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PCN: contravention 62c parked with one or more wheels on or over a footpath or any part of a road other than a carriageway (on vehicle crossover)
Peeved123
post Sun, 8 Sep 2019 - 21:18
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Hi, I'm just looking for some advice/clarification on my potential defence against this PCN.

I received the PCN from Southwark Council, via a CEO.

Where I was parked was in front of the hoardings for a large housing development in the process of being built.
They are only allowed to work up to 6pm... I parked after 8pm.

Behind where I parked, there is a notice to say pedestrians must use the other side of the road.

Please see attached photos of my parked car, and the pedestrian notice.

One of the things I would like to know: is the area I parked in part of the developers' land and as such not within the jurisdiction of the council for a 62c contravention... or is that irrelevant?

For what it's worth, none of my wheels were touching the yellow lines... and the parking restrictions, as per the sign at the start of the road, I believe was up until 6.30pm.

Also, what is actualy meant by "...on vehicle crossover..." (because from what I can see, it isn't one)?

Just would like some advice as to what to do now, or is it inevitable that I'll have to pay ?


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post Sun, 8 Sep 2019 - 21:18
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hcandersen
post Wed, 11 Sep 2019 - 20:44
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But it is not 'clear' that a NTO will be served, the prescribed wording is there, at the top and compliant.

Why would you think that adjudicators, who reject the argument that when the actual dates printed on a PCN do not align with the 14 and 28-day periods as prescribed and written makes the PCN 'as a whole' unsound, would agree with this view regarding will/may?

You might find 1 who would and 100 who would not.

OP seems a gambling sort of person, maybe they'd go for it?

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cp8759
post Wed, 11 Sep 2019 - 21:36
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The PCN says once that an NtO may be served, but twice that it will be served. The overall meaning IMO is clear. After all, we won the Anthony Hall case which was a lot less clear-cut.

If the PCN is complaint, maybe Boris could take inspiration from Southwark council, and print an addendum on thee back of the mandatory letter marked "for information only"...


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Peeved123
post Wed, 11 Sep 2019 - 23:46
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QUOTE (hcandersen @ Wed, 11 Sep 2019 - 17:59) *
??

IMO:

The PCN is clearly compliant, the reference to 'may be' served is front and centre. The other references are for information purposes only. There is no confusion.

You would not win at adjudication, so be prepared to pay the discount.

You thought you were being clever parking where you did ( and as for the works timings and the PCN being after these, you really went in to some detail to research this, shame it was time wasted). Anyone is allowed access by vehicle across the footway 24/7 and it's not 'stopped up'.

And of course you were also in contravention of the waiting restriction.

So make your challenge but keep your chequebook nearby.


Thanks for your point of view, but I would like to point out for the sake of clarity (not that it actually makes any difference to my case) but where you say "you thought you were being clever..." gives the impression that I parked there as some sort of clever "loophole" (forgive me if I am making an incorrect assumption).

However, far from it... at the time I parked, there were spaces a few metres further along the road, which coincidentally would have been closer to where I was visiting, and it was just mere coincidence that I came across this "space" first, due to the direction I drove.

And, as I said earlier (I think it was in my original post), I parked there not thinking anything was wrong, due to the time of day, etc (otherwise I would not have parked there).... but, as I also said, my ignorance is no excuse in the eyes of the law... I just thought it a bit harsh to get a PCN with a full charge of £130 when I truly believed I wasn't doing anything wrong.

Just as extra background: the reason I know of the working up to 6pm restrictions is because my mother lives right next to the development, and a circular came through to that effect due to complaints from the other residents.

Hope this clarifies/helps

Thanks
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Peeved123
post Thu, 12 Sep 2019 - 01:08
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ok, here goes my first draft of my appeal to the Council... all critique welcome:


Grounds for Challenge

There has been a procedural improprietyon the part of the enforcement authority.



Reaosn

On the back of the PCN, in the second paragraph, it states:

"If payment is not received and remains unpaid after the period of 28 days..., a Notice to Owner MAY be served by Southwark Council on the person appearing to be the owner of the vehicle."

But, further down, on the same side of the PCN, it says:

"The Notice to Owner WILL be issued after a period of 28 days..."

