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PCN Code 83. I was unable to move my car, Ticketed in a council car park.
icantbelieveit
post Sun, 17 Jun 2018 - 17:47
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I left my car in Blackheath Grove car park which is owned by Lewisham Council. It is free from 18.30-08.00.
I returned to my car at 07.00 on the 21/05/18 to find the the windscreen had been damaged. I went back to my office just after 7 to phone my insurance company and to make the necessary arrangements.
I returned to the car park just before 08.00 am to find that the police were there and I gave them my details. Apparently 20 cars in the area had damage done to the windscreens. There is a car park which I'm usually not able to use for my office but the policeman told me that the car was not fit to be moved even for a small journey.
I did not have any money or cards with me to pay the parking fee, having expected to just drive away at 07.00 as usual.
I did appeal using more or less the same story as I'm telling here but my appeal was refused.
Is there any way to continue an appeal?
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post Sun, 17 Jun 2018 - 17:47
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hcandersen
post Thu, 13 Sep 2018 - 21:25
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I think this is missing a key element. I apologise in advance if you’ve established what follows.

You have no proof that the vandalism occurred before 7am, it could just as well have occurred at 7.30.

So you not having a ticket is no defence, all that could have happened is that your car was vandalised after 7am and therefore you would have had a broken windscreen and a ticket as opposed to a broken windscreen without a ticket.

If you’re going to appeal then IMO you must deal head on with timings.

You posted ‘I went back to my office just after 7 to phone my insurance company and to make the necessary arrangements.’

What proof do you have?

IMO, you must present this.

Without these details all that having a broken windscreen could mean is that you could not move a vehicle already in contravention out of contravention. It doesn’t prove that you couldn’t move a vehicle not in contravention in order to prevent it being in contravention.
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PASTMYBEST
post Thu, 13 Sep 2018 - 22:14
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QUOTE (hcandersen @ Thu, 13 Sep 2018 - 22:25) *
I think this is missing a key element. I apologise in advance if you’ve established what follows.

You have no proof that the vandalism occurred before 7am, it could just as well have occurred at 7.30.

So you not having a ticket is no defence, all that could have happened is that your car was vandalised after 7am and therefore you would have had a broken windscreen and a ticket as opposed to a broken windscreen without a ticket.

If you’re going to appeal then IMO you must deal head on with timings.

You posted ‘I went back to my office just after 7 to phone my insurance company and to make the necessary arrangements.’

What proof do you have?

IMO, you must present this.

Without these details all that having a broken windscreen could mean is that you could not move a vehicle already in contravention out of contravention. It doesn’t prove that you couldn’t move a vehicle not in contravention in order to prevent it being in contravention.


HCA the chargeable hours start at 08.00 am so timing is not an issue the vandalism occurred before the OP returned to the car at 0700am so it must have happened when the car was legally parked


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icantbelieveit
post Thu, 13 Sep 2018 - 22:22
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All the proof I currently have is that I called GEM motoring my breakdown service at 08.55. The call was made at this time after a follow up call to National Windscreeens who told me that they did not have my windscreen in stock and that they could only do the repair the next day. My original call was made to my insurance company at just after 07.00am. It is the number specific to windscreens so it may have been National Windscreens head office and they told me that the Dartford office would call me when they opened at 08.00. Nobody called me hence my call to the Dartford office who informed me that the repair could only be made the next day. I will have to check through the number I originally called to see if they have a record and can provide proof of the original call I made. I will do this in the morning.
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icantbelieveit
post Thu, 13 Sep 2018 - 22:34
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"I am writing to you regarding crime reference number ********, an incident where damage was caused to a number of vehicles and a shop front.

Unfortunately no cctv footage was available of the incident.

A forensic team did come out to the incident and did manage to retrieve a shoeprint mark. There was also a witness who may have seen the suspects at the time of the incident. However these things alone cannot identify a suspect."

This is the beginning of the letter sent to me by PC Gallagher from the MET.
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hcandersen
post Fri, 14 Sep 2018 - 06:14
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OP, I think your post #63 exudes the sort of honesty and credibility which impress adjudicators.

