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Bus Lane PCN Tonbridge Wells
free parking
post Wed, 24 Oct 2018 - 00:55
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[attachment=59047:image1__20_.jpeg]Hi ,

I've joined this site in hope that i can get some help with a penalty charge for being in a bus lane on a sunday morning .

I didn't know this area as i was collecting a second hand sky box that i had bought on ebay and was concentrating following the sat nav which lead me into this bus lane/road.

I will upload the PCN that i received in the post i wasn't even aware that i had driven through a bus lane until i received this just under a week later .

I know i should of been paying more attention to road signs etc but i can honestly say i didn't see any bus lane signs and there was no busses in this lane/road when i thought back after seeing the photos they sent me .

I would be really grateful of any help that you could suggest .

Tony

This post has been edited by free parking: Wed, 24 Oct 2018 - 01:10
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post Wed, 24 Oct 2018 - 00:55
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cp8759
post Tue, 6 Nov 2018 - 15:54
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Does the tribunal website show whether the council have decided to contest the case, and if so have they uploaded their evidence?


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free parking
post Tue, 6 Nov 2018 - 22:32
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The tribunal website is showing this -


Next Steps
In order to decide your case, we are gathering evidence from the Authority.

To view or add further evidence to your case - please select 'Review Evidence'.



It doesn't show if the council is contesting the case or if they have uploaded any evidence .

I have received 1 message from them which i copied in my previous reply about uploading my appeal explanation .

Thanks CP

Tony

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cp8759
post Wed, 7 Nov 2018 - 14:09
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You'll just have to keep checking with the tribunal until they've either decided whether to contest. The advantage of not submitting grounds until then is that it forces the council to reveal its hand first.


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free parking
post Wed, 7 Nov 2018 - 16:13
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I'll Keep checking , and post any updates as soon as .

Thank you CP

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free parking
post Mon, 12 Nov 2018 - 13:08
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I have received notice that the authority has uploaded there evidence to the tribunal website .

I have sent you a message regarding this - CP8759



Tony
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cp8759
post Mon, 12 Nov 2018 - 15:02
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I am emailing you a word & pdf version but I'm putting the text here so everybody can comment. You will need to attach all the London Tribunal cases mentioned below (get the text from https://londontribunals.org.uk), the TPT case from here http://forums.pepipoo.com/index.php?showto...p;#entry1112582 and this High Court judgment: https://www.bailii.org/ew/cases/EWHC/Admin/2006/2357.html


-------------------------------
The statutory ground I am relying on is that the penalty demanded exceeds the amount due in the circumstances of the case. This is not because I suggest that the penalty due is £59 or £45 or some other amount that is less than £60, as the Notice of Rejection appears to imply. I fully accept that if the penalty had been correctly imposed as required by law, the penalty due would be £60.

However the basis of my appeal is that the enforcement authority has failed to impose a penalty charge following the statutory scheme put in place by Parliament, and in such circumstances the only penalty that may be demanded is zero.

My reasons are as follows.

Ground 1:

Regulation 8(5) of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 provides that:

(5) A penalty charge notice must state—
...
(k) that if at the end of the 28 day period—
(i) no representations have been made; and
(ii) the penalty charge has not been paid, the authority may increase the penalty charge by a
half and take steps to enforce payment of the charge as so increased;


Therefore Parliament has mandated that a penalty charge notice under the regulations must state that the enforcement authority may increase the penalty charge. While I accept the wording of the regulation does not need to be followed verbatim, the PCN, when read as a whole, must convey the meaning intended by Parliament.

The Penalty Charge Notice issued by the enforcement authority in this instance asserts that:

If full payment has not been received or you have not made representations to the Council, then after the last day of the period of 28 days beginning with the date on which the Penalty Charge Notice was served the charge will be increased by 50% to £90

The fact that the charge will increase to £90 is therefore unequivocal and for all practical purposes a foregone conclusion.

