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Southend on sea PCN - Contravention 85 - Beechcroft Lower Car Park, Threads merged
samosa111
post Wed, 13 Jun 2018 - 11:43
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Dear helpful souls

I parked in Southend-on-Sea's Beechcroft Lower Car Park. I'm not from around there so don't know the area that well.

I paid for parking using the app - when I opened the app, it automatically picked up Beechcroft "Upper" Car Park. When I returned to my car I had received a ticket. I didn't realise until after the PCN that there is a "Lower" and an "Upper" car park.

A wrote a polite email to the council advising that I had paid for parking albeit for the upper deck, instead of the lower part. They responded by stating that I had parked in a Permit Bay and notwithstanding the fact that I had paid for parking, a fine was still due.

Their letter is below:
page 1
Page 2
page 3


I genuinely did not see any signage stating where I parked was permit-only. Your suggestions on how to deal with this would greatly appreciate.

This post has been edited by samosa111: Wed, 13 Jun 2018 - 11:43
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cp8759
post Wed, 13 Jun 2018 - 20:36
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You need to show us the PCN in full (all sides in full redacting your number plate only), I believe there might be a flaw that makes it invalid but need to check it to be sure.


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samosa111
post Fri, 15 Jun 2018 - 10:30
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QUOTE (cp8759 @ Wed, 13 Jun 2018 - 21:36) *
You need to show us the PCN in full (all sides in full redacting your number plate only), I believe there might be a flaw that makes it invalid but need to check it to be sure.


Scan of PCN:
Front

Rear

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cp8759
post Fri, 15 Jun 2018 - 17:54
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There are two fatal flaws on the PCN, as follows:

1) The PCN does not tell you that if you make informal representations, but the council serves a Notice to Owner anyway, the recipient of the Notice to Owner must make representations again in the form and manner specified in the Notice to Owner. This means the PCN does not comply with the requirements of regulation 3(2)(b)(ii) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 , see http://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

2) The PCN gives an 0870 number which will in all likelihood include a service charge which is pocketed by the council. I have made an FOI request to confirm. If there is a service charge, the penalty charge exceeds the amount payable in the circumstances of the case, as any surcharge makes the PCN invalid even if other payment methods are offered, as per paragraph 29 of London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295.

At this point I would definitely fight this all the way, as point 1 above will win on its own at adjudication. We've also not really seen any pictures of the signage, it would be helpful if you could get the photos from the council website and post them as well.


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samosa111
post Fri, 15 Jun 2018 - 19:58
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QUOTE (cp8759 @ Fri, 15 Jun 2018 - 18:54) *
There are two fatal flaws on the PCN, as follows:

1) The PCN does not tell you that if you make informal representations, but the council serves a Notice to Owner anyway, the recipient of the Notice to Owner must make representations again in the form and manner specified in the Notice to Owner. This means the PCN does not comply with the requirements of regulation 3(2)(b)(ii) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 , see http://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

2) The PCN gives an 0870 number which will in all likelihood include a service charge which is pocketed by the council. I have made an FOI request to confirm. If there is a service charge, the penalty charge exceeds the amount payable in the circumstances of the case, as any surcharge makes the PCN invalid even if other payment methods are offered, as per paragraph 29 of London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295.

At this point I would definitely fight this all the way, as point 1 above will win on its own at adjudication. We've also not really seen any pictures of the signage, it would be helpful if you could get the photos from the council website and post them as well.



So here are the photos from the council's website (I havent uploaded photos of the front, side and rear of my car since I felt these were irrelevant):

Click here for photos

Interestingly the council claims that I had ignored the signs which state the location where I was parked was permit only. The signage they do refer to (and the photo which they provided) the signage states "Saturday only". As far as I am concerned, 'Sat-only' and 'permit-only' are not the same thing. I genuinely do not recall seeing any permit-only warnings, and they have not provided any photos either.

So what's my next move?


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cp8759
post Fri, 15 Jun 2018 - 20:10
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If those are the only signs the contravention should be "Parked in a Saturday only car park on a day other than a Saturday" wink.gif

If there are no signs saying "Permit holders only" then they cannot show that the alleged contravention occurred. Your next move would be to wait for the Notice to Owner.


