PCN for wheels on faded double yellow Options

[freddy234]

Hi,

So i got this PCN for parking at the end of a road full of cars and my back wheels happen to be on double yellows. I was late for work and genuinely didnt realise my wheels were touching them.

I went back to photograph the lines and i have attached those, they are faded and my wheels are exactly on the faded parts, so i was going to use this initially as the basis for my appeal. (would i even get far with that?)
I am still within the first 14 days and have not made an informal appeal which i was going to do online. I have no access to any information on their website such as photos they took etc. I dont know whether to ask for those first or go straight in with the faded lines?
I have attached the PCN for possible errors?

Many thanks for any help

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[freddy234]

Hi All,

After submitting the case to TPT, the council have uploaded their evidence which included the PCN, Nto, NoR, all the documents they sent me etc,
as well as the items below:








One of them inluded a long PDf of 19 pages, I dont know if I should attach it here?
Do I need to respond to their evidence and should I include previous cases, e.g the one suggested by Mad Mick V?

Many thanks for any help

Is there a summery

 GA08__1_.pdf ( 748.02K ) Number of downloads: 151

I hope this has worked

[freddy234]

bump,


should I send previous cases as part of the evidence, or does that weaken the argument?

Thankyou all for any suggestions

[cp8759]

bump,


should I send previous cases as part of the evidence, or does that weaken the argument?

Thankyou all for any suggestions

Depends, which previous cases did you have in mind?

[freddy234]

 decision_1.pdf ( 208.32K ) Number of downloads: 97
 Informal_2_decision.pdf ( 20.25K ) Number of downloads: 86


The main one was mad mick V's suggestion, any ideas of how i can download that decision?

This post has been edited by freddy234: Sun, 14 Oct 2018 - 16:26

[Mad Mick V]

OP----I would not bother submitting those two but the will/may one should be sent in full:-

http://forums.pepipoo.com/index.php?showto...t&p=1112582

I wouldn't worry about the Council's submission too much-----your grounds are excellent to the extent that the Council's utter incompetence leads me to the belief that you should ask the adjudicator, when you win, if he or she will permit a costs submission.

Mick

[freddy234]

OP----I would not bother submitting those two but the will/may one should be sent in full:-

http://forums.pepipoo.com/index.php?showto...t&p=1112582

I wouldn't worry about the Council's submission too much-----your grounds are excellent to the extent that the Council's utter incompetence leads me to the belief that you should ask the adjudicator, when you win, if he or she will permit a costs submission.

Mick

Thank you Mick, Submitted it now, will let you know of the decision!

[freddy234]

Unfortunately Appeal was dismissed, decision is below:

[Incandescent]

What an idiot of an adjudicator ! If the regulations for content of a PCN say something "must" be included, then it is an absolute requirement, it is not an option therefore the PCN is a nullity if it is omited. A very poor adjudication from somebody who should know better.

Request a review as the adjudicator has erred in law.

This post has been edited by Incandescent: Tue, 16 Oct 2018 - 17:27

[Mad Mick V]

OP---you must ask for a Review and include every will/may decision made by PATAS/ETA. Substantial compliance my a*se.

Mick

[cp8759]

OP---you must ask for a Review and include every will/may decision made by PATAS/ETA. Substantial compliance my a*se.

Mick

+1

[PASTMYBEST]

OP---you must ask for a Review and include every will/may decision made by PATAS/ETA. Substantial compliance my a*se.

Mick

+1

+2

[freddy234]

Thank you all for your replies,

The council added a comment before the decision, i thought i'd mention it here: is this possible?

We note that this evidence submitted by the appellant refers to a case involving Worthing Borough Council in 2015, however, we do not see the relevance of this evidence in context to the current case with Cheshire East Council in 2018.

Also with regards to the cases, do I simply say:

Please consider the following case decisions made by the PATAS tribunal : 2110072817, 2100649871, 2110415753, 2120021652, 2130049862, 2120448511, 212058885A, 2130236316, 2140046893

or must I provide full copies of those decisions? Thank you

[Incandescent]

What really gets me incandescent with rage is when paid officials who are supposed to know the law in some detail, yet just ride roughshod over it. NO doubt he was late for his lunch.

