PCN BB holder, suspended bay Maidstone Options

[layna1491]

Hello

Firstly, I'm severely disabled and a blue badge holder. I've never had a parking ticket before.

When I go into Maidstone, I always park in the same road - it's disabled parking only and has about 4 bays, each with space enough for around 5 cars.

Recently, I turned into this road and there was one space left in the first bay, which I parked in. On returning a couple of hours later, I was astonished to find a parking ticket on my windscreen. It was only then that I spotted a notice on a pole by the wall saying that parking was suspended. Clearly, the other drivers who parked in this bay hadn't noticed the sign either! For a start, shouldn't the notice have been placed lower down so that wheelchair users could see it?

My contention is that if someone had just put a few cones in the bay, it would have been blindingly obvious that parking was suspended and no one would have parked there! As it is, it proved to be a nice little earner for the Council, funded by the disabled. It's tricky enough to get out of the car and sort out mobility aids - my attention was totally focused on managing that without falling over.

I appealed but was turned down. I'm now at the Notice to Owner stage. I've spent days trawling the internet for some rules or law that might help me - I'm at the stage that my head is about to explode. I'm really ill and on the waiting list for three major surgeries and don't need this!

Here are some photos:
https://imgur.com/a/l7wSD8M
(I hope I've done that correctly.)

Please, please, is there anyone who can advise me on how to respond? I would be so grateful.

[layna1491]

Oh, what a relief, thank you so much to everyone - particularly Schofeldt - for their assistance, knowledge and support. I hadn't realised quite how stressed out I was until the ticket was cancelled - now I'm floating on air!

In case it helps anyone, here are the reps that worked the magic:

Dear Sir or Madam



Thank you for your message. I cannot find the PCN or correspondence from******in response to the Charge Certificate but these have been provided by her to me. Even though I have not been sent a log as such, I do make these representations on her behalf as time is pressing. I am grateful that you are willing to consider them.



I refer to all the correspondence in this matter and the representations are as follows:



The Penalty Charge Notice



The PCN is missing the words of regulation 3(2)(b)(ii), Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (SI 2007/3482):

3(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—
(a) that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b) that, 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.

Therefore, if it does not contain all the required information then it fails to be a PCN as the PCN will not comply with regulation 8 of the 2007 General Regulations which defines a PCN.


8. — (1) In these Regulations a "penalty charge notice" means a notice which— (a) was served in accordance with regulation 9 or 10 in relation to a parking contravention; and(b) complies with the requirements of the Schedule which apply to it as well as to the those of regulation 3 of the Representations and Appeals Regulations which so apply.(2) The Schedule has effect with regard to penalty charge notices.


Due to this failing the regulation 9 "PCN" is not a true "PCN" as defined by regulation 8 above and can therefore only be viewed as being unlawful and unenforceable.

This is borne out by a previous High Court Ruling: R v The Parking Adjudicator (ex p Barnet) (at para 41):


QUOTE:

"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."

Therefore, I contend that the ground of procedural impropriety applies with regard to this PCN.

The Notice to Owner



Firstly, the NtO wrongly states the date of service as 7/05/2022. The date of the NtO is 5th May. Therefore, the correct date of service is 9th May since two working days must be calculated as per the Regulations @ 3(2):

https://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

(2) Service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted shall, unless the contrary is proved, be taken to have been effected on the second working day after the day of posting

Secondly, the NtO states the following: If full payment has not been received or if you have not made Representations to Maidstone Borough Council within 28 days beginning with the date on which this Notice to owner is served 07/05/2022, a Charge Certificate will (my emphasis) be served on you increasing the Penalty Charge by 50% to £105.00.

The use of the word will fetters your discretion and is in direct contrast to what is stated as per Regulation 19 (1) (b):

https://www.legislation.gov.uk/uksi/2007/34...ulation/19/made

19.—(1) Subject to regulation 20, where—

(a)a penalty charge notice has been served with respect to a vehicle under regulation 9; and

(b)the period of 28 days specified in the penalty charge notice as the period within which the penalty charge is to be paid has expired without that charge being paid,

the enforcement authority concerned may serve a notice (“a notice to owner”) on the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred.

There are numerous cases which uphold this argument and the above criticisms constitute yet further procedural impropriety.

The issue of a second Notice to Owner



Mrs ***** is adamant that a second Notice to Owner was received by her midweek of the week beginning 9th May, which had caused her confusion and further stress in dealing with this matter. You have provided no log as evidence of this. Clearly, it is irrelevant as to whether the second Notice contained the same dates as contained in the first Notice, or whether she sent the second whole back to you containing her representations as per your pdf in this regard, since, it is argued, therefore, that her representations were, indeed, made in time according to the receipt of the said second Notice. Therefore, it is arguable that this constitutes another procedural impropriety. She has kept the original Notice to Owner as proof and it has not any markings on it whatsoever.

The signage



This does not comply with https://assets.dft.gov.uk/trafficauths/case-4039.pdf



Your initial response does not exercise discretion and is inaccurate and fetters discretion



Initial representations:



Good afternoon.

I am challenging the Penalty Charge Notice as I was advised to by one of the traffic wardens who was most helpful.

I understand now that the first disabled bay only along the road is temporarily out of use.

Firstly, I always park in Wyke Manor Road when in Maidstone and I had no reason to suspect that the parking rules have been temporarily changed. I reversed into the bay between two other vehicles who must also have not spotted the sign on the post.

