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FightBack Forums _ Council Tickets & Clamping and Decriminalised Notices _ PCN Code 27 and Towed car (ENFIELD)

Posted by: n101 Fri, 27 Apr 2012 - 00:09
Post #694165

Hi,
I'm new to this forum but have been doing a LOT of reading on this site since last week. Despite all the great advice I’ve seen, none of the cases are identical to mine, so I’m a little stuck. You people seem like the perfect ones to turn to, so I do hope you can help me!
On 19/4/2012, approx 8.50am, I parked my car outside a house on the street opposite to the hospital where I work. I returned at 5.10pm and discovered it missing. Long story short:
I called 999 (I panicked!) and they told me to call 101. They had no sign of my car being found abandoned on their database and the operator asked there were any street signs or markings which indicated that car towing took place on the road. I answered no. She then gave me the number for ‘TRACE’ and advised me to call them. I did and was told that my car had been clamped and was being held at Enfield Council car pound. I was given the number for Enfield Council, so I called them and was informed that the release fee would be £255.
I went to the car pound (via home to collect the relevant docs) and received the following documents (minus the photos of the car). I was also given the appeal form. I was, as expected, made to pay the full £255 (£55 for PCN and £200 for the tow charge) for the release of my car. Despite asking, I wasn't allowed to pay the PCN at a later date, or pending an appeal. I was told by the guy serving me that I could only get my car back if I paid the tow charge AND PCN.
I got in touch with the council and requested the photos be posted to me (this was accompanied by the letter dated 21/4/12).
I am aware that the boot of my car overhangs across the driveway slightly, but I ensured there was ample room for any cars to get in or out, and even if I did deserve the PCN, I think the towing was too excessive. Also, please make a note of the timings of the photos, and the timings on the PCN (you can even see the tow truck in the photos at the time the CEO was observing my car). I was also informed (via email by the council) that the car was towed at 11.15am (my car was observed between 11.06am and 11.08am).
So – what do you think of my case? Many thanks for taking the time to read this, your help will be sorely appreciated!











Posted by: Bogsy Fri, 27 Apr 2012 - 09:40
Post #694231

Can you link to the location via google streetview?

Posted by: n101 Fri, 27 Apr 2012 - 11:31
Post #694268

Just my luck the house was having its driveway done at the time Google Street View came along! I was essentially parked where the white van is.

http://maps.google.com/maps?q=Ridge+Crest,+Enfield,+United+Kingdom&hl=en&ll=51.664209,-0.106518&spn=0.000002,0.001203&sll=-3.137768,-60.493357&sspn=0.065991,0.07699&oq=ridge+crest&t=h&hnear=Ridge+Crest,+Enfield,+United+Kingdom&z=20&layer=c&cbll=51.664209,-0.106518&panoid=J05rMuMevKf3oRgjvoYOOA&cbp=12,258.77,,0,16.13

http://maps.google.com/maps?q=Ridge+Crest,+Enfield,+United+Kingdom&hl=en&ll=51.664212,-0.106749&spn=0.000002,0.001203&sll=-3.137768,-60.493357&sspn=0.065991,0.07699&oq=ridge+crest&t=h&hnear=Ridge+Crest,+Enfield,+United+Kingdom&z=20&layer=c&cbll=51.664212,-0.106749&panoid=14lPPcTg-Kln3g-SM4uOCQ&cbp=12,156.73,,0,26.47

Thank you!

Posted by: Bogsy Fri, 27 Apr 2012 - 12:44
Post #694295

Thus far I would make your primary appeal point that no wheel was adjacent to the dropped footway and any overhang should be considered as de miminis. I would refer the council to PATAS case 211026505A and send a copy with your appeal. You can obtain a copy from the PATAS website.

http://www.patasregistersofappeals.org.uk/StatReg/StatRegAdvanced.aspx

Then include the text below. Keep all underlining.

I also bring to the council's attention the matter of procedural impropriety. The council has incorrectly applied those charges specified under section 101A of the Road Traffic Regulation Act 1984 in regard to the collection of my vehicle when the correct charges to apply are those under section 102(2A). Paragraph 1(1)(b) within Schedule 9 of the Traffic Management Act 2004 confirms this assertion. The charges under s.101A apply only when the vehicle being recovered is one that was considered to have the appearance of being abandoned and its disposal is pending. Clear evidence of this is found under regulation 18 of The Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008.Therefore, the council had no lawful right to insist the penalty charge be paid when I collected my vehicle nor did the council have any right to retain my vehicle until I also paid the removal charges. A council operating under civil enforcement powers is not given the same power to retain that is given to a council operating under criminalised enforcement powers. This is made quite clear under s.102 RTRA 1984. The power to retain until all charges are paid is purposely withheld, not only so that those rights that follow the service of a regulation 9 PCN can be fully exercised, but also because the right to retain is inappropriate for a civil matter. The council also had no right to administer the appeal process regulated under Part 4 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Part 4 is made pursuant to s.101B RTRA 1984 and yet where enforcement under the TMA 2004 occurs and a penalty charge is imposed then any appeal must be pursuant to and in accordance with section 80 TMA 2004. As my vehicle was not immobilised the council should have administered the appeal process under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 as these are the regulations that satisfy s.80(1)(a) TMA 2004. It is no coincidence that had the council correctly applied those charges under s.102(2A) RTRA 1984 then access to the Part 2 appeal process would not have been obstructed.

