PCN South Hams District Council Options

[maxparking]

Hello all, hope you can help.

Received a PCN as below when we truly believed we were parked in a non-controlled part of the road. The council have rejected our appeal which was based on the fact that the signage, layout and markings were wholly ambiguous, confusing and unclear. The main sign appeared beyond the area we parked and the area we parked in seemed to be a regular road area with one line around it. The main parking area further on seemed to be the controlled area even though it still had no marked bays.

Do I have any chance of winning an independent appeal please?

Our car is the blue Discovery.

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[stamfordman]

They do have a point about the hatched area by the entrance and you were about by the sign. You obviously had some doubt and it was only a fiver to park there all day.

Maybe others will find a flaw but not sure I'd punt another £25 on this.

A key may be the order for the car park, which I know one of our members is good at digging out.

This post has been edited by stamfordman: Wed, 6 Jun 2018 - 16:07

[PASTMYBEST]

Post the back of the PCN. The front allows you an extra day to pay both the discount and the full penalty, but then the rejection is totally ambiguous as to the time frame, not strong but might be other errors

[Mad Mick V]

So the Parish Council own this car park and ask the District Council to enforce on their behalf.

So we go on the Parish Council's website and they quote this order:-

http://www.dittishamparishcouncil.gov.uk/d...al%20sealed.pdf

That Order covers The Level car park at Dittisham but omits the relevant parking charges in the schedules.

IMO enforcement would be a problem because of this omission and the Notice Board cannot reflect the terms of the Order in terms of any parking charges.

Ergo they cannot catch the OP on non payment. They might get him on non-display but that is perverse if no ticket needed to be purchased.

Members views needed---- otherwise I think the OP needs to consider the discount.

Mick

[maxparking]

Thanks so much, unbelievably impressed by the promt and informative replies - thank you.

We (I know everyone says this!) genuinely did not believe we were parking in a controlled bay - learnt my lesson when clamped in London 30 years ago and always play by the book since. There is a matter of principle here but I also don't want to lose £50 rather than £25 obviously.

Rear of ticket:

[Incandescent]

Did you pass a "Car Park" sign on your way to where you parked ? If you did, then I reckon you are bang-to-rights. If you didn't then it might be worth arguing on a badly placed signage argument.

[cp8759]

So the Parish Council own this car park and ask the District Council to enforce on their behalf.

So we go on the Parish Council's website and they quote this order:-

http://www.dittishamparishcouncil.gov.uk/d...al%20sealed.pdf

That Order covers The Level car park at Dittisham but omits the relevant parking charges in the schedules.

IMO enforcement would be a problem because of this omission and the Notice Board cannot reflect the terms of the Order in terms of any parking charges.

Ergo they cannot catch the OP on non payment. They might get him on non-display but that is perverse if no ticket needed to be purchased.

Members views needed---- otherwise I think the OP needs to consider the discount.

Mick

Well spotted, so let's go for some pretty standard statutory construction.

The order is made under section 35 of the Road Traffic Regulation Act 1984, which provides (my emphasis):

As respects any parking place—
(a)provided by a local authority under section 32 of this Act, or
(b)provided under any letting or arrangements made by a local authority under section 33(4) of this Act, the local authority, subject to Parts I to III of Schedule 9 to this Act, may by order make provision as to—
(i)the use of the parking place, and in particular the vehicles or class of vehicles which may be entitled to use it,
(ii)the conditions on which it may be used,
(iii)the charges to be paid in connection with its use (where it is an off-street one)

The order defines Parking Charge as "the charge for parking a particular Vehicle within a particular Parking Place during the charging hours specified within the schedule", this is not great drafting drafting (there should be a comma after "Place") but we have to assume "specified within the schedule" refers to the "charge for parking" rather than the "charging hours", as the "Charging Hours" are defined separately earlier on.

There is no Parking Charge specified in the schedule, therefore the "appropriate parking charge" within the meaning of article 2 of the order is zero.

The order helpfully provides, as the third exception in Article 6, that no payment is required "if that vehicle is parked in a Parking Place and remains within the Parking Place during days or hours of the day which are not specified as being charging hours for that Parking Place within the Schedule". Where by virtue of article 6 there is no parking charge to be paid, articles 21 & 22 cannot apply, so there is no requirement to display anything.

Section 35A of RTRA makes it an offence to park in contravention of an order under section 35, and the decriminalised regime means notional section 35 offence = civil Penalty Charge Notice. maxparking doesn't appear to have parked in contravention of the order, therefore there can be no penalty charge (i.e. the alleged contravention did not occur).

[Mad Mick V]

Happy with that.

Just hope there is not an amendment knocking about---but hey ---that's what's on the Parish Council's website.

The other argument is that the District Council didn't provide anything so there must be a doubt over them being the enforcement authority. Nowt on the PCN about them being agents.

Mick

[maxparking]

Thanks so much for the info and your diligence, so impressed by the help here.

So on balance I would be wise to pursue this at the independent appeal stage and have a good chance of success?

Should I still include the photographs and make claim as to the signage and markings being ambiguous and confusing as well as the agreement wording?

And regarding the technicalities so well pulled apart by the members above - is it enough to copy and paste this info....or to put it another way, as a legal duffer that I am what is the best way to word this claim?

