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Bus lane PCN blank ‘from’ and ‘to’ on PCN
jonouk
post Thu, 15 Feb 2018 - 08:30
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Hi,

My mother received a PCN for a contravention 33J -using a route restricted to certain vehicles - from London Borough of Havering. On the PCN it states “The vehicle above was observed from to on 28/01/18 ...” I.e. the from and to spaces are blank. I have attached an image of the PCN with details scrubbed.

My question is, does that make the PCN invalid? She would like to appeal on mitigating grounds as it was leaving hostpital after my fathers cancer diagnosis, however if this is easier it might be much quicker.

Thanks in advance


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post Thu, 15 Feb 2018 - 08:30
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PASTMYBEST
post Tue, 1 May 2018 - 07:33
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QUOTE (jonouk @ Tue, 1 May 2018 - 07:44) *
QUOTE (Neil B @ Mon, 30 Apr 2018 - 23:45) *
QUOTE (jonouk @ Mon, 30 Apr 2018 - 22:32) *
Hello, Was there an outcome of the off forum discussions about the best way to present the appeal? The hearing is scheduled for May 24th.

TIA

See post #30.
It was too late to use.


Oh, ok. Is there *nothing* I can do now then, or is the consensus I can still win the appeal on the original representations? The hearing is on 24th May and I said I would provide other information as instructed above. I don’t know what that other information is or what the basis of my appeal should be.

I want to use the inadequate signage as the primary reason, and wondered if a video would help, rather than static photos.
After that, the 21/14 day issue as a backup. There is discussion of a previous case above that was successful using that point. Would it help to refer to that and if so, what’s the case and how do I reference it?

I’m happy to be guided here.

Thanks


come back tonight, i will put something together
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PASTMYBEST
post Tue, 1 May 2018 - 13:59
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for later ref

2180058344

(8) A penalty charge notice under this section must—

(a) state—

(i) the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;

(ii) the amount of the penalty charge which is payable;

(iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;

(iv) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;

(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;

(vi) the amount of the increased charge;

(vii) the address to which payment of the penalty charge must be sent; and

(viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to this Act; and

(b) specify the form in which any such representations are to be made.

This post has been edited by PASTMYBEST: Tue, 1 May 2018 - 21:07
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PASTMYBEST
post Tue, 1 May 2018 - 21:32
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I have made the assumption that you are acting as representative for your mother.

Appeal against the imposition of penalty charge notice number xxxxxx
vehicle registration mark

your name and address.

I make these representations acting as the representative of my mother Mrs xxxxx the owner of the vehicle and person liable for the penalty. I attach written authorisation to do so.

My representations to the council, although somewhat disorganised in form did cover the points I raise here at appeal. I have undertaken research, taken advice and obtained help in the drafting in the hope that the points are put clearly to the adjudicator.

In this appeal I will reference a number of past London tribunal cases, I understand that they are not binding on the adjudicator in this case but use them to better explain my points and perhaps hopefully they can be persuasive to findings in this case.

I will begin with the cited contravention, this being “using a route restricted to certain vehicles” I contend that firstly this description does not comply with the regulations, though I will return to that.

I will firstly state that as per schedule 1(4)(b)(i) of the regulations there was no contravention of a prescribed order. I have not had sight of the video, but on a re tracing of the route (without contravening) My mother on the route she took would not have passed a sign to indicate a restricted route. I refer the adjudicator to the linked GSV showing the route. It is clear that the only sign she would have seen is the no left turn sign (613) My mother, who I should explain was distraught by the news she had just received at the hospital freely admits to missing this sign, and understands that if a contravention of performing a prohibited turn was cited she would be guilty. This sign however cannot indicate a restricted route of its self. No other sign such as (953) with exception plate was placed in a position where it could be seen from the direction my mother came from

returning to the contravention. I will refer to case number 2180058344 and the finding of adjudicator Sean Stanton-Dunne, Whilst this PCN differs in that there is a photograph it does not show a sign that would indicate the nature of the contravention.

For either or both these reasons I contend that there was no contravention of a proscribed order and the PCN should be cancelled.

I would also contend that numerous errors within the PCN render it a nullity and as such per schedule 1(4)(e) the penalty charge exceeded the amount applicable in the circumstances of the case.

