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PCN Code 99 Nightingale Lane, Resident's parking bay or not
BernieF
post Sat, 12 Jan 2019 - 17:57
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Hi all,
I received the following Notice to Owner for my car being parked in a lay-by on Nightingale Lane.
The lay-by is clearly marked as a residents' parking bay - see the GSV pics below.
We have a valid residents' permit.
There are zigzags but on the edge of the lay-by closest to the carriageway - NB they are in the lay-by not on the carriageway.
The car is parked between the edge of the pavement and the zigzags.
Is it a parking bay or do the zigzags apply?

Finally, the PCN says the contravention happened in a different postcode to where the photo was taken. Is this important? The postcodes are in fact adjacent

Grateful for any advice and best route for appeal -

Page 1 of PCN


Page 2 of PCN


GSV of same parking space


GSV Close up of parking sign (pole can be seen in photos on PCN).
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post Sat, 12 Jan 2019 - 17:57
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BernieF
post Sun, 17 Mar 2019 - 18:17
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Here is a summary of the email correspondence.

7th October 2018: received acknowledgenent of application for permit and told “In the interim period parking rights have been added to your registration to enable you to park in the controlled parking zone applied for pending a decision on your permit application.”

17th October 2018: received notice that application had been referred - “Incorrect/insufficient Proofs - Please supply an alternative proof of residence we do not accept tenancy agreements from property management companies “
Same email says “Please respond within 10 days of your initial application or your application will be cancelled and you will need to re-apply.” Difficult to comply as email only received more than 10 days after application.

12th November 2018: plea saying tried to get in touch with the council but cannot get through on phone lines because the queuing time is over an hour and lines close at 5pm. Also stating that documentation was provided to the online account which suddenly disappeared and became inaccessible.

16th November 2018: Email saying cut off while speaking to a member of staff (first name given) and requesting a direct line or email address.

16th November 2018: Password reset

19th November 2018: acknowledgement that council have granted permit for 2 weeks while council awaits receipt of confirmation of address and ownership of the vehicle which is provided with this email.

16th December 2018: Request for council to explain why no response and no permit after sending requested documentation.

24th December 2018: Insurance certificate expires - this is not an email but I thought it pertinent and explains why documentation already sent was no longer acceptable

4th January 2019: test email sent to council employee’s email address.
4th January 2019: email from 16th November forwarded to 2 council email addresses
4th January 2019: email stating application has been referred due to insufficient documentation. Again stating “Please respond within 10 days of your initial application or your application will be cancelled and you will need to re-apply.”
5th January 2019: email to named council employee’s email account thanking him for assistance and including the requested proofs.

I will draft an appeal and post it this week for thoughts and opinions.

Thanks.
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cp8759
post Sun, 17 Mar 2019 - 22:44
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I think you need to show us redacted copies of the correspondence.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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hcandersen
post Mon, 18 Mar 2019 - 08:32
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I think we're getting off the subject. The contravention does not relate to a permit therefore at best this simply sets the background but cannot be a determinant legal factor.

You must appeal all NORs. So, what are their dates pl?

If they relate to the same set of facts i.e. the car did not move, then a single appeal could be made for them all. But we must know the dates of the NORs.
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cp8759
post Mon, 18 Mar 2019 - 10:45
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QUOTE (hcandersen @ Mon, 18 Mar 2019 - 08:32) *
I think we're getting off the subject. The contravention does not relate to a permit therefore at best this simply sets the background but cannot be a determinant legal factor.

You must appeal all NORs. So, what are their dates pl?

If they relate to the same set of facts i.e. the car did not move, then a single appeal could be made for them all. But we must know the dates of the NORs.

The problem really is that the driver parked, got a bunch of PCNs, then parked there again, got more PCNs, didn't bother reading any of them them, then got more PCNs... (see post 26, first PCN dated 29/11/2018 last one 10/01/2019). Regardless of the rights or wrongs of the issue, this won't look good to any adjudicator.

If the adjudicator takes the view that the driver knew, or reasonably should have known, that parking at that location was not permitted (and the man on the Clapham omnibus would probably say that after you've got 10+ PCNs, you should realise parking is not allowed), he might make short shrift of any technical arguments over the fact that the zig-zags extended into a designated parking place.

On top of this, it's not as if the driver parked because she was entitled to park in the bay (she wasn't). She parked there because she thought that the fact that she was entitled to a permit meant she was entitled to park in the bay regardless of whether she did or didn't have a permit, again this is legally incorrect and, in the legal sense, unreasonable.

Of course the saving grace would be an email or letter from the council confirming that she was entitled to park in the bay and any PCNs would be cancelled. So no, I don't think we're getting off subject at all.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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BernieF
post Mon, 18 Mar 2019 - 20:37
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Email saying parking allowed


Email saying decision referred


Working on appeal wording.
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cp8759
post Mon, 18 Mar 2019 - 20:58
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Well the email of 17 October only covered her for a further 10 days, so on what basis did she think she was entitled to park beyond 27 October?


