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Wandsworth Council J31, Entering and stopping in a junction box when prohibited
LMN
post Thu, 12 Jul 2018 - 12:26
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I wonder if someone can help me.
I have received a Penalty Charge Notice from Wandsworth Council.
The allege traffic contravention
“31 J Entering and stopping in a junction box when prohibited”
At 15:05:11.263 I entered the YBJ as the traffic in front was moving and the traffic light was green I had a reasonable expectation of being able to clear the YBJ without stopping
At 15:05:19.593 the traffic light turns amber while I was still in motion
At the most I could have been stopped in YBJ for 8 seconds
Do I have any chances appealing?
https://youtu.be/-g8jKEbh3zc

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post Thu, 12 Jul 2018 - 12:26
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hcandersen
post Fri, 20 Jul 2018 - 08:02
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When you entered the YBJ and all the way across you couldn’t see further ahead than the back of the bus, effectively the bonnet of your car.
You were in a single carriageway road, so your exit was totally limited by the bus ahead (and the one ahead of that!).
You had no idea about traffic conditions ahead.
You did not have, or shouldn’t have had, any expectations that you could exit the junction without stopping. This line would be rejected out of hand by an adj, so we might as well put it of the way now.

So what remains?

You’ve apparently made reps, but we don’t know when and we’ve not seen them.

If you have, then wait until the inevitable rejection comes back.

As regards miswordng, I cannot see this. The payment references are 28 days beginning on the date of the notice, the appeal references have a different reference date i.e. date of service. As far as I can see, the PCN complies. Section 4 and Schedule 1 apply:
https://www.legislation.gov.uk/ukla/2003/3/...edule/1/enacted

And if you want to consult the video but it is not online, then ask them for it. An adj would give short shrift to someone who for perhaps weeks wanted to view the video but didn’t raise the matter with the authority and instead tried to make this part of their grounds of appeal(not that it is).

This post has been edited by hcandersen: Fri, 20 Jul 2018 - 08:05
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PASTMYBEST
post Fri, 20 Jul 2018 - 08:22
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Its a long case, and reviewed so I have edited to only the relevant part


2170053479


It is completely understandable, for the reasons set out above, that the original Adjudicator may have missed a point that had greater credence than perhaps first appeared amongst many others.
Section 4(8)(a) of the London Local Authorities and Transport for London Act 2003 provides that A penalty charge notice under this section must [amongst other things] state … (iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice; … (v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable; (vi) the amount of the increased charge; … and (viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to the Act; and (8)(b) requires that they specify the form in which any such representations are to be made.
Paragraph 1(3) of the Schedule provides that the enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the penalty charge notice in question was served.
Mr Atlas correctly points out that in this case the Penalty Charge Notice states: ‘The penalty charge of £130 must be paid not later than the last day of the period of 28 days beginning with the date of this notice. If the penalty charge is not paid before the end of the 28 day period and no representations have been made, an increased charge of 50% to £195 may be payable and a charge certificate may be issued.’
Mr Atlas submits that this wording is not compliant with the requirements of the 2003 Act and, further, effectively limits the time he has to make representations.
I accept this submission. The wording does not comply with the requirements of the Act and therefore effectively limits the time a recipient has to make representations or, indeed, to pay the full penalty charge before a Charge Certificate is issued.
I have not deal with it as it was not an issue but for completeness the same applies to the reduced penalty period, although the requirements for different types of penalty charge notices are not all the same.
However, whilst it may be understandable that the original Adjudicator missed this particular issue, I do find that it is a fundamental one. The Enforcement Authority have simply not complied with the statutory requirements.
Accordingly, I accept the application for review and the appeal must be allowed.
No other issue therefore need be determined.

original adjudicator Gerald Styles

Reviewing adjudicator Henry Michael Greenslade
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hcandersen
post Fri, 20 Jul 2018 - 09:37
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But ths PCN keeps payment and appeals references totally separate as far as I can see - in the quoted case the authority were foolish enough to link the two with the words ‘or representations made’.




(The legislation is a dog’s breakfast in that if payment is not made a power resides in the authority to issue a CC, but we know this is limited by their duty to accept reps made up to the end of the longer appeals period.

But there’s no reason to expect the average owner to know this. IMO, the only logical message from the combined effect of the payment and appeals criteria is that the authority might have to consider reps once a CC has been issued! But in practice rather than by legal requirement they stay issung a CC until the appeals period has ended. However, IMO disregarding reps made after the 28-day period AND after a CC has been issued should not be determined or affected by the fact that a CC has been issued, the decision to disregard must be made solely on the basis of the reasons for lateness supplied by the recipient.)