Regulation 4(8)

A penalty charge notice under this section must—

(a) state—

(i) the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;

(ii) the amount of the penalty charge which is payable;

(iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;

(iv) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;

(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;

(vi) the amount of the increased charge;

(vii) the address to which payment of the penalty charge must be sent; and

(viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to this Act; and

(b) specify the form in which any such representations are to be made.

The council are in error as follows

(i) as per the above paragraph the council fail to properly describe the contravention

(iii) the council cite the date for payment as 28 days beginning with the date of service
(iv) the council cite the period in which the discount must be accepted as 21 days

That these are errors are undeniable, as to there effect I would refer to case number 2180058344 and the findings of adjudicator jack Walsh, whose reasoning explains far better than I could
I would also like to refer to the notice of rejection. I contend that the council fail at schedule 1(7)(a) in that they fail to properly consider my representations.
The consideration of representations is not something that a council need only pay lip service to, it is the start of a legal process. A prerequisite of consideration must be an understanding of the regulations the council seek to enforce. In the statements made in the notice of rejection of my representations, the officer undertaking this consideration shows a complete lack of knowledge as to the regulations. As such consideration to a required standard has not taken place in breach of the regulations

I believe and respectfully ask that the adjudicator finds that for any one or all of the above enforcement of this PCN cannot continue andit be ordered cancelled.

Thank you for your considerations

Regards

Don't forget to add the GSV and the authorisation from mum

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jonouk
post Fri, 11 May 2018 - 21:37
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Thanks @pastmybest. I will get this off to the tribunal service. Is the expectation that they will make a decision before the hearing, or AT the hearing?
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jonouk
post Tue, 22 May 2018 - 21:48
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Hello all. The council have provided their evidence.

Council evidence summary: https://imgur.com/2Mm4H3r

Hearing is Thursday. Is there anything else I can reference that the no left turn sign is no substitute for the blue restricted route signs. I will also contend that as demonstrated in combination of their evidence and mine that the no left turn sign would be obscured by a double decker bus travelling in front of it - which may further explain why it was missed at the time.
Let me know if there is any other info you require. They have provided a lot of evidence, but nothing new other than this summary and a screenshot of a hospital blog post advising that the camera was pleasant - surely that has absolutely no bearing!!

TIA.
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Neil B
post Tue, 22 May 2018 - 23:42
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Couple of observations:

They cite wrong tsrgd and wrong LLA Act.
An adjudicator will probably poo poo the latter, unless we make something of it.


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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PASTMYBEST
post Wed, 23 May 2018 - 07:54
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QUOTE (jonouk @ Tue, 22 May 2018 - 22:48) *
Hello all. The council have provided their evidence.

Council evidence summary: https://imgur.com/2Mm4H3r

Hearing is Thursday. Is there anything else I can reference that the no left turn sign is no substitute for the blue restricted route signs. I will also contend that as demonstrated in combination of their evidence and mine that the no left turn sign would be obscured by a double decker bus travelling in front of it - which may further explain why it was missed at the time.
Let me know if there is any other info you require. They have provided a lot of evidence, but nothing new other than this summary and a screenshot of a hospital blog post advising that the camera was pleasant - surely that has absolutely no bearing!!

TIA.


On what date did they provide this?
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jonouk
post Wed, 23 May 2018 - 08:12
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QUOTE (PASTMYBEST @ Wed, 23 May 2018 - 08:54) *
On what date did they provide this?


I don’t know. I haven’t had any notification but I logged on to the appellant portal yesterday and there were a dozen documents dated 16th May.
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PASTMYBEST
post Wed, 23 May 2018 - 11:20
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QUOTE (jonouk @ Wed, 23 May 2018 - 09:12) *
QUOTE (PASTMYBEST @ Wed, 23 May 2018 - 08:54) *
On what date did they provide this?


I don’t know. I haven’t had any notification but I logged on to the appellant portal yesterday and there were a dozen documents dated 16th May.


If the pack has not been posted to you, mention the fact that although it was downloaded to the portal you were not made aware . The wrong regs are covered in the appeal as is the reference to the high court case. in the LT case you quoted.

Make sure all photos you want to rely on are with you or have been sent and referenced

Good luck
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jonouk
post Wed, 23 May 2018 - 11:31
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Ok mum got a letter on Saturday saying she could view proceedings online. Nothing to me.

I have everything printed to take with me and it’s all online too.