And, even further down the page, it states:

"Southwark Council uses your personal data (vehicle registration) to send you a Notice to Owner and associated notices, if the PCN remains unpaid.... The Traffic Management Act 2004 (Part 6) REQUIRES us to do this."

I suggest that as the power given to Southwark Council by the regulations is DISCRETIONARY, the Council MUST use the word "MAY" instead of "WILL" in BOTH the above instances.

For the Council not to do so is a clear example of a "FETTERING OF DISCRETION" (please refer to James Demery v London Borough of Bexley (2180251300, 25 July 2018), where the appeal was upheld for that very same reason.

Therefore, due to the above, I expect the PCN to be cancelled within 7 days, and to receive written confirmation to that effect.



Again, please advise me of any alterations that I should make.

Thanks in advance for your time
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cp8759
post Thu, 12 Sep 2019 - 09:32
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Revised draft, keep all bold and italics as I've used them below:
-------------

Dear London Borough of Southwark,

There has been a procedural impropriety on the part of the enforcement authority. On the rear of the PCN, in the second paragraph, it states:

"If payment is not received and remains unpaid after the period of 28 days..., a Notice to Owner may be served by Southwark Council on the person appearing to be the owner of the vehicle."

However, further down, on the same side of the PCN, it says:

"The Notice to Owner will be issued after a period of 28 days..."

And, even further down the page, it states:

"Southwark Council uses your personal data (vehicle registration) to send you a Notice to Owner and associated notices, if the PCN remains unpaid.... The Traffic Management Act 2004 (Part 6) requires us to do this."

As the power to issue a Notice to Owner is discretionary, the Council must properly reflect the discretionary nature of this step. When read as a whole, the PCN leaves little doubt that the Notice to Owner will be issued in all cases, despite the attempt to pay lip service to the regulation at the top of the PCN. The PCN goes as far as stating that the Traffic Management Act requires the council to issue the Notice to Owner, but this is clearly incorrect: the council is not required to do anything and it has a discretionary power to decide whether to issue the Notice to Owner or not. The council might be empowered to take these steps, but it is certainly not required to do so.

Read as a whole, the PCN does not convey the meaning of the regulations, and it also amounts to an unlawful fettering of discretion. It is also a procedural impropriety.

In James Demery v London Borough of Bexley (2180251300, 25 July 2018) the tribunal held as follows:

It seems to me that the Authority has been given a discretion to issue a Charge
Certificate and the PCN must state that this discretion exists. The PCN cannot give
the impression that there is no such discretion even if the reality is that such a
discretion will not be exercised in the motorists' favour.


The same issue arises here: The PCN cannot give the impression that there is no discretion even if in practice the council seldom if ever exercises that discretion in the motorist's favour. In this case the PCN not only gives the impression there is no discretion, it says so explicitly by stating the council is required to issue a Notice to Owner.

For these reasons, the PCN must be cancelled.


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Peeved123
post Thu, 12 Sep 2019 - 09:52
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QUOTE (cp8759 @ Thu, 12 Sep 2019 - 10:32) *
Revised draft, keep all bold and italics as I've used them below:
-------------

Dear London Borough of Southwark,

There has been a procedural impropriety on the part of the enforcement authority. On the rear of the PCN, in the second paragraph, it states:

"If payment is not received and remains unpaid after the period of 28 days..., a Notice to Owner may be served by Southwark Council on the person appearing to be the owner of the vehicle."

However, further down, on the same side of the PCN, it says:

"The Notice to Owner will be issued after a period of 28 days..."

And, even further down the page, it states:

"Southwark Council uses your personal data (vehicle registration) to send you a Notice to Owner and associated notices, if the PCN remains unpaid.... The Traffic Management Act 2004 (Part 6) requires us to do this."

As the power to issue a Notice to Owner is discretionary, the Council must properly reflect the discretionary nature of this step. When read as a whole, the PCN leaves little doubt that the Notice to Owner will be issued in all cases, despite the attempt to pay lip service to the regulation at the top of the PCN. The PCN goes as far as stating that the Traffic Management Act requires the council to issue the Notice to Owner, but this is clearly incorrect: the council is not required to do anything and it has a discretionary power to decide whether to issue the Notice to Owner or not. The council might be empowered to take these steps, but it is certainly not required to do so.

Read as a whole, the PCN does not convey the meaning of the regulations, and it also amounts to an unlawful fettering of discretion. It is also a procedural impropriety.