The nub of this appears to be whether you had an obligation to pay for parking rights when you intended and wanted and took all reasonable steps available to you to remove the car from the car park in order to prevent it going into contravention.
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PASTMYBEST
post Fri, 14 Sep 2018 - 08:39
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QUOTE (icantbelieveit @ Thu, 13 Sep 2018 - 23:22) *
All the proof I currently have is that I called GEM motoring my breakdown service at 08.55. The call was made at this time after a follow up call to National Windscreeens who told me that they did not have my windscreen in stock and that they could only do the repair the next day. My original call was made to my insurance company at just after 07.00am. It is the number specific to windscreens so it may have been National Windscreens head office and they told me that the Dartford office would call me when they opened at 08.00. Nobody called me hence my call to the Dartford office who informed me that the repair could only be made the next day. I will have to check through the number I originally called to see if they have a record and can provide proof of the original call I made. I will do this in the morning.


Thanks to HCA's forensic questioning I can add quite a bit of meat to the bones of what I have. Will do that and finish of the PI bit and post later


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Mad Mick V
post Fri, 14 Sep 2018 - 08:57
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Acting as devil's advocate, why didn't the OP borrow some cash from his office colleagues before returning to the car park?

The assertion that he did not have the wherewithal to pay must be considered against the background that the car was damaged but the period for paid parking was due to begin. That is the nub of the Council's case.
Quite frankly, I think we are digging into this too deeply and any reasonable adjudicator would rule in the OP's favour because the Council has failed in its duties regarding its obligations on the rights, support and protection of victims of crime.
Mick

This post has been edited by Mad Mick V: Fri, 14 Sep 2018 - 10:06
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PASTMYBEST
post Fri, 14 Sep 2018 - 15:00
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Here you go, I will append the two documents for you shortly. print them off and send them with your appeal

Appeal against the imposition of PCN number xxxxxx
Vehicle registration mark AA23 BCD


I make this appeal under the statutory ground “ that the alleged contravention did not occur;” and also the statutory ground “that there has been a procedural impropriety on the part of the enforcement authority;”

1:- The alleged contravention did not occur;

My husband as he does four times a week parked my car at the location specified outside of the charging hours, these being 08.00am to 18.30 pm

Just before 07.00 am my husband returned to the car and found that it had been vandalized, the windscreen being shattered to the extent that the car was undriveable. He returned to his office called the insurance company on the number supplied by them for the repair of windscreens, this was just after 07.00am. My husband was informed that he would be called back by the local office ( Dartford)at 08.00am when they opened. This call was not forthcoming so my husband getting somewhat anxious called it transpired that they could not effect repair until the next day. My husband then arranged removal of the vehicle to an off street location where the repair could be carried out.

The vehicle was only in situ at the location during the chargeable hours for only the time it took for my husband to organise its removal and was there due to circumstances beyond the control of the driver. Although the off street parking order has not to date been produced this is a standard exemption and as such no contravention occurred.

It could be argued that a P&D ticket should have been purchased in any event. I would dispute this If as is most likely the exemption is extant then none would be required Nor would it be possible for my husband to know how long he would need to pay for this could range from 0.35p up to £15,

As per my representation the police attended as approximately 20 cars had been vandalized, they took details and a crime reference was generated. The police officer also informed my husband that the damage was such that the car must not be driven until repaired.

Should there not be an exemption for reasons beyond the drivers control in the order, then there will surely be one of acting under instruction from a police officer in uniform, I would use this in the alternative. For either or both the contravention did not occur and the PCN should be cancelled

2:- There has been a procedural impropriety on the part of the enforcement authority;”

s6 of the appeals regulations states

Rejection of representations against notice to owner
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;

(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.
(2)  A notice of rejection served in accordance with paragraph (1) may contain such other information as the enforcement authority considers appropriate.

It must be clear that one of the most important pieces of information needed by the recipient is that time frame in which they must act. This is set by s3(2) of the general regulations as being two working days after posting, unless it can be shown to be otherwise.. Working days are described as any day except Saturday or Sunday or New years day, good Friday, Christmas day or any other day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971(1).
The notice of rejection in this case describes the time to act as being the period of 28 days beginning with the date this letter is served(delivered). This must fail to convey the correct information to the recipient.
The description given would allow that the counting of the 28 day period could start on any of these disallowed days, a Saturday obviously being the one where there is a danger of this happening. This would reduce the time allowed by statute to make payment or to appeal.