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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BernieF
post Mon, 18 Mar 2019 - 21:41
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I beg to differ - I don't think the email of 17th says she has another 10 days.
It says send us more documents which was done.
It says do this within 10 days of your original application which actually is the 17th October...

I get your point - she continued parking there because she had complied with their requests and the email of 7th October does say "parking rights have been added to your registration". Having complied with their requests its was reasonable to assume parking rights continued!

I know, come on here asking for advice and arguing etc etc just putting my opinion out there. I'll get back to my appeal wording.
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BernieF
post Mon, 18 Mar 2019 - 23:05
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Another thought: permit has been backdated to 8/11/18 so was assumption on entitlement fair?
Appeal 75% ready. Will sleep on it then review.
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cp8759
post Tue, 19 Mar 2019 - 10:52
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QUOTE (BernieF @ Mon, 18 Mar 2019 - 23:05) *
Another thought: permit has been backdated to 8/11/18 so was assumption on entitlement fair?

I stand by my assertion that the email of 17 October, without more, only covered her for another 10 days.

If she sent a reply with additional documents, do we have a copy of the cover letter / email? Did they acknowledge receipt?

If the permit was backdated to 11 November, that would be a trump card, but did they at any point indicate they would waive any penalties that were issued in the first place?


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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BernieF
post Tue, 26 Mar 2019 - 21:01
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Hi all,
Grateful for advice and builds on the appeal. First here are the four pages of the appeal form. I will be submitting appeal online so appeal form is for info only. Apologies for quality but best I can do for now.


To bring everyone up to date, of the 12 code 99 PCNs, I have received 8 NORs. I know I said 12 earlier but I made a genuine mistake.

Nothing received for the others so if and when NORs do arrive I shall be appealing as follows:

There has been a procedural impropriety on the part of the Enforcement Authority:
Time expired PCNs

I sent representations for PCNs XXX, XXX, XXX and XXX on the 21st January. I received acknowledgements for each of these on the 21st January in which it says “Please be advised that if you have not received a reply from the Council within this time we have up to 56 days to reply to a formal challenge.”
More than 56 days have now elapsed so please confirm that these 4 PCNs are now considered cancelled.

Finally, here is the bit I am requesting Forum's assistance and advice with.
Each NOR has its own code for use on the appeals website so I'll be using the same form of words on each.
All of the NORs are for parking on zig zags.
Where I have mentioned evidence items, they are items referenced in earlier posts and I will provide them with the appeal.

I wish to appeal the Penalty Charge notices on the following grounds:
1. the offence did not occur
2. there are compelling reasons why the penalty should not be paid and request that they make a recommendation to the council that they cancel the penalty.

The offence did not occur
The Notice of rejection (NOR) dated 4th March 2019 says that the basis for the representations was that the zig zags fail to clearly denote a zigzag as required by the Traffic Signs Manual and the markings are faded.
The NOR has not addressed the issue that the lay-by is a designated residents’ parking area.
The vehicle was parked within a designated residents’ parking bay, as designated in Traffic Management Order (TMO) 1999 No 37 as parking place 79 in schedule 2. I have attached the relevant TMO as Evidence 1.
Schedule 2 of the TMO states no minimum total length not to be occupied by parking spaces which I understand to mean the whole of the designated parking bay is to be used for parking.
This TMO has not been amended.
The resident’s parking permit is valid from 8th November 2018 hence the offence did not occur.

Compelling reasons why the penalty should not be paid
1. The Council has added zig zags to a designated parking bay without amending the relevant Traffic Management Order.
2. The Traffic signs Manual states that zig zags should be marked “along the edge of the main carriageway”. These deviate away from the main carriageway and into the designated parking bay.
3. When the car was parked, it was dark and wet and the markings were not clear.
4. The markings are faded.

