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Southend Council PCN
Jono1024
post Tue, 4 Sep 2018 - 14:28
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Hello,

I'm looking for guidance on a PCN I received at the weekend.

Background

I was parked on a residential street (York Road, near the junction with Leamington Road) in Southend with no usual parking restriction. The car was parked at 12:40 on Sunday 2nd September.

Street view link: https://goo.gl/maps/B4AtsgpV7Uy

Unbeknown to me there was a parking suspension due to commence at 9am on the 3rd for yellow line painting (No existing yellow lines, they were being introduced). I am not local, but have parked there a few times with no problems.

The car was ticketed on Monday 3rd at 12:09, I returned just after 1pm.

On leaving the vehicle on the Sunday there were no obvious signs to restrict parking. After I got the ticket I noticed there was an A4 printed notice on the lamp post on the junction (Picture attached below). This was facing the pavement and I would have no way of seeing this unless I walked past on the pavement. Is this really all the signage that is required? Usually they have big yellow signs.

What are my chances of an appeal based on poor signage? I know I should have noticed it but it wasn't obvious it was a parking suspension.

Pictures

The cones were placed around the car by the contractors on the Monday painting the new yellow lines I'm guessing.







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post Tue, 4 Sep 2018 - 14:28
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PASTMYBEST
post Tue, 4 Sep 2018 - 15:03
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And what traffic signs were present. A cone does not cut it there needs to be some variant of the no waiting roundel


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Jono1024
post Tue, 4 Sep 2018 - 15:09
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The cones were not present when I parked. They must have been added by the contractors when they started to paint the yellow lines.

The only sign present was the A4 notice from Southend Council on the lamp post (facing the pavement and not visible from the road) Second photo in my original post above.

There are not usually any parking restrictions on the road.

This post has been edited by Jono1024: Tue, 4 Sep 2018 - 15:12
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Incandescent
post Tue, 4 Sep 2018 - 16:51
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No traffic sign = no contravention. Motorists are expected to look out for traffic and parking signs when parking, but they have only put up an announcement of a restriction, not the signs that give it effect. Lets face it, you would have to park up to read the notice which is not prominent, a bit like a planning application, actually.
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PASTMYBEST
post Tue, 4 Sep 2018 - 18:25
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QUOTE (Incandescent @ Tue, 4 Sep 2018 - 17:51) *
No traffic sign = no contravention. Motorists are expected to look out for traffic and parking signs when parking, but they have only put up an announcement of a restriction, not the signs that give it effect. Lets face it, you would have to park up to read the notice which is not prominent, a bit like a planning application, actually.


get and post all the council photos


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Jono1024
post Tue, 4 Sep 2018 - 19:34
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Here are all of the council's photos...

None of the cones or yellow lines were their prior to me parking.

















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cp8759
post Tue, 4 Sep 2018 - 20:08
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Definitely challenge it. Does the back of the PCN say you can pay by phone by calling 0870 240 6650?


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Jono1024
post Tue, 4 Sep 2018 - 20:14
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QUOTE (cp8759 @ Tue, 4 Sep 2018 - 21:08) *
Definitely challenge it. Does the back of the PCN say you can pay by phone by calling 0870 240 6650?


Great thanks everyone. I will challenge it.

Yes the back of the PCN mentions calling 0870 240 6650. Is that significant?

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cp8759
post Tue, 4 Sep 2018 - 20:20
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QUOTE (Jono1024 @ Tue, 4 Sep 2018 - 21:14) *
QUOTE (cp8759 @ Tue, 4 Sep 2018 - 21:08) *
Definitely challenge it. Does the back of the PCN say you can pay by phone by calling 0870 240 6650?

Yes the back of the PCN mentions calling 0870 240 6650. Is that significant?

Yes it is significant, see ground 4 here: http://forums.pepipoo.com/index.php?showto...p;#entry1404571

The ofcom wording for 0870 is slightly different but the principle is the same.


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Jono1024
post Wed, 5 Sep 2018 - 08:45
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Great, thank you.

