PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

PCN 52M and now trouble with ZipCar in London - Help Please!
CF2019
post Tue, 29 Jan 2019 - 18:34
Post #1


New Member


Group: Members
Posts: 5
Joined: 25 Jan 2019
Member No.: 102,098



Hi,

This is an issue that has been ongoing over the last 7 - 10 days now, I have searched the net alongside these forums before finally joining and asking for help. It's quite a long post - sorry. Also, I hope I've quoted and attached everything necessary but apologies upfront in case I have done something wrong. Right, the problem:

I received an email from ZipCar informing me of a PCN (52M) dating back to Nov 2018:

QUOTE
We have received a Penalty Charge Notice ****. Unfortunately, having consulted our records I am sorry to inform you that responsibility has been attributed to your account.

The charge was issued during your reservation for traffic at ****. Your trip ran from ****.

We will pay the £65.00 charge in five days and will add this and a £15.00 processing fee to your bill then. The processing fee covers the cost of receiving, reviewing and paying the PCN on your behalf.

If you feel this Notice was issued incorrectly and would like to appeal it, please contact us by responding to this email within the 5 day window.

If we do not hear from you, the PCN and the processing fee will be paid and settled by Zipcar in 5 days’ time. So, if you are satisfied that the PCN has been issued correctly, no further action is required by you.


Attached to the email was a letter and two images:







This was for driving a ZipCar through Cornhill in London on a weekday. I drive a lot around London and have done for over ten years, this is my first PCN so I was a bit shocked. After searching these forums I learned it's quite a controversial hotspot and a lot of these PCNs are overturned. I responded to ZipCar informing them that I would like to appeal the PCN and used a template that I found on this forum:

QUOTE
I do believe this PCN was issued incorrectly and would like to appeal it on these grounds:

1. The contravention did not occur because of missing road markings.

ETA case 2170469229 is appropriate:-

"The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.
Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .

Item 15 of the sign table in part 6 contains the description ” Road or part of a road with access permitted only for buses and other vehicles when so indicated by any of the signs at items 33 to 35 and 37 to 40 in the sign table in Part 2 of Schedule 3”.

The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it."

2. The contravention given is untenable

The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).

With respect, I would refer the adjudicator ETA 2170058483 and the Review of that Decision.

In that case the adjudicator ruled as follows:-

Extract

“Mrs Imeybore does not dispute that she did indeed drive through a “bus gate” along a section of Rye Lane reserved for buses and cycles. However Mr Dishman has put forward a number of arguments on her behalf. Although I went through these in some detail with him at the hearing, I confine this decision to only one of them, on the basis of which I will allow both appeals. It relates to the wording of the allegation contained in each of the PCNs, as follows.

“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.

Section 4 of the 2003 Act provides, so far as is material to this case,

“(1) This section applies where

(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or

(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.

(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice

(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and

(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following

(i) the person appearing to them to be the operator of the vehicle; and

(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.



(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign.

(6) No penalty charge shall be payable under subsection (5)(a) above where

(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.

Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)

I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.

------------------------------

This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.

The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:

An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong

It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.

Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .

"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign."

Section 4 (6) goes on to provide:

" No penalty charge shall be payable under subsection (5)(a) above where

the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)

It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.

The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.

The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.

The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.
---------------------------

For the above reasons I believe the contravention cannot be sustained and the PCN must be cancelled.


I then received this response from ZipCar with image attached:



QUOTE
I have attached the relevant signage at the start of the road, this can not be missed when entering Cornhill, as you can see the correct signage is in place. for more information on this please visit =

https://www.cityoflondon.gov.uk/services/tr...s-and-signs.pdf

or

https://www.cityoflondon.gov.uk/services/tr...-penalties.aspx

for further information on the violation. Unfortunately, the councils are quite strict in their enforcement of traffic fines and because this contravention occurred during your booking this fine was issued and attributed to your account correctly. I’m afraid we will therefore need to apply the associated charge.

I understand that this is a frustrating situation, but we need you to remember that PCNs are not issued by Zipcar, but by the local authority. We try to accommodate our members as best we can, but we, as a company need to recover the costs of these fines from the members responsible.


I responded:

QUOTE
So can you confirm that Zipcar are denying me my right to appeal this? My appeal is not based on there being no signage, it is based on a number of other factors. The first email zipcar sent me on this matter stated that if I would like to appeal this I have 5 business days to reply, I replied within one business day. This isn’t something I am doing ‘on a whim’, I have access to legal advice and I have a right to appeal this. It is absolutely not a decision that is made by zipcar as to whether or not the PCN is correct.


ZipCar replied:

QUOTE
To clarify no valid appeal can be made as shown in the attached photo previously sent to you, the street had the correct signage in place. I have attached a relevant term and condition confirming we are not taking any rights away from you. 11. 4 - The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion.

we give you the opportunity to appeal directly to Zipcar however reviewing the evidence we have decided no successful appeal can be made. This decision has been made at a managerial level and will not be over turned


They then went on to send this as well:

QUOTE
We have received a traffic violation following your reservation that took place **** (ticket number ****).

