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Camden - PCN Contravention 21c, car towed, Parked in suspended bay and towed
Camdener
post Tue, 28 May 2019 - 17:50
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Hi all

I parked on my usual road, where I have a resident's parking permit, on Sunday 12 May at approximately 9 p.m. A PCN was issued at 8.39am the following day as the bay I was parked in turned out to be suspended for the previous Friday and that day - photo of sign from the Council is at https://ibb.co/dG0xdth

I left for work before 8.30am, and as my route to work does not take me past this bay, I did not notice that my car was parked in the suspended bay and so it was towed at around 11am the same day. Instead, I looked for my car on Thursday 16 May, when I checked online through the trace.london service and saw that it was in the pound (I guess rather that than stolen!)

I got the car out of the pound on Friday 17 May, paying £385 for the pleasure. I have been out of the country until today (in the meantime receiving another PCN for a suspended bay which was not announced until after I went away, but that's a different issue...).

I'm not sure I have any recourse over this, other than going for the grace period of 10 minutes not being applied before the PCN was issued.

Please see the photos of both sides of the PCN, the "Rights to make representations" document I received at the pound and a couple of the many many photos that the CEO took.

PCN: https://ibb.co/ggKYfvf and https://ibb.co/nDvyQhY
Representations: https://ibb.co/TY3J3RY and https://ibb.co/HBB9j2t
Photos: https://ibb.co/PDq7HvH and https://ibb.co/PNsvyBM

If I do want to challenge, what route do I need to take considering I have already paid the fine? I assume it's through camden.gov.uk/pcnobjections as per the "Rights to make representations" document, though that's the same as making a challenge when nothing's been paid so I'm not confident in that.

Thanks for any advice, please let me know if anything is unclear

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Incandescent
post Tue, 28 May 2019 - 18:34
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How near were you to the prominent suspension sign ! Is your's the blue car next to the removal van ? If it is then I would suggest towing was a disproportionate penalty as clearly there was plenty of room for the removal gang.

I don't think you have any chance of getting the PCN cancelled, so better to appeal on "disproportionate penalty". This would come under statutory grounds: -

"the penalty exceeded the relevant amount in the circumstances of the case"

You might get an adjudicator to agree, but it will be a gamble, but you've already paid all there is to pay, so might get back the tow and storage fees. It is a no-brainer to appeal, BTW, as you won't get charged anything extra if you lose. However, first you must submit reps to the council.Only when they reject this can you register an appeal with London Tribunals.

This post has been edited by Incandescent: Tue, 28 May 2019 - 18:38
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PASTMYBEST
post Tue, 28 May 2019 - 18:59
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We need to see all of the council photos particularly one of the sign showing the reason for suspension The PCN was issued at 08.39 this could well be within the grace period


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Mad Mick V
post Tue, 28 May 2019 - 19:23
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+1

http://forums.pepipoo.com/index.php?showto...t&p=1440251

Mick
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Camdener
post Wed, 29 May 2019 - 13:16
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QUOTE (PASTMYBEST @ Tue, 28 May 2019 - 19:59) *
We need to see all of the council photos particularly one of the sign showing the reason for suspension The PCN was issued at 08.39 this could well be within the grace period



Here's a Google Drive with all the photos, is that helpful?

QUOTE (Incandescent @ Tue, 28 May 2019 - 19:34) *
How near were you to the prominent suspension sign ! Is your's the blue car next to the removal van ? If it is then I would suggest towing was a disproportionate penalty as clearly there was plenty of room for the removal gang.

I don't think you have any chance of getting the PCN cancelled, so better to appeal on "disproportionate penalty". This would come under statutory grounds: -

"the penalty exceeded the relevant amount in the circumstances of the case"

You might get an adjudicator to agree, but it will be a gamble, but you've already paid all there is to pay, so might get back the tow and storage fees. It is a no-brainer to appeal, BTW, as you won't get charged anything extra if you lose. However, first you must submit reps to the council.Only when they reject this can you register an appeal with London Tribunals.


That's a very good point on the proportionality, the other photos (as per Google Drive ) do appear to show that the lorry had plenty of room to load.