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samosa111
post Fri, 15 Jun 2018 - 20:44
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QUOTE (cp8759 @ Fri, 15 Jun 2018 - 21:10) *
If those are the only signs the contravention should be "Parked in a Saturday only car park on a day other than a Saturday" wink.gif

If there are no signs saying "Permit holders only" then they cannot show that the alleged contravention occurred. Your next move would be to wait for the Notice to Owner.


Is it worthwhile making an informal representation directly to Southend Council at this stage with the wording you provided above?


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cp8759
post Sat, 16 Jun 2018 - 01:08
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You could but they won't cancel the PCN at this point so it's probably a waste of time. They might however refuse to consider a further informal representation (or state that they are "unable to consider" representations made before the Notice to Owner is served) and that would give you a procedural impropriety which you could later add to your grounds of appeal; in this respect you could send a further informal representation for the purpose of obtaining a tactical advantage you could exploit later on.

Unfortunately you can't get away from the fact that to beat this PCN, you will have to risk the full penalty, which I assume is the reason you asked. However as I've stated, the flaw related to regulation 3(2)(b)(ii) means your chances of success are excellent.


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samosa111
post Sat, 11 Aug 2018 - 12:36
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I parked in Southend-on-Sea's Beechcroft Lower Car Park. I'm not from around there so don't know the area that well.

I paid for parking using the app - when I opened the app, it automatically picked up Beechcroft "Upper" Car Park. When I returned to my car I had received a ticket. I didn't realise until after the PCN that there is a "Lower" and an "Upper" car park.

A wrote a polite email to the council advising that I had paid for parking albeit for the upper deck, instead of the lower part. They responded by stating that I had parked in a Permit Bay and notwithstanding the fact that I had paid for parking, a fine was still due.


Scan of PCN:
Front
Rear


Notice To Owner
Click here to view NTO page 1
Click here to View NTO pages 2-5


So here are the photos from the council's website (I havent uploaded photos of the front, side and rear of my car since I felt these were irrelevant):

Click here for photos


The council claims that I had ignored the signs which state the location where I was parked was permit only. The signage they do refer to (and the photo which they provided) the signage states "Saturday only". As far as I am concerned, 'Sat-only' and 'permit-only' are not the same thing. I genuinely do not recall seeing any permit-only warnings, and they have not provided any photos either.

I informed them there are two fatal flaws on the PCN as follows, but notwithstanding this they refused to back down:

1) The PCN does not tell you that if you make informal representations, but the council serves a Notice to Owner anyway, the recipient of the Notice to Owner must make representations again in the form and manner specified in the Notice to Owner. This means the PCN does not comply with the requirements of regulation 3(2)(b)(ii) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 , see http://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

2) The PCN gives an 0870 number which will in all likelihood include a service charge which is pocketed by the council. I have made an FOI request to confirm. If there is a service charge, the penalty charge exceeds the amount payable in the circumstances of the case, as any surcharge makes the PCN invalid even if other payment methods are offered, as per paragraph 29 of London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295.


Just in case you want to see it, here is the council's letter refusing to back down and rejecting my informal appeal:
page 1
Page 2
page 3


So what's my next move? Your suggestions on how to deal with this would greatly appreciate.



This post has been edited by samosa111: Sat, 11 Aug 2018 - 12:52
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stamfordman
post Sat, 11 Aug 2018 - 13:00
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Please don't start new threads for an existing case. It wastes people's time.

http://forums.pepipoo.com/index.php?showtopic=120925

I will ask for a merge.
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samosa111
post Sat, 11 Aug 2018 - 17:13
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QUOTE (stamfordman @ Sat, 11 Aug 2018 - 14:00) *
Please don't start new threads for an existing case. It wastes people's time.

http://forums.pepipoo.com/index.php?showtopic=120925

I will ask for a merge.


Opps! Sorry completely my mistake.

So can anyone provide guidance for how to deal with the NTO (see above post no.9).

This post has been edited by samosa111: Sat, 11 Aug 2018 - 17:14
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cp8759
post Sun, 12 Aug 2018 - 02:26
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QUOTE (samosa111 @ Sat, 11 Aug 2018 - 18:13) *
QUOTE (stamfordman @ Sat, 11 Aug 2018 - 14:00) *
Please don't start new threads for an existing case. It wastes people's time.

http://forums.pepipoo.com/index.php?showtopic=120925

I will ask for a merge.