After receiving this Notice, we paid the violation on your behalf, to ensure that our vehicle was free of any obligations and ready to be reserved by our fellow members.

The cost of the violation was £65.00, which we have applied to your account.

For more information on our violations policy, please visit our Help Centre. Use the search box to ask a question or type in a key word to find the relevant article.


I responded:

QUOTE
I do not authorise ZipCar or any other party/parties involved in this matter to deduct any amount from my credit or debit accounts associated with my Zipcar account until this matter is resolved. If any amount is taken without my authority I will take action.

May I also remind you that an organisation’s ‘Ts and Cs’ do not override the rule of law. It is also important for you to understand that it is not the council, not TFL and certainly not ZipCar’s role to legally determine whether a PCN is valid, or whether an appeal will be ‘successful’. That is for a tribunal to decide.

It is very clear to me what has happened here - ZipCar has already gone ahead and paid the PCN, that is a mistake made by ZipCar and not myself. ZipCar are now trying to pass this mistake on to me.

The signage on the carriageway and the technicalities of the PCN are incorrect - this has been determined in a number of past cases that went to tribunal, however many times you send me the same reply, that doesn’t override this fact. I remind you, ZipCar cannot make a decision on the validity of a PCN, or the compliance of carriageway signage and markings, that is for a tribunal and ZipCar have denied me this right.


ZipCar eventually responded today:

QUOTE
I can again confirm we are not taking any rights away from you. The issuing authority will only accept an appeal from the owner of the vehicle (Zipcar) and its the owners decision to appeal or not. 11. 4 - The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion. We give you the opportunity to appeal directly to Zipcar.

Zipcar members are responsible for any parking tickets received by Zipcar as a part of their member contract with us. In taking a service out with ourselves you accepted the terms and conditions of our car club and by driving one of our vehicles agreed to abide by the highway code.

Therefore, I feel I must inform you that as the balance is due it will continue through the debt process. If left unpaid this will go to debt collections which could affect your credit rating or ability to obtain credit with other businesses.


Again, any help or advice is hugely appreciated. To me now it's not so much about the money - it infuriates me that this company has taken away might right to appeal this. If I had appealed and lost, fair enough but ZipCar are denying me that.

Thanks!
Go to the top of the page
 
+Quote Post
2 Pages V  < 1 2  
Start new topic
Replies (20 - 22)
Advertisement
post Tue, 29 Jan 2019 - 18:34
Post #


Advertise here!









Go to the top of the page
 
Quote Post
Mad Mick V
post Fri, 1 Feb 2019 - 14:55
Post #21


Member


Group: Members
Posts: 8,599
Joined: 28 Mar 2007
Member No.: 11,355



I agree this is getting silly.

Pay the damn charges then complain to ZipCar. Otherwise it escalates out of all proportion.

As we have already advised ZipCar's position in trying to recover the PCN +fees is weak. IMO they might well be acting illegally but will respond by saying the OP signed a contract where he accepted the reasonableness of it having terms which stated he would be responsible for penalty charges.

As a customer, query their processes particularly not allowing a hirer any say in whether the contravention occurred. Wouldn't it be better for them to ask a hirer whether he or she wants to fight it? Is there no standing process at ZipCar which allows this fundamental right to defend oneself ?

Put it to them that not being the true owner of the vehicle they have no right to "pass the parcel" of a PCN to you, a third party, under the legislation.

Lay it on thick and see how they respond.

Mick

This post has been edited by Mad Mick V: Fri, 1 Feb 2019 - 14:56
Go to the top of the page
 
+Quote Post
cp8759
post Sat, 2 Feb 2019 - 16:16
Post #22


Member


Group: Members
Posts: 18,409
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (Mad Mick V @ Fri, 1 Feb 2019 - 14:55) *
Pay the damn charges then complain to ZipCar. Otherwise it escalates out of all proportion.

If the OP pays the charges he'll never see his money again unless he takes them to court, and there it might be questioned why he paid. There's nothing to escalate, as Avis have paid the penalty already, so I'm not sure what you're referring to?

This post has been edited by cp8759: Sat, 2 Feb 2019 - 16:17


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
cp8759
post Sat, 2 Feb 2019 - 16:27
Post #23


Member


Group: Members
Posts: 18,409
Joined: 3 Dec 2010
Member No.: 42,618



As things stand, the OP is being pursued for a contractual debt which, to say the least, is disputed. How anyone can sensibly advise that the best course of action is to pay first and argue later is beyond me, the OP should refuse to pay and if zipcar want to take it further, they can file a claim in the county court. In the unlikely event they take it that far, the OP can file a defence, with a good chance of success.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post

2 Pages V  < 1 2
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Saturday, 11th July 2020 - 00:20
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.