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Broxbourne PCN - DYL - stopped for 30seconds
Mr_MG
post Tue, 15 Jan 2019 - 12:02
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Hi,

Can I get your advice on this please smile.gif

I stopped at this location to pick up my wife from a shop - I literally got out of the car (I coudnt see any restriction period signs), walked around the corner and came back. My mrs said she was going to be longer than expected, so I returned to the car to leave - and saw the CEO still in the process of issuing the ticket.

This was the PCN:-





Note the 1 minitue observation period.

So I sent in an informal appeal via email. I didnt have my appeal saved, but I essentially said "I note the observation period was 1 minute. Was this fair and enough time to confirm whether I was loading\unloading"

I subsequently received this rejection:-







The pictures from the evidence show 56 seconds from the first picture, to when the PCN was attached. 8 seconds later, you can make me out in the car.





I'm aware of the fact that Broxbourne's option to pay by phone incurrs a cost and therefore could possibly make the PCN non-compliant.

But I wanted to get some input on the sub 1 minute observation period.

Happy to hear your thoughts.

Thanks
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post Tue, 15 Jan 2019 - 12:02
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DancingDad
post Wed, 16 Jan 2019 - 17:21
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If you look at my draft, it does not take the form of a challenge, it simply corrects the misunderstanding.
And in doing so, sets them up for a fall, especially given their website.
I can almost smell the reply that says "we cannot consider...."
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Mr_MG
post Thu, 17 Jan 2019 - 07:32
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My first draft.

QUOTE
May I correct an obvious misunderstanding.
I was not loading, I only mentioned this as a reason why a longer observation period should have been applied as is often the normal policy.
I had actually stopped solely for the purpose of picking up my wife who was getting food from a nearby take away restaurant.
We had pre-arranged for her to be waiting at 7:15pm and I duly turned up to find she was not there.
I left the car briefly, knowing where she was likely to be to assist her with carrying the good and was told she was not ready.
I returned to the car immediately to move it, the boarding process frustrated but nevertheless, the stop was solely for boarding.
I attach proof of the appointment to verify the situation.
I trust this is now clear.

Yours sincerely


I'm just finding the payment in my banking app.

Found it in our joint account. It's on the day, but doesn't show the exact time. It does show the shop name which is on the main road.

I can't screenshot but I'll post from statement later

QUOTE (cp8759 @ Wed, 16 Jan 2019 - 14:50) *
Well this is golddust, a council admitting they're acting unlawfully.

Their website: Only one informal challenge will be considered for each PCN.

The law:

if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;


That's a procedural impropriety before we've even started.


On this basis, I would also assume their letter of rejection also falls foul as it says

"You now have two options to either 'Pay' the penalty charge or to make a formal 'representation'. "

Worded to say further informal appeals is not an option for me..

This post has been edited by Mr_MG: Thu, 17 Jan 2019 - 07:33
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hcandersen
post Thu, 17 Jan 2019 - 10:40
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The issue of only 'one' informal is not as clear cut as portrayed.

The implicit meaning, and one which I am confident would be ascribed by an adj, is a valid challenge: an authority has no obligation to consider mere repetitions of points previously raised. But if you do raise a fresh point then the obligation remains. But much better to show they haven't than to argue that they wouldn't.

OP, and how did your wife get to the take-away?
And who is the person in 'was told she was not ready' - clearly not your wife.
And is the take-away Huckleberry Chicken?
And at 7.15 aren't there unrestricted parking places right outside?
And don't the SYL restrictions end at 7pm.
If so, why would you arrange to meet on DYL round the corner? (whether in reality you had to is not my point, why would you have pre-arranged to meet where parking was restricted? )

What we do know is that you were parked on DYL. They have offered to give further consideration to your challenge subject to you providing relevant information no later than 17th, today. Not unreasonable on their part.

Your assertions are as you've written. Your evidence comprises an untimed transaction at a shop on that day and a claim to have arranged to meet where parking is restricted instead of the more obvious unrestricted locations closer to the shop, assuming I've identified the one concerned.



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Mr_MG
post Thu, 17 Jan 2019 - 15:06
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QUOTE
OP, and how did your wife get to the take-away?


She got off at cheshunt station and made her way to Huckleberry on bus.


QUOTE
And who is the person in 'was told she was not ready' - clearly not your wife.


it was my wife. I've worded it a bit wrong :s

QUOTE
And is the take-away Huckleberry Chicken?

yes.

