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PCN- Ticket fell off the windscreen
Riwongo
post Thu, 30 Mar 2017 - 21:34
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Good evening all

I wonder if you can advice me on how to proceed with my case.
On 23 March I parked at a council park at 7.47am, paid £3.50 to purchase a ticket whcich I then stuck to my windscreen before leaving the car. On arrival at around 5pm that evening, I found a PCN attached to my windscreen for not having/displaying a valid ticket. The ticket had fallen off the windscreen and clearly the officer had not looked for it as it was visible on the floor of the car. Anyway wrote to the Council by email on 26 March at 11.19pm asking them to cancel the fine as I had purchased and displayed a ticket and I attached a copy of that ticket as evidence. They wrote back very quickly the next day at 11am refusing to cancel the ticket. I am very annoyed because no reasonable person would park a vehicle for over 8hours and not buy and display a valid tickket in any car park! Especially where the rate is as low as £3.50 for the whole day. I would like to pursue this matter if possible but just not sure how to move on from here. Any help woul dbe most appreciated.
I have copied and pasted correspondence between the council and I below and have uploaded the PCN. Look forward to your help. Thanks


My email to the Council sent on 26 March at 11.19pm

“I returned to my vehicle on 23 March 2017 around 5pm and was shocked to find a penalty charge notice stuck to my windscreen.
I would like to make representations against that penalty charge served upon me.
I drove into the car park around 7.30am on 23 March 2017 and purchased a parking ticket which I displayed on my windscreen.
Enclosed is a copy of the Pay & Display ticket that I purchased and displayed for inspection. It can clearly be seen that I paid for the ticket at 7.47am; I paid the appropriate fee and displayed the ticket by sticking it on to my windscreen before I left my car. You will see that the ticket was valid until 18.00hrs and thus valid when your officer inspected my vehicle at 13.05hrs.
Unfortunately, It would appear at some point during my absence from the vehicle, the ticket somehow became dislodged from where it had been clearly displayed and fell into the foot well which caused your officer not to see it and thus issue the PCN. I don’t know how the ticket fell off and can only put it down to the damp blustery weather as I noticed on my return to the car that other old tickets left on my dashboard had been flipped over. I took reasonable steps to abide by the law by ensuring I purchased and displayed the ticket on my windscreen before leaving and the evidence is attached.
In addition I am aware that there are CCTVs in the car park one of which is directly facing over the parking meters which would substantiate my assertions.
May I therefore ask you in light of the above to please consider using your discretionary powers under paragraph 85 to cancel this PCN for the reasons already stated above.
May I also point out that the PCN I received does not tell me how to appeal or make representations just how to pay the PCN and I do not think this is correct? Should this matter go to appeal/adjudication I will be highlighting this. May I at this point request a copy of the car park CCTV on 23 March 2017 between 7am and 8am?

Response from the council via email on 27 March at 11.12am


Thank you for writing to us. We have carefully considered what you say but we have decided not to cancel your Penalty Charge Notice (PCN). You were given a PCN for not having a Pay & Display ticket that was both valid and clearly displayed. Even if you have a Pay & Display ticket, you have to display it so that a CEO can see all its details. Before giving PCNs, our Civil Enforcement Officer (CEO)s check for any parking items displayed and record the details. The CEO saw no Pay & Display ticket. This can happen, for example, when people forget to display Pay & Display tickets or when Pay & Display tickets fall off windscreens. It is unfortunate if this happened with you, but a Pay & Display ticket is only valid if it is displayed so that a CEO can see all its details. Whilst I understand your points raised, On this occasion, the CEO has recorded that no Pay & Display ticket was seen on display in the vehicle and no driver was seen at the ticket machines; therefore the vehicle was seen to be in contravention and a PCN was then issued, I have forwarded your request for Freedom of Information (FOI) with regards to the CCTV, however I am therefore satisfied there are no grounds in which to cancel the charge. You can view photographic evidence of your case online at www.merton.gov.uk/pcn You have these choices: • You can pay the discount charge of £30.00 if your payment reaches us within 14 days of the date of this letter. • If you miss the discounted period you can pay the full charge of £60.00 within 28 days of this letter. • You can formally challenge your PCN by using a Notice to Owner form. The vehicle's owner will automatically receive the form if the PCN has not been paid within 28 days of this letter. The form offers you the chance to formally challenge your PCN or pay the full £60.00. If you decide to formally challenge your PCN, please do not write to us again but wait until the Notice to Owner form arrives. Please note: Should you write back in to the council before the Notice to Owner, the discounted period will not be placed on hold or reoffered. How to pay • Online at www.merton.gov.uk/pay. • By phone 020 8545 3518 (24 hours).