So to be clear - them quoting wrong regs a) doesn’t help their case and b) shows them not giving proper attention to the appeals process. I hope this all just adds weight to the primary argument - the no left sign could well be obscured by a bus and in any case is not sufficient signage for the 33J offence that is alleged.

Thanks for your help.
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PASTMYBEST
post Wed, 23 May 2018 - 12:00
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QUOTE (jonouk @ Wed, 23 May 2018 - 12:31) *
Ok mum got a letter on Saturday saying she could view proceedings online. Nothing to me.

I have everything printed to take with me and it’s all online too.

So to be clear - them quoting wrong regs a) doesn’t help their case and b) shows them not giving proper attention to the appeals process. I hope this all just adds weight to the primary argument - the no left sign could well be obscured by a bus and in any case is not sufficient signage for the 33J offence that is alleged.

Thanks for your help.


Yep, also make sure the adjudicator takes note of the decision i referenced perhaps print that and take it with you


Case reference
2180111742
Appellant
Papjinder Gahir
Authority
London Borough of Havering
VRM
P50GHR

PCN Details
PCN
HG4540835A
Contravention date
05 Jan 2018
Contravention time
20:06:00
Contravention location
Tangent Link, Harold Hill
Penalty amount
GBP 130.00
Contravention
Performing a prohibited turn