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LMN
post Mon, 23 Jul 2018 - 11:18
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Many thanks hcandersen appreciate your thoughts in this matter
Yes I have made representation as English is not my first language my representation would nothing be like the so many that I read in these columns but as you said will wait till the rejection comes back
As regards miswording I am a bit confused in “date of notice” and “date of service”
The automated reply that I have received by email amongst the standard jargon mentions
“We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.”
I had received the PCN through post and not served to vehicle windscreen as mentioned in the automated reply
I have been reading about ybj and came across somewhere that if there are double yellow lines in the ybj it makes them invalid is this true ?
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LMN
post Wed, 15 Aug 2018 - 07:17
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QUOTE (stamfordman @ Tue, 17 Jul 2018 - 18:12) *
Yes video seems to have gone.

I have now received the NOR
I had received the PCN on 12 July
I made representations on 18 July and 22 July via the website
I received the NOR on 14 August
My arguments were
1 By removing the video from the website constitutes procedural impropriety as Wandsworth Council failed to provide me with evidence I am entitled to in order to defend myself against an allegation they have made
2 Only a part of the vehicle was in the YBJ and was prevented from moving because of the presence of the pedestrian crossing
3 The vehicle was not stopped for more than 6 seconds. I refer to previous cases where stopping for 6 to 7 seconds can just about be said to be nominal or de minimis. Case reference 2140012814 Appellant: Mr Petros Liapis and Case Reference: 2140013792
Appellant: Mr Gerard Gillingham
4 The pcn gives the wrong date for the service of the charge certificate; it should be 28 days from the date of service of the PCN, which is two working days after the date of the PCN. The Council are effectively threatening to increase the penalty charge by 50% two days earlier than the law allows them to. This is prejudicial and means that the amount demanded exceeds the amount due in the circumstances of the case.
I have attached the NOR
Should I simply pay up or is there something that I can take forwards
Would appreciate replies please
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LMN
post Thu, 16 Aug 2018 - 09:21
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I have now received the NOR
I had received the PCN on 12 July
I made representations on 18 July and 22 July via the website
I received the NOR on 14 August
My arguments were
1 By removing the video from the website constitutes procedural impropriety as Wandsworth Council failed to provide me with evidence I am entitled to in order to defend myself against an allegation they have made
2 Only a part of the vehicle was in the YBJ and was prevented from moving because of the presence of the pedestrian crossing
3 The vehicle was not stopped for more than 6 seconds. I refer to previous cases where stopping for 6 to 7 seconds can just about be said to be nominal or de minimis. Case reference 2140012814 Appellant: Mr Petros Liapis and Case Reference: 2140013792
Appellant: Mr Gerard Gillingham
4 The pcn gives the wrong date for the service of the charge certificate; it should be 28 days from the date of service of the PCN, which is two working days after the date of the PCN. The Council are effectively threatening to increase the penalty charge by 50% two days earlier than the law allows them to. This is prejudicial and means that the amount demanded exceeds the amount due in the circumstances of the case.
I have attached the NOR
Should I simply pay up or is there something that I can take forwards
Would appreciate replies please

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Incandescent
post Thu, 16 Aug 2018 - 10:10
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For moving traffic contraventions there is no statutory ground of "procedural impropriety", this only applies to parking. Stopped time of 6 seconds is not considered de minimis by adjudicators, the max we have see is 5 seconds. IMHO you'd be better off paying the discount, and put this down as a learning opportunity. However, there is nothing to prevent you getting the matter judged at London Tribunals, but it will be for the full £130 if you lose.

This post has been edited by Incandescent: Thu, 16 Aug 2018 - 10:12
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cp8759
post Thu, 16 Aug 2018 - 21:10
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I would take this to the tribunal, two reasons prompt me to say this:

1) The PCN gives the wrong information in relation to the date when the council can serve the charge certificate, and
2) The council has completely ignored your representations about the date for service of the charge certificate.

