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Car towed after parking on DYL but towing excessive?
Mus123
post Tue, 13 Mar 2018 - 17:45
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Hi all,

First of all I will put my hands up and admit that I shouldn't have parked on the DYL and accept the fine associated with it. I couldn't find any alternative parking so I thought I would chance it. However, it is the towing of the car that I find unnecessary as it was causing no obstruction.

I have attached pictures of where I parked (behind the white minivan). The ticket was initially issued on 23/02/2018 at 09:44, I noticed the car was gone at around 12:30, phoned the council and picked it up in about half an hour.

The cost of releasing the car from the pound was £265 (£65 fine and £200 towing charge).

The location can be found on the following link but there has been a lot of construction work recently so the pictures will be a better indicator of location: https://www.google.co.uk/maps/@51.5562118,-...33;8i6656?hl=en

I have been meaning to post this since I received the fine but have had a hectic timetable recently.

Any help would be greatly appreciated as I feel a fine would have sufficed but the towing charge is very steep and please let me know if there is anything else required to make life easier.

Thank you

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This post has been edited by Mus123: Tue, 13 Mar 2018 - 19:07
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post Tue, 13 Mar 2018 - 17:45
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stamfordman
post Tue, 13 Mar 2018 - 18:12
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Yellow line parking is a priority 1 for towing in most councils including Hackney:

https://www.hackney.gov.uk/vehicle-removal

If it been on a single yellow there would have been more scope for arguing it wasn't causing an obstruction and we have seen successful cases here.

Do you know when it was towed?
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Mus123
post Tue, 13 Mar 2018 - 18:32
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Not too sure of the exact time but I believe it was sometime between 11:00 and 12:30
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Incandescent
post Tue, 13 Mar 2018 - 18:35
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Frankly, you will struggle to overturn this PCN if you take them all the way to adjudication. If you'd been on a single-yellow then your chances would have been better. However, if you can put together a valid appeal, there is no additional cost in taking them to London Tribunals, as you've paid all there is to pay already. However your appeal needs to be strong on why it was disproportionate to tow your car, and forget the PCN this will not get overturned.

BTW, never chance anything re parking in London, the councils make shedloads out of this, so the streets are literally flooded with CEOs and tow trucks.

This post has been edited by Incandescent: Tue, 13 Mar 2018 - 18:35
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PASTMYBEST
post Tue, 13 Mar 2018 - 18:45
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Providing you keep to time scales you might as well appeal as there will be nothing more to pay, and you might get some money back. we need to see all the documents you received from the pound and the council photos.

That it was priority 1 makes it harder to win on disproportionate tow. But the council need to explain there basis for towing instead of just issuing a PCN, so not impossible


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cp8759
post Tue, 13 Mar 2018 - 18:48
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I think you have a reasonable chance to argue that towing was disproportionate, the council have to show that towing was a proportionate interference with your rights under Article 1 of the First Protocol of the European Convention on Human Rights.


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stamfordman
post Tue, 13 Mar 2018 - 18:53
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I know the area and it's a quiet back street housing estate so not a high priority in my view and certainly worth the trouble of an appeal.
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Mus123
post Tue, 13 Mar 2018 - 19:12
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Have attached some of the council photos showing where the car was parked.

Also, as mentioned by Stamfordman, it is a very residential area with no through road for general traffic going through the area as it is a dead end up the road.
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cp8759
post Tue, 13 Mar 2018 - 23:03
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Have a read of London Tribunals case 2030276743, I've also asked the Traffic Penalty Tribunal for a copy of Kembery v Bristol City Council (which would be very helpful in a case like this) but given how old it is I'm not sure they'll still have it on file.


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Mus123
post Wed, 14 Mar 2018 - 01:04
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QUOTE (cp8759 @ Tue, 13 Mar 2018 - 23:03) *
Have a read of London Tribunals case 2030276743, I've also asked the Traffic Penalty Tribunal for a copy of Kembery v Bristol City Council (which would be very helpful in a case like this) but given how old it is I'm not sure they'll still have it on file.


Many thanks for your help but I am struggling to find the Tribunals case you mentioned. Could you please point me in the right direction as I don't seem to get anything when I enter the number into the case name searchbar?

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cp8759
post Wed, 14 Mar 2018 - 09:26
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QUOTE (Mus123 @ Wed, 14 Mar 2018 - 01:04) *
QUOTE (cp8759 @ Tue, 13 Mar 2018 - 23:03) *
Have a read of London Tribunals case 2030276743, I've also asked the Traffic Penalty Tribunal for a copy of Kembery v Bristol City Council (which would be very helpful in a case like this) but given how old it is I'm not sure they'll still have it on file.


Many thanks for your help but I am struggling to find the Tribunals case you mentioned. Could you please point me in the right direction as I don't seem to get anything when I enter the number into the case name searchbar?

You need to put the appeal number in the "Case reference" box on the "ETA Register of Appeals" page.


