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Towing and fees, Split from hijacked thread
Asif Nazir
post Fri, 8 Jun 2018 - 14:47
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QUOTE (cp8759 @ Fri, 8 Jun 2018 - 12:34) *
For once I have to completely disagree with Mad Mick V, Kking parked in a restricted zone outside of a marked bay so 01 is the correct contravention code, as the situation is analogous to parking in a CPZ on a yellow line.

Put it another way, the permit is irrelevant because there is no permit that would allow Kking to park where he did.

Personally I would concede the contravention but argue that the tow was disproportionate.



Where is the advantage in conceding anything if a release fee has been paid?

I would start by asking them what law they think allows them to charge a release fee.
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Wretched Rectum
post Sat, 9 Jun 2018 - 07:23
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Searching through bogseys posts, he repeatedly asks the question

QUOTE
When is it appropriate to charge the “owner” pursuant to section 101 and when is it appropriate to charge the “person responsible” pursuant to section102?


I could not find that it was ever answered.

I did find a thread concerning a Scottish tow case and bogsey provides sound reasoning in posts 6 and 13. View here.

It does seem a reasonable view. I particularly liked from his posts the question "how can a penalty notice be a valid notice if the rights it says you have to make an informal challenge and also get a NTO are denied?" and also where he points out that the removal and disposal of vehicles regulations 1986 provide two opportunites for the removed vehicle to be recovered and therefore, "why two periods and what differentiates them?"

His status shows as "guest". Why is that?

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DancingDad
post Sat, 9 Jun 2018 - 07:36
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 08:23) *
.........His status shows as "guest". Why is that?

He decided to retire from the forum for his own personal reasons.

Bogsy always advanced not only technically sound arguments but he also took the pragmatic view, that it was not enough to have a reasoned argument, this had to be agreed by adjudicators or enshrined with a High Court ruling.
Hence he kept developing and trying to find chinks without getting bogged down in blind dogma.
Any of his arguments are IMO well worth considering but always with a pragmatic viewpoint, they are not a silver bullet or advanced as a guaranteed win, only that they are an avenue that may well tempt a council into errors that can win
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Asif Nazir
post Sat, 9 Jun 2018 - 08:08
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 08:23) *
Searching through bogseys posts, he repeatedly asks the question

QUOTE
When is it appropriate to charge the “owner” pursuant to section 101 and when is it appropriate to charge the “person responsible” pursuant to section102?


I could not find that it was ever answered.

I did find a thread concerning a Scottish tow case and bogsey provides sound reasoning in posts 6 and 13. View here.

It does seem a reasonable view. I particularly liked from his posts the question "how can a penalty notice be a valid notice if the rights it says you have to make an informal challenge and also get a NTO are denied?" and also where he points out that the removal and disposal of vehicles regulations 1986 provide two opportunites for the removed vehicle to be recovered and therefore, "why two periods and what differentiates them?"

His status shows as "guest". Why is that?



Bogsy is right, of course, but if Adjs. are too stupid to see the truth then you have to go to the HC. Sadly, there is no shortage of inept Deputy judges waiting to get it wrong.
http://www.bailii.org/ew/cases/EWHC/Admin/2015/713.html

The situation was made worse by Parliament when it passed the Road Traffic Act 1991. Even if the law is correctly followed, and the removal and storage charges are paid and the impounded vehicle is released then you have no right to appeal. This is because of section 71.

https://www.legislation.gov.uk/ukpga/1991/40/section/71

71 Representations in relation to removal or immobilisation of vehicles.
(1)The owner or person in charge of a vehicle who—
(a)removes it from the custody of a London authority in accordance with subsection (4A) of section 101 of the Road Traffic Regulation Act 1984 (ultimate disposal of vehicles abandoned and removable under that Act);
(b)receives any sum in respect of the vehicle under subsection (5A) of that section;
©is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in subsection (5A) of that section; or
(d)secures its release from an immobilisation device in accordance with section 69(4) of this Act,

shall thereupon be informed of his right under this section to make representations to the relevant authority and of the effect of section 72 of this Act.


section 4A demands payment of penalty, removal and storage charges, but should only be used for abandoned vehicles.

So if in a decrim parking area (like Glasgow) the law is correctly followed and "the person responsible" pays the removal and storage charge and the vehicle is released the council
does not have to give the payee an appeals form and the payee has no right to make formal reps.

When Parliament passed section 71 it did not know section 101 was only for abandoned vehicles.