QUOTE
And at 7.15 aren't there unrestricted parking places right outside?

yes, but usually they are all taken. My direction of travel means I'm on the opposite side of the road. So turning into albury ride gives me an oppotunity to turn around and go back the way I came. On that main road, it can take a whle, due to traffic flow, to come back on yourself.


QUOTE
And don't the SYL restrictions end at 7pm.

I believe so, but no sign in the near vicinity

QUOTE
If so, why would you arrange to meet on DYL round the corner? (whether in reality you had to is not my point, why would you have pre-arranged to meet where parking was restricted? )


its a valid point and would have saved me this trouble ha ha. But usually its a quick pickup and go.

QUOTE
Your assertions are as you've written. Your evidence comprises an untimed transaction at a shop on that day and a claim to have arranged to meet where parking is restricted instead of the more obvious unrestricted locations closer to the shop, assuming I've identified the one concerned.


I've double checked and the transaction was actullay processed the following day. PCN was 5th Dec, transaction showing as 6th Dec on the statement...
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DancingDad
post Thu, 17 Jan 2019 - 15:40
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I see no harm in responding as the draft and including the bank statement with a note saying processed the following day.
Maybe a few more details such as had dropped wife off and agreed to meet at 7.15, just to flesh it out.

To be clear.
I believe you have enough for the boarding exemption to be applied.
That you left the vehicle is not enough to damn it (Makda) but does leave it open to questions like "are you sure you didn't park and go off to do some shopping?"
Short observation period is in your favour.
IMO council unlikely to cancel so probably means being prepared to go to adjudication.
Decision will rest on credibility and possibly mood of the adjudicator on the day.


If you are not prepared to keep fighting or risk the full payment, grab the discount.
While I think it is winnable and would put it better then 50/50 by no means a certainty.
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Neil B
post Thu, 17 Jan 2019 - 15:46
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QUOTE (DancingDad @ Thu, 17 Jan 2019 - 15:40) *
I see no harm in responding as the draft and including the bank statement with a note saying processed the following day.
Maybe a few more details such as had dropped wife off and agreed to meet at 7.15, just to flesh it out.

To be clear.
I believe you have enough for the boarding exemption to be applied.
That you left the vehicle is not enough to damn it (Makda) but does leave it open to questions like "are you sure you didn't park and go off to do some shopping?"
Short observation period is in your favour.
IMO council unlikely to cancel so probably means being prepared to go to adjudication.
Decision will rest on credibility and possibly mood of the adjudicator on the day.


If you are not prepared to keep fighting or risk the full payment, grab the discount.
While I think it is winnable and would put it better then 50/50 by no means a certainty.

A good summary if I can +1.


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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hcandersen
post Thu, 17 Jan 2019 - 16:26
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But usually its a quick pickup and go.


Your Fish Friday is a Chicken Wing Wednesday i.e. is this a regular/frequent event?

If you regularly park here then we must know, it works in your favour i.e. she's normally standing there smelling of chicken nuggets and breadcrumbs, but on the day in question....
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Mr_MG
post Mon, 25 Mar 2019 - 11:53
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Hi,

I have received an NTO after they rejected my 2nd online challenge.









I will draft my response later tonight, and post it here.

Thanks
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Mad Mick V
post Mon, 25 Mar 2019 - 12:46
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Use the will/may argument---the NTO is defective.

http://forums.pepipoo.com/index.php?showto...p;#entry1112582

Mick

This post has been edited by Mad Mick V: Mon, 25 Mar 2019 - 12:48
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Mr_MG
post Mon, 25 Mar 2019 - 20:57
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QUOTE (Mad Mick V @ Mon, 25 Mar 2019 - 12:46) *
Use the will/may argument---the NTO is defective.

http://forums.pepipoo.com/index.php?showto...p;#entry1112582

Mick


Hi,

thanks Mick. Just looking into this, and the NTO doesnt mention a charge certificate. It states that the original penalty charge will increase.

Looking at the PATAS ruling, that makes specific mention of a Charge Certficate.

Am I reading this correctly?

Thanks

Never mind, I found:-

QUOTE
19 (2) A notice to owner served under paragraph (1) must...state -

(g) that if, after the payment period has expired, no representations have been made under regulation 4 of the Representations and Appeals Regulations and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the applicable surcharge


So same logic applies. Thanks for pointing this out!
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Mr_MG
post Mon, 25 Mar 2019 - 21:27
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Drafted my representations letter:-

QUOTE
To Whom it may concern,

I am writing to appeal the parking ticket that was issued on 5th December 2018, vehicle registration number XXXX XXX.