Before my vehicle was removed the council served a regulation 9 PCN. The council has not only denied me the opportunity to pay the PCN at a time of my choosing within the statutory 28 day period but they have also denied me the opportunity to make an informal challenge and the right to receive and respond to an NtO. The PCN and statute clearly bestow these rights upon me and it is no coincidence that had s.102(2A) been correctly applied then none of these rights would have been interfered with. If the council are advocating that these rights are not applicable then in essence the council is suggesting the PCN is a notice filled with lies. If the PCN has no validity then it is a nullity and thus there can be no penalty charge and no lawful CEO removal.

Posted by: n101 Sun, 29 Apr 2012 - 00:38
Post #694728

Thank you so much, Bogsy! Would you suggest that I also keep the underlined words underlined in the letter, also? Thanks again!

Posted by: hcandersen Sun, 29 Apr 2012 - 06:24
Post #694736

Given that your financial downside in pursuing reps and possibly an appeal is only your emotional investment and the cost of your own time it's worth considering disputing the issue. Also the punishment could be seen as being disproportionate to the act.

The question is - how to play this?

I would agree and disagree with Bogsy's suggestion.

I agree that something along these exact lines could be submitted, but IMO to the adj. What I think your approach should focus on for your reps is the council's reference to the London Local Authorities Act 2000. This was prospectively repealed by the TMA and AIUI actually repealed by order in 2008/2009 when it was replaced by the TMA's provisions and so if you could get the council to state in their response to your reps that they'd used this as their or part of their legal frame of reference then IMO you could advance an appeal to the adj on the grounds of procedural impropriety.

Perhaps if Bogsy could re-word his post in the context of the LLA (and ss 9 -14 go to exactly the same point) you might be able to push the council's response in the right direction.

HCA

Posted by: n101 Mon, 30 Apr 2012 - 13:54
Post #695221

Thanks HCA, definitely worth looking into. Just to check Bogsy - is the PATAS case you are referencing this one: http://www.patasregistersofappeals.org.uk/StatReg/case.aspx?caseref=211026505A (the link you provided didn't work on my computer)?

And is there any way you can incorporate HCA's advice into the statement you provided for me? Thanks, I really do appreciate your help.

-n101-

Posted by: qafqa Mon, 30 Apr 2012 - 14:16
Post #695231

QUOTE
http://www.patasregistersofappeals.org.uk/...eref=211026505A (the link you provided didn't work on my computer

If you haven't been able to see case number 211026505A because that link went to
an error page go via the Search button here:

http://www.patasregistersofappeals.org.uk

Type or paste the number into the Case Reference (10 characters) box and click Search.

Posted by: Bogsy Mon, 30 Apr 2012 - 14:48
Post #695243

QUOTE (n101 @ Mon, 30 Apr 2012 - 14:54) *
And is there any way you can incorporate HCA's advice into the statement you provided for me? Thanks, I really do appreciate your help.


Sorry I've not got sufficient free time to research the 2000 Act and unearth what precisely has or has not been revoked and rework my text to suit.

Posted by: n101 Mon, 30 Apr 2012 - 14:51
Post #695245

Thank you qafqa - that is what I did to find the link I provided but it turns out mine goes to an error message, too!

Thanks again, much appreciated smile.gif

-n101-

PS: looking forward to hearing from you, Bogsy wink.gif (sorry, I'm being pushy, I know!)

Posted by: n101 Mon, 30 Apr 2012 - 15:24
Post #695256

Hi Bogsy, you must have sent your message as I was writing mine. Thank you for all your help, I really am grateful. I'll compose my letter within the next few days for everybody's perusal. Thanks!

Posted by: n101 Thu, 3 May 2012 - 01:14
Post #696302

Here you go:

RE: PCN: EFxxxxxxxx
VRN: xxxx xxx


Dear Sirs,

I am writing with regards to PCN xxxxxxx and the subsequent removal of my car. I work at Chase Farm Hospital and parked my car on Ridge Crest at approximately 8.50am on 19/4/2012. I returned to my vehicle at the end of day, 5.10pm, to discover it missing. After making many phone calls, I discovered it had been towed and was being held by Enfield Council at Crown Road Vehicle Park. Upon payment of the PCN and car release fee (I was told by the officer at the desk that in order to release my car, I must pay the PCN there and then), I requested Enfield Council post me the photographs of my ‘contravention’. I would like it to be noted that while the CEO observed my vehicle between 11.06am and 11.08am, in the photographs, I could see the tow truck in the background, and even a part of it hanging over my vehicle. I was informed by Enfield Council via email, that my car was removed at 11.15am.

I would also like to bring to the council’s attention that no wheel was adjacent to the dropped footway and it is my opinion that any overhang should be considered as de miminis. I respectfully refer you to the Parking Appeals Traffic Appeals Service case 211026505A (Mrs Roheama Cleghorn v. Redbridge), a copy of which, I have enclosed with this letter.