Opps! Sorry completely my mistake.

So can anyone provide guidance for how to deal with the NTO (see above post no.9).

Yes, bump tomorrow and I'll draft something.


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samosa111
post Tue, 14 Aug 2018 - 13:34
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QUOTE (cp8759 @ Sun, 12 Aug 2018 - 03:26) *
QUOTE (samosa111 @ Sat, 11 Aug 2018 - 18:13) *
QUOTE (stamfordman @ Sat, 11 Aug 2018 - 14:00) *
Please don't start new threads for an existing case. It wastes people's time.

http://forums.pepipoo.com/index.php?showtopic=120925

I will ask for a merge.


Opps! Sorry completely my mistake.

So can anyone provide guidance for how to deal with the NTO (see above post no.9).

Yes, bump tomorrow and I'll draft something.





BUMP... guidance/help would be greatly appreciated!

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samosa111
post Wed, 15 Aug 2018 - 10:23
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QUOTE (samosa111 @ Tue, 14 Aug 2018 - 14:34) *
QUOTE (cp8759 @ Sun, 12 Aug 2018 - 03:26) *
QUOTE (samosa111 @ Sat, 11 Aug 2018 - 18:13) *
QUOTE (stamfordman @ Sat, 11 Aug 2018 - 14:00) *
Please don't start new threads for an existing case. It wastes people's time.

http://forums.pepipoo.com/index.php?showtopic=120925

I will ask for a merge.


Opps! Sorry completely my mistake.

So can anyone provide guidance for how to deal with the NTO (see above post no.9).

Yes, bump tomorrow and I'll draft something.





BUMP... guidance/help would be greatly appreciated!




Can anyone help with this post?

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cp8759
post Thu, 16 Aug 2018 - 19:20
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Here is my suggestion for formal reps, keep all bold and italics exactly as I have used it below:

Ground 1: The alleged contravention did not occur:

The council asserts in the informal rejection that "There is a sign where you parked that explains that the bay you parked in is for drivers with a permit", however there is no such sign near the bay and if there is, the council is yet to supply any evidence of its existence. While the PCN was issued in a car park and the regulations on signage are not as prescriptive as for on-road parking bays, there is still a duty on the council to provide clear guidance to motorists. As there was no sign in the vicinity of the parking bay stating "permit holders only" or words to that effect, the alleged contravention did not occur.

Grounds 2: There has been a procedural impropriety on the part of the enforcement authority: the PCN does not convery the meaning required by the regulations:

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 require. under regulation 3(2)(b), that the following be conveyed on a PCN:

"if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;
(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.
"

There is nothing on the PCN that conveys the meaning required by regulation 3(2)(b)(ii). The essence of this regulation is to warn the recipient of the PCN that if informal representations are made, but the council serves a Notice to Owner, the informal reps are confined to the dustbin of history and the recipient of the NtO must either pay or make formal representations. None of the words on the PCN convey this warning, so the PCN is not substantially compliant with the regulations. Failure to convey the meaning required by the regulations is a procedural impropriety which means that the PCN must be cancelled.

Ground 3: 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:

"The cost of calling 087 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 087 numbers is between 0p and 13p per minute.
"

When calling the council's 0870 number, the caller is charged a 1p per minute service charge, which is set by the organisation being called, in this case Southend-on-Sea Borough Council . In London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) at paragraphs 28 and 29 the High Court ruled as follows:

"28. Mr Coppel submits that the only form of payment that the Council are obliged to accept as a matter of law is cash in legal tender, unless they agree otherwise. As a matter of strict theory that may be right, although I venture to suggest that a Council which required parking contraveners to pay cash in notes, or coins of £1 or higher value (current legal tender) would be vulnerable to a challenge on grounds of rationality. Nobody is forced to pay by credit card. The Council suggest that it is not increasing the penalty charge but rather recovering an external cost associated with making a convenient method of payment available to those guilty of parking contraventions. Mr Coppel accepts that if this argument were right (and subject always to the vires to make any charge), then so far as the parking enforcement regime was concerned, the Council could recover by way of administrative fee the cost of dealing with any mechanism of payment except cash presented in denominations which were legal tender. There was no evidence before me of any external costs to a merchant associated with payment by debit card or cheque but such facilities are rarely free. There is clearly a significant cost in staff time and systems administration involved in accepting any form of payment. Cheques are especially labour intensive and costly. No doubt any enforcing authority could easily identify the global costs of collecting penalty charges by category and then attempt to divide those costs by the number of penalty charges they expect to recover to determine an administration fee appropriate to each. Yet that is far from the limit of the administrative charges that an inventive enforcing authority might seek to add to the penalty charge authorised by law. Civil enforcement officers must be employed, paid and equipped. There will, in addition, be an administrative superstructure which costs money. It is, submits Mr Coppel, only because the Parking Adjudicators failed to understand that there is a critical difference between the penalty charge and the costs of recovering that charge that they fell into the error of concluding that the penalty charge exceeded the amount prescribed by the statutory scheme. Mr Rogers, who appears for the Parking Adjudicators, submits that whatever label the Council attempt to attach to the 1.3% fee, it is in substance a surcharge that results in a demand for payment of a sum which exceeds that authorised under the statutory scheme.

29. I am unable to accept Mr Coppel's argument that for the purposes of regulation 4(4)(e) the 1.3% fee can be separated from the penalty charge. As is common ground, an enforcing authority is not at liberty to set its own penalty charges but is limited to the sums set under the statutory scheme. The substance of what the Council did was to increase their penalty charge if payment were to be made by credit card to 101.3% of the sum authorised under that scheme. On Mr Coppel's argument the Council might just as well have introduced other administrative charges and added those too. It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge. It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law.
"

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.

Ground 4: There has been a procedural impropriety on the part of the enforcement authority: The authority has unlawfully fettered its discretion.

In the informal rejection notice the decision maker asserts that he is "unable to cancel" the PCN, this is incorrect. The council always has a power to cancel a PCN for any reason, whether the statutory grounds of appeal are made our or not. Indeed, the regulations make it quite clear that where the statutory grounds for cancellation are not made out, the council can nonetheless chose to cancel the PCN. So it is simply incorrect to state the council is unable to cancel the penalty: Once it is established that none of the statutory grounds of appeal are made out, the council should then decide whether it should nonetheless cancel the PCN. In failing to consider whether to exercise its discretionary powers, and simply asserting that the council is "unable to cancel" the PCN, the enforcement authority has unlawfully fettered its discretion. I refer you to Nirakar Vaidya v London Borough of Newham (case reference 2130316200) where the adjudicator stated that:

"The local authority was wrong to say in the Notice of Rejection that it was unable to cancel the Penalty Charge Notice or refund the removal fee. The local authority is able to do so and the local authority is obliged to consider whether there is compelling mitigation. The local authority by stating that it is unable to do something that it is able to do has in my opinion fettered its discretion."

Ground 5: There has been a procedural impropriety on the part of the enforcement authority: The enforcement authority has failed to properly consider my representations:

My informal representations were in essence a shorter version of grounds 2 & 3 above, but the rejection letter makes no mention of those representations. I refer you to Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432):

"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."

The response required in this case was a simple one, namely words to the effect that the PCN is substantially compliant with regulation 3(2)(b)(ii) of the appeals regulations, and any surcharge applied to telephone payments does not affect the validity of the PCN, however the council's response is entirely silent on these matters. It is therefore apparent that the council has failed in its statutory duty to consider the representations that have been made, and the rejection notice that has been issued is simply a boilerplate response. The council's failure to properly consider my informal representations is a procedural impropriety which means the PCN must now be cancelled.

This post has been edited by cp8759: Thu, 16 Aug 2018 - 19:21


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samosa111
post Fri, 17 Aug 2018 - 07:15
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QUOTE (cp8759 @ Thu, 16 Aug 2018 - 20:20) *
Here is my suggestion for formal reps, keep all bold and italics exactly as I have used it below:

Ground 1: The alleged contravention did not occur:

The council asserts in the informal rejection that "There is a sign where you parked that explains that the bay you parked in is for drivers with a permit", however there is no such sign near the bay and if there is, the council is yet to supply any evidence of its existence. While the PCN was issued in a car park and the regulations on signage are not as prescriptive as for on-road parking bays, there is still a duty on the council to provide clear guidance to motorists. As there was no sign in the vicinity of the parking bay stating "permit holders only" or words to that effect, the alleged contravention did not occur.