As per Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432), motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. Failure to give the correct statutory information on the PCN, and failure to consider representations, means that the only amount that may be properly demanded is nil.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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LMN
post Fri, 17 Aug 2018 - 14:34
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[Many thanks for that cp
Do you suggest that the two points you have raised are the only points that I should raise in the appeal?
Would appreciate the exact wordings to use in the appeal
Do you thing the following would have any bearings in the case for my defence
1 Stopped only for 6 seconds only part of the car was in the YBJ and that my action did not cause any traffic jam. I entered the YBJ when the traffic in front of me was moving and in my judgement would have cleared the YBJ
2 I could view the video on the council website for a couple o days and then the council decided to remove the video and are now asking for £10 if I need to record the video Is this fair? By such actions are they not withholding the evidence on which they have sent me the PCN and preventing me from preparing my defence
3 I read somewhere that if there were double yellow lines within the YBJ it is illegal. Is that true?

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cp8759
post Fri, 17 Aug 2018 - 21:16
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QUOTE (LMN @ Fri, 17 Aug 2018 - 15:34) *
[Many thanks for that cp
Do you suggest that the two points you have raised are the only points that I should raise in the appeal?
Would appreciate the exact wordings to use in the appeal
Do you thing the following would have any bearings in the case for my defence
1 Stopped only for 6 seconds only part of the car was in the YBJ and that my action did not cause any traffic jam. I entered the YBJ when the traffic in front of me was moving and in my judgement would have cleared the YBJ
2 I could view the video on the council website for a couple o days and then the council decided to remove the video and are now asking for £10 if I need to record the video Is this fair? By such actions are they not withholding the evidence on which they have sent me the PCN and preventing me from preparing my defence
3 I read somewhere that if there were double yellow lines within the YBJ it is illegal. Is that true?

Can you upload the email from the council where they say they want £10 for the video? That is obviously prejudicial and unfair and could be a further basis to challenge the PCN. Forget about the six seconds and the double yellow lines, those arguments won't work.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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LMN
post Sat, 18 Aug 2018 - 04:40
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Charge of £ 10 is mentioned in the NOR (see my post dates 16 August)
The wordings are “If you are unable to view the video online it can be viewed by appointment at Wandsworth Town Hall or copied to disc for an £10.00 administration fee”

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cp8759
post Sat, 18 Aug 2018 - 13:48
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Draft appeal, keep all bold and italics exactly as per the below, also include the RTF versions of https://www.bailii.org/ew/cases/EWCA/Civ/1996/946.html and https://www.bailii.org/ew/cases/EWHC/Admin/2011/295.html (A link to the RTF version is at the top of the page on the left) and also include the full text of the appeals quoted below (these can be found on the London Tribunals website). Also include a screenshot of the council website showing that the video isn't there. Ask for a postal decision.

-------------------------------
Ground 1: The alleged contravention did not occur:

While I accept my vehicle came to be stationery for a period of no more than six seconds, I content that the de minimis principle applies in these circumstances. While each case turns on its own facts, and the decision of one adjudicator does not bind another, I submit Petros Liapis v Transport for London (case reference 2140012814) as persuasive authority in this instance:

"The Appellant claims that his vehicle was only stopped for a few seconds and that this meant that there was no contravention. The Enforcement Authority say that the vehicle came to a stop for 7 seconds and that is sufficient time to prove that the vehicle stopped in the box junction.

The DVD shows the Appellant 's vehicle moving through the box junction following other vehicles and it comes to a complete stop. The issue is how long was the vehicle stopped (stationary) and whether that constituted this contravention. The dvd shows the vehicle stopped for 6 seconds before it starts moving. There is no minimum time for a vehicle to become stationary for the contravention to occur, but it has to be more than a few seconds, otherwise it is nominal or de minimis and does not constitute coming to a stop. 6 or 7 seconds can just about be said to be nominal or de minimis.

Accordingly, I am not satisfied that the contravention occurred and must allow this appeal
"

Ground 2: The penalty demanded exceeds the amount due in the circumstances of the case: The Penalty Charge Notice is not substantially compliant with the legislation:

The enforcement authority served a Penalty Charge Notice under section 4(2) of the London Local Authorities and Transport for London Act 2003. Section 4(8) provides that the PCN must state, amongst other things, "that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable".

The relevant 28 day period is found in paragraph 5 of schedule 1 to the Act, which specifies that:

"Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;
"

Paragraph 5 therefore prescribes that the enforcement authority may only increase the penalty charge if it has not been paid before the end of the period of 28 days beginning with the date of service of the PCN.

The PCN served by the enforcement authority however states that: "If the Penalty Charge is not paid before the end of the 28 day period, the charge may increase to £195.00 and we may serve a Charge Certificate seeking payment of the increased amount", the only period of 28 days mentioned on the Penalty Charge Notice is the period of 28 days beginning with the date of the notice.

