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Bus lane PCN, Do they have to include a contravention code?
Motorist80099
post Tue, 10 Jul 2018 - 14:27
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Hi,
I received a PCN for driving in a bus lane briefly. I did not intend to and I must have missed the signs. I was about to cough up when I noticed that they had not put a contravention code in and in order to challenge it, it asks me for the code. Do they need to put the code? They simply on the PCN have put "....alleged contravention:" Being in a bus lane (as defined in s1.144 (5) Transport act 2000)
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post Tue, 10 Jul 2018 - 14:27
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The Rookie
post Tue, 10 Jul 2018 - 14:30
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Use the '! REPORT' button and ask a moderator to move it into the council forum.

You'll also need a scan/photo of ALL of the PCN (redact personal details only), use the FAQ for posting it.


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Motorist80099
post Wed, 11 Jul 2018 - 13:40
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[/img]
Let me know if you need a better quality version but that should be all you need to see what I am talking about.
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PASTMYBEST
post Wed, 11 Jul 2018 - 14:44
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they do not need the code but if you cannot pay because of its absence that might be deemed unfair

post all of the PCN (reinstate dates) and post other pages. The page you have posted contain the same errors as in this appeal. It is not though a sure fire winner.

Next I make a collateral challenge under the statutory ground at 9(2)(f) that the penalty charge exceeded the amount applicable in the circumstances of the case.. This comes about as the PCN and to a lesser extent the NoR do not comply with the regulations.

Regulation 8(5) list the statutory information that MUST be contained within the body of a PCN. I list the errors here.

2:-The PCN states:- You must pay the PCN or make representations to the council 28 days from the date of service of this notice (date of service is taken to be on the second working day after the day on which the notice is dated.

The regulations require that the PCN states that the penalty charge must be paid before the end of the 28 day period;
This 28 day period is defined at regulation seven (he 28 day period”, in relation to a penalty charge notice, means the period of 28 days beginning with the date of service of the notice.

Legal convention has it that the use of the term “from “ would mean that the date of notice would be day 0 so counting of the 28 day period would start the next day, in effect adding one day to the time allowed by regulations. Additional to this the PCN in stating a fixed day (28 days from the date of service) as the day on which payment must be made not the period in between.

The PCN contains a similar error with the 14 day discount period. It quotes the period as “within” 14 days beginning with the date of service. The term “within” as with from also by legal convention starts the counting from the next day, again adding one day to the regulatory period

The PCN in defining the date of service is flawed. The correct definition of service is found at 2(5) “References to the service of a document include service by post and, in determining for the purposes of these Regulations the date on which a notice or other document is served by post, it shall be presumed that service of a notice sent by first class post was effected on the person to whom it was addressed on the second working day after the day on which it was posted.”

The date of notice is not of necessity the date of posting.

One further error exists within the PCN in that the authority use the term will to define service of a charge certificate whereas the regulations only allow that they may. I submit a more detailed submission regarding this at point 3 of my appeal

Without going into great detail that is superfluous the NoR contains similar errors re timing for actions that need be taken

Jackson J in ruling on the Case of Barnet vs the parking adjudicator said this

“ Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise”

It is unarguable that the PCN does not contain the statutory information.

Jackson j also endorsed the findings of adjudicator Mr Mark Hinchliffe in McArthur v Bury MBC. He said “•     Section 66(3)©,(d) and (e) requires every PCN to convey certain specified information. The use of the words 'must state that' suggests that the exact words of the section are not mandatory, but the PCN must accurately convey the information set out in the subsections . . .

I contend that if the wording of the PCN miss-describes time periods then it cannot be said to accurately convey the required information

If the PCN fails the above two tests can it be said to be substantially compliant, as claimed by the authority in their NoR. I contend not.

3:-The use of the term WILL as opposed to the regulatory requirement of MAY is one that has many times been before both the TPT and the London tribunal service. It is a collateral challenge under the statutory ground that the penalty charge exceeded the amount applicable in the circumstances of the case.

This comes about as the PCN states that “if you do neither of these things within 28 days from the date of service of this notice the council will serve a charge certificate.

The regulations as set down at 32(1) that the authority may serve a charge certificate.

Case law has laid down first and foremost in Barnet vs the parking adjudicator Neutral Citation Number: [2006] EWHC 2357 (Admin) Jackson J said this in endorsing the findings of parking adjudicator Mr Mark Hinchcliffe

•     Section 66(3)©,(d) and (e) requires every PCN to convey certain specified information. The use of the words 'must state that' suggests that the exact words of the section are not mandatory, but the PCN must accurately convey the information set out in the subsections . .