I am appealing this PCN on the grounds that there has been a procedural impropriety on the part of the enforcement authority and that the contravention did not occur.

Ground 1 – The contravention did not occur:

In the evidence supplied by the council with my letter of rejection, I draw your attention to the timings of the pictures. From these, it is evidenced that my vehicle was first photographed at 19:16:31. A subsequent picture shows the PCN attached at 19:17:27. A further 8 seconds later, you can see that I am in my vehicle. I contend that de-minis applies due to the 57 second observation period, and the fact that 8 seconds later, I was in my vehicle driving off. I had stopped at the location at a time arrange with my wife to pick her. I went to find her as she was not there and when I spoke to her in a nearby shop, she told me she would be longer than expected. I then returned to my vehicle to move my car.

Ground 2 – procedural impropriety - non-compliant NTO

On the NTO issued by the council, it states:

“NOTE: If you do not pay the penalty charge or make representations before the end of the period specified above, the council will increase the original penalty charge by 50% to £105.00 and take steps to enforce the payment.”

Regulation 19(2) states:-

19 (2) A notice to owner served under paragraph (1) must...state -

(g) that if, after the payment period has expired, no representations have been made under regulation 4 of the Representations and Appeals Regulations and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the applicable surcharge

The legislation indicates a penalty charge may be increase not will be increased. Therefore the Council's letter fetters its discretion;

In the 212058885A case:

" I agree with Mr Janssen that the Notice of Rejection does not comply with the requirements of the legislation. The Notice of Rejection curtails the period for the submission of the appeal and is misleading as to the possible consequences of a failure to pay the penalty or submit an appeal. The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted."

The following PATAS case no# for reference:- 2110072817, 2100649871, 2110415753, 2120021652, 2130049862, 2120448511, 212058885A, 2130236316, 2140046893

Ground 3 - procedural impropriety - the amount demanded exceeds the amount due in the circumstances of the case

On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0845 601 7620.
Ofcom confirms on its website
https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost that
"The cost of calling 0843, 0844 and 0845 numbers is made up of two parts: an access charge going to your phone company, and a service charge set by the organisation you are calling.

The service charge for calls to 084 numbers is between 0p and 7p per minute"

According to Vodafone:-

“Calls to non-geographic numbers beginning 08, 09 and 118 are split into two parts;

1. Vodafone's Access Charge is the cost to connect the call, this is 55p per minute. It is charged by the second with a one minute minimum call charge;
2. the Service Charge which is set by the service or organisation you are calling.

In London Borough of Camden v The Parking Adjudicator & Oths [2011] EWHC 295 (Admin) at paragraphs 28 and 29 the High Court ruled as follows:

"28. Mr Coppel submits that the only form of payment that the Council are obliged to accept as a matter of law is cash in legal tender, unless they agree otherwise. As a matter of strict theory that may be right, although I venture to suggest that a Council which required parking contraveners to pay cash in notes, or coins of ÂŁ1 or higher value (current legal tender) would be vulnerable to a challenge on grounds of rationality. Nobody is forced to pay by credit card. The Council suggest that it is not increasing the penalty charge but rather recovering an external cost associated with making a convenient method of payment available to those guilty of parking contraventions. Mr Coppel accepts that if this argument were right (and subject always to the vires to make any charge), then so far as the parking enforcement regime was concerned, the Council could recover by way of administrative fee the cost of dealing with any mechanism of payment except cash presented in denominations which were legal tender. There was no evidence before me of any external costs to a merchant associated with payment by debit card or cheque but such facilities are rarely free. There is clearly a significant cost in staff time and systems administration involved in accepting any form of payment. Cheques are especially labour intensive and costly. No doubt any enforcing authority could easily identify the global costs of collecting penalty charges by category and then attempt to divide those costs by the number of penalty charges they expect to recover to determine an administration fee appropriate to each. Yet that is far from the limit of the administrative charges that an inventive enforcing authority might seek to add to the penalty charge authorised by law. Civil enforcement officers must be employed, paid and equipped. There will, in addition, be an administrative superstructure which costs money. It is, submits Mr Coppel, only because the Parking Adjudicators failed to understand that there is a critical difference between the penalty charge and the costs of recovering that charge that they fell into the error of concluding that the penalty charge exceeded the amount prescribed by the statutory scheme. Mr Rogers, who appears for the Parking Adjudicators, submits that whatever label the Council attempt to attach to the 1.3% fee, it is in substance a surcharge that results in a demand for payment of a sum which exceeds that authorised under the statutory scheme.