I also bring to the council's attention the matter of procedural impropriety. The council has incorrectly applied those charges specified under section 101A of the Road Traffic Regulation Act 1984 in regard to the collection of my vehicle when the correct charges to apply are those under section 102(2A). Paragraph 1(1)(b) within Schedule 9 of the Traffic Management Act 2004 confirms this assertion. The charges under s.101A apply only when the vehicle being recovered is one that was considered to have the appearance of being abandoned and its disposal is pending. Clear evidence of this is found under regulation 18 of The Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008. Therefore, the council had no lawful right to insist the penalty charge be paid when I collected my vehicle nor did the council have any right to retain my vehicle until I also paid the removal charges. A council operating under civil enforcement powers is not given the same power to retain that is given to a council operating under criminalised enforcement powers. This is made quite clear under s.102 RTRA 1984. The power to retain until all charges are paid is purposely withheld, not only so that those rights that follow the service of a regulation 9 PCN can be fully exercised, but also because the right to retain is inappropriate for a civil matter. The council also had no right to administer the appeal process regulated under Part 4 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Part 4 is made pursuant to s.101B RTRA 1984 and yet where enforcement under the TMA 2004 occurs and a penalty charge is imposed then any appeal must be pursuant to and in accordance with section 80 TMA 2004. As my vehicle was not immobilised the council should have administered the appeal process under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 as these are the regulations that satisfy s.80(1)(a) TMA 2004. It is no coincidence that had the council correctly applied those charges under s.102(2A) RTRA 1984 then access to the Part 2 appeal process would not have been obstructed.

Before my vehicle was removed the council served a regulation 9 PCN. The council has not only denied me the opportunity to pay the PCN at a time of my choosing within the statutory 28 day period but they have also denied me the opportunity to make an informal challenge and the right to receive and respond to an NtO. The PCN and statute clearly bestow these rights upon me and it is no coincidence that had s.102(2A) been correctly applied then none of these rights would have been interfered with. If the council are advocating that these rights are not applicable then in essence the council is suggesting the PCN is a notice filled with lies. If the PCN has no validity then it is a nullity and thus there can be no penalty charge and no lawful CEO removal.

I also ask the council to refer to London Local Authorities Act 2000 sections 9-14.

It is my contention that my vehicle was not parked in such a manner that removal in this instance was either proportionate or necessary. It is my belief that the enforcement authority cannot justify removal in this instance. Removal without justification is a procedural impropriety on the part of the enforcement authority. In the event that the enforcement 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.

Due to the above given representations I require you to refund both the penalty charge and removal fee forthwith, totalling a sum of £255. In the event of these representations being rejected I will have no hesitation in taking this matter to adjudication, and will be requesting costs on the grounds that the enforcement authority acted unreasonably and vexatiously in not properly considering and accepting valid representations at the earliest opportunity.


Yours Faithfully,


xxxxxxxxx

Bogsy: Thank you for your help - I looked into your references and I know I never would have found them on my own, so thanks again, I am very grateful.

HCA: I read and re-read your post, and I'm still trying to find ways to incorpate LLA section 9-14 into the letter whilst making it look like a natural fit to what has already been written. I've added it, but am unsure how I can add to it (I don't want to sound uninformed!) - is there any way you could expand on the points a bit, and then I can add them to my letter?

Many thanks - now, feel free to read and criticise!

PS: I'll be abroad from tomorrow afternoon until Tuesday. I'll still be in Europe and have been assured that I have wi-fi in my hotel, so I will be checking regularly. If you reply and I haven't responded, please don't think me rude - it just means I haven't got access to the net!

Thanks,

-n101-

Posted by: SchoolRunMum Thu, 3 May 2012 - 17:05
Post #696457

Google 'London Councils Code of Practice for clamping and removals' and you will find a PDF version of London Councils' Code of Practice on Traffic enforcement. Enfield claim to adhere to this Code of Practice but if you read it you should find several points where they haven't applied the COP. It includes definitions to do with the priorities of which vehicles should be removed and it also stipulates situations where an immediate towaway may be valid, otherwise the normal procedure for a non-absolute contravention is for a passing CEO to first observe to check for exemptions, then issue a PCN, then report it for possible removal if it's a priority (in that order). It says they can do immediate tows but mainly where a CCTV has spotted a car in a bus lane, etc.

I wonder if the towaway truck was driving round looking for vehicles to tow and the on-board CEO jumped out and slapped a PCN on then towed immediately (against the COP in my view). You can find out if it was just one CEO by comparing which CEO issued the PCN to the CEO who authorised the removal. If it's unclear then in your appeal put the Council to proof that they followed the COP and that two CEOs were involved and that a measured individual decision was made as per the COP. It doesn't look like it was to me! Looks like the CEO on the tow truck shouted, 'look, there's one! Let's see how quickly we can do this...'

The second thing to read I would recommend is the 'LONDON BOROUGH OF ENFIELD STAKEHOLDER CONSULTATION ENFIELD PARKING ENFORCEMENT PLAN JUNE 2008' which I have open here as a PDF but can't seem to link. It also mentions there is a Parking Charter on their website but I found that to be very bland, just paying lip-service to the idea of consumer openness IMHO.