I'm hoping I can go down both the 10 minute grace period and disproportionate penalty routes to improve my chances, unless anyone on here recommends otherwise?
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cp8759
post Wed, 29 May 2019 - 20:11
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The grace period is your strongest point. Do not submit anything without putting a draft on here first.


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Camdener
post Mon, 3 Jun 2019 - 09:51
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QUOTE (cp8759 @ Wed, 29 May 2019 - 21:11) *
The grace period is your strongest point. Do not submit anything without putting a draft on here first.


Would the following be ok?


I am appealing the decision under two grounds:

  1. The penalty exceeded the relevant amount in the circumstances of the case.
  2. The penalty was issued within the 10 minute grace period applicable.

Based on the photographic evidence (as provided and relied upon by the council) it is clear that the councils decision to issue a ticket, and then tow my car was disproportionate. The pictures make it very obvious that there was no need to tow my car. The reason given for the parking suspension was a house-move – yet it is clear from the pictorial evidence that there was ample space for the moving van to load and unload in the open space to the rear of my carefully parked car. In the circumstances it is impossible to see how the council's reaction, to tow my car, could have been a reasonable or proportionate response.

Additionally or alternatively, the parking bay suspension came into effect at 830am on 13 May 2019. Yet, in clear contravention of the legally mandated “10 minute grace period”, my ticket was issued only nine minutes after the suspension came into effect. Based on the principles as set out in 218042379A, due to the council’s issuance of a ticket prior to the “10 minute grace period”, I do not have a case to answer.

I am therefore demanding the council refund me the £385.00.
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cp8759
post Mon, 3 Jun 2019 - 12:19
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I'm not sure that'll do. Download the draft I put here http://forums.pepipoo.com/index.php?s=&...t&p=1489296 and read ground 1, your circumstances are slightly different but the legal provisions that apply are the same.


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Camdener
post Mon, 3 Jun 2019 - 21:19
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QUOTE (cp8759 @ Mon, 3 Jun 2019 - 13:19) *
I'm not sure that'll do. Download the draft I put here http://forums.pepipoo.com/index.php?s=&...t&p=1489296 and read ground 1, your circumstances are slightly different but the legal provisions that apply are the same.


Thanks. I've tweaked the provided wording a very small bit, hopefully it's sufficient.

Is there no basis for the towing being disproportionate in your opinion?

Ground for appeal: There has been a procedural impropriety on the part of the enforcement authority and the penalty demanded exceeds the amount due in the circumstances of the case:

The starting point is that the vehicle was parked in a designated parking space and, outside of the hours for the bay being suspended, any motor car holding a valid residential permit may park in that parking bay. The restricted hours were 8.30am to 6.30 pm on the date of the alleged contravention, and my vehicle had been lawfully parked prior to 8.30 am on that date.

It is accepted that at 8.30 am my vehicle ceased to be lawfully parked, however I submit that until a period of 10 minutes had elapsed, no penalty was payable even though a contravention had been committed. This is because regulation 4 of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides as follows:

Imposition of penalty charges
4.— (1) Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle—

(a) a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London);
(b) a parking contravention within paragraph 3 of that Schedule (other parking contraventions in Greater London) in a civil enforcement area in Greater London; or
© a parking contravention within paragraph 4 of that Schedule (parking contraventions outside Greater London) in a civil enforcement area outside Greater London.

(2) Paragraph (3) applies in relation to a contravention mentioned in subparagraph (a) to © of paragraph (1) where a vehicle is stationary in a designated parking place and the vehicle has been left beyond the permitted parking period.

(3) No penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes.

(4) In this regulation—

(a) “designated parking place” means a parking place established by virtue of an order made under section 1, 6, 9, 32(1)(b), 35 or 45 of the Road Traffic Regulation Act 1984(3);
(b) “permitted parking period” means—
(i) a period of parking that has been paid for as authorised by or under any order made relating to the designated parking place; or
(ii) a period of parking for which no charge is payable as authorised by or under any order made relating to the designated parking place.