In James Demery v London Borough of Bexley (2180251300, 25 July 2018) the tribunal held as follows:

It seems to me that the Authority has been given a discretion to issue a Charge
Certificate and the PCN must state that this discretion exists. The PCN cannot give
the impression that there is no such discretion even if the reality is that such a
discretion will not be exercised in the motorists' favour.


The same issue arises here: The PCN cannot give the impression that there is no discretion even if in practice the council seldom if ever exercises that discretion in the motorist's favour. In this case the PCN not only gives the impression there is no discretion, it says so explicitly by stating the council is required to issue a Notice to Owner.

For these reasons, the PCN must be cancelled.



cp8759... thank you very much for taking the time to do this for me... I shall be copying verbatim what you have written, and use that as my challenge to the PCN

Is there anything else that I should be doing, as the above seems all that is required?

Thx

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cp8759
post Thu, 12 Sep 2019 - 10:47
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Just make sure to show us the rejection letter when you receive it.


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Peeved123
post Thu, 12 Sep 2019 - 13:34
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QUOTE (cp8759 @ Thu, 12 Sep 2019 - 11:47) *
Just make sure to show us the rejection letter when you receive it.



Will do... thx
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Peeved123
post Tue, 17 Sep 2019 - 01:11
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Hi All,


I've had a response from the Council.


Needless to say, they pretty much ignored the "Procedural Impropriety" ground, and just reiterated that I committed a 62c Contravention...


Please find links to the 2 page response I received:

https://ibb.co/9VWDy00
https://ibb.co/C61pnGB


Any guidance on the next step(s) greatly appreciated


Thx
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hcandersen
post Tue, 17 Sep 2019 - 07:37
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Pay the discount.

The regs require that a PCN must state:

(j)that if the penalty charge is not paid before the end of the period of 28 days referred to in subparagraph (g), a notice to owner may be served by the enforcement authority on the owner of the vehicle.



The regs DO NOT:
Require the exact words to be used;
Restrict the number of references to the point.

IMO, the ONLY issue is whether the NTO conveys the requirements of the regs clearly: the Man on the Clapham Omnibus test.

Remember, we do NOT know the answer to this point, only the adjudicator's view counts and if they found it compliant then you would have no grounds for a review based on a clear misapplication of the law. So what you get here is opinion only.

The fact that a PCN might use different words is NOT the issue UNLESS this is the only reference, as was the case in many of the cited decisions, or to such an overwhelming extent that the only reasonable conclusion is that the authority have not stated what is required.

And IMO your PCN does not fall into the above. The first and very clear reference uses the exact words as per the regs. An adjudicator would start at this point and ask whether, in their context, other references have such effect as to give the impression when read as a whole that the NTO does not comply.

Good luck with this at adjudication.

But it's your choice.

Their response to your challenge is questionable, but you are only at the beginning of this process and far more weight is attached to responses to formal representation than these, informal, reps.

And of course an adjudicator would bear in mind the absolutely clear contravention and no doubt think that fairness would not be served by cancelling the PCN other than in the case of similarly absolutely clear procedural failures by the authority which IMO are not apparent.
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cp8759
post Tue, 17 Sep 2019 - 19:53
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Personally I would pursue this, because when read as a whole the PCN makes it a foregone conclusion that an NtO will be issued: the man on the Clapham omnibus would not say that issue of an NtO is a mere possibility. As I've said, the Anthony Hall case was a lot more finely balanced than this and we came out on top.

If you chose to pursue this further, you just need to wait for the Notice to Owner.


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Earl Purple
post Wed, 18 Sep 2019 - 08:29
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I think adjudicators more recently have rejected challenges based on little things like "may" or "will" in the PCN and look at the bigger picture.

Was the contravention clean and well signposted and was the driver issued the PCN clear what they needed to do? I think in this case it's probably yes and so unless there's some temporary order allowing parking in that location (possibly for works vehicles) then it would go by the general prohibition of being part of the pedestrian access right of way and you should pay the discount. Next time find a proper parking place.
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cp8759
post Wed, 18 Sep 2019 - 15:51
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QUOTE (Earl Purple @ Wed, 18 Sep 2019 - 09:29) *
I think adjudicators more recently have rejected challenges based on little things like "may" or "will" in the PCN and look at the bigger picture.