Anyhoo, the Stakeholder Consultation document is worth Googling as it has such gems as:

''Removal of contravening vehicles
The clamping and removals of vehicles can be used to enhance and improve the
enforcement of parking regulations with clamping providing a visible deterrent, and
removal being used to combat dangerous and inconsiderate parking. The London
Councils provide a code of practice for clamping and removals for all London
Boroughs and Government guidance is that they should only be used as a last resort
measure.


Enfield currently applies the London Council’s Code of Practice and the proposed
clamping and removals standards as laid out in The Civil Enforcement of Parking
Contraventions (England) General Regulations 2007 which came into force 31 March
2008. Better publicity about the way the policy operates would be helpful as a
deterrent.''


Finally, in your wanderings around Google, look at the Chief Adjudicator Caroline Sheppard's comments about removal of vehicles only being a last resort as otherwise it's disproportionate/possible breach of human rights. I would quote her as well.

Posted by: n101 Wed, 9 May 2012 - 14:14
Post #698110

Thanks, SchoolRunMum, much appreciated. I'll look into the sources you quoted, and adjust my later accordingly.I'll aim to get my letter on here tonight.

Thanks again!

Posted by: n101 Wed, 9 May 2012 - 23:06
Post #698305

Here's my revised letter:

Mr xxxxxxx
xxxxxxxxxx
xxxxxxx
xxxxxxx

02/05/2012

RE: PCN: EFxxxxxxxx
VRN: xxxx xxx


Dear Sirs,

I am writing with regards to PCN xxxxxxx and the subsequent removal of my car. I work at Chase Farm Hospital and parked my car on Ridge Crest at approximately 8.50am on 19/4/2012. I returned to my vehicle at the end of day, 5.10pm, to discover it missing. After making many phone calls, I discovered it had been towed and was being held by Enfield Council at Crown Road Vehicle Park. Upon payment of the PCN and car release fee (I was told by the officer at the desk that in order to release my car, I must pay the PCN there and then), I requested Enfield Council post me the photographs of my ‘contravention’. I would like it to be noted that while the CEO observed my vehicle between 11.06am and 11.08am, in the photographs, I could see the tow truck in the background, and even a part of it hanging over my vehicle. I was informed by Enfield Council via email, that my car was removed at 11.15am. Due to the torrential rain at 5.15pm on Thursday 19th April, I had no choice but to pay £7 for a taxi to drive me home in order to collect the relevant documents to secure my car’s release.

I would also like to bring to the council’s attention that no wheel was adjacent to the dropped footway and it is my opinion that any overhang should be considered as de miminis. I respectfully refer you to the Parking Appeals Traffic Appeals Service case 211026505A (Mrs Roheama Cleghorn v. Redbridge), a copy of which, I have enclosed with this letter.

I also bring to the council's attention the matter of procedural impropriety. The council has incorrectly applied those charges specified under section 101A of the Road Traffic Regulation Act 1984 in regard to the collection of my vehicle when the correct charges to apply are those under section 102(2A). Paragraph 1(1)(b) within Schedule 9 of the Traffic Management Act 2004 confirms this assertion. The charges under s.101A apply only when the vehicle being recovered is one that was considered to have the appearance of being abandoned and its disposal is pending. Clear evidence of this is found under regulation 18 of The Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008. Therefore, the council had no lawful right to insist the penalty charge be paid when I collected my vehicle nor did the council have any right to retain my vehicle until I also paid the removal charges. A council operating under civil enforcement powers is not given the same power to retain that is given to a council operating under criminalised enforcement powers. This is made quite clear under s.102 RTRA 1984. The power to retain until all charges are paid is purposely withheld, not only so that those rights that follow the service of a regulation 9 PCN can be fully exercised, but also because the right to retain is inappropriate for a civil matter. The council also had no right to administer the appeal process regulated under Part 4 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Part 4 is made pursuant to s.101B RTRA 1984 and yet where enforcement under the TMA 2004 occurs and a penalty charge is imposed then any appeal must be pursuant to and in accordance with section 80 TMA 2004. As my vehicle was not immobilised the council should have administered the appeal process under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 as these are the regulations that satisfy s.80(1)(a) TMA 2004. It is no coincidence that had the council correctly applied those charges under s.102 (2A) RTRA 1984 then access to the Part 2 appeal process would not have been obstructed.

Before my vehicle was removed the council served a regulation 9 PCN. The council has not only denied me the opportunity to pay the PCN at a time of my choosing within the statutory 28 day period but they have also denied me the opportunity to make an informal challenge and the right to receive and respond to a ‘Notice to Owner’. The PCN and statute clearly bestow these rights upon me and it is no coincidence that had s.102 (2A) been correctly applied then none of these rights would have been interfered with. If the council are advocating that these rights are not applicable then in essence the council is suggesting the PCN is a notice filled with lies. If the PCN has no validity then it is a nullity and thus there can be no penalty charge and no lawful CEO removal.