So I'm appealing on the following grounds?

1) No sign so no contravention took place

2) The 0870 number

Is this likely to be successful on the first appeal or will I need to take it further?
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cp8759
post Wed, 5 Sep 2018 - 23:26
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As the council get to keep the money if they reject, they will likely reject. However you are likely to prevail if you challenge it at the Traffic Penalty Tribunal, but we have to go through the motions to get there.


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Jono1024
post Thu, 4 Oct 2018 - 09:58
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Hello again,

So Southend Council have rejected the appeal as expected.

I received this letter today. Apparently the A4 notice on the back of a lamp post was sufficient notice.

https://imageshack.com/a/img921/6577/uuEUOi.jpg

https://imageshack.com/a/img922/2629/tzbSEo.jpg

Is it still worth taking it further do you think?

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Incandescent
post Thu, 4 Oct 2018 - 13:37
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QUOTE (Jono1024 @ Thu, 4 Oct 2018 - 10:58) *
Hello again,

So Southend Council have rejected the appeal as expected.

I received this letter today. Apparently the A4 notice on the back of a lamp post was sufficient notice.

https://imageshack.com/a/img921/6577/uuEUOi.jpg

https://imageshack.com/a/img922/2629/tzbSEo.jpg

Is it still worth taking it further do you think?

Absolutely yes.
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Mr Meldrew
post Thu, 4 Oct 2018 - 17:16
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QUOTE
I received this letter today. Apparently the A4 notice on the back of a lamp post was sufficient notice.

I don’t think that is what they are saying. Looking at the rejection, the Council’s case is that on Monday 3rd September there was a sign next to your vehicle when you were not allowed to park as seen in the enclosed photos, and is why your PCN was issued. The “No Waiting” roundel is apparent in two photos and is relied upon, the lamppost notice does not receive attention because it is not a traffic sign.

Conspicuous by its absence is required fairness assuming you made them aware you parked on Sunday 2nd September when the cones were not present, which has not been rebutted or even mentioned.


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I do tend to have a bee in my bonnet re failing to consider and fairness
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Jono1024
post Fri, 5 Oct 2018 - 10:50
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Thanks for the responses.

So it looks like they are relying on the traffic cones? They were most definitely placed around the car on the Monday when I was away from the vehicle.

Would it be possible to have some guidance with the next step please? I assume I wait for the NTO?

This is what I submitted to the council. Is this suitable for the formal appeal?

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


Dear Southend Council,

I wish to challenge this PCN on the following grounds.

Ground 1: No contravention took place.

I parked on York Road near the junction with Leamington Road at around 12:40pm on Sunday the 2nd September.

Not being local, I have parked here on occasion before without issue, as it is close to Southend East railway station, and I was not aware of any parking restrictions. There were no obvious restriction signs on this stretch of road and I left the area by train overnight. I was only aware of the temporary restriction when I returned to my vehicle on Monday the 3rd October and saw the PCN.

The only notice I could then find was the A4 notice affixed to the lamp post (as can been seen in the council photos).

This was only viewable from the pavement and could not be seen from the carriageway.

There were no obvious no waiting / no parking signs on this stretch of the York Road.

I hardly think that this one notice, that looked more like a planning notification is fair warning of a temporary restriction, especially for someone not resident in the area.

Please note that the traffic cones with the no waiting / no parking signs were not present when I parked on the Sunday and I believe these were placed around the vehicle after the yellow lines were painted on the road on Monday 3rd September.

Therefore I believe that due to the insufficient signage no contravention took place.



Ground 2: The penalty demanded exceeds the amount due in the circumstances of the case: The telephone payment option includes a 1p per minute surcharge:

On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0870 240 6650. The Office of Communications confirms on its website at https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost that:

In this instance, by imposing a 1p per minute service charge for telephone payments, the council is offering a payment method which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme. It follows that even if the other grounds lack all merit, the PCN must be cancelled.