Also if the police or council remove a vehicle because it is parked dangerously, broken down, causing an obstruction but a pcn is NOT issued then when the release fee is paid there is no appeal. Very harsh.
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Wretched Rectum
post Sat, 9 Jun 2018 - 11:34
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QUOTE (cp8759 @ Fri, 8 Jun 2018 - 19:06) *
Therefore the only argument that has any realistic prospect of success at the tribunal stage is, IMO, that towing the vehicle was a disproportionate interference with Kking's property rights under Article 1 of Protocol 1 of the ECHR, and it is for the council to show that towing was a proportionate response in pursuance of a legitimate aim. Two cases that can be quoted in support of this are:

https://www.scribd.com/document/374695358/B...t-Protocol-ECHR (It is for the council to establish the removal was proportionate)
https://www.scribd.com/document/374695480/R...ol-City-Council (there is a principle of “fair balance” between the severity of the parking infringement and the citizen’s right to quiet enjoyment of their property)

There is no guarantee of success, but at least this is an arguable basis to challenge the removal that has more than a fanciful prospect of success.


Trawling through bogsy's posts I see he looked into the human rights angle with this

QUOTE
I further submit that the council’s deviation from the TMA 2004 contravenes section 3 of the Human Rights Act 1998 since a person who cannot afford to pre-pay the charges is not given equal access to a fair hearing in the same manner as someone who can afford to pay. Access to a fair hearing is made conditional on a person’s ability to pre- pay. No pay = no appeal! This condition is discriminatory on grounds of financial property. Discrimination occurs where a person is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified. There is no justification whatsoever for any discriminatory access to a fair hearing since the council could have acted differently and compatibly with the European Convention for Human Rights had they not deviated from the TMA 2004.
In considering the above I trust the Council will have regard to the recent Supreme Court judgement given on 26th July 2017 in the case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) where the impact of upfront fees to access a fair hearing was considered to be unlawful under both domestic and EU law because it has the effect of preventing access to justice.

To further demonstrate that deviating from the Traffic Management Act 2004 conflicts with a person’s right to a fair hearing please consider the following.

In the currently applied removal process, if after vehicle recovery a person makes formal representations within the 28 day period but no rejection notice is received by that person or if an appeal to the adjudicator is posted but no response is heard, then in either scenario the person would not be able to wait for the service of an Order of Recovery in order to make a witness statement that would enable them to re-engage with their right to have access to a fair trial. This is because no Order for Recovery will ever be served due to the penalty charge having already been paid up front. An Order for Recovery is only served when the penalty charge remains unpaid.

Clearly, in the currently applied process, a person who has their vehicle removed and either does not receive a rejection notice or a response from an adjudicator, faces a disadvantage that a person who commits the same contravention but does not have their vehicle removed, does not face. No such discrimination/access to a fair hearing would occur if the Traffic Management Act 2004 is followed.


and this

QUOTE
Article 1 of the First Protocol to the European Convention for Human Rights instructs that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law.

The conditions provided for by law did not entitle the council to continue to deprive possession of my vehicle until I paid the parking penalty charge and charge made in respect of the removal of my vehicle.

My vehicle was removed pursuant to section 99 of the RTRA 1984. Under this Act the right for to retain a removed vehicle until payment is made is explicitly regulated under section 102(4).

102(4) Without prejudice to subsection (3) above, where by virtue of paragraph (a) or (b) of subsection (2) above any sum is recoverable in respect of a vehicle by the chief officer of a police force or a local authority in whose custody the vehicle is, the chief officer or local authority shall be entitled to retain custody of it until that sum has been paid.

My vehicle was removed from within a civil enforcement area and therefore the sum recoverable was not “by virtue of paragraph (a) or (b) of subsection (2)” but by virtue of subsection 102(2A).

102(2A) If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004.

Schedule 9 of the TMA 2004 confirms that the charge for removal was payable pursuant to section 102 of the RTRA 1984.

1(1)This Schedule provides for the setting of the levels of—
(a)penalty charges, including any discounts or surcharges,
(b)charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions,


As the right to retain a removed vehicle until payment is made does not extend to civil enforcement authorities, the conditions provided for by law did not entitle the council to retain my vehicle and deprive me of its possession until I paid the charges. I therefore submit that the council without justification, acted in a way that is incompatible with human rights and by failing to give effect to section 102 of the RTRA 1984, interpreted the RTRA 1984 in a manner contrary to section 3 of the Human Rights Act 1998.


I could not find any adjudication decisions that dealt with these specific HR arguments. It is not in the Thompson decision. Can anyone cite any case numbers?