I also ask the council to refer to London Local Authorities Act 2000 sections 9-14 as well as London Councils' Code of Practice on Traffic Enforcement. In the latter’s case, I have read the ‘Order Of Priority For Vehicle Removals’ (68) and can not find a single circumstance which is relevant to my case, and could justify why it had to be removed. There was no Dangerous Position, Serious Obstruction, Serious Parking Contraventions or Parking Contraventions committed by me. Three of the stages in Removal Operations consist of:
a) Identification;
b) Removal truck despatch
c) Authorisation
My car was observed by the CEO between 11.06am and 11.08am, and according to my email correspondence with Enfield Council, it was removed at 11.15am. It is interesting that my car was removed within 9 minutes of the CEO observing it, especially when there is evidence of the tow truck in the photographs provided by the council. The immediate removal of my car does not adhere to the terms stipulated in the Act. The normal procedure for a non-absolute contravention is for a passing CEO to first observe to check for exemptions, then issue a PCN, then report it for possible removal if it's a priority (in that order). Furthermore, I have seen no evidence that there was a second Parking Attendant on board the removal truck to “authorise the lifting of the vehicle”. I have details of the CEO who issued the PCN and would be interested to see the identity of the second CEO/Parking Attendant on-board the removal truck.

The London Borough of Enfield Stakeholder Consultation Enfield Parking Enforcement Plan June 2008 states under ‘Removal of contravening vehicles’ that “The London Councils provide a code of practice for clamping and removals for all London Boroughs and Government guidance is that they should only be used as a last resort measure”. Also, “It is recommended that the London Council’s Code of Practice for clamping and removals continue to be applied by Enfield and that the clamping of vehicles be used only to address persistent offenders in permitted parking bays and hazardous yellow line parking”. I was/am not a persistent offender, nor were there any parking bays or yellow lines present.

Finally, I would like to bring to the council’s attention to Chief Adjudicator Caroline Sheppard's comments: “Removal action would be appropriate in cases where parked vehicles are causing an obstruction or a hazard to other road users, where they are obstructing a restricted stopping or waiting place such as a bus stop, cab rank or loading bay, or where the Local Authority has suspended the operation of a designated parking bay. Removal action from designated parking places would also be appropriate in some cases – for example, where a vehicle is parked across more than one meter bay or if parked in a loading, doctor’s or residents’ bay without authorisation. Vehicle removal would also be appropriate where a vehicle has been clamped for some time (for example, 24 or 48 hours) without any action being taken by its owner to pay for its release”.
“Removals should not be carried out in an ad hoc fashion. Local Authorities should consider, in consultation with the Police, devising a list showing the priority to be accorded different types of parking contravention when deciding the order in which vehicles should be removed. As with wheel clamping, it is important to ensure that vehicle removals are only undertaken where the seriousness of the contravention warrants this level of enforcement. Inappropriate use of removals may bring an Authority’s enforcement activities into disrepute”.

It is my contention that my vehicle was not parked in such a manner that removal in this instance was either proportionate or necessary. It is my belief that the enforcement authority cannot justify removal in this instance. Removal without justification is a procedural impropriety on the part of the enforcement authority. In the event that the enforcement 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.

Due to the above given representations I require you to refund both the penalty charge and removal fee forthwith, totalling a sum of £255. In the event of these representations being rejected I will have no hesitation in taking this matter to adjudication, and will be requesting costs on the grounds that the enforcement authority acted unreasonably and vexatiously in not properly considering and accepting valid representations at the earliest opportunity.


Yours Faithfully,


xxxxxxxxx


I've included advice from SchoolRunMum - please let me know if you think it needs any more adjusting.

Many thanks!

-n101-

Posted by: SchoolRunMum Thu, 10 May 2012 - 00:07
Post #698321

THat reads very nicely to me - and that's a better quote from Caroline Sheppard than I have seen before.

Great stuff and of course worth appealing all the way now as you have nothing to lose and everything to gain except your taxi fare!

Posted by: n101 Fri, 11 May 2012 - 15:42
Post #698891

Aw, thanks SRM, I'm glad you like the quotes! I've been advised by the council to email my appeal to them, with attachments. Another alternative offered to me was to hand it in in person, so I think I'll do both this weekend.

Based on what I've read on these forums before, I'm not wholly confident that Enfield Council will cancel my PCN and towing fee, but I know I've got a good case thanks to you all.

I will keep you updated - in the meantime, everyone please keep reading my letter for any more amendments you think necessary!

Thanks.

-n101-

Posted by: n101 Mon, 14 May 2012 - 18:24
Post #699675

Right, I've emailed my appeal to them, and I also handed it in in person to ensure they receive it before the deadline. I'll let you know when I get a reply. In the meantime, thanks for your help Bogsy, HCA and SchoolRunMum!

Posted by: n101 Thu, 24 May 2012 - 23:57
Post #703056

Right, as expected, my appeal was rejected. I've attached all the documents they sent. I'm so annoyed, I really thought I had a chance! Any advice, lovely helpful people?









Thanks

-n101-

Posted by: bama Fri, 25 May 2012 - 00:13
Post #703058

they didn't reply at all to some of your points.

am sure Bogsy will be along re the s.101 args

Posted by: hcandersen Fri, 25 May 2012 - 05:22
Post #703070

For the moment just register your appeal (that's what the form is - an appeal registration form).