This case is a real disgrace and should be brought to the attention of the Chief Adjudicator of TPT. What idiots are they employing, for heavens sake ! When the law says must, it means must, you cannot argue around that

[PASTMYBEST]

This these if you wish

216022028A

Belinda pearce

. The second contention concerns wording in the Notice of Rejection letter which Mr Dishman maintains is not compliant with the governing legislation by dint of its employment (again) of the word will instead of may.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the Notice of Rejection contains certain information including that the Enforcement Authority may serve a charge certificate.
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.
I do not accept the theory that the word will reflects a greater warning element, since its meaning is distinctly at variance to that of the word may.
Mr Dishman cites previous PATAS/ETA Cases in support.
The Enforcement Authority quote from PATAS/ETA Case Decisions.
Each Case is determined upon its individual evidential merit and an Adjudicator's interpretation of the governing law; my finding in this Case is that the Notice of Rejection letter is substantially non-compliant since I consider that there to be manifest distinction between 'may' and 'will' which is substantial as opposed to semantics. Therefore I find the Notice of Rejection to be invalid, thus this Penalty Charge Notice cannot be enforced.
Accordingly, In light of my findings, I allow this Appeal.
2160211959

John Lane


Regulation 6 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection 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;
(b) indicate the nature of an Adjudicator’s power to award costs; and
© describe in general terms the form and manner in which an appeal to an Adjudicator must be made.
A notice of rejection duly served may contain such other information as the enforcement authority considers appropriate.
The local authority's notice of rejection states that they "Will" issue a charge certificate.
I accept that this is a fundamental error.
I will therefore allow the appeal.
2160210490

Sean stanton-Dunn

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.
The notice of rejection served on Lexbow Limited stated that a charge certificate will be served and not that a charge certificate may be served. The use of the wording is mandatory and not optional. This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety. The word will conveys an entirely different meaning to the motorist than the use of the word may.
2160211926

Christopher Rayner


Mrs Goldmeier’s car was unlawfully parked. The burden is therefore on her to establish an exemption. She submits that there is an error on Barnet’s notice to owner forms such that it amounts to a procedural impropriety, so that any penalty that reaches that stage of enforcement is unenforceable. Regulation 6(1) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that the notice to owner shall state that a charge certificate “may be served” if certain conditions are fulfilled. It is not disputed that Barnet’s notice to owner form states that “will serve” a charge certificate if those conditions are fulfilled.
Mrs Goldmeier references appeals before this Tribunal where adjudicators have found a procedural impropriety in these circumstances, and Barnet refer to another case where an adjudicator refused an appeal. The situation is unsatisfactory, particularly where there is no obvious prejudice to a motorist. However, enforcement authorities require full compliance with parking restrictions from motorists, and it is reasonable to expect the same of them. The wording on the notice to owner form does not comply with statutory requirements, and it would presumably be a relatively straightforward matter for Barnet to remedy that. On balance I follow what appears to be the majority view of adjudicators in this Tribunal and find that Barnet’s notice to owner form is not compliant with the Regulations, such that it amounts to a procedural impropriety and allow the appeal on that basis
2160422149

Michael Lawrence

The Appellant attended this hearing.
One of points raised by the Appellant concerned the wording of the Notice of Rejection letter (NOR) which he said was not compliant with the relevant legislation in that it used the word will instead of may.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the NOR contains certain information including that the Enforcement Authority may serve a charge certificate. This NOR states that the Enforcement Authority will serve a charge certificate if the recipient does not appeal or pay. Clearly there is a difference between may and will that is not just semantics, but substantial. The latter excludes the possibility that the Enforcement Authority have a discretion whether or not to proceed to the next stage of a charge certificate and an increased penalty charge.
The Notice of Rejection letter is substantially non compliant and invalid and therefore this Penalty Charge Notice cannot be enforced.
2150379790

Joanne Oxlade


The Appellant has raised a number of points in this appeal.
I allow the appeal on the basis that the notice of rejection does not substantially comply with Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, in that it says that if the Appellant neither appeals nor pays the PCN, the EA "will" serve a charge certificate, whereas the legislation requires that the NOR contains certain information, which is that the Notice of rejection "may" be served. "Will" and "may" are entirely different, and fails to recognise that the EA have discretion as to whether (and if so at what rate) they enforce the PCN subject to upper limits. There is something of a body of case law within the Tribunal, which the EA have not successfully challenged. The applicable case law is R (Hackney Drivers Association) v The Parking Adjudicator and Lancashire CC [2012] EWHC 3394, which provides that the question is whether or not a document is substantially compliant. For the above reasons, I find that it does not
2150479729

Neeti haria

In addition Mr Dishman contends that the Notice of Rejection misrepresents the position as it states that if the penalty charge is not paid or an appeal made the Authority will serve a Charge Certificate. Mr Dishman correctly points out that Regulation 6 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that under the circumstances specified a Charge Certificate may be served. The relevant parts of Regulation 6 provides:
“ Where representations are made under regulation 4 and the enforcement authority serves a Notice of Rejection …..that notice shall
(a) state that a Charge Certificate may be served unless…..”
Having considered the matter I agree with Mr Dishman that the Notice of Rejection fails to comply with a mandatory requirement of the legislation. I find that this amounts to a procedural impropriety on the part of the Authority.
Accordingly I allow the appeal.

[Mad Mick V]

OP-----don't send anything yet, you have 14 days from when the Decision was made/got to you. Since this is a Review it will have to be comprehensive and expressed in exact terms like "the adjudicator erred in fact and law" etc. This is your last chance and we have to get it right.