It was honestly believed that the PCNs were for parking without a permit.
1. On 7th October, the council emailed (evidence item 2) to say parking rights had been added to the vehicle. The council emailed a referral on 17th October (evidence item 3) requesting further documentation. The documentation was provided. However, the motorist did not park in the parking bay until after speaking with the council on the phone and being reassured that the documentation in possession was now sufficient and a temporary permit had been put in place to cover the period whilst waiting for receipt of physical permit. This was done as a measure to apologise for the inconvenience caused.
2. Prior to this telephone call and grant of temporary permit, my daughter had arranged alternative parking during September, October and November. Only with the reassurance of the council did she park in a designated parking place.
3. Immediately on receiving the email of 17th October (evidence item 3) the requested documentation was uploaded to the online account. The system crashed and the account couldn’t be accessed; it showed an error message to say the account did not exist.
4. It was following this that she emailed the council to request clarification on the matter and supplied the documents by email. After having not heard for a week, she tried emailing again.
5. She then tried calling them and asked her mother to try calling them as she was struggling to get through to them on her lunch break and she did not leave work early enough to call after work.
6. Only once she had got through to the council and received the ok did she proceed to park in the designated parking place which required a permit.
7. There was a continuing dialogue with the council about the parking permit and about the fact that PCNs had been issued.
8. When the PCNs were retrieved they were damp and soggy so were not read and they were assumed to be for parking without a resident’s permit because of the ongoing dialogue. Emails sent to the council on the 12th, 16th and 19th November (evidence item 4) demonstrate the problems experienced communicating with the council. It was clearly believed that the requested documentation had been provided.
9. The car was parked there because it was believed the markings and sign indicated that the location was a designated parking place and that the resident’s permit was being arranged.
10. The permit was backdated to 8th November 2018 so covers all of the dates the PCNs were issued.

Consecutive parking notices:
While there is no precedent set by prior adjudications, it is worth noting adjudicator Carl Teper’s comments in appeal 2140276022 from August 2014 in which he says he has changed his mind about a previous decision (2110166557 in Haringey in May 2011). He says his earlier decision (in which he said consecutive PCNs are in fact a continuation of the same contravention and not separate contraventions) encouraged motorists to commit longer contraventions. I believe the current case can be distinguished on the facts; it was reasonably believed that the car was parked in a residents bay so rather than being encouraged to continue committing a contravention, it was believed there was an entitlement to park having purchased a permit. I therefore request that the following “sets” of contraventions be treated as single contraventions.

Consecutive set 1
PCN WA99999999 was issued on the 29th November. PCNs XXX XXX and XXX were subsequently issued on the 2nd, 3rd and 4th of December when the car had not moved. The motorist was unaware of the PCNs. The council’s own photos clearly show the car in the same position and with multiple PCNs on the windscreen.
These 4 PCNs were issued consecutively when the car has not moved and I therefore request that these four PCNs be treated as one.

Consecutive set 2
PCN WA8888888 was issued on the 14th December. PCNs XXX and XXX were subsequently issued on the 15th and 17th December and it can be clearly seen the car has not moved. Again the council’s photographs clearly show the car in the same position and with multiple PCNs on the windscreen.
These 3 PCNs were issued when the car has not moved and I therefore request that these PCNs be treated as one.

The car was not used every day hence it was left in the resident’s parking bay. The PCNs on the windscreen were not seen until the car was used as there was no reason to walk past the parked car as it was believed to be parked legally in a designated residents' parking bay.
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cp8759
post Fri, 29 Mar 2019 - 12:03
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The whole appeal needs re-writing. For now just register the appeal and put "detailed grounds to follow" in the reasons box.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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PASTMYBEST
post Sun, 5 May 2019 - 15:45
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Looks like Mr Teper had a good breakfast on Friday.

219013976A

The Authority's case is that the Appellant's vehicle was stopped on a pedestrian crossing and/or crossing area marked by zigzag lines when in Nightingale Lane on 29 November, 2, 3, 4, 9, 14, 15 and 17 December 2018.
The Appellant denies the contravention and has explained in two lengthy documents his reasons, which I have read and considered.
I have allowed these appeals for the following reasons:
First, I find, on a balance of probabilities, that there is ambiguity as to the status of this location.
Second, I find that the location appears to be a shared use bay due to the proximity of the signage.
Third, with the second point in mind, I find that the zigzag markings are too worn and degraded to be enforceable.
Fourth, where an ambiguity exits the law is that it cannot be enforced against the party it disadvantages.
Fifth, I find the Appellant's evidence to be stronger than that of the Authoity's
Taking these matters together I find that these Penalty Charge Notices are not proved.
The appeals are allowed.


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BernieF
post Sun, 5 May 2019 - 15:58
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Indeed he did! icon_cheers.gif
Wonderful news to receive yesterday!
I will post chapter and verse when I have a few minutes in the hope that it helps others.
I also have some explaining to do as I had appealed 4 cases when I had not received NTO's... Just followed the council website's invitation to see all PCNs and appealed the lot of them.
Consequently 2 of these are about to be appealed on the exact same grounds. Watch this space.
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BernieF
post Mon, 13 May 2019 - 21:17
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This is the appeal I finally sent in:





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BernieF
post Mon, 13 May 2019 - 21:27
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The four PCNs mentioned in section 4 were not allowed in the appeal as there had been no official NTO.
I tried to claim that I had been invited to view all PCNs on the council website and that this was effectively the owner being notified.
I also suggested this was further evidence of the Council's procedural impropriety.
Unfortunately the Tribunal disagreed.
The council obviously read my appeal and immediately sent me emails saying they were going to issue NTO if payment not received in 14 days.
So the process starts again.