Up until the time of 8.30 am, my vehicle had been lawfully parked in a designated parking place during a period for which no charge is payable, as per regulation 4(4)(b)(ii) above. It follows that by virtue of regulation 4(3), even though the vehicle was in contravention, no penalty charge was payable under the general regulations.

Regulation 9A(2) provides that:

(2) Except as provided by the following paragraphs a penalty charge notice with respect to the vehicle may be served only by the fixing of a notice to the vehicle by a civil enforcement officer who has reason to believe that a penalty charge is payable with respect to it.

It therefore follows that a civil enforcement officer cannot serve a PCN to a vehicle in contravention unless he has reason to believe that a penalty charge is payable with respect to that vehicle. During the 10 minute suspended enforcement period, even though the vehicle is in contravention, no penalty is payable and it follows that a CEO could not have reason to believe that a penalty charge is payable.

Service of a PCN in such circumstances is ultra-vires, it is also a procedural impropriety. It follows that even though the alleged contravention occurred, the appeal must be allowed.
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cp8759
post Tue, 4 Jun 2019 - 09:01
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At the end replace "the appeal must be allowed" with "the PCN must be cancelled", but other than that you're good to go.

There is always in principle an argument about proportionality as per Richard Kembery v Bristol City Council (BS881, 29 March 2005) here http://bit.ly/2WRybfN but London adjudicators have been unwilling to follow that so far. In any case the council won't understand it but I suppose we could bring it up if it gets to the tribunal.


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Camdener
post Thu, 20 Jun 2019 - 16:25
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So the rejection of my representations has happened as expected. Apparently the 10 minute rule didn't apply - as it is not in line with their "enforcement policy".... as if that's suddenly the law. I have uploaded the letter with the Notice of Appeal form here:
Updated link

Please could I get some assistance on the best way to appeal, especially on whether I should fill the form in or say "details of appeal to be provided" in the form?

Many thanks

This post has been edited by Camdener: Fri, 21 Jun 2019 - 06:15
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cp8759
post Thu, 20 Jun 2019 - 20:32
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The letter link doesn't work, you need to right click the file in google drive, click share and then "get shareable link"


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Camdener
post Fri, 21 Jun 2019 - 06:16
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QUOTE (cp8759 @ Thu, 20 Jun 2019 - 21:32) *
The letter link doesn't work, you need to right click the file in google drive, click share and then "get shareable link"


Hopefully that works now!
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hcandersen
post Fri, 21 Jun 2019 - 07:27
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They're wrong.

The power to suspend a bay administratively i.e. without formally amending the restrictions in the parking place, only arises because it is a designated parking place. I'm afraid Catch 22 applies to their logic.

Disproportinate!!
Not this old chestnut again.

And the removal lorry parked on the other side of the road with its driver's door open because, presumably, it couldn't get into the suspended area???

So:
10-minute rule;
False reasoning in their NOR;


But OP, you're hardly on the side of the angels if a warning sign was erected in April, are you?

This post has been edited by hcandersen: Fri, 21 Jun 2019 - 07:29
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PASTMYBEST
post Fri, 21 Jun 2019 - 11:53
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Case reference
2170123723
Appellant
Amy MacDougall
Authority
London Borough of Camden
VRM
KC55AXP

PCN Details
PCN
CU46911325
Contravention date
06 Jan 2017
Contravention time
08:02:00
Contravention location
Camden Street
Penalty amount
GBP 130.00
Contravention
Parked wholly/partly in a suspended bay or space