Complete the form with your details.

Cite Procedural Impropriety and Contravention did not Occur.

Put in box 5 - further details to follow.

Elect for a personal hearing.

And send off.

That's it for the appeal at this stage.

As regards their Notice of Rejection, it's not worded correctly as it mis-states the period during which you have a statutory right of appeal to the adj. It states that your appeal "must be made before the end of the period of 28 days of this notice being served on you." However, the law requires it to state .....period of 28 days beginning on the date... In law, their NOR reads that you have 28 days from date of service, but there is no such statutory right.

The NOR clearly implies that removal under their "policies" (and we'll get to look at these later) is predicated on receiving a complaint from a resident - it's the first thing they say. And the NOR also cites the London Local Authorities etc. Act in its heading. But both are irrelevant. Once you've registered your appeal, we'll have to see how to tease out more from the council on this point.

HCA

Posted by: Bogsy Fri, 25 May 2012 - 09:35
Post #703114

When you come to draft your appeal wording you can include the text below. It may need to be edited or even omitted depending on the structure of your appeal. We can assess this later. It's best in my view to do a rough draft and post up for feedback. It's often best for clarity to number each appeal point and keep each point specific. AS HCA says, register your appeal then you have plenty of time to work on a draft.

EDIT.....just wanted to add that it's kind of Enfield to admit that the absence of signage for this restriction has only been lawful since 1st June 2009. Clearly then the restriction should have been signed between 31st March 2008 and May 31st 2009. I wonder if they refunded all code 27 PCN's between these dates due to the unlawful absence of signage? No is the answer and the independent adjudication service stayed very quiet too. Anyway text below.

In their Notice of Rejection Enfield acknowledge that they engage in parking enforcement under the powers of the TMA 2004. They then assert that where a PCN is served and a vehicle is removed then it is appropriate to apply Part 4 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

Unfortunately Enfield fails to understand that Part 4 has no relationship with civil enforcement under the TMA 2004. Where civil enforcement occurs and a penalty charge imposed then it is the regulations made pursuant to s.80 TMA 2004 that regulate any appeal. It is Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 that satisfies s.80(1)(a), while Part 3 satisfies s.80(1)(b). As my vehicle was not immobilised (clamped), the correct appeal process for the council to apply therefore, was that under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. The TMA 2004 does not provide for any other possibility. Enfield need to recognise that Part 4 is pursuant to s.101B RTRA 1984 and its application is not dependent on a penalty charge having been imposed or paid.

It is a truth that Part 4 applies where charges are paid pursuant to s.101A RTRA 1984. However, the charges I was subject to were pursuant to s.102(2A) RTRA 1984 and this is corroborated under paragraph 1(1)(b) Schedule 9 TMA 2004.

(1)This Schedule provides for the setting of the levels of—
(a)penalty charges, including any discounts or surcharges,
(b)charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions


It is also a truth that the power to retain a vehicle until all charges are paid is regulated under s.102(4) and s.102(4A) RTRA 1984 and this power does not extend to civil enforcement authorities. A further truth is that s.102 RTRA 1984 does not include any power for a civil enforcement authority to recover any outstanding penalty charge. I submit that s.102 purposely does not include this power because there is already a statutory process set by the TMA 2004 for the recovery of any outstanding penalty charge and to include it would interfere with this set statutory process. I further submit that the right to retain possession of a vehicle until all charges are paid is not extended to civil enforcement authorities because such power is inappropriate for a civil matter and an enforcement authority has the option to recover any removal or storage charges in accordance with s.102(3) RTRA1984 where these charges are not voluntarily paid.

Enfield's enforcement powers are pursuant to the TMA 2004, the penalty charge was imposed pursuant to the TMA 2004 and had Enfield correctly limited the charges to only those that s.102 RTRA 1984 permits then I would have been able to access an appeal process pursuant to the TMA 2004. I contend that the appeal process applied amounts to procedural impropriety and the retaining of my vehicle until all charges were paid was unlawful.

Posted by: n101 Sun, 27 May 2012 - 21:13
Post #703611

Thanks guys (in particular, Bogsy!), I'll take all your advice on board and aim to draft a letter, and have it uploaded, by Wednesday. Very frustrating, but I appreciate all your help - hopefully it'll be worth it smile.gif

Posted by: hcandersen Mon, 28 May 2012 - 08:33
Post #703670

What letter?

As advised, all you need to do is to register your appeal and you do this by completing the form which you received with the NOR. Compilation of your substantive appeal comes after PATAS have acknowledged your appeal and given you the dates of the hearing and by when you should submit your evidence i.e. your appeal. This will probably be no earlier than July. So we don't need to draft your appeal - apart from anything else you don't yet have enough info e.g. the council's policies, the relevance of the wrong legislation which they quoted in their NOR and the complainant etc.

Register your appeal first please.