I have to say it seems credible. As bogsy points out, the right for an English local authority to keep hold of a car until payment, is controlled under section 102(4) RTRA 1984 and the right is given only to local authorities that enforce parking as a criminal offence. It's in black and white to see here.

Does section 3 HR Act 1998 viewable here compel a local authority to take note of section 102(4) RTRA 1984 so that a person's human right to their property is not interfered with?
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cp8759
post Sat, 9 Jun 2018 - 12:04
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QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 09:08) *
71 Representations in relation to removal or immobilisation of vehicles.
(1)The owner or person in charge of a vehicle who—
(a)removes it from the custody of a London authority in accordance with subsection (4A) of section 101 of the Road Traffic Regulation Act 1984 (ultimate disposal of vehicles abandoned and removable under that Act);
(b)receives any sum in respect of the vehicle under subsection (5A) of that section;
©is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in subsection (5A) of that section; or
(d)secures its release from an immobilisation device in accordance with section 69(4) of this Act,

shall thereupon be informed of his right under this section to make representations to the relevant authority and of the effect of section 72 of this Act.


section 4A demands payment of penalty, removal and storage charges, but should only be used for abandoned vehicles.

So if in a decrim parking area (like Glasgow) the law is correctly followed and "the person responsible" pays the removal and storage charge and the vehicle is released the council
does not have to give the payee an appeals form and the payee has no right to make formal reps.

When Parliament passed section 71 it did not know section 101 was only for abandoned vehicles.

Also if the police or council remove a vehicle because it is parked dangerously, broken down, causing an obstruction but a pcn is NOT issued then when the release fee is paid there is no appeal. Very harsh.

Well this very point was considered by the London Tribunals in appeal 2140323858:

"17) While the statutory provisions are far from straightforward, I cannot adopt Mr. Thomson's analysis. Simply stated, section 101 of the Act does not require the abandonment to be evident at the time of contravention or removal. It requires the abandonment to be evident at the time of disposal"

In any event Parliament is assumed to know what it's doing, no court has the authority to second guess what Parliament did or didn't know when it passed the Act.


--------------------
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.
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DancingDad
post Sat, 9 Jun 2018 - 12:09
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 12:34) *
...….I could not find any adjudication decisions that dealt with these specific HR arguments. It is not in the Thompson decision. Can anyone cite any case numbers?
………...


Fairly certain no positive decisions and though not so positive, doubt there are any/many to even deal with the arguments in detail.
Common response from adjudicators now is to ignore or dismiss as internet derived rubbish.
It isn't rubbish and IMO deserves a fair hearing in a proper court but that effectively means that someone has to not only get towed but be prepared to follow through to Judicial Review, with the costs that entails and inherent risk.
Also needs someone who can argue the point calmly and rationally, which discounts many people who are simply looking for a fix to their removal and cannot/will not delve into the actual legislation at a level where they understand and can offer counter arguments in a semi formal hearing (tribunal)

Generally nowadays, we simply see the fervent post (opening post in this one is a good example "I would start by asking them what law they think allows them to charge a release fee.") which does not guide in any fashion but simply sets off the converted against the pragmatic.

This post has been edited by DancingDad: Sat, 9 Jun 2018 - 12:57
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cp8759
post Sat, 9 Jun 2018 - 12:34
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To be honest I think there's two distinct HR arguments to be made:

1) Towing was a disproportionate interference with article 1 of protocol 1 ECHR, this has been accepted by the TPT before and endorsed by Caroline Sheppard (see http://forums.pepipoo.com/index.php?s=&...&p=1381583)

2) Demanding payment of the release fee is unlawful under Article 6 ECHR (everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law). This to my knowledge has never been tested. There is an argument to be made that by only allowing representations after payment of the penalty charge, the RTRA breaches Article 6 by putting an unreasonable barrier to the right of access to the tribunal. The problem with this is that, as the RTRA is primary legislation, it is difficult for the courts to rule against it. It could be argued before the Court of Session that, as the designation orders that extend the RTA 1991 to Scotland are secondary legislation, they could be either quashed or interpreted to mean that the right of access to the tribunal arises before payment of the release fees. Alternatively, the matter would have to be taken to the European Court of Human Rights, which might rule that in this scenario Scottish Law has breached the appellant's Article 6 rights and thus order the UK government to pay compensation.

The problem with this approach is that the chances are, at best, 50/50, and the cost of a judicial review before the Court of Session and/or an appeal to the Supreme Court and then the European Court of Human Rights is likely to be many tens of thousands of pounds. Given it's so much cheaper to pay the release fee and access the tribunal in the normal way, that's what any sane person would do (which in fairness shows that maybe the motorists's Article 6 right aren't interfered with that much after all).