Depends on the tribunal. Mr Knapp at the Traffic Penalty Tribunal doesn't like this argument, but the London Tribunals generally accept it.


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Mad Mick V
post Wed, 18 Sep 2019 - 16:15
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What I said in my first post might be worthwhile as a secondary argument especially given Houghton's take on vehicle crossovers being part of the footway:-

2190295608 (Extract)

The photographic evidence shows clearly enough the location where the vehicle was parked. The “road” in question, Lansdowne Way, extends to the very clearly defined building line of concrete buildings, leaving a wide footway between the buildings and the carriageway. The vehicle is parked on an extended length of that footway which has been clearly lowered to facilitate vehicular access to the adjoining premises, the large metal gates. However lowering a footway for that purpose does not turn it into a part of the carriageway (as no public vehicular right of passage is thereby created). A dropped footway remains a footway, and vehicles may not park there irrespective of any question of obstruction. Vehicles parked in front of the gates are therefore parked other than on the carriageway of the road, which is, by statute, in the absence of some legal exemption, a contravention throughout London. It is not surprising that a PCN was issued.
---------------------------------------------------
So IMO in order to stop up the footway and erect hoardings the people doing the civils must have a licence to that effect under the Highways Act 1980. That licence must include the vehicle access crossing as part of the footway for the reasons given in Houghton's decision. Ergo the footway ceases to exist during the course of that licence and thereby becomes unenforceable, for the contravention given, whilst that licence is in force.

Views?

Mick

This post has been edited by Mad Mick V: Wed, 18 Sep 2019 - 16:19
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cp8759
post Wed, 18 Sep 2019 - 19:55
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Mick it's an interesting view but without sight of the licence, we can't possibly say.


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Peeved123
post Thu, 28 Nov 2019 - 00:29
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Hi All,

Its been a while, but here's an update.

I repeated my Representation formally to the Notice to Owner that I received from Southwark Council, on the grounds of "Procedural Impropriety".

I had previously responded informally (thanks go out to cp8759 for revising my draft), to which the council rejected... without actually addressing the point I raised about the Procedural Impropriety.

On receiving the NtO I repeated my Representation (slightly elaborated and more comprehensive), which I sent via "1st Class Recorded Signed For" (and I have a receipt from the Post Office as proof, which also confirms that they received the letter from me before their last acceptance time for that day) on the 21 November.

The deadline was 22nd November.

However, I have today received a Charge Certificate, which is dated 25th November, due to non-payment of the PCN.

I have checked online, and it appears that the letter was signed for on Saturday 23rd November at 8:48 am.

Is there anything I can do now... they obviously had receipt of my appeal BEFORE the Charge Certificate was issued.

Also, as I said above, I had posted it a day before the deadline (with proof of posting... and with a reasonable expectation that the letter would have been received the 22nd November (the date of the deadline)


Attached File  PCN_Charge_Certificate.pdf ( 1.82MB ) Number of downloads: 55







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Peeved123
post Thu, 28 Nov 2019 - 00:46
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I'm having problems at the moment uploading the NtO I received from the council; and

I'm having problems uploading the final copy of the letter that I attached in my appeal.... getting error message saying that the upload failed!?



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cp8759
post Fri, 29 Nov 2019 - 16:42
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Use an external site like imgur.com to host images, there's no space on here.

Unfortunately however it sounds like you should have come back here for advice rather than going it alone. Legally the representations must be served on the council before the last day of the 28 day period, a letter sent in the post is deemed served on the 2nd working day after postage unless there is evidence to show otherwise.

In your case, the date of service of your representations would be deemed to be Monday 25th, however you have evidence to show is was received on the previous Saturday, but that is still too late. The council is entitled to disregard (i.e. ignore) anything it receives after the deadline. It's a real shame you didn't make representations online as that would have avoid all of this. Tell us the date of the NtO so we can confirm you've calculated the dates correctly.


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Peeved123
post Mon, 2 Dec 2019 - 19:04
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NtO date on the letter from Southwark was 17 October 2019
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PASTMYBEST
post Mon, 2 Dec 2019 - 19:08
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You made formal representations? when ?

The council made a formal rejection When?

You sent the council another letter when?

CC when?

Post all docs


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