstances in which a penalty charge was payable by virtue of regulation 4 of the General Regulations;
(b)that a civil enforcement officer had not, in accordance with regulation 9 of the General Regulations, fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle, before the vehicle was removed;
©that, at the time the vehicle was removed, the power to remove the vehicle conferred by paragraph (2) of regulation 5C of the Removal and Disposal of Vehicles Regulations 1986(1) was, by virtue of paragraph (3) of that regulation, not exercisable;
(d)that the vehicle had been permitted to remain at rest in the place where it was by a person who was in control of the vehicle without the consent of the owner;
(e)that the place where the vehicle was at rest was not in a civil enforcement area for parking contraventions;
(f)that the penalty charge or other charge paid to secure the release of the vehicle exceeded the amount applicable in the circumstances of the case; or
(g)that there has been a procedural impropriety on the part of the enforcement authority.

No mention of NTOs! So even trying to see if there's any mileage in the above, the OP is left with (g). And in this context and taking a purposive interpretation the OP suffered no loss either financially or procedurally. On recovery of their car they had 28 days in which to make reps, exactly the same as would have been available on receipt of a NTO. The only difference is that it's pay first, make reps/appeal later. (let's save this debate for another place and time)

But as they were exercising a lawful power - irrespective of their LLA reference c**k-up!

But at its heart lies the fact that removal for TMA related contraventions is NOT contingent upon service of a NTO, only:

b)a civil enforcement officer has, in accordance with regulation 9 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007(3), fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle.
(2) Where this paragraph applies, a civil enforcement officer or a person acting under his direction may subject to paragraph (3) remove the vehicle concerned—
(a)to another position on the road where it is found;
(b)to another road; or

©to a place which is not on a road.

This post has been edited by hcandersen: Wed, 30 Oct 2019 - 13:25

[cp8759]

hcandersen the car was not removed under the TMA 2004, it was removed under the LLA 2008.

A power to remove under the TMA is only available if, at the time of the removal, a vehicle is in contravention and a PCN has been served for that contravention. If the vehicle is moved to somewhere where it is lawfully parked prior to removal, the removal power under the TMA is extinguished. From the opening post (my emphasis):

Recently the car was removed by LBWF to the car pound whilst legally parked.

The LLA 2008 allows a vehicle to be removed even if it is lawfully parked, providing it is a "persistent evader" vehicle. That is the situation we are dealing with here. Why you can't get your head round this is beyond me.

This post has been edited by cp8759: Wed, 30 Oct 2019 - 13:32

[Steve_999]

Well the letter is dated 11 October so the 28 day appeal period expires on 11 December, so you have a bit of time.

. . . . . . .

Did you mean the 11th November?

[cp8759]

Well the letter is dated 11 October so the 28 day appeal period expires on 11 December, so you have a bit of time.

. . . . . . .

Did you mean the 11th November?

Yes.

[PASTMYBEST]

Well the letter is dated 11 October so the 28 day appeal period expires on 11 December, so you have a bit of time.

. . . . . . .

Did you mean the 11th November?

Yes.

Another EPC failing it would appear

[hcandersen]

There is no requirement to serve a NTO in cases where the vehicle is not registered with DVLA.

However, whether the procedures prescribed in the LLA 2008 which apply to moving a vehicle with outstanding penalties were complied with substantially is another matter.

If this is the OP's argument, then make it. But IMO don't clutter it with matters which are not material.

And post the full NORs.

[cp8759]

There is no requirement to serve a NTO in cases where the vehicle is not registered with DVLA.

You're wrong. The ground at 3(2)(h) here http://www.legislation.gov.uk/ukla/2008/3/...graph/2/enacted provides a valid ground of appeal is made out if it is shown:

that, in respect of an outstanding penalty charge (other than in a case where subsection (4)(b) of the said section 14 applies), the owner of the vehicle did not receive a notice to owner (in the case where the penalty charge arose from a penalty charge notice in respect of which a notice to owner may be served)

The requirement to serve an NtO is not absolute, section 14(4)(b)(ii) http://www.legislation.gov.uk/ukla/2008/3/section/14/enacted permits the authority to proceed without having served an NtO but only if

the London authority in question having taken reasonable steps have failed to ascertain the name and address of the person on whom a penalty charge notice or notice to owner, as the case may be, could be served

So the question here is, what reasonable steps did the council take to ascertain the name and address of the owner? We know for example that the council could contract EPC or any number of pan-European collection companies to track down the address of the owner. The burden to show that such reasonable steps have been taken is on the council. If the council didn't take any steps at all, then the exception in section 14(4)(b)(ii) does not apply, and the statutory ground under para 3(2)(h) is made out.

I've already explained this once and while I bear no animosity whatsoever towards you, if you come back again and without any reference to the regulations simply start asserting that none of the above is true and you know best, I'll have to conclude that you're deliberately trolling.

[frenchgooner]

Hi,
sent the letter on the 4th November, and had no reply. what to do next. as always thanks in advance