This post has been edited by Jono1024: Fri, 5 Oct 2018 - 11:04
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PASTMYBEST
post Fri, 5 Oct 2018 - 10:57
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QUOTE (Jono1024 @ Fri, 5 Oct 2018 - 11:50) *
Thanks for the responses.

So it looks like they are relying on the traffic cones? They were most definitely placed around the car on the Monday when I was away from the vehicle.

Would it be possible to have some guidance with the next step please? I assume I wait for the NTO?

This is what I submitted to the council. Is this suitable for the formal appeal?

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


Dear Southend Council,

I wish to challenge this PCN on the following grounds.

Ground 1: No contravention took place.

I parked on York Road near the junction with Leamington Road at around 12:40pm on Sunday the 2nd September.

Not being local, I have parked here on occasion before without issue, as it is close to Southend East railway station, and I was not aware of any parking restrictions. There were no obvious restriction signs on this stretch of road and I left the area by train overnight. I was only aware of the temporary restriction when I returned to my vehicle on Monday the 3rd October and saw the PCN.

The only notice I could then find was the A4 notice affixed to the lamp post (as can been seen in the council photos).

This was only viewable from the pavement and could not be seen from the carriageway.

There were no obvious no waiting / no parking signs on this stretch of the York Road.

I hardly think that this one notice, that looked more like a planning notification is fair warning of a temporary restriction, especially for someone not resident in the area.

Please note that the traffic cones with the no waiting / no parking signs were not present when I parked on the Sunday and I believe these were placed around the vehicle after the yellow lines were painted on the road on Monday 3rd October.

Therefore I believe that due to the insufficient signage no contravention took place.



Ground 2: The penalty demanded exceeds the amount due in the circumstances of the case: The telephone payment option includes a 1p per minute surcharge:

On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0870 240 6650. The Office of Communications confirms on its website at https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost that:

In this instance, by imposing a 1p per minute service charge for telephone payments, the council is offering a payment method which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme. It follows that even if the other grounds lack all merit, the PCN must be cancelled.



No, You accept that you save the notice, so have to explain why you did not read it. Then you need to re emphasize point two and add a point three. the council failing to consider this in their response


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Jono1024
post Fri, 5 Oct 2018 - 11:02
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Sorry if it wasn't clear. I only saw the notice after I got the PCN and I went searching for it. I did not see it when I parked. I'll make a note to make that clearer.

This post has been edited by Jono1024: Fri, 5 Oct 2018 - 11:05
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cp8759
post Sat, 6 Oct 2018 - 18:34
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QUOTE (Jono1024 @ Thu, 4 Oct 2018 - 10:58) *
Hello again,

So Southend Council have rejected the appeal as expected.

I received this letter today. Apparently the A4 notice on the back of a lamp post was sufficient notice.

https://imageshack.com/a/img921/6577/uuEUOi.jpg

https://imageshack.com/a/img922/2629/tzbSEo.jpg

Is it still worth taking it further do you think?

Did you mention the 0870 issue in your representations? If you did, it looks like a clear failure to consider, which can potentially win on its own.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Mr Meldrew
post Sat, 6 Oct 2018 - 19:39
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QUOTE
Would it be possible to have some guidance with the next step please? I assume I wait for the NTO?

The next step when you receive the NTO would be to rub their faces in their unfair decision that disregarded every material point you raised so completely in your representations. I offer the following for consideration/improvement that some might in part recognise as Hinckley Sunshine Club vs. Leicester County Council, which I’ve had some satisfaction adapting because I think it fits so well.

Dear Southend-on-Sea Borough Council,

I refer to your letter dated 1st October 2018 and Section 3(2)(b) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, and your temporary traffic order dated 29 August 2018.

1. You rejected my informal representations and now the Notice to Owner stage is reached the penalty has reverted to the full rate and the chance to pay the reduced penalty is lost. Your duty to consider my representations fully at the discount stage was highly significant for me in terms of payment of the penalty, in addition to the reasonable expectation I had that you would properly consider them.