While one might ponder why Parliament has required that the penalty charge notice must specify, under section 4(8)(iii) of the Act, that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice, but also that the 28 day period for the purposes of the charge certificate only starts with the date of service of the notice (which is two working days later), ultimately the legislation is what it is and the enforcement authority is required to comply with it if it wishes to lawfully impose penalty charges.

By purporting to empower itself to serve a charge certificate some two days earlier than is permitted, the enforcement authority is acting prejudicially and it is depriving the recipient of the PCN of two days during which the option of either making representations, or indeed payment the £130 penalty charge should still be available.

While the decisions in previous cases are not binding they can be persuasive and I submit Robert Atlas v London Borough of Barnet (case reference 2170053479) as persuasive authority in this instance. The decision and its review are lengthy and are attached in full to this appeal, however the relevant passages for the purposes of this appeal are as follows:

"Section 4(8)(a) of the London Local Authorities and Transport for London Act 2003 provides that A penalty charge notice under this section must [amongst other things] state … (iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice; … (v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable; (vi) the amount of the increased charge; … and (viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to the Act; and (8)(b) requires that they specify the form in which any such representations are to be made.

Paragraph 1(3) of the Schedule provides that the enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the penalty charge notice in question was served.

Mr Atlas correctly points out that in this case the Penalty Charge Notice states: ‘The penalty charge of £130 must be paid not later than the last day of the period of 28 days beginning with the date of this notice. If the penalty charge is not paid before the end of the 28 day period and no representations have been made, an increased charge of 50% to £195 may be payable and a charge certificate may be issued.’

Mr Atlas submits that this wording is not compliant with the requirements of the 2003 Act and, further, effectively limits the time he has to make representations.

I accept this submission. The wording does not comply with the requirements of the Act and therefore effectively limits the time a recipient has to make representations or, indeed, to pay the full penalty charge before a Charge Certificate is issued.
...
Accordingly, I accept the application for review and the appeal must be allowed.
"

I submit that the same principle applies in the present case, the Penalty Charge Notice does not show substantial compliance with the 2003 Act and it follows that the only penalty that may be demanded is nil.

Ground 3: The penalty demanded exceeds the amount due in the circumstances of the case: The enforcement authority has requested a £10 administrative fee as a condition of providing a copy of the video evidence:

The council has a duty at common law to act fairly in discharging its statutory functions (see R v The Secretary of State for the Home Department ex parte Fayed [1997] 1 All ER 228 at 230 per Lord Woolf MR). Failure by the council to provide the evidence it relies on will prejudice an appellant’s ability to consider whether they have reasonable grounds to contest the alleged wrongdoing.

In this instance the council removed the video evidence from its website before I had the opportunity to take legal advice. Assuming this was due to a technical glitch I asked the council to provide a copy of the video and assumed the matter could be promptly resolved, but to my amazement the council asserted that I could only be provided with a copy of the video evidence upon payment of a £10 administrative fee, at no point did the council offer to look into why the video might have disappeared from its website. This struck me as odd because most authorities will provide the evidence online, and those who don't, such as Transport for London, will provide video evidence on DVD free of charge. Needless to say, an enforcement authority is not empowered by the statute to levy any fees or charges beyond the Penalty Charge prescribed by law, whether for administrative costs or for anything else. I would add that the enforcement authority has not indicated the £10 fee would be refunded if the event of the PCN being cancelled so this would be an irrecoverable cost.

The principle of equality of arms before the law is a recognised principle of the English common law and it is not open to an enforcement authority to demand an upfront payment before disclosing evidence. As recent high profile cases have highlighted, failures in the disclosure process can interfere with the proper administration of justice, and I contend that just as in a criminal prosecution it is not open to the police or the CPS to charge any administration fee, whether it be for a preliminary disclosure under part 8 of the Criminal Procedure Rules or a statutory disclosure under section 3 of the Criminal Procedure and Investigations Act 1996, it is equally not permissible for an enforcement authority in a civil case such as this to charge any sort of administrative fee before evidence is disclosed.

It is a well established principle of the penalty charge regime that the only charge an enforcement authority may charge is the penalty charge set by law, and any attempt to collect any other amounts, whether to cover administrative costs or indeed anything else, is an ultra vires demand for money which renders the penalty charge unenforceable. I draw the tribunal's attention to London General Transport Services Limited v London Borough of Camden (case reference 2090198127) where the adjudicator held that:

"Considering the matter carefully, I find as a matter of law that, for the reasons set out above, the local authority are neither entitled nor empowered to impose any sum, whether for the method of payment or anything else, in addition to the statutory penalty charge imposed under the London Local Authorities and Transport for London Act 2003."