Grounds 2: There has been a procedural impropriety on the part of the enforcement authority: the PCN does not convery the meaning required by the regulations:

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 require. under regulation 3(2)(b), that the following be conveyed on a PCN:

"if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;
(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.
"

There is nothing on the PCN that conveys the meaning required by regulation 3(2)(b)(ii). The essence of this regulation is to warn the recipient of the PCN that if informal representations are made, but the council serves a Notice to Owner, the informal reps are confined to the dustbin of history and the recipient of the NtO must either pay or make formal representations. None of the words on the PCN convey this warning, so the PCN is not substantially compliant with the regulations. Failure to convey the meaning required by the regulations is a procedural impropriety which means that the PCN must be cancelled.

Ground 3: 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:

"The cost of calling 087 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 087 numbers is between 0p and 13p per minute.
"

When calling the council's 0870 number, the caller is charged a 1p per minute service charge, which is set by the organisation being called, in this case Southend-on-Sea Borough Council . In London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) at paragraphs 28 and 29 the High Court ruled as follows:

"28. Mr Coppel submits that the only form of payment that the Council are obliged to accept as a matter of law is cash in legal tender, unless they agree otherwise. As a matter of strict theory that may be right, although I venture to suggest that a Council which required parking contraveners to pay cash in notes, or coins of £1 or higher value (current legal tender) would be vulnerable to a challenge on grounds of rationality. Nobody is forced to pay by credit card. The Council suggest that it is not increasing the penalty charge but rather recovering an external cost associated with making a convenient method of payment available to those guilty of parking contraventions. Mr Coppel accepts that if this argument were right (and subject always to the vires to make any charge), then so far as the parking enforcement regime was concerned, the Council could recover by way of administrative fee the cost of dealing with any mechanism of payment except cash presented in denominations which were legal tender. There was no evidence before me of any external costs to a merchant associated with payment by debit card or cheque but such facilities are rarely free. There is clearly a significant cost in staff time and systems administration involved in accepting any form of payment. Cheques are especially labour intensive and costly. No doubt any enforcing authority could easily identify the global costs of collecting penalty charges by category and then attempt to divide those costs by the number of penalty charges they expect to recover to determine an administration fee appropriate to each. Yet that is far from the limit of the administrative charges that an inventive enforcing authority might seek to add to the penalty charge authorised by law. Civil enforcement officers must be employed, paid and equipped. There will, in addition, be an administrative superstructure which costs money. It is, submits Mr Coppel, only because the Parking Adjudicators failed to understand that there is a critical difference between the penalty charge and the costs of recovering that charge that they fell into the error of concluding that the penalty charge exceeded the amount prescribed by the statutory scheme. Mr Rogers, who appears for the Parking Adjudicators, submits that whatever label the Council attempt to attach to the 1.3% fee, it is in substance a surcharge that results in a demand for payment of a sum which exceeds that authorised under the statutory scheme.

29. I am unable to accept Mr Coppel's argument that for the purposes of regulation 4(4)(e) the 1.3% fee can be separated from the penalty charge. As is common ground, an enforcing authority is not at liberty to set its own penalty charges but is limited to the sums set under the statutory scheme. The substance of what the Council did was to increase their penalty charge if payment were to be made by credit card to 101.3% of the sum authorised under that scheme. On Mr Coppel's argument the Council might just as well have introduced other administrative charges and added those too. It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge. It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law.
"

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.

Ground 4: There has been a procedural impropriety on the part of the enforcement authority: The authority has unlawfully fettered its discretion.

In the informal rejection notice the decision maker asserts that he is "unable to cancel" the PCN, this is incorrect. The council always has a power to cancel a PCN for any reason, whether the statutory grounds of appeal are made our or not. Indeed, the regulations make it quite clear that where the statutory grounds for cancellation are not made out, the council can nonetheless chose to cancel the PCN. So it is simply incorrect to state the council is unable to cancel the penalty: Once it is established that none of the statutory grounds of appeal are made out, the council should then decide whether it should nonetheless cancel the PCN. In failing to consider whether to exercise its discretionary powers, and simply asserting that the council is "unable to cancel" the PCN, the enforcement authority has unlawfully fettered its discretion. I refer you to Nirakar Vaidya v London Borough of Newham (case reference 2130316200) where the adjudicator stated that:

"The local authority was wrong to say in the Notice of Rejection that it was unable to cancel the Penalty Charge Notice or refund the removal fee. The local authority is able to do so and the local authority is obliged to consider whether there is compelling mitigation. The local authority by stating that it is unable to do something that it is able to do has in my opinion fettered its discretion."