--------------------
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.
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Asif Nazir
post Sat, 9 Jun 2018 - 12:38
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QUOTE (cp8759 @ Sat, 9 Jun 2018 - 13:04) *
QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 09:08) *
71 Representations in relation to removal or immobilisation of vehicles.
(1)The owner or person in charge of a vehicle who—
(a)removes it from the custody of a London authority in accordance with subsection (4A) of section 101 of the Road Traffic Regulation Act 1984 (ultimate disposal of vehicles abandoned and removable under that Act);
(b)receives any sum in respect of the vehicle under subsection (5A) of that section;
©is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in subsection (5A) of that section; or
(d)secures its release from an immobilisation device in accordance with section 69(4) of this Act,

shall thereupon be informed of his right under this section to make representations to the relevant authority and of the effect of section 72 of this Act.


section 4A demands payment of penalty, removal and storage charges, but should only be used for abandoned vehicles.

So if in a decrim parking area (like Glasgow) the law is correctly followed and "the person responsible" pays the removal and storage charge and the vehicle is released the council
does not have to give the payee an appeals form and the payee has no right to make formal reps.

When Parliament passed section 71 it did not know section 101 was only for abandoned vehicles.

Also if the police or council remove a vehicle because it is parked dangerously, broken down, causing an obstruction but a pcn is NOT issued then when the release fee is paid there is no appeal. Very harsh.

Well this very point was considered by the London Tribunals in appeal 2140323858:

"17) While the statutory provisions are far from straightforward, I cannot adopt Mr. Thomson's analysis. Simply stated, section 101 of the Act does not require the abandonment to be evident at the time of contravention or removal. It requires the abandonment to be evident at the time of disposal"

In any event Parliament is assumed to know what it's doing, no court has the authority to second guess what Parliament did or didn't know when it passed the Act.



they are entirely straightforward, Rayner simply did not know what he was doing.

He followed his earlier decision in Sugarwhite 2110405341 which was a complete joke.



Put simply, Mr. Sugarwhite's submission is that Hackney council had no authority to require the payment of a release fee or of the penalty charge before returning his car. He submits that they could have been relying only on section 101A of the 1984 Act to do that. However, Mr. Sugarwhite submits, that section applies only to vehicles that have been abandoned under the provisions of section 101. His car was never, and could reasonably have been believed to have been, abandoned. Hackney council, he submits, should be relying on the powers under section 102(2A) of the 1984 Act to have seized his car. That section does not contain a power to require payment of any charges before a vehicle is released. Any such debt must be collected through the civil courts. Crucially, Mr. Sugarwhite submits, section 102 does not relate to "abandoned" vehicles. As his vehicle was not abandoned, Hackney council should have relied on this provision rather than section 101A. Mr. Sugarwhite submits that there is no specific appeal process for vehicles seized under section 102(2A), so that the appropriate appeal procedure should be assumed to be that applicable to Regulation 9 PCNs under the Appeals and Representations Regulations, and specifically under Part 2 of those Regulations.



He makes a number of persuasive points to support this general proposal. In particular he makes a submission that Regulation 11 of the Appeals and Representations Regulations applies only to appeals relating to vehicles that appear abandoned but are subsequently claimed by the owner



While I accept the ingenuity of Mr. Sugarwhite's argument, and acknowledge that the statutory provisions are complex and sometimes apparently contradictory, I do not accept his analysis of them. If he is correct, and an enforcement authority is required to rely on section 102(2A) of the 1984 Act to remove a vehicle that does not appear abandoned from a civil enforcement area, they would have no authority to retain the vehicle; the motorist would have a right of appeal against the Regulation 9 PCN under the provisions of Part 2 of the Appeals and Representations Regulations; and any further sum payable would have to be collected through the civil courts. That would be a truly cumbersome process, and would substantially negate Regulations 11 and 12 of those Regulations.


He admits he does not understand the law. Honest, if nothing else. He rejects the argument because it would make the process 'cumbersome'. Laughable.


In a civil enforcement area you pay nothing to recover the vehicle, if the council wants to chase the pcn they have to serve a nto, if they want the removal and storage charge
they have to sue. It is very simple. The person to sue is the person responsible, not necessarily the owner.

Sadly this is too complex for some people.

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cp8759
post Sat, 9 Jun 2018 - 14:04
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QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 13:38) *
they are entirely straightforward, Rayner simply did not know what he was doing.