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post Thu, 30 Mar 2017 - 21:34
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Riwongo
post Thu, 30 Mar 2017 - 21:59
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stamfordman
post Thu, 30 Mar 2017 - 22:01
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A very common theme and so unpleasant by councils that do this.

You have to risk £30 discount to take it further but this standard rep from forum expert Bogsy has won cases:

I would like to appeal the penalty charge served upon me.

Enclosed is a copy of the Pay & Display ticket that I purchased and displayed for inspection. It can clearly be seen that I paid the appropriate fee and that the ticket was valid when the officer inspected my vehicle. Unfortunately, at some point during my absence from the vehicle, the ticket somehow became dislodged from where it had been clearly displayed and fell into the foot well. I accept that your officer could not have known this and acted accordingly.

However, now that the ticket has been presented for inspection it is clear that I did not avoid payment of the parking fee nor that I had parked beyond time paid for. The only purpose a ticket needs to be displayed is to enable an officer to distinguish between those that have paid for parking and those that have not and those who have exceeded the time paid for. The ticket produced clearly shows that had your officer seen my ticket at the time of inspection that there would be no need to serve a penalty charge notice.

The only remaining issue is whether the fact that the ticket was not clearly displayed at the time of inspection warrants the council taking a hard line and upholding the penalty charge. I believe that for the council to take such a stance would be contrary to the advice of the DfT and the Secretary of State.

Paragraph 85 from the Secretary of State’s Statutory Guidance to Local Authorities advises;

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest

This statutory guidance is given legal authority by section 87 of the Traffic Management Act 2004 whereby statute instructs that the council must have regard to this guidance. Any failure to have regard to this guidance is a procedural impropriety as defined by regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007;

4(5) In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—

As a valid ticket has been presented for inspection it is clear to any reasonable person that it would not be in the public interest to penalise a person who paid the required fee and did nothing to the detriment of the public interest. I cannot think of a more appropriate situation where paragraph 85 applies than this. I therefore politely request that the council act fairly and proportionately in this matter and exercise their discretion sensibly and reasonably by cancelling this penalty charge. It would be best for all if we can resolve this without the need to seek independent adjudication. If the Council decide not to exercise discretion in my favour then please provide a full copy of the Council's formal policy on the exercise of discretion and explain why the exercise of discretion was not considered appropriate in the circumstances.
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Riwongo
post Thu, 30 Mar 2017 - 22:08
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Thank you very much for this Stamfordman. Will certainly try it. Do you think the CCTV evidence I requested will help and what should I do in the event they are unable to provide the image/footage?
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Incandescent
post Thu, 30 Mar 2017 - 22:31
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Merton are one of the numerous venal and rapacious councils in London. Like most of these, they reject all informal challenges thus forcing the motorist to risk the full PCN amount to appeal a Notice to Owner. They may give way at NtO stage, but you have to forego the discount to find out. It's called "gaming the system". Of course this works in the motorists favour a bit if they reject an appeal to a NtO, because then it is a no additional cost option to go to London Tribunals which costs them money.
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stamfordman
post Thu, 30 Mar 2017 - 22:41
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I see you already tried para 85 but they failed to address this so that's another point to make.

When they act unfairly they should be taken to task.