It has long been held that where Parliament has given a public authority a discretionary power, that power may not be fettered. The Traffic Penalty Tribunal found as follows in case UW 05060M:

"The point clearly made by Mrs H is that the council are saying they will issue a charge certificate, rather than considering whether to do so under their discretionary power.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 prescribed the minimum content of a Notice of Rejection:

6.—(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a) state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—
(i) the penalty charge is paid; or
(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge;

The use of the "shall" means that these requirements are mandatory.
...
This may appear to the council to be something of a technicality, but the law is quite clear and must be applied as described above. The council will see that it is imperative that their Notice of Rejection is amended immediately to avoid this situation occurring again in the future

Appeal Allowed
"

I aver that the same situation arises here, where the use of the word "must" in the bus lane regulations means these requirements are mandatory. This principle is further illustrated in the case of David Greenberg v London Borough of Barnet (case reference 216022028A):

"The Notice of Rejection in this matter states that the Enforcement Authority will serve a charge certificate.
Again the inclusion of the word 'will' imports a fixed and persistent intent, as distinguished from 'may' which expresses a possibility.
The legislature chose the word may, to my mind, to reflect the fact that the Enforcement Authority is bestowed with discretion which may be invoked at any stage, thus the issue of a charge certificate cannot be taken as a foregone conclusion.
"

It is no answer to say that the council would not in practice exercise its discretion not to increase the charge, as found in James Demery v London Borough of Bexley (case reference 2180251300) (my emphasis):

"The Authority also submits that while it has discretionary powers to review a PCN at any point, in reality such reviews occur largely as a result of "statutory exchanges". It is uncommon for there to be a non-statutory review. The Authority went on to say that its policy is not to interfere with the statutory progression of a PCN.

One might disagree with this position in terms of parking law as well as administrative law but that is not the point. The point is not about whether the Authority is entitled to or likely to issue a Charge Certificate, it is whether it is permitted to say in the PCN that a Charge Certificate will be issued.

The Regulations provides that a postal PCN must state, inter alia, that if after the last day of the period referred to in subparagraph no representations have been made in accordance with 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 amount of any applicable surcharge and take steps to enforce payment of the charge as so increased.

It seems to me that the Authority has been given a discretion to issue a Charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.

The PCN is non-compliant. It is invalid and cannot be enforced.
It also amounts to a procedural impropriety. I allow the appeal.
"

It is also no answer to say that no prejudice is caused to the recipient of such a PCN, the High Court ruled as follows in London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) at paragraph 41:

"Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

I submit that while bus lane PCNs are issued under a different scheme, it is nonetheless a scheme for the civil enforcement of bus lane control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met, and these statutory conditions include service of a PCN which complies with the mandatory requirements of the regulations. If the statutory conditions are not met, then the financial liability does not arise.

It is also no answer for the council to assert that the penalty will increase to £90 but a charge certificate may or may not be served: If the penalty were to increase to £90 when a charge certificate has not been served, a motorist attempting to pay the charge would still be faced with an increased liability.

It follows that because the Penalty Charge Notice does not convey the meaning required by the regulations, the conditions specified under the statutory scheme are not met, therefore the financial liability to pay the penalty does not arise in this instance.
It is true that a procedural impropriety is not a ground of appeal under the bus lane regulations, but this was also the case under the Road Traffic Act 1991.

This is no answer to my submissions above because where the conditions of the statutory scheme are not met, the only penalty charge that may be demanded is nil. Therefore a demand for a penalty charge greater than zero is a demand for a penalty that exceeds the amount due in the circumstances of the case.

Ground 2:

My representations to the respondent were a more succinct version of ground 1 above, namely that the PCN was not compliant with the regulations and in those circumstances the only penalty that may be demanded is nil.

The notice of rejection does not address the point as simply states that:

You have stated that the amount charged by the council exceeds the amount that we are
allowed to charge.

The penalty amount has been set at £60 and is reduced to £30 if paid in 14 days from the
date that the PCN was served. These charges have been set and published in line with the
requirements of the Bus Lane Contraventions (Penalty Charges, Adjudication and
Enforcement) (England) Regulations 2005 and approved by the Secretary of State.

If you would like to refer to the previous correspondence we sent you posted 18/10/2018, it
clearly states “A reduced charge ( discounted by 50% ) of £30.00 is payable if it is received not
later than the last day of the period of 14 days beginning with the date on which this notice was
served. This Notice will be taken to have been served on the second working day after the date of
posting.


I refer to the case of Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432):

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

It is self-evident that the enforcement authority has completely missed the point of my representations. It is not as if I made representations to the effect that the appropriate penalty was £50, £40 or some other amount less than £60 but greater than zero.