HCA

Posted by: n101 Tue, 29 May 2012 - 16:52
Post #704111

Apologies, I mis-read the back of the appeal form - I thought I had to write a new letter. Should I re-print the letter I wrote to Enfield council and attach? Also, step 5 says to write details of the case in the box - HCA, should I explain everything all over again? Sorry about these possibly stupid questions, but I just want to get it right! Thanks

Posted by: hcandersen Tue, 29 May 2012 - 17:19
Post #704122

If you read box 5 you'll find that it is for additional information i.e. beyond that which is already in play. The PCN, your reps and the council's NOR will be placed before the adj, so you don't need to repeat these. When you come to submitting your appeal it's often the case that appellants just summarise their reps and the council's NOR, drawing out the most important points.

In your case you could insert in box 5 that the council's NOR is defective in that it misstates the statutory period during which the owner may appeal; the NOR is therefore invalid. This is a procedural impropriety and consequently the PCN must be cancelled.

The appeals form has two purposes: it gets PATAS on the case; and because they notify the council it formally advises the council of the state of play which, among other things, prevents them from continuing with the enforcement process.

HCA

Posted by: n101 Fri, 1 Jun 2012 - 14:45
Post #705020

Okay HCA, I'll just write that then? Just wanted to make sure I didn't have to re-iterate my points, but they'll already have the letter I presume.

Thanks, and as always, I'll write a draft copy on here before entering it into box 5. Thanks for your help.

Posted by: n101 Sun, 10 Jun 2012 - 22:29
Post #707286

Sorry,I may be being dense here, but where does out day that they have misstated the statutory period, add it appears to read correctly to me..? Thank you!

Posted by: hcandersen Mon, 11 Jun 2012 - 09:26
Post #707367

2Before the end of the period of 28 days of this notice being served on you" is incorrect.

The mandatory meaning is the end of the period of 28 days beginning on the day it was served.

Case law has already established that any other wording connotes that the counting starts on the day after service, the date of service being excluded. Case law is binding on adjudicators as regards applying the law.

The NOR is flawed and IMO fatally defective.

HCA

Posted by: n101 Sat, 16 Jun 2012 - 19:13
Post #709325

Thanks HCA, I faxed it to PATAS last week - I'm going to telephone them to ensure they received it. I wrote what you advised me to RE: 28 days technicality. I'll fill you all in on any updates!

n101

Posted by: n101 Wed, 20 Jun 2012 - 23:50
Post #710717

Hello, I received a letter from PATAS today and they've set a date for my hearing, and it will be in August. I requested a personal hearing, as I thought it may look like I really believed in my case to the adjudicator, and maybe swing it my way a little. They have written to me that it is unlikely a rep from Enfield council will attend. They have said that if i'm unable to attend, I can request another date.

My queston to you guys is this: do you think it still have any significance if I attend the hearing, or should I request the judgment come to me by post? Would it benefit my case for me to attend the hearing in person?

Posted by: SchoolRunMum Thu, 21 Jun 2012 - 23:45
Post #711074

Yes it would almost certainly help your case to appear in person at the hearing/meeting. We have seen this time and time again. Do not rely on a postal hearing.

Posted by: n101 Thu, 28 Jun 2012 - 11:27
Post #713037

Thanks, SchoolRunMum. I'm a little nervous and I can't seem to find information on the internet. I don't have witnesses, so I will most likely be going to the hearing on my own. What should I expect? What's the process like? Will they ask me questions? Sorry, sounds very odd but I just want to prepare myself!

Thank you.

Posted by: SchoolRunMum Fri, 29 Jun 2012 - 00:16
Post #713237

Never been to one myself but hopefully one of the regulars who has, will see this and advise you. If not then search the forum, people have posted different experiences but mainly say it's like any formal office meeting, a bit daunting but great if you win!

Posted by: n101 Tue, 3 Jul 2012 - 11:20
Post #714268

Thanks, I'll have a little look around smile.gif

Posted by: bama Tue, 3 Jul 2012 - 14:27
Post #714330

They are open to the public by default.
if logistics permit you can go and watch a couple before your day (or on the day if the timing allow it).
its not court, no wigs, no oaths. just people around a desk. most often just you and the adjudicator talking part (with a helper flitting about)

Posted by: khemist Thu, 5 Jul 2012 - 09:17
Post #714743

sorry already posted.

Posted by: n101 Thu, 9 Aug 2012 - 11:27
Post #724577

Hi there, just bumping this thread as my adjudication date is fast approaching and I'm feeling a little nervous. Enfield Council have posted me their documents (basically everything i've already shown to you earlier in the thread as well as copies of our written correspondance).

Now, I will be going on my own (as I don't have any witnesses), so do you have any advice for me? Anything specifially I should bring to the asjudicator's attention?

Thanks for your help.

-n101-

Posted by: SchoolRunMum Thu, 9 Aug 2012 - 12:29
Post #724606

Just read through and have printed out, everything that you are relying on, such as a copy of the findings in that PATAS key case, a copy of the Code of Practice from Enfield where the vehicle towing priorities are stated, that sort of thing. Have them in a light folder so you can just hand your copy to the adjudicator if need be, and/or can refer to them yourself.

Also did we point out already that the CEOs' Handbook issued by London Councils specifically mentions 'overhang' on page 53 and supports the de minimis argument and specifically says that no PCN should be issued (let alone towing a car away)?