Thanks again for all the help.

[cp8759]

I've just spotted that the information required by regulation 3(2)(b)(ii) of the appeal regulations is not correctly conveyed and is potentially prejudicious. The PCN should tell you that if you make informal representations, but the council issues a NtO, the owner must make formal representations in the form and manner, and at the time specified in the NtO. Instead it just says the owner may make representations, which is not the meaning prescribed by the regulations. This is a procedural impropriety which means the PCN should be cancelled.

At this point you need to wait for the Notice to Owner so you can make formal representations. In the mean time I've dropped an email to the parish clerk to ask if there are any amendments to the order.

[maxparking]

Thank you very much. In your opinion then the independent appeals 'judge' would have to abide by the failings of the wording and cancel the ticket?

[Mad Mick V]

OP-----it's always a risk going to adjudication --- so you risk £50 instead of £25 --not exactly London terms.

I would say you have a very good chance of success with the three or four issues which have been identified--but it's not my money at stake.

Mick

[hcandersen]

And on what basis are South Hams issung PCNs under the TMA anyway?

The car park is provided by a parish council, it says so on the sign. Therefore there are question-marks regarding the order anyway. But the order exists but this does not in itself provide any authority to issue PCNs under the TMA.

South Hams cannot be acting under s19 of the LGA 2000 because the parish council is not a ‘local authority’ as defined.

As far as I can see, the parish council and the ‘partnership’ are not even mentioned in the PCN, unlike when so-called devolved functions are involved.

[Mad Mick V]

In cases like this I always wonder if we should be billing the Council with a consultancy fee.

I like the idea of no agency being possible since the Parish Council is so far down the food chain.

Mick

[hcandersen]

And on what basis are South Hams issung PCNs under the TMA anyway?

The car park is provided by a parish council, it says so on the sign. Therefore there are question-marks regarding the order anyway. But the order exists but this does not in itself provide any authority to issue PCNs under the TMA.

South Hams cannot be acting under s19 of the LGA 2000 because the parish council is not a ‘local authority’ as defined.

As far as I can see, the parish council and the ‘partnership’ are not even mentioned in the PCN, unlike when so-called devolved functions are involved.

[cp8759]

And on what basis are South Hams issung PCNs under the TMA anyway?

The car park is provided by a parish council, it says so on the sign. Therefore there are question-marks regarding the order anyway. But the order exists but this does not in itself provide any authority to issue PCNs under the TMA.

South Hams cannot be acting under s19 of the LGA 2000 because the parish council is not a ‘local authority’ as defined.

As far as I can see, the parish council and the ‘partnership’ are not even mentioned in the PCN, unlike when so-called devolved functions are involved.

I do think the legality of the arrangements is questionable, I would however save that argument for the adjudicator. I suspect the council's answer will be found in section 33(4) of RTRA:

"A local authority may, on such terms as they think fit,—
(a)let land on which they could erect or adapt a building for the purpose of providing an off-street parking place with a view to its being provided by some other person, or
(b)arrange with any person for him to provide such a parking place on any land of which he is the owner or in which he has an interest."

If the parish council isn't a local authority, it is still a "person" (in the legal sense) so an arrangement could be lawful under section 33(4)(b).

[hcandersen]

On the face of what we know....we don’t know enough.

But I would stress that arrangements under the RTRA do not define who is the enforcing authority under the TMA. The fact that an offence or failure to comply with an order is the basis for all parking place ‘contraventions’ doesn’t help with the question as to who may enforce and how.

The parish say there’s an arrangement.
I say this cannot be under the LGA therefore it is a straightforward contractual matter ( I detest the glib over-use of the word partnership).
So under what authority do South Hams claim they may use their powers as an ‘enforcement authority’ to discharge their contractual obligations?

I’d start with the parish as regards fact finding.

Of course South Hams would not give way on this and it would inevitably end up at adjudication. Therefore the question is should the offer of the discount be foregone solely on this basis?

[cp8759]

On the face of what we know....we don’t know enough.

But I would stress that arrangements under the RTRA do not define who is the enforcing authority under the TMA. The fact that an offence or failure to comply with an order is the basis for all parking place ‘contraventions’ doesn’t help with the question as to who may enforce and how.
...
Of course South Hams would not give way on this and it would inevitably end up at adjudication. Therefore the question is should the offer of the discount be foregone solely on this basis?

Clearly not, but the flaws identified by Mad Mick V in post 4 IMO make this a very likely win. Even if we accept that the district council has authority under the TMA to issue PCNs, the order does not prescribe any parking charges, so non-payment is not a breach of the order and it follows that there are not grounds for a PCN to be issued.

[hcandersen]

Neither are there charges for other car parks... and I think the common theme is that these are parished areas where the car parks are provided by those councils.

So South Hams make the orders and the parishes set the charges, certainly Dittisham and Stoke Fleming do( no doubt outwith the requirements of the regs) so no charges are included in the schedule and enforcement is carried out ????

http://www.dittishamparishcouncil.gov.uk/d...k%20Tariffs.pdf

So MMV’s point is intertwined with mine, what a rag-bag arrangement.

This post has been edited by hcandersen: Fri, 8 Jun 2018 - 13:06

[maxparking]

Hi guys, not forgotten this - waiting on the notice and I will then update.