This description of the time frame also has the potential for prejudice further, in that the post is not universally reliable a letter could well only be delivered on the third, fourth, fifth or even more days after posting. The recipient would read the time frame given date delivered and begin counting from then. The authority on the other hand are counting from the statutory definition of two working days. The recipient might well attempt to make payment on what the think is day 28 only to find that the penalty has increased to £195. or they make an appeal that is out of time.
The issue of the appeal is exacerbated in that the notice of rejection does not indicate that an adjudicator has the power to allow an appeal outside the 28 day period, for where it might be that the tribunal accept in any event, absent a reason for the late application they are at liberty not to accept the appeal, the appellant is denied there right through the error in the NoR. I contend that this be a procedural impropriety and ground to cancel the PCN.

I submit that the description of the time period by which to act as 28 days beginning with the date of service and service being described as the date delivered is a procedural impropriety I respectfully ask that in reaching a finding on this point the findings of fellow adjudicator John Parker of the traffic penalty tribunal in case number KP05045K where he said this on this subject.

“As to the inclusion of the concept of “delivery" this may well have been an attempt to try and help the lay recipient with the meaning of the word “service”. However date of service is a legal concept and is fully set down in regulation 3 of the general regulations.
If this councils formula is correct a notice sent on a Friday by first class post might well be delivered on Saturday(“the date it was delivered”) but actually it is not deemed served until Monday under regulation 3

I need to consider if the notice is substantially compliant with the regulations. I cannot find that it is close to being “near enough” to be regarded as compliant. The confusion about calculating the date of service, totally muddling it with date of delivery is an irredeemable defect. The recipient must know precisely how to work out when a response is due”

Copy of full decision appended

I further submit that the failure to notify of an adjudicators power to extend the time allowed for an appeal is also a procedural impropriety in that it causes the NoR to fail at 6(1)© of the appeals regulations.

Again I would ask that you have regard to the finding of adjudicator Anthony Chan in case number 2170241413. He says this on the subject.
“Mr Dishman makes a further submission in relation to the contents of the Notice of Rejection. In essence, he complains that it has not advised motorists contemplating an appeal to the Adjudicator that the Adjudicator may extend the time limit for an appeal.
There is no requirement that the Notice must spell out the appeal process. It must however "describe in general terms the form and manner in which such an appeal must be made". I find that this must include a reference to the time limit and that it can be extended."
I am not satisfied that the PCN can be upheld. I allow the appeal.”

Again the full register entry is appended.

For any one or for all of the above reasons I submit that this PCN is not valid and respectfully ask that you order it cancelled

Copy and print this link into your browser then print off the document

www.davidmarq.com/bama/XXX_v_KentCC_aka_Shepway.pdf

And this one

2170241413


Adjudicator
Anthony Chan
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice.

The Appellant is represented by Mr Dishman. the Authority is represented by Mr Moorwood.
Mr Dishman submits that the contravention has not occurred because the Appellant's exit lane was clear when he entered the junction. The true interpretation of the legislation does not include an analysis as to whether the exit is clear. It is whether the vehicle entered the junction and stops due to other stationary vehicles. It is a rather harsh approach. The Highway Code has accordingly advised motorists not to enter the junction until the exit lane is clear.
In this case, the vehicle preceding the Appellant's had made the right turn but stayed out of the junction presumably to avoid a contravention. The driver's intention was obvious and this was to move into the exit lane when it becomes clear. The Appellant made his right turn in a wider arc and ended up on the nearside of the preceding vehicle. Had he succeeded in getting into the exit lane before the preceding vehicle, it would have been because he undertook and pushed in. As it turned out, the two vehicles prevented each other from moving into the exit lane. Both had to stop to avoid a potential collision. I do not find that this is a situation envisaged by the advice Highway Code. I am satisfied that the contravention occurred.
Mr Dishman makes a further submission in relation to the contents of the Notice of Rejection. In essence, he complains that it has not advised motorists contemplating an appeal to the Adjudicator that the Adjudicator may extend the time limit for an appeal.
There is no requirement that the Notice must spell out the appeal process. It must however "describe in general terms the form and manner in which such an appeal must be made". I find that this must include a reference to the time limit and that it can be extended."
I am not satisfied that the PCN can be upheld. I allow the appeal.