We did have a recent case where a resident's PCN was cancelled by Merton because his permit was obscured by a hat.
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Guest_Bogsy_*
post Thu, 30 Mar 2017 - 23:58
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QUOTE
however I am therefore satisfied there are no grounds in which to cancel the charge.


If you continue you should challenge them on this. Your challenge asked them to cancel on discretionary grounds (you did not dispute that a contravention occurred). They have completely ignored this. There are grounds to cancel, discretionary grounds but they fail to explain to you why they are unwilling to cancel on discretionary grounds and why they have not had regard to the statutory guidance since there can be no public interest in penalising a person that paid what was required.
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Riwongo
post Fri, 31 Mar 2017 - 19:08
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Thanks all. all advice taken on board. I will pursue this as I think it is just a money making scheme for Merton. I will upload my draft for approval shortly.
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PASTMYBEST
post Fri, 31 Mar 2017 - 20:21
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This case has relevance

2160234036

The appellant appeared before me today.
There was no dispute that this vehicle was parked in a permit holders/pay and display bay without clearly displaying a valid permit/pay and display ticket.
The appellant's case was that he regularly parked at this location to attend work he always obtaining and displaying a ticket when doing so he on parking purchasing and displaying a pay and display ticket in his windscreen he affixing the ticket to it with the adhesive strip provided the adhesive failing resulting in the ticket falling to the floor.
I accepted the evidence that was given.
I inferred that the reason the appellant's ticket did not remain on clear display was because of a fault with its adhesive it being incumbent upon the council to provide tickets that were fit for purpose that duty not being met in this case and found in such circumstances that the contravention had not been proved.
The appeal was accordingly allowed
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soggi
post Sat, 1 Apr 2017 - 11:57
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You have shot yourself in the foot by actually admitting the contravention in your challenge! You should have just sent a copy of the ticket in and awaited their response, they may have thought the CEO made a mistake, they may have no photos now you are on the back foot and just relying on their discretion. Never play all your cards until you see what evidence they have.
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PASTMYBEST
post Sat, 1 Apr 2017 - 12:39
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QUOTE (soggi @ Sat, 1 Apr 2017 - 12:57) *
You have shot yourself in the foot by actually admitting the contravention in your challenge! You should have just sent a copy of the ticket in and awaited their response, they may have thought the CEO made a mistake, they may have no photos now you are on the back foot and just relying on their discretion. Never play all your cards until you see what evidence they have.


that's where the case comes in. you can add new evidence at appeal
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Riwongo
post Sat, 1 Apr 2017 - 23:56
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QUOTE (PASTMYBEST @ Fri, 31 Mar 2017 - 21:21) *
This case has relevance

2160234036

The appellant appeared before me today.
There was no dispute that this vehicle was parked in a permit holders/pay and display bay without clearly displaying a valid permit/pay and display ticket.
The appellant's case was that he regularly parked at this location to attend work he always obtaining and displaying a ticket when doing so he on parking purchasing and displaying a pay and display ticket in his windscreen he affixing the ticket to it with the adhesive strip provided the adhesive failing resulting in the ticket falling to the floor.
I accepted the evidence that was given.
I inferred that the reason the appellant's ticket did not remain on clear display was because of a fault with its adhesive it being incumbent upon the council to provide tickets that were fit for purpose that duty not being met in this case and found in such circumstances that the contravention had not been proved.
The appeal was accordingly allowed




Thanks Pastmybest, this is very similar to me. I do use that carpark for work everyday as I travel to the City using the underground. I always buy and display a ticket. This is the first time such a thing has happened to me.


Please see my draft appeal below. All views and amendments are welcome regarding its suitability. I have drafted it based on advice given.

Also do I wait for the NTO before sending this off? I ask because the council's letter asked me not contact them again if I want to appeal.

Letter of Appeal

I would like to appeal the penalty charge served upon me.