The fact that you repeatedly quoted section 101(4), which doesn't apply in Glasgow, suggests it's not that straightforward. To be honest the legislation is a mess and it's something that should be consolidated.

Having said that, I have to side with DancingDad. If you're so sure your interpretation of the law is correct, why don't you get towed yourself so you can fight your case all the way to the Supreme Court and prove us all wrong?


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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.
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bama
post Sat, 9 Jun 2018 - 14:24
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Bogsy was all over the towing regs some time ago.
worth a look IMO
I don't have a link - apols.


--------------------
Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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Wretched Rectum
post Sat, 9 Jun 2018 - 14:57
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QUOTE (cp8759 @ Sat, 9 Jun 2018 - 13:34) *
The problem with this is that, as the RTRA is primary legislation, it is difficult for the courts to rule against it.


From what I've understood of bogsy's points (mainly gleaned from post 41 here) and also Asif's, there is no barrier (the barrier being up front payment) to a fair hearing when section 102 RTRA 1984 is used to seek payment. This is because the penalty charge is not immediately payable under section 102. Meaning the right to 28 days to pay the PCN or make an informal challenge stays in play. If challenged, the route to formal representations and adjudication will also stay in play. With section 102 RTRA 1984 everything follows the TMA 2004 rather than the RTRA 1984.

Nor are the removal and storage charges immediately payable on recovery under section 102. A local authority can ask for them to be paid but refusal does not seem to give any right to withold a person's car (property). If they do not pay, the removal and storage debt is recoverable through the courts according to section 102(3)

QUOTE
(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.


Removal and storage charge amounts are provided for under Schedule 9 TMA 2004

QUOTE
1(1)This Schedule provides for the setting of the levels of—

(a)penalty charges, including any discounts or surcharges,

(b)charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions, and

©charges for the release of vehicles from an immobilisation device under regulations under section 79 above.

(2)References in this Schedule to “charges” are to those charges.


It clearly says the set amounts are for when charging under section 102.

This makes bogsy's question a good one

QUOTE
when is it appropriate to charge the "owner" pursuant to s.101A RTRA 1984 and when is it appropriate to charge the "person responsible" pursuant to s.102(2A) RTRA 1984?


I don't see that any adjudicator has answered it.

Local authority's seem to be using section 101A RTRA 1984 to charge and never section 102(2A) despite the indication of schedule 9 TMA 2004 and the obligation to apply section 3 of the HR Act 1998.

QUOTE
3 Interpretation of legislation.

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

©does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.


If a car is borrowed with consent, section 102(2A) RTRA 1984 makes the borrower (as the "person responsible") liable for any removal and storage charges but not so under section 101A where the owner is liable.

I'm a bit baffled why no adjudicator has scolded local authorities for failing to give effect to section 102 RTRA 1984 so that convention rights are maintained.

This post has been edited by Wretched Rectum: Sat, 9 Jun 2018 - 15:30
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cp8759
post Sat, 9 Jun 2018 - 16:33
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Wretched Rectum I've not looked at the English situation, but this thread originated from a Scottish case where the Traffic Management Act 2004 is irrelevant, as the PCN was issued under the Road Traffic Act 1991 as amended by The Road Traffic (Permitted Parking Area and Special Parking Area) (City of Glasgow) Designation Order 1999.

Following the challenges posed by Asif Nazir I've looked at the legislation very, very carefully and can find nothing that prevents the local authority from relying on RTRA 101(4A) to demand payment of the penalty charge, other than the article 6 argument noted above. Certainly the Road Traffic Act 1991, the Road Traffic Regulation Act 1984 and The Road Traffic (Permitted Parking Area and Special Parking Area) (City of Glasgow) Designation Order 1999 appear to explicitly allow the enforcement authority to demand payment of the towing charges and the PCN before releasing the vehicle. For the reasons outlined in post 27, it's unlikely anyone will ever pursue this beyond The Parking and Bus Lane Tribunal for Scotland, and experience shows Scottish adjudicators are not very receptive to this sort of argument. To change this, you'd need someone to, at the very least, lose at The Parking and Bus Lane Tribunal for Scotland and then seek a judicial review before the Court of Session.


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No, I am not a lawyer.
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Asif Nazir
post Sat, 9 Jun 2018 - 17:03
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you were right about Glasgow.


4.—(1) Section 101 shall be modified as follows.

(2) Subsection (4) shall be omitted.

(3) In subsection (4A), for the words “Greater London” there shall be substituted “the parking area”(3).