Find the handbook to download here:

http://www.londoncouncils.gov.uk/policylobbying/transport/parkinginlondon/ceohandbook.htm

go to near the end of the handbook (page 53 as I look at it):

'' a) Vehicle overhang
A CEO should only issue a PCN if the vehicle is parked
incorrectly to the extent that at least one wheel is wholly in
contravention, for example a wheel being wholly outside the
parking bay or wholly on a yellow line. If all of the wheels
are within the confines of the bay but the vehicle is large
and overhangs the bay to such an extent that it causes an
obstruction equal to a normally-sized vehicle with one wheel
wholly in contravention, then a PCN can also be issued. CEOs
must use their judgement on this, and record any evidence
(especially photographic) that proves the contravention.''



No way is your vehicle large, insofar as the overhang was anything more than minor!

Posted by: n101 Mon, 13 Aug 2012 - 11:15
Post #725583

Thank you SchoolRunMum, that is a great help! I'll print it out, and take it with me. I'll keep you updated on the outcome - still over a week to go!

-n101-

Posted by: Bogsy Mon, 13 Aug 2012 - 13:17
Post #725630

Just be honest with the adjudicator about consulting an internet parking forum should he raise it. Just explain that you feel strongly that any overhang was so minor that it did not justify a penalty let alone removal and the charges associated with removal. Say that you are not familiar with making appeals and so went online to seek help. Let him know that your appeal is not the result of cut and paste but has been tailored to be relevant following consultation with those more knowledgeable than yourself.

Remain calm and courteous and don't be afraid to ask relevant questions. The hearing is being held for you and it is your chance to express yourself.

Posted by: hcandersen Mon, 13 Aug 2012 - 13:20
Post #725631

+1

HCA

Posted by: n101 Tue, 14 Aug 2012 - 11:33
Post #725931

Thank you Bogsy and HCA, that's good advice. I'll be sure to keep your words in mind on the day. Still a while to go (just over a week), so you guys will be the first to know the outcome.

Thanks again.

-n101-

Posted by: n101 Wed, 12 Sep 2012 - 11:25
Post #733826

Good news - I won! Apologies for the delay, but I wanted to wait until I had written confirmation. Thank you all so much for your help - in particular Bogsy, SchoolRunMum and HCAnderson. The hearing went fairly well, but I'll go into more detail should you wish to hear another time. Here is what the adjudicator stated as his reasons in the letter:

"The Appellant attended in person.

The contravention occurs when a vehicle must not be parked on the carriageway in a special enforcement area adjacent to a footway where the footway has been lowered to meet the level of the carriageway. I have examined the photographic evidence. Some if not most of the nearside rear wheel was adjacent to a point where the kerb has begin to drop but this is not where the prohibited are begins. The prohibited are begins when the kerb has been levelled with the carriageway. I am not satisfied that any part of the Appellant's vehicle was in the prohibited area. If there was, it would have been so slight that the de minimus principle would apply. I am allowing the appeal."

I still have not heard from Enfield Council (hearing was on 25/8/12) - should I get in touch with them? Also, Penalty amount stated is £155, but I paid £255 (£55 PCN and £200 release fee) - should I be concerned?



Thanks! -n101-

Posted by: SchoolRunMum Wed, 12 Sep 2012 - 12:54
Post #733849

Well done! I thought you should win this one and your appeal wording was a good example for towing appeals, I have quoted it to other people. Could you let us know the case number so people can actually cite your winning decision in future please? It would be good to see the whole letter scanned in.

As regards getting payment back, does it say that the Council are directed to refund you forthwith? I think I would expect it any day now.

Posted by: bama Wed, 12 Sep 2012 - 18:01
Post #733964

QUOTE
Penalty amount stated is £155, but I paid £255 (£55 PCN and £200 release fee) - should I be concerned?


yes thats a typo that will cost you £100
get onto PATAS ASAP and politely point it out to then and ask them issue a written corrected decision to both you and the council.

Posted by: n101 Fri, 14 Sep 2012 - 12:53
Post #734644

I called them up and they advised me to call the council. I did and was told to expect the full £255 within the next 2 weeks, so i'll keep my eyes peeled. Thanks again SchoolRunMum - what a compliment! However, i have to say, he was a little dismissive of my letter and using forums, but he appreciated that I had little choice but to seek advice on the net. Not able to transfer my letter on the net first, but will soon!

Posted by: bama Fri, 14 Sep 2012 - 14:48
Post #734690

don't call the council - put it in writing ! and get proof of posting (free at the post office counter)

Posted by: n101 Wed, 12 Dec 2012 - 12:31
Post #763331

Hello lovely people - many apologies for the delay in giving you my case ref number: it is 2120316350. I can't thank you enough again, I'm pleased to report I received my cheque for the full £255, and I know I couldn't have done it without you.

I'll keep checking this forum from time to time, as I'd like to help others who are in my situation - playing it forward!

Posted by: SchoolRunMum Thu, 13 Dec 2012 - 01:04
Post #763653

You are already helping others. I always signpost your thread to newbies if they've had their car towed in London because your appeal wording summarised all the issues very well and you also came back to report your success. Well done!

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