If the enforcement authority’s position were that the PCN is compliant with the legislation notwithstanding the use of the word “will” instead of “may”, or that the non-compliance does not affect the validity of the PCN, a simple response to that effect should have been provided in the Notice of Rejection.
In failing to address the central point of my representations, the authority has filed to discharge its duties under regulation 10 which provides, amongst other things, that:

10.—(1) Where representations are duly made to an authority under regulation 9 and they are made within the 28 day period, it shall be the duty of the authority—

(a) to consider them and any supporting evidence provided;
(b) in relation to each ground on which representations are made, to serve on the person by whom the representations are made notice of their decision as to whether or not they accept that the ground has been established.


I submit that in failing to address my representations the authority has failed in its duty to give my representations due consideration. It follows that the statutory requirements of the scheme have not been met, and in such circumstances a financial liability does not arise.

Therefore the only penalty that may be demanded in the circumstances of this case is nil.


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free parking
post Mon, 19 Nov 2018 - 13:26
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UPDaATE-

I have received a message from the tribunal regarding my appeal

I am posting it for reference to help in the future with this council's bus lane contravention money making scheme !

vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv


I note that Mr ***** has only lodged details of his grounds of appeal after the council uploaded their evidence and, to date, the council have not responded. As my decision in this case may have an impact on the legality of all PCN's issued by the council in respect of bus lane contraventions, I give them an opportunity to consider the grounds of appeal and the previous decisions referred to, perhaps in consultation with their legal department.
I direct that any further submissions should be lodged within 7 days.
**** ****
Adjudicator
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Mad Mick V
post Mon, 19 Nov 2018 - 13:47
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Interesting.

I wonder if this the juncture to think about a costs submission.

Mick
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free parking
post Mon, 19 Nov 2018 - 14:26
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Mick ,

Yes i thought it was very interesting many thanks for yours and ultimately cp's help with this .

I will of course update further .

Would you kindly like to elaborate further about the costs submission you mentioned ?

Tony
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Mad Mick V
post Mon, 19 Nov 2018 - 14:55
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QUOTE (free parking @ Mon, 19 Nov 2018 - 14:26) *
Mick ,

Yes i thought it was very interesting many thanks for yours and ultimately cp's help with this .

I will of course update further .

Would you kindly like to elaborate further about the costs submission you mentioned ?

Tony


I would expect the Council to submit a DNC (Do Not Contest) statement to TPT given the adjudicators comments. They might like to contest the case to determine the exact nature and extent of their shortcomings but the adjudicator has given them a clear steer that their Legal Department needs to be involved and it may have wider ramifications.

The Bus Lane legislation says this on costs:-

24.—(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to paragraph (2), make such an order—

(a)against a party (including an appellant who has withdrawn his appeal or an authority that has consented to an appeal being allowed) if he is of the opinion that the party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or

(b)against the authority, where he considers that the decision appealed against was wholly unreasonable.

So we have to consider, given the errors in the PCN and the incompetence in drafting it, whether that gives rise to a claim that the Council were wholly unreasonable in pursuing the penalty. Your claim has always been that the Council were pushing a document which was an obvious nullity. They knew this from the content of your representations but still chose to reject them and take the matter to TPT. Others will comment, but IMO this is prime facie evidence that their behaviour was unreasonable when confronted with clear evidence, by case references, of their mistakes.

Ergo, subject to what happens next, you have a legitimate claim for your time and effort which is £19 per hour plus postage, stationery etc.

No promises, it's a high hurdle, but if you don't ask you don't get. I just feel the adjudicator will be receptive given his comments

Mick

This post has been edited by Mad Mick V: Mon, 19 Nov 2018 - 15:00
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cp8759
post Mon, 19 Nov 2018 - 15:18
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Personally I think there is no chance of an order for costs. The outcome is neither obvious nor is it a foregone conclusion and while it appears the adjudicator might be leaning our way, the council's conduct cannot be said to be wholly unreasonable. On the contrary, I'm sure the council wrongly but reasonably believe their PCN is compliant.


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PASTMYBEST
post Mon, 19 Nov 2018 - 16:07
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QUOTE (cp8759 @ Mon, 19 Nov 2018 - 15:18) *
Personally I think there is no chance of an order for costs. The outcome is neither obvious nor is it a foregone conclusion and while it appears the adjudicator might be leaning our way, the council's conduct cannot be said to be wholly unreasonable. On the contrary, I'm sure the council wrongly but reasonably believe their PCN is compliant.


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free parking
post Mon, 19 Nov 2018 - 18:54
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How would i go about asking for costs then mick ?