I have enclosed the pay & display ticket I purchased for inspection. As can be seen I clearly paid the appropriate fee and the ticket was valid when the officer inspected my vehicle. I use this car park regularly as I catch the tube to work from the station. I buy a ticket every morning (see time on ticket) and display it on my windscreen with the adhesive provided on the ticket before leaving the car park. 23 March was not an exception. However what is clear is that on this occasion and through no fault of mine, the ticket adhesive failed resulting in the ticket falling off the screen. I do not believe I should be penalised for the Council’s inability to provide adequate tools for displaying purchased tickets.

However, now that the ticket has been presented for inspection it is clear that I did not avoid payment of the parking fee nor that I had parked beyond time paid for. The only purpose a ticket needs to be displayed is to enable an officer to distinguish between those that have paid for parking and those that have not and those who have exceeded the time paid for. The ticket produced clearly shows that had your officer seen my ticket at the time of inspection that there would be no need to serve a penalty charge notice.

The only remaining issue is whether the fact that the ticket was not clearly displayed at the time of inspection warrants the council taking a hard line and upholding the penalty charge. I believe that for the council to take such a stance would be contrary to the advice of the DfT and the Secretary of State.

Paragraph 85 from the Secretary of State’s Statutory Guidance to Local Authorities advises;

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest

This statutory guidance is given legal authority by section 87 of the Traffic Management Act 2004 whereby statute instructs that the council must have regard to this guidance. Any failure to have regard to this guidance is a procedural impropriety as defined by regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007;

4(5) In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—

As a valid ticket has been presented for inspection it is clear to any reasonable person that it would not be in the public interest to penalise a person who paid the required fee and did nothing to the detriment of the public interest. I cannot think of a more appropriate situation where paragraph 85 applies than this. I therefore politely request that the council act fairly and proportionately in this matter and exercise their discretion sensibly and reasonably by cancelling this penalty charge. It would be best for all if we can resolve this without the need to seek independent adjudication. If the Council decide not to exercise discretion in my favour then please provide a full copy of the Council's formal policy on the exercise of discretion and explain why the exercise of discretion was not considered
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hcandersen
post Sun, 2 Apr 2017 - 09:09
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I think Bogsy's approach is only needed when the ticket does not come with an adhesive sticker, not when it does.

The authority are idiots and IMO you would win at adjudication, so carry on.

Two grounds at present IMO.

1. If the authority accept that the ticket was yours, then they were not empowered to enforce a PCN issued in contravention of the regs i.e. they may not issue a PCN during the currency of a permitted parking period.
2. It is a procedural impropriety to state in their consideration that it is the driver's responsibility to ensure that the authority's adhesive works. What utter b******s. The case cited plus another one which I'll try to dig out are clear: if the authority require the display of a ticket in a such a specified position the it is encumbent upon them to provide the means by which this can be achieved at all times and in all normal conditions e.g. condensation etc.

OP, pl confirm that the ticket was required to be displayed on the inside of the windscreen and that an adhesive sticker was supplied. Also, was the sticker still attached to the ticket when you found it?

Also, pl confirm that you are the registered keeper of the vehicle.

I also suggest you write to the authority to confirm that they accept that the ticket presented by you with your challenge was in the car. I could draft something.

This post has been edited by hcandersen: Tue, 4 Apr 2017 - 11:47
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Riwongo
post Mon, 3 Apr 2017 - 21:15
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Evening Hcandersen and thank you for your response and encouragement. Comments noted re Bogsy's approach.
The instructions on the ticket says"use sticker on back to fix to windscreen ". The adhesive part is a" peel away"type. The adhesive bit was still attached to the ticket on the floor of my car when i found it. And yes I am the registered keeper of the car.

I would be very grateful if you could write something for me to use. I will write to them to confirm re your last paragraph. I have the pictures of the actual ticket an d its position when i found it.
Look forward to hearing from you. Thanks.
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hcandersen
post Mon, 3 Apr 2017 - 21:21
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The instructions on the ticket says"use sticker on back to fix to windscreen ". The adhesive part is a" peel away"type. The adhesive bit was still attached to the ticket on the floor of my car when i found it. And yes I am the registered keeper of the car.

