PCN 51J failing to comply with a no entry sign - Upper Ground SE1 Options

[VinceVega]

I have received a PCN: 51J failing to comply with a no entry sign upon entering the road 55 Upper Ground London SE1 9EY

Waze seems to think this is a normal road and guides you onto it. Cycles are permitted but vehicles not apparent. It was a dark night and the lighting is pretty poor throughout this road. As i drove into the road, a driver notified me and I turned around immediately.

Do I have any grounds to contest this charge and ultimately overturn it?

This is my first post here so apologies in advance if i have made any mistakes

This post has been edited by VinceVega: Fri, 15 Nov 2019 - 13:20

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[stamfordman]

Video shows you driving straight past the no entry signs that look illuminated to me and continuing on so I really don't think you'll have any joy here (note - car is the one at end of video).

https://www.google.com/maps/@51.5078746,-0....6384!8i8192



This post has been edited by stamfordman: Fri, 15 Nov 2019 - 12:42

[PASTMYBEST]

post the other side of the PCN, the date by which they may serve a CC is wrong.

[VinceVega]

post the other side of the PCN, the date by which they may serve a CC is wrong.

Back of the scanned letter now attached. Appreciate your responses everyone

Video shows you driving straight past the no entry signs that look illuminated to me and continuing on so I really don't think you'll have any joy here (note - car is the one at end of video).

https://www.google.com/maps/@51.5078746,-0....6384!8i8192

Wow, where did you get this video?

[PASTMYBEST]

The PCN tells you that if you have not paid by the 10th of December they may issue a CC . This is not correct they may not issue a CC til 28 days beginning with the date of service of the PCN this would be the. 12th

Thin gruel, but all you have

[VinceVega]

The PCN tells you that if you have not paid by the 10th of December they may issue a CC . This is not correct they may not issue a CC til 28 days beginning with the date of service of the PCN this would be the. 12th

Thin gruel, but all you have

So what do you suggest I do? Do I have any grounds of appeal, if so is there a template I can utilise?

This post has been edited by VinceVega: Fri, 15 Nov 2019 - 14:04

[stamfordman]

You can make a no risk representation to Southwark on this point as they will reoffer the discount. Do not do this without developing it here first. The idea is to see if their rejection (they will reject, almost certainly), gives more ammunition.

If someone thinks this is worth doing (I'm not sure it is) I'm sure they'll draft some words for you.

[cp8759]

Full res video: https://www.youtube.com/watch?v=kK7r5x8S41I

It's damning, if the police had caught you you'd be looking at 3 points on your licence, so in that respect at least you were lucky.

You can send this, make sure to keep all italics exactly as I've used it below. Send 1st class from a post office (not signed-for) and ask for a certificate of posting, it's free.
Also include a copy of this: http://bit.ly/2KCRlnX

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

Dear London Borough of Southwark,

The alleged contravention is conceded, however liability is contested on the basis that the amount demanded exceeds the amount due in the circumstances of the case.

The Penalty Charge Notice was issued under the London Local Authorities and Transport for London Act 2003, section 4(8) provides that the PCN must state, amongst other things, "that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable".

The relevant 28 day period is found in paragraph 5 of schedule 1 to the Act, which specifies, insofar as it relevant, that:

(1) Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.

(2) The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a) where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;

Paragraph 5 therefore prescribes that the enforcement authority may only increase the penalty charge if it has not been paid before the end of the period of 28 days beginning with the date of service of the PCN.

The PCN served by the enforcement authority however states that:

If full payment has not been made before the end of the period of 28 days beginning with the date of this notice, a Charge Certificate may be issued increasing the amount outstanding by 50% to £195.00

The enforcement authority is purporting to be entitled to increase the charge by 50% two working days earlier than the legislation allows.

I refer the council to Robert Atlas v London Borough of Barnet (2170053479, 24 April 2017), previous cases are not binding but they can be persuasive as the council should know. The decision and its review are lengthy and are enclosed in full, however the relevant passages for the purposes of this representation are as follows:

"Section 4(8)(a) of the London Local Authorities and Transport for London Act 2003 provides that A penalty charge notice under this section must [amongst other things] state … (iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice; … (v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable; (vi) the amount of the increased charge
...
Mr Atlas correctly points out that in this case the Penalty Charge Notice states: ‘The penalty charge of £130 must be paid not later than the last day of the period of 28 days beginning with the date of this notice. If the penalty charge is not paid before the end of the 28 day period and no representations have been made, an increased charge of 50% to £195 may be payable and a charge certificate may be issued.’

