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PCN Code 12 and Tow - Newham Council, Please can you help with my representation
Futchoi
post Mon, 9 Mar 2020 - 20:42
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Hi All,

I hope someone can help me with my representation to Newham Council and apologies for the long message but I wanted to make sure you had all the details.

I parked my car nearby a friend's flat at 8.05am on Sun 8th Mar. There were various signs indicating permits were required. My friend passed me a permit for UKPC which I completed and parked my car while my friend went to get his car. With hindsight I should have been more careful but in essence there was parking for UKPC permit holders and then there were also spaces for Newham Council permit holders. There were quite a few signs and the UKPC signs were much more visible.

Upon returning to where I had parked, my car was no longer there and panic set in. Had my car been stolen was the initial thought? Luckily I have a car locator and when I located the car it suddenly hit me that I had been towed away. I then started looking at the signs and realised I made a big mistake and parked in a council permit spot instead of a UKPC spot. It was a genuine mistake on my behalf and I would never have expected the car to be towed even if the incorrect/no permit was displayed. The street is quiet and does not lead to anywhere apart from the wider development and I was in a parking area and not blocking anything. Do I have any grounds to appeal against the towing? I can understand I would have received a PCN given I did make a mistake although the sign where I parked was partially blocked by some over growing plants.

The exact location is below and I was parked in the empty spot behind the Nissan Note,
https://www.google.com/maps/@51.5012431,0.0...6384!8i8192

From the PCN it can been seen that observation start time was 8.09am and I was given a PCN at 08.19. I am awaiting confirmation from the council as to when the car was lifted but when picking up my car from the impound I was told it was around 8.50 although the person dealing with my payment did not give me anything indicating this and asked I contact the council for this as well as photo evidence.

The PCN was for £65 and the towing £200 so in total to release the car it was £265 which I had to be paid in total. I was not able to pay the £200 and appeal against the £65 PCN.

After collecting the car I was still in abit of shock. Anyhow I needed some petrol so stopped off at the petrol station and noticed there was a small scratch on the driver side of my car. It was noticeable because there was a small clean patch on the door about the size of a fist on an otherwise slightly dirty car so highlighted the scratch more (the scratch is only about 1.5cm and probably can be t cut out but was just annoying after having to pay £265 to release the car). Should I mentioned this on the representation?

I have added the documents I received when I picked up the car and also some photos which hopefully explains things better.

Please let me know if anyone is able to help or what else I would need to provide.

Thanks in advance, any help will be greatly appreciated.

https://imagizer.imageshack.com/img922/425/jWfcfx.jpg
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https://imagizer.imageshack.com/img924/5416/sVHhjS.jpg
https://imagizer.imageshack.com/img924/8642/XqpHvj.jpg
https://imagizer.imageshack.com/img924/7844/TIeu0f.jpg
https://imagizer.imageshack.com/img923/627/VLzzV7.jpg
https://imagizer.imageshack.com/img924/6287/94fIBY.jpg

My draft letter after reading some of the forums is below,

Dear Sir/Madam,

I received a PCN on 8th March 2020 at 08.19 for not displaying a valid permit and my vehicle was subsequently towed away but I believe there are mitigating circumstances to explain why I had parked where I did and I would like to submit an appeal for the following reasons:

There was insufficient signage to issue the initial parking ticket

There were various signs where I had parked and I found this to be confusing. There were numerous signs relating to UKPC parking and then there was parking for a resident’s zone. My vehicle had a permit displayed for UKPC visitor’s parking (refer to photos as attached) however I had mistakenly parked in a resident’s zone. I was not familiar with the area where I had parked and was visiting. In addition, the sign for the resident’s parking was obscured by some overhanging tree branches (attached as photo)

The penalty charge paid to secure the release of my vehicle exceeded the amount applicable in the circumstances of the case

It is to make a representation of the heavy fine levied on me on account of the violation of the parking fine which I by mistake committed. The vehicle was parked in a resident’s bay and was not restricting/blocking any traffic (vehicle parked in space where ‘Datum’ vehicle is in attached photo) and for this I believe the towing of my vehicle was excessive in this case and cannot be justified by the enforcement authority. I am informed the road does not have a lot of through traffic and is not a major connecting road but only serves the residential development. I would add that the 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”.

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.

In my case I view the removal without justification as 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. I believe it was wrong to tow away my vehicle meaning the fine of £265 I have already paid should be refunded in full.

Lastly, I would like to bring to the council’s attention that upon returning home after releasing my vehicle from the impound I have noticed a scratch on my offside lower door which was not present prior to the towing of my vehicle. Please see photos of the damaged caused which I can only presume was caused during the towing of my vehicle. I would like to understand how I can make a claim to Newham council with respect to this damage.

Regards
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post Mon, 9 Mar 2020 - 20:42
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PASTMYBEST
post Thu, 25 Jun 2020 - 11:08
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Should be Ok. I expect to be finished by tomorrow evening


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Futchoi
post Thu, 25 Jun 2020 - 11:13
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Many thanks for all your help. It is much appreciated.
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hcandersen
post Thu, 25 Jun 2020 - 11:43
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You have no defence as regards the contravention and I hope your appeal doesn't dwell on trying to defend the indefensible. You made a mistake. It happens.

What does concern me is the NOR.

It does not show any consideration of the 'tow' aspect of your reps, instead it bleats on about the reasons for the PCN from the CEO's perspective.