(4) Subsection (5) shall be omitted.

(5) In subsection (5A), for the words “Greater London” there shall be substituted “the parking area”(4).


Section 104A (not 104 as you said) RTRA now reads:

(4A) If, before a vehicle found in the parking area is disposed of by an authority in pursuance of
subsections (1) to (3) above, the vehicle is claimed by a person who satisfies the authority that he
is its owner and pays—
(a) any penalty charge payable in respect of the parking of the vehicle in the place from
which it was removed; and
(b) such sums in respect of the removal and storage of the vehicle—
(i) as the authority may require; or
(ii) in the case of sums payable to a competent authority which is not a local
authority, as may be prescribed,
the authority shall permit him to remove the vehicle from their custody within such period as they
may specify or, where paragraph (b)(ii) applies, as may be prescribed.


however, this only applies to abandoned vehicles.

What should have happened in the current case is s102 should have been followed. As Glasgow is a DPE area the removal and storage charge has to be paid first
under section 102(4).

102.— Charges for removal, storage and disposal of vehicles.
(1) The provisions of this section shall have effect where a vehicle—
(a) is removed from a parking place in pursuance of an order to which section 101 of this
Act applies, or
(b) is removed from a road, or from land in the open air, in pursuance of regulations under
section 99 of this Act



(2) In any such case—
(a) the appropriate authority shall be entitled to recover from any person responsible such
charges as may be prescribed in respect of the removal of the vehicle;
(b) the chief officer of a police force or a local authority [ other than a London authority
in whose custody any such vehicle is during any period shall be entitled to recover from
any person responsible charges ascertained by reference to a prescribed scale in respect of
that period;
© the chief officer of a police force or a local authority [ other than a London authority ]
who dispose of any such vehicle in pursuance of section 101 of this Act shall be entitled to
recover from any person responsible charges determined in the prescribed manner in respect
of its disposal [ ; and ]

(4) Without prejudice to subsection (3) above, where by virtue of paragraph (a) or (b) of subsection
(2) above any sum is recoverable in respect of a vehicle by the chief officer of a police force or a
local authority in whose custody the vehicle is, the chief officer or local authority shall be entitled
to retain custody of it until that sum has been paid.


In civil parking enf. areas the owner pays nothing for release.

After the removal and storage charges were paid Glasgow would have to serve a Notice to Owner if it wanted to recover the penalty charge.

That way MAYBE the removal and storage charges could be refunded at adjudation stage.


You need to read all of sections 99 - 102 to see the whole picture. Section 100 (and 101A) are only for abandoned vehicles.

Read the Refuse Disposal Amenity Act 1978.

(5) If before a vehicle is disposed of by a local authority in pursuance of this section the vehicle is
claimed by a person who satisfies the authority that he is its owner and pays to the authority such
sums in respect of its removal and storage as may be prescribed, the local authority shall permit
him to remove the vehicle from their custody during such period as may be prescribed.

(6) If before the expiration of the period of one year beginning with the date on which a vehicle is
sold by a local authority in pursuance of this section any person satisfies the authority that at the
time of its sale he was the owner of the vehicle, the local authority shall pay over to him any sum
by which the proceeds of sale exceed the aggregate of such sums in respect of the removal, storage
and disposal of the vehicle as may be prescribed.

now compare 5 to current 101 and 101A.

101A Right of owner to recover vehicle or proceeds of sale
(1)
If before a vehicle is disposed of by an authority under section 101 above it is claimed by
a person who–
(a) satisfies the authority that he is its owner, and
(b) pays the relevant charges,
the authority shall permit him to remove the vehicle from their custody within such period as they
may specify or, in the case of an authority other than a local authority, as may be prescribed.

(2) If before the end of the period of one year beginning with the date on which a vehicle is sold
by an authority under section 101 above a person satisfies the authority that at the time of the sale
he was the owner of the vehicle, the authority shall pay him any sum by which the proceeds of sale
exceed the amount of the relevant charges.