Mr Atlas submits that this wording is not compliant with the requirements of the 2003 Act"

This is particularly relevant in the modern era when an increased charge might impact the motorist immediately if he is attempting to pay the penalty on the council website and he is confronted with an increased charge 29 days after the date of the PCN.

There will be plenty of motorists who have busy lives, maybe miss the discount period, have no substantive representations to put forward and simply want to pay the penalty and move on.

However such a motorist who picks up the PCN on the 28th day from the date of service and reads over it again would be lead to believe that the payment period has expired two day earlier, and the council could have already increased the penalty by 50% to £195. Regardless of whether the council would in fact prematurely increase the charge is besides the point, this is not the meaning that the legislation requires to be conveyed to the motorist.

As the PCN does not convey the meaning mandated by the legislation, the only penalty that may be demanded is nil.

[VinceVega]

Thank you ALL for the responses and the amazing draft from @cp8759

I shall print this letter and post as advised. I will scan the response back here once received. You are all truly helpful and generous with your knowledge and expertise!

[Incandescent]

Thank you ALL for the responses and the amazing draft from @cp8759

I shall print this letter and post as advised. I will scan the response back here once received. You are all truly helpful and generous with your knowledge and expertise!

As CP8759 will no doubt concur, don't expect them to roll over like spaniels !

Frankly something like this should win at adjudication. The adjudicators will always tell you they can only decide on law, not mitigation. So here is the law that they really should apply, but usually they waffle on about "substantial compliance". OK, but not for something that is mandatory, as here. Needless to say, you'd have to risk the full PCN penalty at adjudication. Justice it ain't !

[cp8759]

As CP8759 will no doubt concur, don't expect them to roll over like spaniels !

Oh I'm counting on that, with a bit of luck the rejection will ignore everything that is said in the representation. I like writing appeals where I can criticise the EA for droning on and on about largely irrelevant matters, as there's not much that the council can put forward as a rebuttal.

[VinceVega]

Hi all,

The appeal was rejected, but I have no space left in this thread to upload it

Are you therefor able to access this link to it?

https://1drv.ms/b/s!AioY-Xj7qpA0geQn9IpUpvYDMye7_Q



This post has been edited by VinceVega: Wed, 27 Nov 2019 - 19:39

[PASTMYBEST]

Nothing in the rejection helps strengthen your case. I would consider the discount with only the one argument to make

[VinceVega]

@CP8759 any final thoughts on this, or shall i just go ahead and pay the PCN?

[cp8759]

Well your choice is to take the discount offer, or carry on to the tribunal. The fact that the contravention is very serious and blatant might sway some adjudicators in ruling the PCN is substantially complaint. But legally speaking the PCN is not compliant and you have an arguable case. It's down to whether you fancy a gamble. You could win, but you might lose.

[VinceVega]

In what way is the PCN not compliant and on what basis is the case arguable on ?

This post has been edited by VinceVega: Sat, 30 Nov 2019 - 16:30

[cp8759]

The PCN says:



However paragaph 5(2) of Schedule 1 to the London Local Authorities and Transport for London Act 2003 says (my emphasis):

The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a) where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;

The PCN is dated 13 of November, but the date of service is deemed to be two working days later, i.e. 15 November, so effectively for the purposes of the Charge Certificate the council is giving you the wrong 28 day period. So the council is saying it could increase the penalty on 11 December, but the law does not allow it to do this any earlier than 13 December, so the council is effectively depriving you of two days when it should still accept the penalty at £130 rather than £195.

This has won in the past, see for example these cases:

Robert Atlas v London Borough of Barnet (2170053479, 24 April 2017) http://bit.ly/2KCRlnX
Ehsan Moghul v London Borough of Barnet (2180378221, 06 November 2018) http://bit.ly/2KNKK7N
Adam Jones v London Borough of Havering (2190374806, 09 October 2019) http://bit.ly/2M5Dwgr

Your case is not as clear cut, because the period given for representations is correct. Nonetheless, in relation to the Charge Certificate, the PCN served by Southwark council does not convey what the law says it should.

There is also the fact that if you concede the contravention and only argue the technicality, the council will ignore your representation and send you a Notice of Rejection that only deals with the contravention, this would be a failure to consider that could win on its own. See for example Jaffer Husseyin v Royal Borough of Greenwich (2170256432, 03 July 2017) http://bit.ly/2U7F27s

But it's not a sure thing, so this is really down to your attitude to risk.