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URGENT advice needed! PCN for being parked for less than a minute
dp101
post Fri, 27 Nov 2020 - 18:06
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Hi guys,

Awesome forum. Thank you for keeping it alive!

Here is my PCN story.

1. My wife was issued with a PCN for parking on a single yellow line outside our child's school. Every morning she literally gets out of the car, sprints with the child, hands him to the teacher at the gate and is back with her car within 1 minute. You cannot park legally anywhere. Traffic restrictions start at 8.30am and the school does not accept children before 8.30am. Traffic wardens know this and use this golden half an hour to issue as many tickets as they can. Up until a year or 2 ago, Havering's Discretionary Policy allowed young children to be assisted from the car to school, while parked on a single yellow line. Now they have removed this and amended it to "only in emergency situations", taking your child to school not being one. Here is a link to their policy: https://www.havering.gov.uk/download/downlo...lling_a_pcn.pdf.

Not sure if it's important - I am the owner of the vehicle, she was the driver at the time of PCN issuing. All correspondence is addressed to her, even though I sign the letters and Representation with my name.

In this case the PCN states "code 01" and that the vehicle was "observed from 08.33 to 08.33".

2. My wife filed an online appeal explaining that she was taking our young child (aged 10) to school and she was back within a munute.

3. Appeal got refused. In the refusal letter Havering council stated that the vehicle was seen "at 08.33.41 in a restricted street during prescribed hours".

This is how I interpret the facts. According to the PCN and the refusal letter the vehicle "was seen parked at 08.33.41" (this may be the exact time the PCN was issued, I don't know) while being observed from 08.33:00 to 08.33:59. So there are 2 options. Option 1 - Vehicle first seen at 08:33:00 and PCN issued at 08:33:41. Time vehicled observed is 41 seconds (I can argue that typing in a Hand Held computer does not constitute observing). Option 2 - vehicle first seen at 08:33:41 and observed until 08:33:59. Time vehicle observed is 18 seconds.

Here is an interesting decision (appeal allowed) taken from case 2130603428 https://londontribunals.org.uk/. The adjudicator allowed the appeal stating "Whilst there is no requirement in law to have an observation time, if an Authority issues a Code of Practice then in must demonstrate adherence to it." In my case Havering issued this document titled "Observation period for parking enforcement" (https://www.havering.gov.uk/download/downloads/id/4160/observation_period_for_parking_enforcement_in_havering.pdf). In this document Havering state that their CEOs must observe vehicle in contravention code 01 for at least 5 minutes before they issue a PCN. In my case the observation time was less than 1 minute. The adjudicator also stated "If the Civil Enforcement Officer observation commenced at 08:33:00 and the Penalty Charge Notice was issued at 08:33:59 (in my case PCN states vehicle observed from 08:33 to 08:33) the observation period would not have been reached before the Penalty Charge Notice could be legitimately be issued."

Do you think this can be a ground for appeal? Which of the available grounds would this appeal be filed under?

4. Received Charge Certificate. I had not receive NTO prior to the Charge Certificate. I wrote to the Council asking them to re-send the NTO as I had not received it. They refused and advised me to wait for form TE3 then fill in form TE9 (Witness Statement).

5. Cutting long story short - I finally received Notice to Owner. However, it stated that "the penalty charge must be paid not later than the last day of the period of 28 days beginning with the date of this Notice to Owner". Thanks to this forum I know this is a red flag as it should have stated "period of 28 days beginning with the date on which the notice is served".

6. Filed Representations Against NTO within allowed time. I based my representations on 1) the invalidity of the NTO due to the wording of the 28 days period; 2) the less than a minute observation time. Havering's own training guidelines for CEOs state they must observe vehicles in suspected code 01 for at least 5 minutes, in order to exclude any possible loading and unloading. I did not choose any of the grounds from the letter as I wasn't sure what category my points 1) and 2) fell into.

7. Received Notice of Rejection of Formal Representations. Havering stated that "after full consideration of the representations made and all other circumstances relating to the service of the Penalty Charge Notice, I have to advise you that grounds for representation against the Penalty Charge Notice have not been established".

I have until 29/11/2020 to file an appeal (Notice of Rejection's date is 30/10/2020). Am I correct?

Do you think I have grounds for appeal? If yes, what would these grounds be?

Your help is greatly appreciated!

Thanks,

PCN: https://www.dropbox.com/s/1g18oupz0r8y8ey/2...lurred.pdf?dl=0
Letter Refusing Online Appeal: https://www.dropbox.com/s/1ohct0juudj3doz/2...lurred.pdf?dl=0
Notice to Owner: https://www.dropbox.com/s/s6ek2qlh7oon0nm/2...lurred.pdf?dl=0
Representations Against Notice to Owner: https://www.dropbox.com/s/4j58oy1wcqjleqq/2...lurred.pdf?dl=0
Notice of Rejection of Formal Representations: https://www.dropbox.com/s/h3o63zaa5xz9bic/2...lurred.pdf?dl=0

This post has been edited by dp101: Fri, 27 Nov 2020 - 20:21
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post Fri, 27 Nov 2020 - 18:06
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dp101
post Sat, 22 May 2021 - 21:45
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QUOTE (stamfordman @ Sat, 28 Nov 2020 - 00:39) *
If you are appealing to the tribunal you should include all grounds. Adjudicators often accept one we least expect.

UPDATE - APPEAL ALLOWED!!! biggrin.gif

Finally found the time to post the outcome of the appeal. Here are the important points:

1. @stamfordman has hit it on the head: "If you are appealing to the tribunal you should include all grounds. Adjudicators often accept one we least expect." This is so true. I appealed on the grounds that "this contravention did not occur". My points raised were: a) the observation time being less than a minute; b) NTO has the incorrect "28 days from the date of this notice" wording; 3) assisted alighting of a child. And the winner is...3) assisted alighting of a child smile.gif

2. The adjudicator adjourned the case and requested additional evidence (age and class year of child) as well as evidence of school admission times. The school were more than happy to confirm this in a letter which I submitted. Here is the relevant paragraph from the tribunal:

"Appeal hearing adjourned. The adjudicator has said that appeals are not allowed simply in response to an argument about there being a lack of prescribed officer observation time. He has said that the outcome here will depend upon whether an exemption is validly claimed or not. He has said that he would prefer to be clear that children may be admitted to the school at 8.30 am and that he should also be informed of the age and Class Year of the child. He will further consider the passenger set down exemption when this information and confirmation has been given to him."

3. I also submitted old correspondence with Havering from years ago in which the same circumstances led to a PCN being cancelled at the time. Not sure if this had any input in the final decision.

The adjudicator has accepted the fact that at the time of issuing the PCN a young child (10) was being assisted to school, time away from the car was reasonable (under 2 minutes) and therefore attracts the benefit of the passenger alighting exemption.

Appeal allowed.

My personal thoughts about this unpleasant but insightful experience follow. This was my first appeal but I am glad I got through it. Now I know a lot more about how these things work. Havering council issues tickets then refuse the majority of them with templated letters (without researching the details of each individual case) in the hope that most unfairly ticketed people will give up and pay the PCN. To the unexperienced person the whole process is a lengthy and scary saga, which most of them prefer to put behind by simply paying the fine. The ones that stick to their guns and go the end most likely get their appeals allowed.

Thanks to everyone who provided their advice, 2 cents and what not.

Stand up for your rights and don't let bullies ruin your day!

Good luck!
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