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stopping on school zigzags, waiting for traffic to clear ahead
Rob232
post Thu, 31 May 2018 - 22:46
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pcn
http://funkyimg.com/i/2GZNn.jpg
rear of pcn
http://funkyimg.com/view/2GZNp
street view
https://www.google.co.uk/maps/@51.4815347,-...3312!8i6656

Haven't been here in a while, hoping to get some help with this one
I was driving down the road along the zigzags outside a school and noticed that the road ahead was blocked with cars wanting to go forward and a sainsburys delivery (luton sized) van wanting to come my way
Where I stopped was on the zigzags but because of parked cars on both sides of the road ahead there was only enough room for one vehicle to travel.
I could not feasibly travel ahead without further blocking the road and causing a further obstruction. I waited for the obstruction ahead to clear.
I also manoeuvered my vehicle to allow the van enough space to get by
Whilst waiting, a workman came over to me and told me I was being caught on a vehicle camera.
The camera operator could clearly see in his wing mirror that the road was obstructed
When the sainsburys van finally made its way past me I drove ahead on my way.

I have seen the video and it shows me arriving, stopping on the zigzag and waiting, then manoeuvering, and that's all, 1 minute 38 seconds.
It does not show the sainsburys van (or the obstruction, since the camera was pointing towards me)
There has been huge building works going on at both ends of this small street recently, and traffic in the Nine Elms area is pretty bad at the best of times.
I am happy to share the link to the video via pm
Thanks


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
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post Thu, 31 May 2018 - 22:46
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cp8759
post Fri, 1 Jun 2018 - 12:05
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QUOTE (DancingDad @ Fri, 1 Jun 2018 - 12:48) *
Separate to the challenge, you have asked for it within that (which is fine) but as a parallel request under the GDPR rules.... I can't help on that but I suspect CP can smile.gif

Just fill in this form: https://www.lambeth.gov.uk/forms/subject-access-request-form

I would ask for all footage taken on that street on that day where your vehicle is visible, this should ensure you get the footage of the Sainsbury's van going the other way.


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Rob232
post Fri, 1 Jun 2018 - 13:06
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Thanks CP, sent that request off. The site says I have to pay £10 before the request will be considered. Is that what you meant earlier that they are no longer allowed to charge for this service?


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
Never, ever go for a postal decision.

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cp8759
post Fri, 1 Jun 2018 - 13:11
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QUOTE (Rob232 @ Fri, 1 Jun 2018 - 14:06) *
Thanks CP, sent that request off. The site says I have to pay £10 before the request will be considered. Is that what you meant earlier that they are no longer allowed to charge for this service?

Under GDPR the £10 charge has been abolished, see https://ico.org.uk/for-organisations/guide-...ight-of-access/

At a glance
Individuals have the right to access their personal data.
This is commonly referred to as subject access.
Individuals can make a subject access request verbally or in writing.
You have one month to respond to a request.
You cannot charge a fee to deal with a request in most circumstances.


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Rob232
post Fri, 1 Jun 2018 - 13:50
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Representation sent, access request sent and complaint sent to council about the £10 charge
Will update when I get replies

Thank you all for your replies, very much appreciated.

Funnily enough my OH is a data protection officer for a charity, she has been up to her neck lately in GDPR stuff. Such a misunderstood bit of legislation, like so many others. smile.gif


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
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Rob232
post Fri, 22 Jun 2018 - 11:23
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Lambeth are a bunch of Muppets.
I submitted the subject access request form, linked to above, on 1st of June
Received an email on 8th June
"Thank you for your subject acccess request that was received on 1 June 2018 concerning Requesting all cctv footages that hold records of his car on 14/05/2018 in location Wyvil Road, car: xxxxxx.

Please can you assist our search for records that we may hold about you by providing the following information

Proof of ID
Proof of name and address is required to ensure that we only give information to the correct person, such as a passport or photo ID driving licence may be required due to the sensitive nature of the information requested or when collecting the information in person.

Please note we will close the case if we do not receive the details requested from you within 30 days of the date of the incident date as data is automatically overwritten and cannot be held
When we have all of the details requested above, we will process your request under the Data Protection Act and you will receive a response within 40 calendar days (from the date that we have all the information requested from you and we have clarified the details of your request). Please note that the 40 day response time permitted by the Data Protection Act will only take effect when we are in receipt of the details requested above.