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Mus123
post Wed, 14 Mar 2018 - 11:15
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QUOTE (cp8759 @ Wed, 14 Mar 2018 - 09:26) *
QUOTE (Mus123 @ Wed, 14 Mar 2018 - 01:04) *
QUOTE (cp8759 @ Tue, 13 Mar 2018 - 23:03) *
Have a read of London Tribunals case 2030276743, I've also asked the Traffic Penalty Tribunal for a copy of Kembery v Bristol City Council (which would be very helpful in a case like this) but given how old it is I'm not sure they'll still have it on file.


Many thanks for your help but I am struggling to find the Tribunals case you mentioned. Could you please point me in the right direction as I don't seem to get anything when I enter the number into the case name searchbar?

You need to put the appeal number in the "Case reference" box on the "ETA Register of Appeals" page.


Got it! Very helpful and will be incorporating this into the appeals letter. Thank you very much
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Mus123
post Fri, 16 Mar 2018 - 00:58
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I have come up with the following appeal letter (chopped and changed from some other appeal letters found on this forum and incorporated the advice from above). Any advice or suggestions would be greatly appreciated. Thanks

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

My vehicle was removed on 23/02/2018. The fine I have paid to recover the vehicle should be refunded. I would like to make the following representations:

Disproportionate action was taken
On the date of alleged contravention, the vehicle was parked without causing a hazard or obstructing any traffic or pedestrians. In addition, the level of traffic was significantly low due to it being a residential street. Furthermore, as I have never been involved in any vehicle contraventions, I cannot be considered a “persistent evader”. A number of sections within the Secretary of State’s Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions (“statutory guidance”) have not been adhered to in this regard:

8.14 “…removal activity should only take place where it gives clear traffic management benefits”.

8.20 “Where a vehicle is causing a hazard or obstruction the enforcement authority should remove”.

Chief Adjudicator Caroline Sheppard has publicly commented that “Councils should stop routinely towing away illegally parked cars and use the power only as a last resort”. This does not seem to have been considered in my case.

In other words, removal of the vehicle by the council was entirely unnecessary and disproportionate. The vehicle was not parked in such a manner as to disrupt traffic flow or pedestrians nor was it dangerous. The vehicle was removed during the quietest day of the week. I believe that the authority cannot justify removal in this instance. Removal without justification is a procedural impropriety on the part of the authority. In the event that the authority sees fit to reject these representations I will expect them to provide a full explanation of why the removal of my vehicle was proportionate and necessary and to fully justify the need for removal with evidence in their notice of rejection.

Incorrectly issued removal notice
The removal notice fails to state a time of removal, which is a mandatory field. This invalidates the removal notice.

Excessive charges
Section 4.3 of the Secretary of State’s Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions states that vehicle removal charges “…should be set no higher than required to meet the reasonable costs of the removals procedure. They should not generate a surplus”. I contest that the sum of £200 is vastly disproportionate to the actual cost incurred in performing the removal in this case. The journey between Tiger Way and Hackney Pound took 10 minutes including traffic on a Sunday afternoon; this can be verified using Google Maps.

Right of access to a fair hearing
Article 6 of the European Convention for Human Rights (“the Convention”) entitles every person to a fair hearing by an independent and impartial tribunal established by law. In this case the established tribunal is the Parking and Traffic Appeals Service (the “Appeals Service”). Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

My right of access to a fair hearing was obstructed. It was made wholly dependent on pre-paying not only the parking penalty charge, but also the charges in respect of the removal of my vehicle. Only if I paid these charges would the Council acknowledge my right to make representations and ultimately my right to a fair hearing with the Appeals Service.

In respect of removed vehicles it is evident that access to a fair hearing has been restricted to only those who have the financial means to prepay all the charges. If you cannot afford to pre-pay the charges then you are not given equal access to a fair hearing in the same manner as someone who can afford to pay. Access to a fair hearing is made conditional on a person’s ability to prepay. This condition is discriminatory. Discrimination occurs where a person is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified.

I contend that the Council acted in a way that is incompatible with Article 6 and also Article 14 of the Convention. There is no justification whatsoever for any incompatibility since the Council could have acted differently and compatibly with the Convention had they not deviated from the Traffic Management Act 2004 (“TMA 2004”).

Article 1 of the First Protocol of the European Convention on Human Rights states ‘no one shall be deprived of his possessions except in the public interest”. The vehicle was parked on a quiet residential road creating no obstacle to traffic or pedestrians therefore was not in public interest to be towed at great expense.

I was considered liable to pay a penalty charge. Therefore, I was lawfully entitled to make representations in accordance with those regulations made under section 80 of TMA 2004. As my vehicle was not immobilized (clamped) the relevant regulations are those given under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and they enable access to a fair hearing without any pre-payment or discriminatory condition. It is somewhat perplexing that a Regulation 9 penalty charge notice was served under TMA 2004 only for the Council to deviate from the proper procedure for making representations prescribed under this Act. I submit that such deviation is contrary to section 3 of the Human Rights Act 1998 and is also a “procedural impropriety” for the contravention stated on the penalty notice is a road traffic contravention subject to civil enforcement. It is undoubtedly the TMA 2004 that regulates civil enforcement and section 80 that regulates access to a fair hearing.