BUT THIS IS NOT THE DUTY PLACED ON THE AUTHORITY AS REGARDS CONSIDERATION OF REPS!!!,

They are required to respond to any substantive grounds which you raise. IMO, they have not. Hence why I suggest you put your hands up to the contravention - remember, the adj cannot consider mitigation, so don't even go there. Focus on the NOR and the tow. There is nothing in the NOR which in any way attempts to explain, let alone justify, towing. And you draw attention to this IF YOU AVOID arguing the toss about the contravention.

Had the authority justified clearly the rationale behind the tow, then if these arguments were acceptable you wouldn't be taking up the adj's time. But as it stands, on the basis of the NOR alone, the adj is no better informed than you as to the reasons for towing. On this point, you would hope that the adj would accept that whereas every removal must be preceded by a PCN, not every PCN should or may be followed by removal.
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PASTMYBEST
post Thu, 25 Jun 2020 - 11:50
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HCA

I will be mentioning why the Op parked as they did by way of background but not arguing a contravention did not occur. Then concentrating on the tow (when and why ) and the absence of anything re this in the NOR + NOR errors re statutory info (adjudicators power to consider)


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hcandersen
post Thu, 25 Jun 2020 - 12:12
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biggrin.gif
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Futchoi
post Sat, 27 Jun 2020 - 15:14
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Thanks again for all the help and advice. I will submit the arguments to the tribunal once received.
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Futchoi
post Mon, 29 Jun 2020 - 14:47
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Hi All,

I just logged onto London Tribunals for my hearing and noticed that the council have posted a 'Do Not Contest' form as their evidence type today.

Apologies it might be a stupid question but can someone clarify for me what this actually means?

Does that mean the council have now accepted my appeal and in effect I have won the case? If yes then can you let me know if there is anything I need to do now in terms of the appeal hearing?

Below is the form received.
Attached Image


As always any help is appreciated.

Thanks
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stamfordman
post Mon, 29 Jun 2020 - 14:49
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QUOTE (Futchoi @ Mon, 29 Jun 2020 - 15:47) *
I just logged onto London Tribunals for my hearing and noticed that the council have posted a 'Do Not Contest' form as their evidence type today.


It means you've won - they have pulled out. Well done.
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Futchoi
post Mon, 29 Jun 2020 - 14:56
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Thanks stamfordman. That has made my day.

Can I just ask if there is anything else I now need to do for the actual Tribunal. Do I need to acknowledge anything on the website or is it a case of just clicking on 'No' Further evidence to follow and then submitting my declaration.

Please see screen shot below.
Attached Image


Lastly will the council now contact me to provide my refund or do I need to follow up with them.

Thanks again to all others who have kindly assisted me with my case.
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PASTMYBEST
post Mon, 29 Jun 2020 - 15:05
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Got your PM

Spent a bit of time on this but no worries it will come in handy again no doubt

https://1drv.ms/u/s!AtBHPhdJdppVzTtwSVK...8qfx8G?e=RhT6gL


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Futchoi
post Mon, 29 Jun 2020 - 15:12
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QUOTE (PASTMYBEST @ Mon, 29 Jun 2020 - 16:05) *
Got your PM

Spent a bit of time on this but no worries it will come in handy again no doubt

https://1drv.ms/u/s!AtBHPhdJdppVzTtwSVK...8qfx8G?e=RhT6gL


Thanks PMB, your help is greatly appreciated as I said.

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stamfordman
post Mon, 29 Jun 2020 - 15:13
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The tribunal should write to you - you don't need to do anything now with them. You may need to chase Newham for the refund.
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Futchoi
post Mon, 29 Jun 2020 - 15:29
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QUOTE (stamfordman @ Mon, 29 Jun 2020 - 16:13) *
The tribunal should write to you - you don't need to do anything now with them. You may need to chase Newham for the refund.


Thanks for confirming Stamfordman.
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Futchoi
post Tue, 30 Jun 2020 - 11:23
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Just wanted to provided another update to say I have received a letter from Newham council that they have accepted the representation and will not challenge the appeal so will be refunding the PCN and tow charge.

Thanks again to everyone for all your help especially PMB and HCA for helping to provide drafts.
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PASTMYBEST
post Tue, 30 Jun 2020 - 11:47
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QUOTE (Futchoi @ Tue, 30 Jun 2020 - 12:23) *
Just wanted to provided another update to say I have received a letter from Newham council that they have accepted the representation and will not challenge the appeal so will be refunding the PCN and tow charge.

Thanks again to everyone for all your help especially PMB and HCA for helping to provide drafts.

can we see this letter of acceptance.


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Futchoi
post Tue, 30 Jun 2020 - 14:11
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The letters received from Newham Council are below.

Attached File  Newham_Appeal_Acceptance_290620_compressed.pdf ( 143.43K ) Number of downloads: 325
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PASTMYBEST
post Tue, 30 Jun 2020 - 14:43
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QUOTE (Futchoi @ Tue, 30 Jun 2020 - 15:11) *
The letters received from Newham Council are below.

Attached File  Newham_Appeal_Acceptance_290620_compressed.pdf ( 143.43K ) Number of downloads: 325


What a shower they have no clue what they are doing. I am seriously thinking about a costs application just to tweak their noses a bit. You can't appeal unless the serve a notice of rejection but when you do the follow up with a notice of acceptance. Might be worth it but you have 14 days to decide, lets wait for other views


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