Once we have retrieved the information you have requested we will contact you, to arrange access arrangements; depending on the nature and / or the amount of documents that we have about you it may be necessary that you visit one of our offices to view the information at a time convenient to you. Alternatively, we will mail the information to you.

If the information you request contains reference to a third party then they may be consulted prior to a decision being taken on whether or not to release the information to you. You will be informed if this is the case."
Sent a reply same day
"Hi Ella-Louise, in order to submit the Subject Access Request on your website, it was necessary to upload both proof of ID and proof of address. I uploaded photos of my birth certificate and a recent bill, as requested. Are you now saying that you do not have these proofs? Or that the proofs are somehow inadequate? I am a bit concerned that these pieces of potentially sensitive information about me seem to be lost on your system. I notice that the proofs you require below, passport or driving license, do not include a birth certificate, however your website clearly states this is acceptable. If it is the case that you require this further proof, I would be happy to oblige.
Best Regards "
Got this on 20th june
"Dear Mr XXXXX
We require one peice of photographic ID and one proof of address, i.e bill, statement, etc. However, we no longer hold any data in regrads to your incident as it would have been automatically overwritten on the 14th June 2018.
Kind Regards
Miss E Lowe"

Still waiting on their response to representations



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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
Never, ever go for a postal decision.

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cp8759
post Fri, 22 Jun 2018 - 12:14
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As I understand it, from the moment you made the request, they were under a duty to preserve the information and prevent it from being destroyed. The GDPR gives you a right of redress (and in some circumstances financial compensation) where your rights as a data subject are breached. I've not looked into this area of law that much (not least because the way legislation is laid out in the Official Journal of the European Union is positively antediluvian when compared to legislation.gov.uk) but I would strongly recommend that you make a complaint to the council for failing to handle your GDPR request correctly, with a view to then taking the matter to the Information Commissioner.

However in a certain sense they've helped you: by destroying evidence which might exonerate you, they've breached the principle of equality of arms and potentially prejudiced your case. This is a point worth making at the tribunal.


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Rob232
post Fri, 22 Jun 2018 - 13:35
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Sent complaint, thanks CP


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
Never, ever go for a postal decision.

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Rob232
post Sun, 8 Jul 2018 - 14:29
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Hi all, got a reply from Lambeth, they have rejected my appeal
front page https://ibb.co/c0Twj8
back page https://ibb.co/ndx0Bo

Seems a stock letter, so not convinced they have carefully considered anything
look forward to any thoughts you might have, but assume the next step is to fill out the form with "submissions to follow" and wait for the pack from the council.


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
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stamfordman
post Sun, 8 Jul 2018 - 14:36
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Utter failure to consider - I can't see them letting this go to the tribunal.
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DancingDad
post Sun, 8 Jul 2018 - 16:04
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How can they consider when the evidence was over written on the 14th June?

Take it to appeal Rob

Include their note (post 25) as evidence that they are either incompetent, liars or withholding evidence that may prove your case.

Just so we can be clear, please post the challenge you sent.
I assume HCA wording?
If so, total and utter failure to consider.


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Rob232
post Sun, 8 Jul 2018 - 17:09
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Hi DD, the wording was the same as in post#18
Edit; with your 2 points included from post#20, but I can't find screenshot I took, nor the text in a confirmation email. will search more a bit later.

This post has been edited by Rob232: Sun, 8 Jul 2018 - 17:21


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
Never, ever go for a postal decision.

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DancingDad
post Sun, 8 Jul 2018 - 18:34
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QUOTE (Rob232 @ Sun, 8 Jul 2018 - 18:09) *
Hi DD, the wording was the same as in post#18
Edit; with your 2 points included from post#20, but I can't find screenshot I took, nor the text in a confirmation email. will search more a bit later.

Fine, no evidence of consideration whatsoever.
So add in failing to consider in the appeal
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PASTMYBEST
post Sun, 8 Jul 2018 - 18:39
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The charge WILL increase. They cannot say this the regulations only allow that it may. All in all a total bollix rejection

copy of a post by CP on another thread re this point

I would also quote paragraph 41 of London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) link: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2357.html

"Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

The provisions of the Road Traffic Act 1991 have been replaced by the Traffic Management Act 2004 and its subordinate regulations, but those provisions are for all relevant purposes identical. The High Court has ruled that prejudice is irrelevant and does not need to be established for the PCN to be invalidated, therefore the council's submissions in relation to the question of prejudice are misconceived.