29. I am unable to accept Mr Coppel's argument that for the purposes of regulation 4(4)(e) the 1.3% fee can be separated from the penalty charge. As is common ground, an enforcing authority is not at liberty to set its own penalty charges but is limited to the sums set under the statutory scheme. The substance of what the Council did was to increase their penalty charge if payment were to be made by credit card to 101.3% of the sum authorised under that scheme. On Mr Coppel's argument the Council might just as well have introduced other administrative charges and added those too. It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge. It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law."

In this instance, by imposing a 55p per minute service charge for telephone payments, the council is offering a payment method which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme. It follows that regardless of whether the alleged contravention occurred, the PCN must be cancelled.

Ground 4 - procedural impropriety - the council has failed to have regard to paragraph 76 of the secretary of state’s statutory guidance to local Authorities on the civil enforcement of parking
Contraventions:

76. Authorities must specify on the NTO (or PCN when served by post) the
statutory grounds on which representations may be made. Where a
photograph or other camera evidence shows that the parking contravention
took place, authorities should send this with the NTO, as it should help to
prevent unfounded representations.

There were no images attached with the NTO. Had I not submitted an informal appeal, I question whether I would have been provided evidence to prevent unfounded representations.

As a council must have regard to the Secretary of State’s statutory guidance, then where no regard to it appears to have been given, a council is guilty of a procedural impropriety as defined by regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007;

4(5) In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—

The council should acknowledge their statutory failing and cancel this penalty charge forthwith rather than drag this matter to adjudication.


Yours Sincerely


Bit long, but happy to hear your thoughts

Thanks
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disgrunt
post Mon, 25 Mar 2019 - 23:07
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Can we see their response to your second informal challenge?
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Mr_MG
post Tue, 26 Mar 2019 - 08:14
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Here is the 2nd NoR





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DancingDad
post Tue, 26 Mar 2019 - 10:00
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Can we see the second informal challenge pls.?
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Mr_MG
post Tue, 26 Mar 2019 - 10:17
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Sure, same as post #22

QUOTE
May I correct an obvious misunderstanding.
I was not loading, I only mentioned this as a reason why a longer observation period should have been applied as is often the normal policy.
I had actually stopped solely for the purpose of picking up my wife who was getting food from a nearby take away restaurant.
We had pre-arranged for her to be waiting at 7:15pm and I duly turned up to find she was not there.
I left the car briefly, knowing where she was likely to be to assist her with carrying the good and was told she was not ready.
I returned to the car immediately to move it, the boarding process frustrated but nevertheless, the stop was solely for boarding.
I attach proof of the appointment to verify the situation.
I trust this is now clear.

Yours sincerely



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cp8759
post Thu, 28 Mar 2019 - 22:32
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Put up the Notice to Owner when you get it.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Mr_MG
post Thu, 28 Mar 2019 - 22:48
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QUOTE (cp8759 @ Thu, 28 Mar 2019 - 22:32) *
Put up the Notice to Owner when you get it.



Hi, the Notice to Owner is in post #28.

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hcandersen
post Fri, 29 Mar 2019 - 08:44
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And it's dated 27 Feb, and the 28-day period ends on 28 March which was yesterday

OP, no more debate, discussion, get your reps in NOW.

And do NOT say ..'I was told she was not ready..'. Everytime I read this I wince and think everything was going well until this point. If she was at a take-away then she was in a queue, she was not at the hairdressers or having a pedicure, hopefully.

I arranged to meet her at this location(as I do regularly and hitherto without incident, if true); she wasn't there; I couldn't wait on a restriction twiddling my gear stick; I went to find/help her etc...

As you know, my concerns are why you parked on DYL given the other options locally available. It is not a defence just because you and your wife decided upon it if it sits in a sea of other lawful options.

This post has been edited by hcandersen: Fri, 29 Mar 2019 - 08:45
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Mr_MG
post Fri, 29 Mar 2019 - 17:39
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I sent off my reps on Tuesday.

I'm expecting a rejection from the council, with some of my points being ignored.

And then off to PATAS we shall go...
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hcandersen
post Fri, 29 Mar 2019 - 17:53
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It's not PATAS.

https://www.londontribunals.gov.uk/eat

Why are you so keen on appealing, they might re-offer the discount.

And may we see your reps?
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