Let me have a couple of days and I will post a draft which others can consider/amend.

I would like to include some High Court stuff so if other members have good snippets (Moss etc) on substantial compliance and NOR documentation, please post them up.

Mick

This post has been edited by Mad Mick V: Thu, 18 Oct 2018 - 08:23

[PASTMYBEST]

OP-----don't send anything yet, you have 14 days from when the Decision was made/got to you. Since this is a Review it will have to be comprehensive and expressed in exact terms like "the adjudicator erred in fact and law" etc. This is your last chance and we have to get it right.

Let me have a couple of days and I will post a draft which others can consider/amend.

I would like to include some High Court stuff so if other members have good snippets (Moss etc) on substantial compliance and NOR documentation, please post them up.

Mick

I think your right Mick.

you cannot introduce new evidence, and it would look like merely disagreeing with the adjudicator. A review needs to be on the interests of justice require one because the adjudicator failed to follow the dictate of the high court

[cp8759]

OP-----don't send anything yet, you have 14 days from when the Decision was made/got to you. Since this is a Review it will have to be comprehensive and expressed in exact terms like "the adjudicator erred in fact and law" etc.

I'd be careful here, the review in this instance should be purely on a point of law. The facts as found should not be disputed.

[Mad Mick V]

Here's a draft--after several attempts I have kept it as simple as possible and concentrated on the will/may ground. Comments, additions and amendments welcomed:-



Case Number----??????


With respect, I would ask that the Tribunal review its decision my case. I believe this review is necessary in the interests of justice and because I believe the Adjudicator misdirected himself on a point of law.

My request for a review is predicated on the grounds that the will/may argument considered as part of my appeal is still relevant and that the basis of it being dismissed on the grounds of substantial compliance is incorrect. There cannot be substantial compliance if the Notice of Rejection mis-states the law.

Second, I believe the Decision is prejudicial because it reinforces the validity of the Notice of Rejection which fails to offer any discretion in the matter of a Charge Certificate being issued.

I had a legitimate expectation, under the legislation, that the Council’s powers were not mandatory but discretionary. The Council are not bound to pursue a penalty for every contravention. They have a discretion. That burden is imposed on the Council by the statutory scheme. Of course, over and above this specific obligation, it is open to the Council at any time to waive a penalty, in whole or on part.

Under this background the Notice of Rejection wording is clearly flawed to the extent that it removes my right to any discretion due at that stage of the process (i.e. whether to pay or appeal). Therefore the Adjudicators Decision to uphold the Notice of Rejection is incorrect if it allows not just potential prejudice but actual prejudice.

The Adjudicator has already been given a copy of TPT Case UW05060M which determined that a procedural impropriety occurs when a Council issues an NOR which states that a Charge Certificate will be issued.

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 specifies:-

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 word “shall” is mandatory and, as Stephen Sauvain QC stated in his Review of Parking Documentation for PATROL, “ It remains the responsibility of each authority independently to satisfy itself that the Notice of Rejection it adopts satisfies the statutory requirements”.

The Council’s failure to understand the precise wording of the Regulations leads to my ground of procedural impropriety:-

"In these Regulations 'procedural impropriety' means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular - (a) the taking of any step, whether or not involving the service of any document, otherwise than - (i) in accordance with the conditions subject to which; or (ii) at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken;"

With respect to the Adjudicator, those rigid terms cannot provide any scope for a flawed Notice of Rejection to be substantially compliant. Substantial compliance is important, but as Lord Justice Stanley Burnton stated (Herron V Sunderland (Appeal) , Paragraph 37) that the test is not if irregularities are trivial, it is whether there is substantial compliance with statutory definition.

Clarity of the message does not justify substantial compliance since there is a very fine line between "over warning" and making unwarranted threats. Changing "may" to "will" does not make the position clearer. It does give it an apparent certainly but the law makes it clear that there is no such certainly. The phrase might make the situation clearer but it is wrong if it mis-states the law in so doing. Likewise it fetters the Council's discretion which leads to a prejudicial situation.

For these reasons I believe the Notice of Rejection cannot be substantially compliant and since a procedural impropriety is clearly evident the case must be awarded in my favour.

Whilst the Adjudicator is not bound by the decisions of any other adjudicator I would respectfully ask him to consider the following PATAS/ETA cases:-

2110072817, 2100649871, 2110415753, 2120021652, 2130049862, 2120448511, 212058885A, 2130236316, 2140046893

Therefore I respectfully request that a Review of my case be undertaken.
-------------------------------------

Mick

This post has been edited by Mad Mick V: Mon, 22 Oct 2018 - 10:46

[cp8759]

In the first paragraph I would change

the Adjudicator misdirected himself.

To

the Adjudicator misdirected himself on a point of law.

[Mad Mick V]

Thanks cp8759, I've changed to your suggestion.

Mick