In these circumstances the situation is clear: The PCN must convey the meaning required by the regulations, i.e. that a charge certificate "may" be issued (because the schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 says this is one of the things a PCN "must" state). You have 10 adjudications (The TPT one linked by Mad Mick V plus the 10 London cases mentioned in that decision) which show that adjudicators have consistently interpreted the meaning of the words "will" and "may" to be sufficiently different to invalidate a PCN (I would attach the full text of all of them in an appendix to your appeal). I would however also quote the following passage from David Greenberg v London Borough of Barnet (case 216022028A):

"2. 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. "


This post has been edited by PASTMYBEST: Sun, 8 Jul 2018 - 18:48


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Mr Meldrew
post Mon, 9 Jul 2018 - 12:32
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Rob, your perfectly adequate representation drew attention to the exception under TSRGD, Schedule 7, Part 6, (4)(2)(b) applicable to the prohibition on stopping on school entrance markings and provided material reasoning as to why the exception should apply in this case. In its formulaic and plainly deficient response, the authority further failed to say why it believes the exception should not apply in the relevant circumstances, or it was negligent in its statutory duty to consider the exception at all.

Further, you had relied upon an early response in order to make an informed decision as to whether or not to appeal or avail yourself of the discount, so it would be too late (not fair) even if you were to receive in the pack from the council a proper consideration and response to all the points raised in your representations.

I suggest that most observers would consider the NoR to be unreasonable and in breach of relevant duties, and I personally would continue to adjudication.


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Rob232
post Mon, 9 Jul 2018 - 13:43
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Ah, found my reps;
QUOTE
I was driving home at the time of the alleged incident, I live locally.
As can be seen from the video, building works were occurring on the street and the area was rather congested
As I drove along the zigzags outside the school I noticed that the road ahead was blocked with cars wanting to go forward and a Sainsburys delivery (luton sized) van wanting to come my way
Where I stopped was on the zigzags, but because of parked cars on both sides of the road ahead there was only enough room for one vehicle to travel. It seemed the only place to stop safely.
I could not feasibly travel ahead without further blocking the road and causing a further obstruction. I waited for the obstruction ahead to clear.
I also manoeuvered my vehicle to allow the van enough space to get by (which can be seen at the end of the video).
When the Sainsburys van finally made its way past me I drove ahead on my way.
The video does not show the full picture of the incident. It does not show the obstruction in the road behind the camera car, it doesn’t last long enough to show my full manoeuvre to clear enough space for the sainsburys van to proceed, nor does it show the sainsburys van passing, and me moving off. I request that the whole video evidence be made available to me if you decide to refuse this representation.
The video does however show the car behind starting to overtake me, realising there was no way forward and undertaking a tricky reversing manoeuvre which they would not have attempted had their way forward been clear.. It also shows the parked car in front indicating to pull out then waiting. Both of these actions suggest that the road ahead was not clear to proceed.
There is an exemption to stopping in this area in TSRGD, Schedule 7, part 6(4)(2)(b) “a vehicle which is prevented from proceeding by circumstances beyond the driver’s control or which has to be stopped in order to avoid injury or damage to persons or property;”
The blockage in traffic ahead was obviously beyond my control and this exemption applies. Also, any manoeuvre I may have decided to attempt involving prolonged use of reversing, could have caused injury to persons, since my van has no visibility to the rear and there were children around.
Please confirm cancellation of this PCN due to the above exemption or explain fully why the exemption does not apply
Best regards


Thought I would be saying "details to follow" and waiting for their pack, but from your replies it seems the way forward would be to get everything together and send off a full appeal to the adjudicator. I will do this later today or tomorrow and post it here.

Thank you all

Edit; will request a personal hearing too of course

This post has been edited by Rob232: Mon, 9 Jul 2018 - 13:44


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
Never, ever go for a postal decision.

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Rob232
post Mon, 9 Jul 2018 - 14:46
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couple of questions,
The PCN is correctly worded with respect to Will/May, it is the rejection letter that says Will. Does this matter?
Also it is a rejection letter, not a "Notice of rejection". Does this matter?
am working on a draft now.


Edit; sorry, first point covered by PMBs post. Must clean my glasses.

This post has been edited by Rob232: Mon, 9 Jul 2018 - 15:03


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QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
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DancingDad
post Mon, 9 Jul 2018 - 15:33
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QUOTE (Rob232 @ Mon, 9 Jul 2018 - 15:46) *
couple of questions,
The PCN is correctly worded with respect to Will/May, it is the rejection letter that says Will. Does this matter?
Also it is a rejection letter, not a "Notice of rejection". Does this matter?
am working on a draft now.