The court of appeal rightly stated that 101 is based on the RDAA.
http://www.bailii.org/ew/cases/EWCA/Civ/1997/2073.html

"The defendants' position was that neither vehicle would be returned until the plaintiffs or their agents paid for the appropriate recovery charges and storage fees. The defendants claimed a lien on each car and a right to possession until such payment. Their rights were said to arise under the legislative provisions which govern the removal of abandoned vehicles and this appeal is concerned with the extent of the rights created by the legislation.
The current legislation stems from the Refuse Disposal (Amenity) Act 1978 and is now set out in the Road Traffic Regulation Act 1984. Section 99 of the 1984 Act provides for circumstances in which abandoned or broken down vehicles may be removed from the position in which they have been found. "
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Wretched Rectum
post Sat, 9 Jun 2018 - 17:32
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QUOTE (cp8759 @ Sat, 9 Jun 2018 - 17:33) *
can find nothing that prevents the local authority from relying on RTRA 101(4A) to demand payment of the penalty charge, other than the article 6 argument noted above. Certainly the Road Traffic Act 1991, the Road Traffic Regulation Act 1984 and The Road Traffic (Permitted Parking Area and Special Parking Area) (City of Glasgow) Designation Order 1999 appear to explicitly allow the enforcement authority to demand payment of the towing charges and the PCN before releasing the vehicle.


In relation to Scotland, I agree section 101(4A) RTRA 1984 allows the local authority to demand up front payment of the penalty charge. But why is section 101(4A) used to charge by Glasgow rather than section 102(1) RTRA 1984?

QUOTE
(1) If a vehicle is removed by the local authority in circumstances in which an offence would have been committed but for the provisions of paragraph 1(4) or 2(4) of Schedule 3 to the Road Traffic Act 1991, the local authority will be entitled to recover from any persons responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require


section 102(1) as amended by the Road Traffic (Permitted Parking Area and Special Parking Area) (City of Glasgow) Designation Order 1999 does not include payment of the penalty charge. Meaning the 28 days to pay or informally challenge the penalty charge is still in play and gives access to a fair hearing without any up front payment.

Section 101(4) charges are payable by the owner but the section 102(1) charges are payable by the person responsible. So there must be a fundamental difference in their application don't you think?

This post has been edited by Wretched Rectum: Sat, 9 Jun 2018 - 17:36
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Asif Nazir
post Sat, 9 Jun 2018 - 17:40
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I have serious doubts that the Glasgow Order which is a Stat Instrument can amend the RTRA which is primary legislation, but that is a separate argument.


http://www.legislation.gov.uk/ssi/1999/59/made


The Scottish Ministers, having received an application from the Glasgow City Council under paragraphs 1(1)(d) and 2(1)© of Schedule 3 to the Road Traffic Act 1991(1) and having consulted the Chief Constable of Strathclyde Police in accordance with paragraphs 1(3) and 2(3) of that Schedule, in exercise of the powers conferred upon them by paragraphs 1(1), 2(1) and 3(3) of Schedule 3 to the Road Traffic Act 1991 and of all other powers enabling them in that behalf, hereby make the following Order:





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cp8759
post Sat, 9 Jun 2018 - 17:55
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 18:32) *
QUOTE (cp8759 @ Sat, 9 Jun 2018 - 17:33) *
can find nothing that prevents the local authority from relying on RTRA 101(4A) to demand payment of the penalty charge, other than the article 6 argument noted above. Certainly the Road Traffic Act 1991, the Road Traffic Regulation Act 1984 and The Road Traffic (Permitted Parking Area and Special Parking Area) (City of Glasgow) Designation Order 1999 appear to explicitly allow the enforcement authority to demand payment of the towing charges and the PCN before releasing the vehicle.


In relation to Scotland, I agree section 101(4A) RTRA 1984 allows the local authority to demand up front payment of the penalty charge. But why is section 101(4A) used to charge by Glasgow rather than section 102(1) RTRA 1984?

QUOTE
(1) If a vehicle is removed by the local authority in circumstances in which an offence would have been committed but for the provisions of paragraph 1(4) or 2(4) of Schedule 3 to the Road Traffic Act 1991, the local authority will be entitled to recover from any persons responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require


section 102(1) as amended by the Road Traffic (Permitted Parking Area and Special Parking Area) (City of Glasgow) Designation Order 1999 does not include payment of the penalty charge. Meaning the 28 days to pay or informally challenge the penalty charge is still in play and gives access to a fair hearing without any up front payment.

Section 101(4) charges are payable by the owner but the section 102(1) charges are payable by the person responsible. So there must be a fundamental difference in their application don't you think?

Other than the ECHR Article 6 argument, which would need to be taken to the superior courts, I cannot see anything that prevents Glasgow from choosing to use section 101(4A). You might be able to make an arguable case that the Human Rights Act 1998 means they should now use section 102(1), but as I've said you'd need to take that to the Court of Session as the adjudicators are unlikely to accept it. And even then, I'd put the chances of success at 50/50 at best.

QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 18:40) *
I have serious doubts that the Glasgow Order which is a Stat Instrument can amend the RTRA which is primary legislation, but that is a separate argument.

Well paragraph 3(3) of Schedule 3 to the Road Traffic Act 1991 (which is primary legislation) says (my emphasis)

"(3)An order under paragraph 1 or 2 above designating a permitted parking area, or special parking area, may—
(a)provide for such provisions of Part II of this Act as the Secretary of State considers appropriate to apply, with such modifications (if any) as he considers appropriate, in relation to the permitted or special parking area in question; and
(b)make such modifications of any enactment, including any provision of this Act, as the Secretary of State considers appropriate in consequence of the provisions of paragraph 1 or 2 above, this paragraph or the order.
"

While it is true that a statutory instrument cannot normally change primary legislation, a statutory instrument can change primary legislation when there is primary legislation that says it can.


--------------------
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.
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Wretched Rectum
post Sat, 9 Jun 2018 - 18:09
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QUOTE (cp8759 @ Sat, 9 Jun 2018 - 18:55) *
I cannot see anything that prevents Glasgow from choosing to use section 101(4A). You might be able to make an arguable case that the Human Rights Act 1998 means they should now use section 102(1), but as I've said you'd need to take that to the Court of Session as the adjudicators are unlikely to accept it. And even then, I'd put the chances of success at 50/50 at best.


It's not my fight I'm pleased to say. Just find the points put forward by Asif and Bogsy credible.

Bogsy's question

QUOTE
when is it appropriate to charge the "owner" pursuant to s.101A RTRA 1984 and when is it appropriate to charge the "person responsible" pursuant to s.102(2A) RTRA 1984?


can be tinkered to fit Scotland's use of the RTA 1991

QUOTE
when is it appropriate to charge the "owner" pursuant to s.101(4A) RTRA 1984 and when is it appropriate to charge the "person responsible" pursuant to s.102(1) RTRA 1984?


Whether Glasgow can use section 101(4A) over section 102(1) surely relies on the answer to the above. Anyone?

This post has been edited by Wretched Rectum: Sat, 9 Jun 2018 - 18:15
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Asif Nazir
post Sat, 9 Jun 2018 - 18:18
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 19:09) *
QUOTE (cp8759 @ Sat, 9 Jun 2018 - 18:55) *
I cannot see anything that prevents Glasgow from choosing to use section 101(4A). You might be able to make an arguable case that the Human Rights Act 1998 means they should now use section 102(1), but as I've said you'd need to take that to the Court of Session as the adjudicators are unlikely to accept it. And even then, I'd put the chances of success at 50/50 at best.


It's not my fight I'm pleased to say. Just find the points put forward by Asif and Bogsy thought provoking.

Bogsy's question

QUOTE
when is it appropriate to charge the "owner" pursuant to s.101A RTRA 1984 and when is it appropriate to charge the "person responsible" pursuant to s.102(2A) RTRA 1984?


can be tinkered to fit Scotland's use of the RTA 1991

QUOTE
when is it appropriate to charge the "owner" pursuant to s.101(4A) RTRA 1984 and when is it appropriate to charge the "person responsible" pursuant to s.102(1) RTRA 1984?


Whether Glasgow can use section 101(4A) over section 102(1) surely relies on the answer to the above. Anyone?



You wont get any answers from the deniers, because they don't have one.

The owner pays for abandoned vehicles under 101, under 102 the person responsible pays. That includes, for instance a car thief who stole the vehicle and then parked it
in contravention so it was removed and impounded. The owner can then recover the vehicle free of charge and the council then sues the car thief for the removal and storage charges.

(2A)If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004.]
(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.
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southpaw82
post Sat, 9 Jun 2018 - 18:24
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QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 19:18) *
You wont get any answers from the deniers, because they don't have one.

Why do you even keep coming back? rolleyes.gif


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


Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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Wretched Rectum
post Sat, 9 Jun 2018 - 18:47
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QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 19:18) *
You wont get any answers from the deniers, because they don't have one.


To be fair I don't think anyone has denied anything. Just made me/us aware that the section 101 and section 102 debate has fallen on deaf ears at adjudication. I'm grateful for that information. Forewarned and all that.

The human rights aspects don't seem to have gone to adjudication. If well presented it could force adjudicators to revisit the section 101/section 102/RTRA 1984/TMA 2004 debate as it is all tied in. If it was complete nonsense and had no chance, I'm sure the moderators would say so.

This post has been edited by Wretched Rectum: Sat, 9 Jun 2018 - 18:50
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