Say no more, that's all we need, plus you prepared to sit opposite an adjudicator at a hearing. No great shakes because you cannot trip up a person who's telling the truth. I and other posters have done this - my most recent one (which was actually mine as opposed to No.1 or No.2 son or brothers or in-laws) was last month. No problem. Tell the truth and shame the devil.
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Riwongo
post Mon, 3 Apr 2017 - 21:31
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Very happy to sit opposite an adjudicator at a hearing to tell the whole truth and nothing but the truth.

Will wait to hear from you then. Thanks again for the support.
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Riwongo
post Wed, 5 Apr 2017 - 23:22
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QUOTE (hcandersen @ Mon, 3 Apr 2017 - 22:21) *
[/i]
Say no more, that's all we need, plus you prepared to sit opposite an adjudicator at a hearing. No great shakes because you cannot trip up a person who's telling the truth. I and other posters have done this - my most recent one (which was actually mine as opposed to No.1 or No.2 son or brothers or in-laws) was last month. No problem. Tell the truth and shame the devil.


Evening Hcandersen, can I just confirm that you are going to draft something for me to use for my appeal or have I got the wrong end of the stick?
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hcandersen
post Thu, 6 Apr 2017 - 07:37
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Dear Sir,
PCN *******; VRM *******

Thank you for your email dated *** in response to my challenge dated *****.

I am unclear on part of your reply and therefore I should be grateful if you would clarify matters for me. My queries relate to the ticket which I supplied to you with my challenge (OP, you did didn't you??). I cannot find any reference to this in your reply and I'm concerned that it might have been lost, I have therefore included another copy for your records just in case. If you do not have the one I sent originally, I would ask that you look again at my challenge. If, however, you do have the original then I should be grateful if you would clarify whether the authority accept that this was in the car at the time - that it was not on display is not disputed, I know the CEO was correct in this regard because I found the ticket with your adhesive sticker still attached in my footwell when I returned. Nonetheless, given that it was a ticket for this car park and issued at the time - and which for all I know might have some magic code on it somewhere tying it to me - I would appreciate your clear view as to whether you accept that I had purchased the ticket and displayed, but that it had fallen off the windscreen. Being clear on this point would help me decide whether to accept your offer to pay the discount and therefore a reply before 10 April would be appreciated.

Regards...



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Riwongo
post Thu, 6 Apr 2017 - 22:11
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Thank you @hcandersen, will paste a copy of my draft before sending off.

Oh and yes I did send a photo of my ticket along with my initial challenge.
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Riwongo
post Sun, 9 Apr 2017 - 17:54
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Evening all

@Hcandersn, below is a copy of my email to the council which I will send tonight. I could not send earlier due to illness on my part. Judging by their quick response times anyway I am sure a response will arrive by tomorrow 10 April


Dear Sir/madam,

Thank you for your email dated 27 March 2017 in response to my challenge dated 26 March 2017

I am unclear on part of your reply and therefore I should be grateful if you would clarify matters for me. My queries relate to the ticket which I supplied to you with my challenge on 26 March 2017. I cannot find any reference to this in your reply and I'm concerned that it might have been lost, I have therefore included another copy for your records just in case. If you do not have the one I sent originally, I would ask that you look again at my challenge. If, however, you do have the original then I should be grateful if you would clarify whether the authority accept that this was in the car at the time - that it was not on display is not disputed, I know the CEO was correct in this regard because I found the ticket with your adhesive sticker still attached in my footwell when I returned. Nonetheless, given that it was a ticket for this car park and issued at the time - and which for all I know might have some magic code on it somewhere tying it to me - I would appreciate your clear view as to whether you accept that I had purchased the ticket and displayed, but that it had fallen off the windscreen. Being clear on this point would help me decide whether to accept your offer to pay the discount and therefore a reply by 10 April would be appreciated.

In addition your response is also silent on the matter of Paragraph 85 of the Sec of state's guidance, can you please confirm that you have considered this matter in line with Paragraph 85?

Yours sincerely
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