Edit; sorry, first point covered by PMBs post. Must clean my glasses.



Whatever they call it, it is a Notice of Rejection, complete with options to pay or appeal to adjudicators.
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cp8759
post Mon, 9 Jul 2018 - 15:53
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Also throw in this:

While previous adjudications are not binding, they can be persuasive and I submit that the decision of adjudicator Edward Houghton in Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) is relevant in this instance. In that decision, adjudicator Houghton stated, in so far as is relevant:

The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed”.

In this case the Notice of Rejection should have included words to the effect that the exemption claimed under the Traffic Signs Regulations and General Directions 2016 was not made out, was not relevant or was not (for whatever reason) accepted by the council, but the issue is not even mentioned in the Notice of Rejection. It follows that the council could not have properly considered the representations made, and this failure to consider amounts to a further procedural impropriety. It follows that even if the contravention had occurred, the Penalty Charge Notice and the Notice to Owner should now be cancelled.


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Rob232
post Mon, 9 Jul 2018 - 15:55
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Thanks DD, nearly there. Cant find MMV's link to will/may cases, are they the ones on Hippocrates' sticky in the first post? And how do I view them? as link to patas is now down. Sorry, being a bit dim.


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Rob232
post Mon, 9 Jul 2018 - 16:15
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The contravention did not occur
I rely on my representations to the council in that there is an exemption to stopping on school zigzag markings. I requested in those representations that the full video evidence be made available to me. I also made a Subject Access Request for all the video evidence related to my vehicle to the Council on their website (correspondence attached in appendix). The council did not provide this evidence and in fact destroyed it by routinely overwriting it. This in in breach of GDPR and the Data Protection Act, it is also in breach of the Principal of Equality of arms and the Council have acted unlawfully in destroying evidence. I have made a formal complaint to the Council and will be taking it up with the Information Commissioner in due course.
As stated in my representations, the video does not last long enough to show the full picture. However the council employee recording the evidence would have been able to see in his wing mirror that the road was blocked. Indeed I was sitting in the van for a few minutes after the video stopped, and after manoeuvering the van to allow more space for vehicles ahead to pass me. A workman came over to me and told me that I was being recorded and pointed out the camera car. The council employee was looking straight at me and I gestured to the blockage ahead. I don’t know who actually edited the video, but if it was this council employee, I believe he acted vexatiously by stopping the video at the point he did, and by continuing to submit the pcn after seeing the whole incident.

There has been a procedural impropriety on behalf of the EA

In their rejection letter the EA say that they have “carefully considered” my appeal, but they have provided no proof of this. I asked for evidence and also for reasons why they believed the exemption didn’t apply, they gave neither, just a stock reply. This failure to consider has meant that I have no recourse but to go to adjudication, and incur the full fee if I lose, since I believe I am in the right. Their failure to give a reasoned response is simply not fair, which they have a duty to be.
While previous adjudications are not binding, they can be persuasive and I submit that the decision of adjudicator Edward Houghton in Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) is relevant in this instance. In that decision, adjudicator Houghton stated, in so far as is relevant:

“The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed”.

In this case the Notice of Rejection should have included words to the effect that the exemption claimed under the Traffic Signs Regulations and General Directions 2016 was not made out, was not relevant or was not (for whatever reason) accepted by the council, but the issue is not even mentioned in the Notice of Rejection. It follows that the council could not have properly considered the representations made, and this failure to consider amounts to a procedural impropriety. It follows that even if the contravention had occurred, the Penalty Charge Notice should be cancelled.
On the reverse of the same letter the council say “If we don’t receive the payment or you don’t lodge an appeal with E&TA the charge will increase by 50% to £195….” I would draw the adjudicators attention to the following from David Greenberg v LB Barnet (case 216022028A )
“2. 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. "
Also I would like the adjudicator to consider paragraph 41 of London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 with respect to whether prejudice is relevent
"Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."
I have included below other cases which support my contention about the wording being wrong in an appendix for the Adjudicator’s perusal at his/her discretion along with the aforementioned correspondence regarding GDPR Subject Access Request.



Hows that?


--------------------
Please read the sticky here http://forums.pepipoo.com/index.php?showto...t&p=1755543 before posting a new case, or possibly after you posted it so that you can edit it. In any event, please read it.
Thanks
QUOTE (cp8759 @ Mon, 27 Feb 2023 - 18:31) *
Never, ever go for a postal decision.

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