Referral date


Decision Date
19 Apr 2018
Adjudicator
Jack Walsh
Appeal decision
Appeal allowed
Direction
cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
Mr. Gahir puts his appeal on the basis that the penalty charge in his case, in which a moving traffic contravention is alleged, exceeded the amount applicable. To my mind, the point he raises goes to the validity of the penalty charge notice (PCN) itself. Mr. Gahir points out that in two respects the information provided in the PCN by the enforcement authority differs from that required to be provided in the PCN by the relevant legislation, namely s.4(8)(a) of the London Local Authorities and Transport for London Act 2003 (“the 2003 Act”). He argues, in effect, that the departure from the mandatory statutory requirements is such that the PCN is invalid and, as such, unenforceable. The response of the EA is to say that, taken as a whole, the PCN is not misleading and would not prejudice its recipients. Accordingly, it is not invalid and remains enforceable.
The EA referred me to the case of R v. Parking Adjudicator & Lancashire County Council, ex parte Hackney Drivers' Association [2012] EWHC 3394 (Admin), a decision on the similarly worded provisions contained in the schedule to the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 as to the content of PCNs in respect of parking contraventions. That case post-dates the addition in 2007 of an express ground of appeal based on a procedural impropriety in respect of such contraventions. I have also had regard to the case of R v. Parking Adjudicator, ex parte London Borough of Barnet Council [2006] EWHC 2357 (Admin) and to Adjudicators’ decisions in the cases of Moulder v. London Borough of Sutton (3 Dec 1999, No. 1940113243) and Al's Bar & Restaurant Ltd v. London Borough of Wandsworth (2 July 2002, No. 2020106430). These three decisions concern parking contraventions but, because the statutory wording reflects that in the 2003 Act and they deal with validity of PCNs, they are highly relevant and persuasive given that validity is the issue here.
I turn then to the differences between the information provided on the PCN in Mr. Gahir’s case and the requirements of the 2003 Act. These differences are not in dispute. First, the PCN reads: “The penalty charge must be paid not later than the last day of the period of 28 days beginning with the date on which this penalty charge notice is served.” Second, it states: “If the penalty charge is paid not later than the last day of the period of 21 days beginning with the date on which this notice was served, the penalty charge will be reduced by 50%.”. The PCN also reads: “If after the last day of the period of 28 days beginning with the date on which this PCN is served no such representations have been made, and the penalty charge has not been paid, we may increase the penalty charge by 50% to E195.00 and may take steps to enforce payment of the increased charge.”
Section 4(8) of the 2003 Act states, as far as is relevant:
(8) A penalty charge notice under this section must
(a) state
… (iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(iv) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
In summary, therefore, the PCN wrongly states (for the purposes of sub-paragraphs (iii) and (v)) that the period of 28 days commences with the date of service, as opposed to the date of the PCN itself. It also wrongly extends the period during which the reduced amount is payable. Mr. Gahir states that the difference creates ‘an obvious prejudice’. I disagree. The variation is in his favour, provided the EA only commences the next step in the procedure in accordance with its own, incorrect, timetable as opposed to the timetable set down in the 2003 Act. That there is no prejudice to Mr. Gahir is relevant, but not conclusive.
The EA seeks to rely on the Lancashire County Council case on the basis that it is authority for the propositions that PCNs must be read as a whole and must not slavishly follow the statutory wording. The PCN must ‘convey what is required to be conveyed’ by - in that case - the 2007 Regulations. Those propositions are not in doubt. On the facts of that case, the PCN, read as a whole, did convey what was required by the Regulations. For that reason, that authority does not, in my judgment, assist the EA in this case. It is distinguishable on its facts. Here, the PCN did not ‘convey what needed to be conveyed' by the 2003 Act. Instead, it mis-stated two time limits, albeit in the recipient’s favour. It conveyed wrong information. It did not comply with the mandatory requirements of s.4(8)(a), in respect of sub-paragraphs (iii), (iv) and (v).
R v. Parking Adjudicator, ex parte LB Barnet, a decision of Jackson J (as he then was), was considered in Lancashire County Council. In the LB Barnet case the High Court upheld the decision of the Adjudicator that a PCN was invalid because it did not specify the date of issue. Jackson J’s reasoning is of more general application in respect of the effect of departures from statutory requirements for PCNs. The following passages are of particular note:
“41 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.
42 In the present case, the two PCNs issued by Barnet on 31st March 2005 did not comply with section 66(3)©,(d) and (e) of the 1991 Act. Accordingly, the requirements of section 66 were not satisfied and no financial liability was triggered either by the PCN or by any subsequent stage in the process such as the notice to owner.”
It is right to say that Jackson J, having disposed of the case on the above ground, went on to comment, obiter, on a second ground which relied, as here, on time periods being extended in favour of the recipient of the PCN. He did not express a clear view on the issue.
The decisions of the Adjudicators on this topic are not strictly binding but are highly persuasive. In the Al’s Bar case, the Adjudicator drew a distinction, subsequently endorsed by Jackson J in the LB Barnet case, between literal and substantial compliance; it is the latter that is significant. The Adjudicator held that:
“I also take into account the fact that the PCN in this case was non-compliant in a considerable number of respects. This is not a case of a single, minor error. I am afraid that the Council has played rather fast and loose with the carefully drafted requirements of the Act, no doubt inadvertently, but it is none the less serious for that.
All these factors taken together in my view point strongly towards the interests of parking control being best served by my finding the PCN to be a nullity irrespective of whether the non-compliance caused prejudice in this case.”
Albeit there were more errors in that case, I am unable to distinguish this case from it in any significant respect. There are a number of errors here also. They are simple errors but important ones and there is really no excuse for the EA having failed to follow the clear wording of the 2003 Act in the respects I have identified. In my judgment, there has not been substantial compliance with the 2003 Act in those respects. Indeed, it appears the EA has now changed the PCN, having identified what it describes as the need for ‘slight changes’ to the wording. That is somewhat of an understatement. PCNs are, although not penal in effect, of some importance in financial terms to their recipients.
Notwithstanding the lack of prejudice in this case, and bearing in mind the principles as to the exercise of discretion in declaring a PCN a nullity as expressed in the Al’s Bar and Moulder cases, I am satisfied that the departures from the statutory requirements are such that I should declare the PCN a nullity in this case. As a result of its invalidity it is no longer enforceable. Put another way, given that the PCN is invalid, the amount payable is nil.
I allow this appeal.


note that this too is havering, and what the adjudicator said re their reliance on the high court case

This post has been edited by PASTMYBEST: Wed, 23 May 2018 - 12:04
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jonouk
post Thu, 24 May 2018 - 15:26
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This appeal is allowed! Details to follow but thanks all!!
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jonouk
post Thu, 24 May 2018 - 19:54
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QUOTE (jonouk @ Thu, 24 May 2018 - 16:26) *
This appeal is allowed! Details to follow but thanks all!!


So the adjudicator didn't even get to the procedural errors with the PCN and appeals process. The video and photos (both mine and EA) were reviewed along with GSV and on that basis they ruled that the signage was only adequate for a prohibited turn offence, not a 33J.

So a proper thanks from my mother and from me for all the help. Is there a way of showing appreciation somehow?
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PASTMYBEST
post Thu, 24 May 2018 - 20:30
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A small donation to help with the running of the site is always welcome. there is a donate button on the home page
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