Ground 1

2. There were a number of conspicuous failings in your consideration of the first ground in my representations, which can be summarised as follows:

a) Item 5 on your order specifies that the prohibitions or restrictions will apply only during such time and to such extent as indicated by traffic signs “prescribed” by relevant regulations, yet there was no recognition of the absence of prescribed traffic signs prohibiting waiting and loading anywhere near my vehicle when I parked at 12:40pm on Sunday the 2nd September

b) There was no recognition that the “nearest sign” you rely upon which is seen in your evidence next to my vehicle was placed in the road after I had parked, probably on Monday 3rd September. In any event, it is not a “prescribed” sign since the sign is mounted on a curved surface (on a traffic cone).

c) There was no recognition that I am not from the area and the notice affixed to the lamp post in your evidence was facing the pavement so that its fixing ties could be seen from the carriageway, and plainly is why I did not see the notice on the day as I walked the other way.

3. Therefore, there was no reference at all to my detailed and clear explanation of the individual circumstances on Sunday the 2nd September that led me to reasonably presume that I could leave my car for twenty-four hours without incurring a parking penalty, and there was no reference at all to my second ground which you should have taken into account and is resubmitted below. Instead, you concentrated on your reasons for enforcement of the new waiting restriction. These failures provide evidence that you have failed to demonstrate that you identified and properly considered the detailed circumstances set out in my informal representations. I aver that instead of indicating the circumstances that had been considered, your letter demonstrates an inflexible position, which appears to have been adopted because you believe that a contravention had occurred.

4. Your letter demonstrates that you gave neither “careful consideration” to my detailed and clearly expressed representations, nor did you properly consider the “individual circumstances” as your duty requires and your PCN promises. There is certainly no evidence of the decision making process that took place, and you did not set out any of the facts you had considered and on what basis you had considered that you were being fair in rejecting my representations. Consequently, I aver that you have failed to fulfil your statutory duty to consider my informal representations pursuant to the 2007 Regulations. Furthermore, had you considered my informal representations properly and acknowledged the issues I had raised then it is quite possible that the matter might have been resolved at that stage.

5. Instead, frustrated by your response, I am having to give up my time to write again to point out to you that although you may believe that what you have done is technically “legal”, that does not make it right and it does not make it fair from the perspective of the ordinary bystander, nor does it nullify the discretion that you are enabled to exercise when common sense clearly dictates that this penalty charge should be cancelled.

Ground 2

6. The penalty demanded exceeds the amount due in the circumstances of the case: The telephone payment option includes a 1p per minute surcharge:

7. On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0870 240 6650. The Office of Communications confirms on its website at https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost that:

"The cost of calling 0843, 0844 and 0845 numbers is made up of two parts: an access charge going to your phone company, and a service charge set by the organisation you are calling. The service charge for calls to 084 numbers is between 0p and 7p per minute"

8. In this instance, by imposing a 1p per minute service charge for telephone payments, the Council is offering a payment method, which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court in London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) at paragraphs 28 and 29 has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme.

This post has been edited by Mr Meldrew: Sat, 6 Oct 2018 - 22:37


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I do tend to have a bee in my bonnet re failing to consider and fairness
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Jono1024
post Sun, 7 Oct 2018 - 14:56
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QUOTE (cp8759 @ Sat, 6 Oct 2018 - 19:34) *
QUOTE (Jono1024 @ Thu, 4 Oct 2018 - 10:58) *
Hello again,

So Southend Council have rejected the appeal as expected.

I received this letter today. Apparently the A4 notice on the back of a lamp post was sufficient notice.

https://imageshack.com/a/img921/6577/uuEUOi.jpg

https://imageshack.com/a/img922/2629/tzbSEo.jpg

Is it still worth taking it further do you think?

Did you mention the 0870 issue in your representations? If you did, it looks like a clear failure to consider, which can potentially win on its own.


I did indeed but they failed to consider it in their response.