Referral date


Decision Date
22 Apr 2017
Adjudicator
Jennifer Shepherd
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and refund forthwith the penalty charge and the release fees paid.
Reasons
I heard from Mr Pedro, the partner of the appellant at a hearing today.
The appellant makes several points about the validity of the suspension of this bay.
In the first place it is said that Ms MacDougall and Mr Pedro both parked the car together for the last time before the Christmas festivities on Christmas Eve in this bay immediately outside the lowrise flats where they live. It remained there until 6 January when the Penalty Charge Notice was issued. They are adamant that there was no suspension warning sign there on that day nor on any of the days upon which they walked past the bay over the Christmas period. The first that they were aware that there had been a suspension was when they discovered that the car had been removed, and they noticed the yellow suspension sign on the post some 3 or 4 vehicle lengths away. I found Mr Pedro an honest witness and gave weight to his evidence that there was no yellow suspension sign erected up to 14 days before the date of the suspension itself, as claimed by the Authority.
I have considered the officer's record as to the suspension, on which the council relies for the assertion that the suspension sign was indeed erected 14 days prior to 6 January. I note that the wording of the record is not in terms conclusive of the fact that a sign had been erected – it merely seems to confirm that an order for suspension had been made. To that extent therefore and taken together with the persuasive evidence of Mr Pedro I conclude that there is some confusion about when the suspension sign was in fact erected.
I also take into account Mr Pedro's evidence that during this period there were multiple suspensions erected over a period of time in this street and for short periods. It is in those circumstances well within the bounds of likelihood that the keeping track of the suspensions and necessary signage had become difficult.

There is force in the argument that the officer should have allowed a 10 minute period of grace before issuing the Penalty Charge Notice, in line with Section 2 of the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015. This is the provision which applies where a vehicle is stationary in a designated parking place and been left beyond the permitted parking period. The crucial element is that the initial parking must have been lawful. In this case a course it was, at the time the vehicle was left the suspension was not actually in force, even if there is debate about when the warning sign was erected. The suspension came into force at 8 AM on the morning of 6 January and the PCN was issued at 8:02 AM. In the circumstances I conclude that the issue of this PCN was not compliant with the requirements of the "10 minute grace period" regulations and that the appeal could be allowed on that basis.

A final point is on the wording of the sign itself. The appellant points out that it was imprecise, referring to the suspended spaces in relation to the numbers of properties on the opposite side of the street. This can be contrasted with a sign relating to a later suspension (one of the series) in the same bay, a photograph of which was produced by Mr Pedro and which refers to property numbers on the side of the street on which the bay is situated.
Authority Response


Decision Date
24 Jun 2017
Adjudicator
Henry Michael Greenslade
Previous decision
Appeal allowed
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and refund forthwith the penalty charge and the release fees paid.
Reasons
This is an application for review by the Enforcement Authority on the basis that the original Adjudicator has erred in law.
In effect, Enforcement Authority ground is that the original Adjudicator should not have held that Regulation 4(3) of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, as inserted by Regulation 2 of the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015, that no penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes, does apply.
The Enforcement Authority submit that when a bay is suspended, as was the position in this present case, the prevision cannot apply.
In many cases it will not and certainly will not if the vehicle is parked after the suspension comes into force.
In this case the suspension came into force at 08:00 and the Penalty Charge Notice was issued at 08:02.
The vehicle was in a resident parking bay for which it was assigned a resident parking permit. The owner had paid to park their vehicle in the bay by purchasing the permit. It is irrelevant whether it is a physical or virtual permit. Regulation 4(4)(b) of the 2007 Regulations, as amended therefore applies because a period of parking that had been paid for as authorised by or under any order made relating to the designated parking place and that period ended at 08:00.
Considering the submission before me carefully I find no ground for review of the original Adjudicator’s decision, which therefor stands.
____________________________________________________________


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cp8759
post Sun, 23 Jun 2019 - 18:29
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For now I'd just go with the "detailed grounds to follow" approach and let's see if they contest.


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Camdener
post Mon, 24 Jun 2019 - 14:09
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Thanks all, I will go ahead with the appeal. Is the grounds for appeal "the contravention did not occur" or "at the time the vehicle was clamped or removed there was no power to do so or the power had not arisen"?
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cp8759
post Mon, 24 Jun 2019 - 16:26
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Can you tick both?


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Camdener
post Mon, 1 Jul 2019 - 16:06
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I've now appealed. Hearing should be 1st August.

What is the evidence I should be supplying?
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cp8759
post Mon, 1 Jul 2019 - 16:10
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First let's see what the council supplies, upload their evidence on here when you get it (they will upload it to the tribunal site).


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