Binding authority for this proposition can be found in the High Court in London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) where the enforcement authority had demanded a 1.3% administrative fee to process credit card payments, and the High Court ruled that the enforcement authority had no powers to ask for payment of anything aside from the penalty charge itself.

I aver that in asking for a £10 administrative fee for disclosure of the video evidence the enforcement authority has acted prejudicially, in breach of the common law duty of fairness, in breach of the principle of equality of arms before the law, and also in breach of the statutory scheme which does not allow for any charges to be levied aside from the penalty charge set by law. I therefore respectfully submit that, in the circumstances, the council's conduct means the only amount that may be lawfully demanded is nil.

Ground 4: The amount demanded exceeds the amount due in the circumstances of the case: The enforcement authority has failed to consider my representations:

In my representations I challenged the PCN on the basis that the time-frame for the charge certificate is mis-stated on the PCN, this is in essence the issue described under ground 2 above. The Notice of Rejection is wholly silent on this matter and it does not appear the council considered this issue at all. I invite the tribunal to follow the finding in Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) where it was held, insofar as is relevant, that:

"The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed."

In this instance the response required was also a simple one, namely words to the effect that the council did not accept the meaning required by the regulations was not correctly conveyed on the PCN, or that any such discrepancy did not vitiate the penalty charge notice. However the Notice of Rejection is wholly silent on the matter, it follows that the enforcement authority cannot have properly discharged its statutory duty to consider this representation. I respectfully submit that, while a procedural impropriety is not a ground of appeal under the London Local Authorities and Transport for London Act 2003, nonetheless the council's failure to consider my representation means that the only amount that may be properly demanded is nil.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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LMN
post Mon, 20 Aug 2018 - 06:45
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[quote name='cp8759' date='Sat, 18 Aug 2018 - 14:48' post='1409111']
Draft appeal, keep all bold and italics exactly as per the below, also include the RTF versions of https://www.bailii.org/ew/cases/EWCA/Civ/1996/946.html and https://www.bailii.org/ew/cases/EWHC/Admin/2011/295.html (A link to the RTF version is at the top of the page on the left) and also include the full text of the appeals quoted below (these can be found on the London Tribunals website). Also include a screenshot of the council website showing that the video isn't there. Ask for a postal decision.

Thanks a million cp seems you have spent a lot of time helping me very much appreciate that

I have done exactly as you have said
will now wait to hear from them
Once again with many thanks
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LMN
post Sat, 22 Sep 2018 - 06:21
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QUOTE (cp8759 @ Thu, 19 Jul 2018 - 20:19) *
The pcn gives the wrong date for the service of the charge certificate, it should be 28 days from the date of service of the PCN, which is two working days after the date of the PCN.

The Council are effectively threatening to increase the penalty charge by 50% two days earlier than the law allows them to. This is prejudicial and means that the amount demanded exceeds the amount due in the circumstances of the case.

Procedural impropriety is not a ground of appeal for this type of pcn, you need to use the penalty exceeds ground instead.



A BIG THANKS TO ALL WHO HAVE HELPED

Adjudicator's Decision
The adjudicator, having considered the evidence submitted by the parties, has allowed the appeal.
The reasons for the adjudicator's decision are enclosed.
The adjudicator directs London Borough of Wandsworth to cancel the Penalty Charge Notice.
If any penalty or fees have already been paid, the Enforcement Authority must now issue a refund without delay. Enquiries regarding payment of the refund should be made to the Enforcement Authority.
Adjudicator's Reasons
The allegation in this case is entering and stopping in a box junction when prohibited. The Appellant has submitted a number of technical arguments which did not at first sight appear to have any merit.
However, he complains that he has been unable to access enforcement camera footage on the Enforcement Authority website. I too have been unable to access the footage despite satisfying the technical requirements indicated. It may be the Appellant has been fortunate on this occasion but this particular contravention is almost impossible to prove without moving footage and on the evidence I have seen I cannot be satisfied that the contravention occurred. Accordingly I allow the appeal.
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cp8759
post Sat, 29 Sep 2018 - 13:38
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Well I have to say I'm not that happy that the appeal did not at first sight have any merit, as I think it was a fairly solid case. Still, a win's a win.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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LMN
post Sat, 29 Sep 2018 - 15:00
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True a win is a win cp
Many thanks to you if you wouldn't have helped may be I would not have gone to the appeal
thanks
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