Ground 5: There has been a procedural impropriety on the part of the enforcement authority: The enforcement authority has failed to properly consider my representations:

My informal representations were in essence a shorter version of grounds 2 & 3 above, but the rejection letter makes no mention of those representations. I refer you to Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432):

"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."

The response required in this case was a simple one, namely words to the effect that the PCN is substantially compliant with regulation 3(2)(b)(ii) of the appeals regulations, and any surcharge applied to telephone payments does not affect the validity of the PCN, however the council's response is entirely silent on these matters. It is therefore apparent that the council has failed in its statutory duty to consider the representations that have been made, and the rejection notice that has been issued is simply a boilerplate response. The council's failure to properly consider my informal representations is a procedural impropriety which means the PCN must now be cancelled.



Wow! That's simply amazing! Thank you so much. I will do and submit as you say.

Will keep you in the loop of progress.

Thanks once again. You are a star!

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hcandersen
post Fri, 17 Aug 2018 - 08:22
Post #17


Member


Group: Members
Posts: 35,049
Joined: 2 Aug 2008
From: Woking
Member No.: 21,551



?
You wrote: ‘A wrote a polite email to the council advising that I had paid for parking albeit for the upper deck, instead of the lower part.’

So how did their reply not address your argument, according to you you didn’t make one! So how can you make (lengthy) reps on the grounds of PI that they didn’t fully consider your initial challenge - which we still haven’t seen?

I suggest your reps need refining ( and sorry cp, also shorthening smile.gif ) before you fire off. And please read and try to understand the point being made.
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cp8759
post Fri, 17 Aug 2018 - 20:58
Post #18


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Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (hcandersen @ Fri, 17 Aug 2018 - 09:22) *
?
You wrote: ‘A wrote a polite email to the council advising that I had paid for parking albeit for the upper deck, instead of the lower part.’

So how did their reply not address your argument, according to you you didn’t make one! So how can you make (lengthy) reps on the grounds of PI that they didn’t fully consider your initial challenge - which we still haven’t seen?

I suggest your reps need refining ( and sorry cp, also shorthening smile.gif ) before you fire off. And please read and try to understand the point being made.

I think the answer is in post 9:

"I informed them there are two fatal flaws on the PCN as follows, but notwithstanding this they refused to back down:

1) The PCN does not tell you that if you make informal representations, but the council serves a Notice to Owner anyway, the recipient of the Notice to Owner must make representations again in the form and manner specified in the Notice to Owner. This means the PCN does not comply with the requirements of regulation 3(2)(b)(ii) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 , see http://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

2) The PCN gives an 0870 number which will in all likelihood include a service charge which is pocketed by the council. I have made an FOI request to confirm. If there is a service charge, the penalty charge exceeds the amount payable in the circumstances of the case, as any surcharge makes the PCN invalid even if other payment methods are offered, as per paragraph 29 of London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295.
"

The letter from the council completely ignores these representations, if that isn't a failure to consider I don't know what is. Maybe I could have written a shorter version (I was short on time and just copy/pasted previous notes), but the advantage is that when it comes to the tribunal, the appeal can just say "I refer to my formal representations" biggrin.gif


--------------------
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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hcandersen
post Fri, 17 Aug 2018 - 21:57
Post #19


Member


Group: Members
Posts: 35,049
Joined: 2 Aug 2008
From: Woking
Member No.: 21,551



This was after their first post, before they’d heard of cp8759!
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samosa111
post Tue, 21 Aug 2018 - 10:34
Post #20


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Group: Members
Posts: 173
Joined: 2 Dec 2010
Member No.: 42,588



cp8759....

We have a problem...

The council website, where I intend to make a representation only allows 3000 characters - your draft is over 10k. I wasnt sure what parts of your proposed wording I could remove, so subsequently, I intend on making a postal representation by recorded delivery.

Hope thats ok.
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