In the Appeals Service hearing of Douthit vs The London Borough of Hammersmith and Fulham (case 2030276743) it was determined that 'Traffic Management and Parking Guidance for London' issued by the Government Office for London in 1998 states at paragraph 11.5 that 'Removal action is appropriate where parked vehicles are causing an obstruction'. No obstruction was caused by the parking of my vehicle thus leading to no implications for traffic and pedestrians.

With no previous record of vehicle contraventions of this nature, I trust you will cancel the fine and issue a full refund based on the above representations. I look forward to hearing from you soon.

Yours faithfully
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cp8759
post Fri, 16 Mar 2018 - 01:12
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Much as I would like to see the Human Rights Act confined to the dustbin of legal history, let's use it where we can. I would amend slightly:

Article 1 of the First Protocol of the European Convention on Human Rights states ‘no one shall be deprived of his possessions except in the public interest”. It is trite law that interference with a qualified right as set out in the European Convention on Human Rights is allowed only if that interference is designed to pursue a legitimate aim and the interference is a proportionate one. The vehicle was parked on a quiet residential road creating no obstacle to traffic or pedestrians, therefore it cannot have been a proportionate interference with my property rights under the ECHR to tow the vehicle, nor can such interference be said to have been in the public interest. A PCN would have been a perfectly adequate and proportionate method of enforcing the parking restriction and the additional step of towing the vehicle was simply unnecessary. It is for the council to show that the interference with my property rights under Article 1 of the First Protocol was proportionate,

This post has been edited by cp8759: Fri, 16 Mar 2018 - 22:44


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Mus123
post Fri, 16 Mar 2018 - 12:21
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QUOTE (cp8759 @ Fri, 16 Mar 2018 - 01:12) *
Much as I would like to see the Human Rights acted confined to the dustbin of legal history, let's use it where we can. I would amend slightly:

Article 1 of the First Protocol of the European Convention on Human Rights states ‘no one shall be deprived of his possessions except in the public interest”. It is trite law that interference with a qualified right as set out in the European Convention on Human Rights is allowed only if that interference is designed to pursue a legitimate aim and the interference is a proportionate one. The vehicle was parked on a quiet residential road creating no obstacle to traffic or pedestrians, therefore it cannot have been a proportionate interference with my property rights under the ECHR to tow the vehicle, nor can such interference be said to have been in the public interest. A PCN would have been a perfectly adequate and proportionate method of enforcing the parking restriction and the additional step of towing the vehicle was simply unnecessary. It is for the council to show that the interference with my property rights under Article 1 of the First Protocol was proportionate,


Thanks cp8759, have amended.
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cp8759
post Fri, 23 Mar 2018 - 17:31
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These cases can help:

BS498: https://www.scribd.com/document/374695358/B...t-Protocol-ECHR

Kembery v Bristol City Council: https://www.scribd.com/document/374695480/R...ol-City-Council


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Mus123
post Fri, 23 Mar 2018 - 17:53
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QUOTE (cp8759 @ Fri, 23 Mar 2018 - 17:31) *


Thank you very much cp8759 but will have to hold onto these for any further communication with the Council. Had to submit the appeals form as I was in danger of missing the 4 weeks deadline which was today. I appreciate the assistance.
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cp8759
post Fri, 23 Mar 2018 - 17:58
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QUOTE (Mus123 @ Fri, 23 Mar 2018 - 17:53) *
QUOTE (cp8759 @ Fri, 23 Mar 2018 - 17:31) *


Thank you very much cp8759 but will have to hold onto these for any further communication with the Council. Had to submit the appeals form as I was in danger of missing the 4 weeks deadline which was today. I appreciate the assistance.

I imagined as much, to be honest these will be more useful at adjudication than when dealing with the council.


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Wretched Rectum
post Fri, 23 Mar 2018 - 18:01
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In an old thread about human rights & removal I came across this

QUOTE
I trust the Council will have regard to the recent Supreme Court judgement given on 26th July 2017 in the case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) where the impact of upfront fees to access a fair hearing was considered to be unlawful under both domestic and EU law because it has the effect of preventing access to justice.


Anyone know if its been considered by a parking adjudicator?
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cp8759
post Fri, 23 Mar 2018 - 18:06
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QUOTE (Wretched Rectum @ Fri, 23 Mar 2018 - 18:01) *
In an old thread about human rights & removal I came across this

QUOTE
I trust the Council will have regard to the recent Supreme Court judgement given on 26th July 2017 in the case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) where the impact of upfront fees to access a fair hearing was considered to be unlawful under both domestic and EU law because it has the effect of preventing access to justice.


Anyone know if its been considered by a parking adjudicator?

An adjudicator does not have any jurisdiction to strike down the regulations as unlawful, you'd need to take that argument to the High Court.


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