QUOTE (Mr Meldrew @ Sat, 6 Oct 2018 - 20:39) *
QUOTE
Would it be possible to have some guidance with the next step please? I assume I wait for the NTO?

The next step when you receive the NTO would be to rub their faces in their unfair decision that disregarded every material point you raised so completely in your representations. I offer the following for consideration/improvement that some might in part recognise as Hinckley Sunshine Club vs. Leicester County Council, which I’ve had some satisfaction adapting because I think it fits so well.

Dear Southend-on-Sea Borough Council,

I refer to your letter dated 1st October 2018 and Section 3(2)(b) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, and your temporary traffic order dated 29 August 2018.

1. You rejected my informal representations and now the Notice to Owner stage is reached the penalty has reverted to the full rate and the chance to pay the reduced penalty is lost. Your duty to consider my representations fully at the discount stage was highly significant for me in terms of payment of the penalty, in addition to the reasonable expectation I had that you would properly consider them.

Ground 1

2. There were a number of conspicuous failings in your consideration of the first ground in my representations, which can be summarised as follows:

a) Item 5 on your order specifies that the prohibitions or restrictions will apply only during such time and to such extent as indicated by traffic signs “prescribed” by relevant regulations, yet there was no recognition of the absence of prescribed traffic signs prohibiting waiting and loading anywhere near my vehicle when I parked at 12:40pm on Sunday the 2nd September

b) There was no recognition that the “nearest sign” you rely upon which is seen in your evidence next to my vehicle was placed in the road after I had parked, probably on Monday 3rd September. In any event, it is not a “prescribed” sign since the sign is mounted on a curved surface (on a traffic cone).

c) There was no recognition that I am not from the area and the notice affixed to the lamp post in your evidence was facing the pavement so that its fixing ties could be seen from the carriageway, and plainly is why I did not see the notice on the day as I walked the other way.

3. Therefore, there was no reference at all to my detailed and clear explanation of the individual circumstances on Sunday the 2nd September that led me to reasonably presume that I could leave my car for twenty-four hours without incurring a parking penalty, and there was no reference at all to my second ground which you should have taken into account and is resubmitted below. Instead, you concentrated on your reasons for enforcement of the new waiting restriction. These failures provide evidence that you have failed to demonstrate that you identified and properly considered the detailed circumstances set out in my informal representations. I aver that instead of indicating the circumstances that had been considered, your letter demonstrates an inflexible position, which appears to have been adopted because you believe that a contravention had occurred.

4. Your letter demonstrates that you gave neither “careful consideration” to my detailed and clearly expressed representations, nor did you properly consider the “individual circumstances” as your duty requires and your PCN promises. There is certainly no evidence of the decision making process that took place, and you did not set out any of the facts you had considered and on what basis you had considered that you were being fair in rejecting my representations. Consequently, I aver that you have failed to fulfil your statutory duty to consider my informal representations pursuant to the 2007 Regulations. Furthermore, had you considered my informal representations properly and acknowledged the issues I had raised then it is quite possible that the matter might have been resolved at that stage.

5. Instead, frustrated by your response, I am having to give up my time to write again to point out to you that although you may believe that what you have done is technically “legal”, that does not make it right and it does not make it fair from the perspective of the ordinary bystander, nor does it nullify the discretion that you are enabled to exercise when common sense clearly dictates that this penalty charge should be cancelled.

Ground 2

6. The penalty demanded exceeds the amount due in the circumstances of the case: The telephone payment option includes a 1p per minute surcharge:

7. On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0870 240 6650. The Office of Communications confirms on its website at https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost that:

"The cost of calling 0843, 0844 and 0845 numbers is made up of two parts: an access charge going to your phone company, and a service charge set by the organisation you are calling. The service charge for calls to 084 numbers is between 0p and 7p per minute"

8. In this instance, by imposing a 1p per minute service charge for telephone payments, the Council is offering a payment method, which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court in London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) at paragraphs 28 and 29 has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme.




That is amazing! Thank you so much.
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