Is there any ramification to me if they are deemed to be not given ?

And..... wouldn't it be great to really stick it up to them in such a great way !

obviously i would be looking to send cp , yourself and the forum it anyway minus the huge bill for all my time drafting the grounds etc , lol.

Or am i just counting chickens !



Tony
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Mad Mick V
post Tue, 27 Nov 2018 - 12:32
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Let's not count our chickens re a costs submission, as other valued members state, the bar is set high for a wholly unreasonable to be accepted.

My premise on that score is that the term relates to documentation too since we have a legitimate expectation that anything which demands money from us has to have the force of law behind it and be couched in suitable terms. The PCN in this case is far from acceptable and my view is that the Council is wholly unreasonable in asking for money when IMO their standard document is a nullity. So if they reject despite these errors being pointed out they should be penalised.

Another issue with the PCN is that payment is asked to be made to Tunbridge Wells which is not the Enforcement Authority.

The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 states.-------- "In determining, for the purposes of these Regulations, whether and when a penalty charge has been paid, it shall be taken to have been paid when the whole of the amount of the penalty charge applicable in the circumstances of the case is received by the approved local authority concerned". This is Kent County Council not Tunbridge Wells so payment time-scales become meaningless and there is the risk of prejudice e.g. you never made payment to the EA within statutory limits.

It would be interesting to see one of their bus lane charge certificates which, no doubt, they will balls up in similar fashion because it will inevitably get the EA wrong.

Mick
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free parking
post Thu, 29 Nov 2018 - 12:52
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UPDATE:

I've still heard nothing from the tribunal regarding my appeal against this pcn, and we are now well over the 7 days the adjudicator gave the council to reply in.

And thanks for the insight mick, do i put a claim in yet or wait for the outcome first ?
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cp8759
post Thu, 29 Nov 2018 - 16:35
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QUOTE (free parking @ Thu, 29 Nov 2018 - 12:52) *
UPDATE:

I've still heard nothing from the tribunal regarding my appeal against this pcn, and we are now well over the 7 days the adjudicator gave the council to reply in.

And thanks for the insight mick, do i put a claim in yet or wait for the outcome first ?

Wait until you hear the outcome, you don't want to risk pissing him off.


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free parking
post Fri, 30 Nov 2018 - 11:38
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UPDATE

I have now received a message from the tribunal regarding my case .

It looks like i now need to bolster up my defence ? and not put in a claim ?


Message reads -

Mr ****
You will be aware that I gave the council a further opportunity to respond to your appeal and gave a deadline of 23 November for that response to be submitted. I can inform you that the council did send a message to the Tribunal on that date, but I now realise that you may not have had sight of their message, which appears to have been sent to be read by the tribunal only.
I can inform you that their message reads: -

'We have considered the appellant’s detailed and thorough submissions but do not agree with his assertion that the wording of the Penalty Charge Notice renders it non-compliant and further argue that the previous decisions cited by the appellant are not applicable in this instance.

Legislation, specifically the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005, states under the particulars that must be included on the PCN at 8.(5)(k) that “the authority may increase the penalty charge by a half and take steps to enforce payment of the charge as so increased;” in the event that the penalty charge is not paid and representations haven’t been made.

The previous decisions referred to by the appellant revolve around the Adjudicator reasoning that the PCN must reflect that the issuing of a Charge Certificate is discretionary rather than a certainty. For instance from David Greenberg v London Borough of Barnet “It seems to me that the Authority has been given a discretion to issue a charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists’ favour”.

The wording on the Tunbridge Wells PCN states “If full payment has not been received or you have not made representations to the Council, then after the last day of the period of 28 days beginning with the date on which the Penalty Charge Notice was served the charge will be increased by 50% to £90 and a Charge Certificate may be sent to you.”

The PCN clearly states that a Charge Certificate may be sent. We submit therefore that it cannot be argued we are fettering our discretionary power and believe that, as the appellant quite rightly refers to on page 1 of his submission, when read as a whole the PCN does convey the meaning intended by Parliament and that enforcement of the increased amount through the issuing of a Charge Certificate is a discretionary measure.

The appellant also states that ‘it is no answer for the Council to assert that the penalty will increase £90 but a charge certificate may or may not be served: If the penalty were to increase to £90 when a charge certificate has not been served, a motorist attempting to pay the charge would still be faced with an increased liability.”