Can the words Will and may be read to mean the same thing. My contention is that they cannot.

WILL must denote an action that has be taken if the criteria are met. Whereas May denotes an action that can be taken if it is deemed fit in the same circumstances.

Will sets a path that must be followed, May allows a deviation. I submit that the meaning of the information required by the regulations is not conveyed and the statutory requirement is not met

A further test is, is the required information conveyed by the PCN when read as a whole. Again I submit not. Only one reference to a charge certificate is made and it is not correct

Jackson J also endorsed the finding of adjudicator Mr Martin wood who found that literal compliance was not necessary. Substantial compliance is all that is needed. Case law in both tribunals has found substantial compliance to mean. The information must be clear and not mislead or confuse. To ascribe a completely different meaning to a regulation with the use of different words ,must be said to mislead as to the intent of the regulations

The next question I put is why is the what could be seen as a minor difference so important?

A council as a public body has an over riding duty to act fairly at all times. In the exercise of its punitive powers it has and must maintain at all times discretion in its actions. It must not fetter that discretion. It may set a policy as to how it may act but must always be prepared and able to act outside that policy.

There may be many reasons why a council would not or should not issue a charge certificate. A recipient might be discovered to be very ill and hospitalised, and are thus unable to deal with a PCN, it could be they have passed away, or it could be that a persons financial state would place an unbearable burden if a PCN was pursued.

The draftsman aware of this drafted the regulations in such a way as to maintain the councils discretion, parliament passed the regulation drafted this way for that reason. It is not for the council to seek to go beyond this safeguard written into the regulations

I would by way of support for my contention relay in summery a case taken before London tribunals. Case ref 2170501900 and review This gentleman asked for a review this was also denied. He then sought advice from an intenet advice site. His claim was that the council (London borough of Newham) had identified the wrong car. He posted evidence of this. Experienced members of this site attempted to help as there did appear to be a miscarriage of justice. Contact was made with the council who agreed to look again at the issue. They agreed an error had been made and cancelled the penalty. Without discretion this could not happen.
I opened this chapter with the assertion that this as a matter that has been before the tribunal many times. In reaching a finding I ask that the adjudicator gives consideration to the view of the following adjudicators all of whom have found on this in the past

2130516990 Andrew Harman
2140046893 Anthony chan

216022028A Belinda Pearce
2160211926 Christopher Rayner
2110072817 Edward Houghton

2120021652 Henry Michael Greenslade
2150379790 Joanne Oxlade
2160211959 John Lane
2100649871 Michael Burke
2160422149 Michael Lawrence
2110415753 Michael Nathan
2150479729 Neeti Haria
2160210490 Sean Stanton-Dunne

I submit that no doubt inadvertently the authority play fast and lose with the regulations, and that this PCn be declared a nullity

I would like to thank the adjudicator for their time and consideration of the points raised and respectfully submit that you find as I contend, that this PCN is unenforceable by way of no contravention being committed or that the shear number of flaws render it a nullity.




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Motorist80099
post Wed, 11 Jul 2018 - 20:20
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This is the page you land on to pay which you just need the PCN or challenge which asks me for the contravention code which I don't have.

http://www.reading.gov.uk/pcn

https://reading.self-serve.co.uk

Thankyou for your reply.

I assume after the second paragraph that was all from the other appeal that you mentioned.

What would you say the chance is on winning it on these grounds? Part of me thinks I made a mistake pay the £30 and move on. So if it going to be a long drawn out affair with not much of a chance of success and lots of hassle I would rather just pay it now that I know I don't have to declare it to insurance etc. A friend mistakenly told me this which is untrue.

This post has been edited by Motorist80099: Wed, 11 Jul 2018 - 20:28
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PASTMYBEST
post Wed, 11 Jul 2018 - 20:46
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it will be a long drawn out affair because the council won't cancel. Its your money so your choice. Just about a 50/50 i would guess
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DancingDad
post Wed, 11 Jul 2018 - 21:37
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Don't have to declare to insurance and even if you did, they would not be interested, it is a decriminalised contravention, not a criminal offence which they are interested in.
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Motorist80099
post Thu, 12 Jul 2018 - 11:02
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Thanks have decided based on what you have told me to just pay it. I have fought many parking tickets and won every one but I did actually drive in the bus lane accidentally and dont fancy a drawn out battle over the wording. Thanks for your help. Chris
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