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icantbelieveit
post Sat, 15 Sep 2018 - 01:35
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Thank you for the time and great effort you have spent on this.

I have submitted by there website but just in case I have left it as further evidence to come just in case there is anything else to add.
I am now looking online at the Lewisham off street parking order. I'm at work and unable to even copy and paste this document.
One thing that may be off interest is:

Emergency service exemption.

12 Nothing in this order shall apply in relation to-

(b) anything done with the permission or direction of a police constable in uniform.


Is this relevant and is there anything else I should be looking out for?

This post has been edited by icantbelieveit: Sat, 15 Sep 2018 - 01:37
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DancingDad
post Sat, 15 Sep 2018 - 09:28
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That's relevant in so far as you left the vehicle there on the advice (and your own common sense) of a police officer saying it was unfit to drive.
But not insofar as the policeman saying not to bother paying as that didn't happen (or if it did, no way of showing it)

To me this comes down to how finicky an adjudicator may be at the end of the day.
Which is where it will end up assuming council reject the obvious and show no compassion.

There seems little doubt that you had no intention of leaving the car into time when you should have paid, I assume all hubby wanted to do after work was get home and relax.
You could not remove the vehicle due to circumstances beyond your control.... that is a normal exemption in most parking orders but whether in the specific order is something you will need to look for.

What PBM has drafted is as good as any.
I would add a further paragraph with adjudication in mind.
"Should you disagree with all the above, I ask that you consider the extreme and distressing circumstances that my husband was faced with that day and exercise your discretion to cancel the PCN"


That may leave an opening for failure to consider (discretion) which is something a sympathetic adjudicator can find on even if the black and white issues don't leave them any room.
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PASTMYBEST
post Sat, 15 Sep 2018 - 11:32
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AT appeal stage DD


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icantbelieveit
post Sat, 29 Sep 2018 - 09:47
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The appeal was allowed.
Thank you to PMB and to all who helped.

Should I post up the whole adjudicator reasons for allowing the appeal to help anyone in future?
And is it necessary to hide person details or not ?
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stamfordman
post Sat, 29 Sep 2018 - 10:07
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QUOTE (icantbelieveit @ Sat, 29 Sep 2018 - 10:47) *
The appeal was allowed.
Thank you to PMB and to all who helped.

Should I post up the whole adjudicator reasons for allowing the appeal to help anyone in future?
And is it necessary to hide person details or not ?


Yes, post the decision. Don't post the personal details if you don't want to but they are on the public record.
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icantbelieveit
post Sat, 29 Sep 2018 - 10:32
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stamfordman
post Sat, 29 Sep 2018 - 10:36
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That must be one of the longer decisions and a technicality on the NTO.

If not for that, the lesson is - buy a P&D ticket.
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icantbelieveit
post Sat, 29 Sep 2018 - 10:38
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This is page 1

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icantbelieveit
post Sat, 29 Sep 2018 - 11:06
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QUOTE (stamfordman @ Sat, 29 Sep 2018 - 11:36) *
That must be one of the longer decisions and a technicality on the NTO.

If not for that, the lesson is - buy a P&D ticket.


Thanks for that.
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PASTMYBEST
post Sat, 29 Sep 2018 - 11:36
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A nice win and very useful decision. We know to strengthen any third person evidence for the future and its nice two see both procedural defects being addressed. in a clear manner

Well done


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hcandersen
post Sat, 29 Sep 2018 - 12:39
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I like it. 😀

Rather resembles...
Therefore the authority’s statement ( implied threat) to the effect that after the expiry of the 28-day period you ‘may have lost’ the opportunity to appeal is at best vague and presumptuous and at worst deliberately misleading: their job is to inform you of the rules, not to misinform you.

A clear, concise and I hope definitive statement that an authority’s duty extends to this aspect which is as essential a component of their duty as any other.
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