This statement is not quite correct in practice. The Council IT system works by applying a ‘progression’ to the PCN at the appropriate point. The relevant progression in this context would be ‘Charge Certificate Produced’, and as soon as this progression is applied to the case a Charge Certificate is generated and the penalty charge is increased by 50% at exactly the same time. A motorist who pays after the 28 day period has expired but before a Charge Certificate has been generated would only be required to settle the PCN at the rate applicable before the 50% is added.

We would argue that once the 28 day period has passed the penalty charge increases and it is then at the discretion of the enforcement authority as to whether they choose to enforce the increase through the issuing of a Charge Certificate.

We would like to express gratitude to the Adjudicator for giving us the opportunity to address the appellants submission on what is an important point. Having now given full consideration to the arguments put forward by the appellant we remain satisfied that the PCN remains compliant with the legislative requirements and, furthermore, properly expresses the intentions of Parliament when drafting the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005. We therefore submit that the appeal should be refused.'

I am now giving the matter further consideration and will notify the parties of my decision in due course.

**** *****
Adjudicator
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free parking
post Sat, 1 Dec 2018 - 23:14
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UPDATE

I am posting the reply to the councils sly message above that they sent only to the tribunal without me being able to see it .

Big thanks to the legend - cp8759 for this .

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Firstly i would like to thank you for making me aware of the council's response as it wasn't included on this cases tribunal portal page as i believe it should of been .

I would also like to take this moment to reply briefly to the points raised by the council in there reply .

The enforcement authority appears to have made a somewhat contradictory submission. In the first instance, it is asserted that the PCN makes it clear that the decision to issue a Charge Certificate is discretionary.

However the authority does not dispute that the PCN makes it equally clear that the penalty charge will be increased by 50%, therefore the fact that the charge will be increased is a foregone conclusion.

But the council also assert that "a Charge Certificate is generated and the penalty charge is increased by 50% at exactly the same time": if this is correct, it follows that it is a foregone conclusion that when the charge is increased by 50% a charge certificate will be issued, because this will happen at exactly the same time as when the charge is increased by 50% (which the motorist is told "will" happen).

This means that a motorist will always be faced by an increased charge, the PCN tells the recipient that the charge will be increased.

The council then contradicts itself saying by saying "We would argue that once the 28 day period has passed the penalty charge increases and it is then at the discretion of the enforcement authority as to whether they choose to enforce the increase through the issuing of a Charge Certificate."

These submissions cannot all be correct: Either the charge is increase by 50% (which is a foregone conclusion) and the charge certificate is issued "at exactly the same time", or "the penalty charge increases and it is then at the discretion of the enforcement authority as to whether they choose to enforce the increase through the issuing of a Charge Certificate."

But on either interpretation, the fact that the motorist will face an increased liability appears to be a foregone conclusion:

If the Charge Certificate it issued "at exactly the same time" as the charge is increased, then it is a foregone conclusion that the recipient of a PCN will be faced with an increased liability: the PCN informs a recipient that the council "will" increase the charge, and the council concedes in its submissions that its IT system issues a charge certificate "at exactly the same time".

If however "the penalty charge increases and it is then at the discretion of the enforcement authority as to whether they choose to enforce the increase through the issuing of a Charge Certificate.", i.e. the increase of the charge and the issue of a charge certificate are distinct and sequential steps, and only the second of these is discretionary, it follows that if a motorist attempting to pay the £60 after the charge has been increased to £90, but before the council has decided whether or not to issue a charge certificate, the liability they face is still £90 rather than £60 and this is a foregone conclusion. This is because the council has conceded it will not exercise discretion to decide whether or not to increase the charge, it will only exercise discretion when deciding whether to serve a charge certificate.

I would conclude by pointing out that council's through England and Wales simply state on their PCNs that the council may increase the charge by 50% (and the tribunal will no doubt be familiar with the standard wording that is employed), and there appears to be no reason why Tonbridge Wells Council cannot do the same.
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cp8759
post Fri, 7 Dec 2018 - 11:30
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The tribunal has allowed the appeal, basically accepting everything the appellant said. To top it off, we now have a recent and comprehensive will / may decision from the Traffic Penalty Tribunal, details added in the sticky thread.


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free parking
post Fri, 7 Dec 2018 - 21:39
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As already posted by cp8759 i won the appeal .

A massive thank you for all your help Sir CP8759 , you are a legend in your own right !

Now for the costs submission ..... what do you think Mick ?
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