I have mobility issues and it was extremely windy so managing to get out of my car and balanced took all my attention together with avoiding the family on the pavement.

Because I suffer from peripheral neuropathy, I take high doses of pregabalin which causes me to experience considerable confusion and difficulty thinking. Hence getting to Maidstone and then to a shop to buy a birthday card and back took all my brain function.

I would never knowingly park illegally but I do not feel the information for drivers was adequate. I do not understand why someone has not simply put some traffic cones along the relevant part of the road for clarity.

I am truly sorry but this was a genuine mistake. If I had known, I would have parked further up the street where there are no restrictions.

I hope that you can look favourably on my appeal and cancel the penalty charge notice.

Yours sincerely



Your response:



Thank you for writing to us.

In line with legislation and council policy (South East Group Guidance Policy), we

have carefully considered what you have said, including any mitigating

circumstances you have described, but have decided not to cancel your Penalty

Charge Notice.

You were issued a Penalty Charge Notice for parking in a bay that had been

suspended. There were yellow signs saying 'Parking suspended. No Parking- NO

Stopping-No Waiting. Bays are generally suspended to allow for roadworks or

large delivery vehicles or in this case Landmark Scaffolding – Essential Works

Whilst I appreciate your circumstances, the signage in Wyke Manor Road

advising that the bays were suspended between the 04 to 08 April 2022 were

clearly displayed.

You have these choices:

 You can pay the discount charge of £35.00 if your payment reaches us

within 14 days of the date of this letter.

 You can pay £70.00 within 28 days of the date your Penalty Charge Notice

was issued.

 You can formally challenge your Penalty Charge Notice by using a Notice

to Owner form. The vehicle's owner will automatically receive the form if

the Penalty Charge Notice has not been paid within 28 days of being

issued. The form offers you the chance to formally challenge your Penalty

Charge Notice or pay the full £70.00. If you decide to formally challenge

your Penalty Charge Notice, please do not write to us again but wait until

the Notice to Owner form arrives.

(i)There were yellow signs saying 'Parking suspended. No Parking- NO

Stopping-No Waiting.

There was only one sign and it stated on the yellow background: Parking Suspension No Loading No Unloading No Waiting.

'Parking suspended. No Parking- No Stopping-No Waiting. Was printed on the page attached to the suspension sign and in a small print and was missed according to Mrs Davies’s explanation.

(ii)  You can pay £70.00 within 28 days of the date your Penalty Charge Notice

was issued.

It is arguable that the time period as expressed is questionable as “within 28 days” can be interpreted in various ways which, in essence, do not tally with the Regulations @ 9(1)(g):

https://www.legislation.gov.uk/uksi/2007/3483/schedule/made

(g)that the penalty charge must be paid not later than the last day of the period of 28 days beginning with the date on which the penalty charge notice was served;

(iii) If you decide to formally challenge your Penalty Charge Notice, please do not write to us again but wait until the Notice to Owner form arrives.

It is further argued that this statement fetters discretion as the Regulations state that representations (plural) may be made before a Notice to Owner is served @ Regulation 3(2)(b)(I):

https://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a)that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and

(b)that, 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;

(iv) I am challenging the Penalty Charge Notice as I was advised to by one of the traffic wardens who was most helpful.

As a matter of extreme importance, and with reference to the CEO’s notes who advised Mrs ***** in such terms, this should have been addressed in the response. For further clarity, here is her recollection of the exchange:

Re: the traffic wardens - they were walking down the road towards the town when I returned to my car. We had a very amicable chat - the older one of the two told me to appeal the ticket He said that I should stress that this is where I always park when I go into Maidstone and that I parked in the last spot in the bay i.e. several other drivers had not spotted the lone notice. He also said that he had advised all other drivers that he had spoken to that they should appeal.

Whether or not this was said by the actual CEO who issued the PCN is a matter for the Council to determine and it would be crucial to see the CEO’s notes in this regard. Nevertheless, this is what was said. And it is apparent that CEOs were not exercising discretion according to these words printed on the sheet attached to the notice: Please Note: ANY VEHICLE PARKED AT ANY TIME DURING AN ACTIVE SUSPENSION MAY (my emphasis) BE ISSUED WITH A PENALTY CHARGE NOTICE

Further mitigation

Mrs **** would respectfully point out that drivers parking at the location have serious mobility (including extreme pain) and mental health issues and that, while it may not be in the letter of the law, the Council has a moral duty to make such restrictions abundantly clear with multiple notices.

She is now on the waiting list for five major surgeries and in extreme pain. She finds going into town an extremely stressful, but sometimes unavoidable, experience. **********Therefore she asks that you show compassion in this instance.

In view of the above, and your invitation to consider these representations, I trust that you will agree that it is not in the public interest to pursue this PCN further and cancel the Charge Certificate and PCN, particularly as this is the first time Mrs ***** has received a PCN by yourselves, any other council and in 43 years of driving.

Yours faithfully



**********

On behalf of Mrs ****** who has approved this correspondence.

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[Schofeldt]

And good to see Maidstone giving a reason.

Indeed. I was expecting "a gesture of goodwill" statement; but, I reckon they would have been embarrassed at the TPT if it had got there. Well done to them for accepting the representations and to regard them as well.



It was a good team effort and the situation was rescued. Well done.