Wish me luck and thanks for your help and advice.
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cp8759
post Wed, 15 May 2019 - 20:43
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The Notice to Owner is a formal document that has to be served, the fact that the owner has had notice of the issue does not allow the council to dispense with service of the actual NtO. Post them up when they arrive.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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BernieF
post Mon, 10 Jun 2019 - 19:51
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Thanks for your patience. All PCNs cancelled but here is some more detail for the archives.

2nd April 2019 - Appeal registered at London Tribunals for 12 Code 99 PCNs
4th April 2019 - Tribunal sends copy of appeal to Wandsworth council (email timed at 10.25)
4th April 2019 - Wandsworth email the following at 23:44, 23:45, 23:47 and 23:49 (one for each of the four PCNs they have not sent NTOs for)
"I refer to your enquiry received on 21/01/2019 regarding the above Penalty Charge Notice (PCN).
This PCN was issued because your vehicle was stopped on a pedestrian crossing or crossing area marked by zig-zags.
You have stated that the road markings are faded and fail to clearly denote a zig zag as required by the Traffic Signs Manual. I have investigated this matter further and viewed the civil enforcement officers photographs, along with the ones you have supplied which clearly show that the zig zag lines are visible. Whilst the lines may be a little faded, the start lines are still visible.
Given the above, I am satisfied that the PCN was correctly issued and regrettably, you have not established sufficient grounds for cancellation of this penalty charge. As your enquiry was received within the discount period the amount of £55.00, will be accepted if payment is received within 14 days of the date of this letter.
To make a credit or debit card payment please call our 24 hour automated payment line on 0800 021 7763 or pay online by visiting www.wandsworth.gov.uk/pcnonline.
Alternatively, your cheque or postal order should be made payable to “Wandsworth Borough Council”, clearly identified with the Notice number written on the reverse side and sent to: Wandsworth Borough Council (Parking), PO Box 521, Twickenham, TW1 9PJ.
If payment is not received as detailed, I shall assume that you wish to pursue the matter and shall arrange for a Notice to Owner to be sent to the registered keeper of the vehicle so that formal representations may be made. Should these be rejected, the registered keeper of the vehicle will then be afforded the opportunity to appeal to the Parking Adjudicator.
I should point out that, should you decide to take this course of action, on the expiry of the discount period you will forfeit the right to pay the Penalty Charge at the lower rate and the full charge of £110.00 will be due.
If you are not the registered keeper of the vehicle e.g. the vehicle is a company or lease/hire vehicle, or being used with the owner’s consent, I suggest you advise the keeper that a Notice to Owner (NTO) will be issued.
The options are therefore to pay the PCN or follow the statutory process to submit a formal representation as explained above. Any further information or evidence for the Council's consideration should only be included as part of the formal representation made by the registered keeper. Any additional communication received prior to the issue of the NTO will be filed for information purposes only without a response, although it may be considered if formal representations are received.
This concludes the Council’s dealings in this matter at this stage."

All 4 emails state £55, one has a typo in my name!

13th April 2019 - email received from Tribunals saying they can't include the 4 PCNs that have not had NTOs issued.

13th April 2019 - NTOs received for 2 of the 4 outstanding PCNs.
NTO's are for £110.

14th April 2019 - I write to Tribunal requesting them to reconsider and include all PCNs in the appeal on the basis that I received individual acknowledgements of my challenges to the PCNs in question.

18th April 2019 - Tribunal respond saying they can't consider them as Notices of Rejection have not been issued.

4th May 2019 - Tribunal allow my appeal - decision received by email

7th May 2019 - I challenge the 2 NTOs and receive acknowledgements from Wandsworth

content of challenge pretty much same as before with the following addition:

Dear Sir or Madam,

Re penalty charge notices WA8XXXXX0, WA80XXXXX1

I am writing to you to challenge the above listed parking permits, on both grounds specified on your website, that;
- the tickets should not have been issued; and
- there are special reasons why they should be cancelled.

Additionally, these PCNs were incurred in exactly the same circumstances as the 8 PCNs which you rejected but were allowed on appeal by Adjudicator Carl Teper in case reference 219013976A.
The vehicle was parked within a designated residents’ parking place, as designated in Traffic Management Order (“TMO”) 1999 No 37 as parking place 79 in schedule 2.
Schedule 2 of the TMO states no minimum total length not to be occupied by parking spaces which means the whole of the designated parking bay is to be used for parking.
This TMO has not been amended, reviewed or changed in any way since it was issued in 1999.
Compelling reasons why the penalty should not be paid
It was not known, nor evident to the motorist, that the vehicle was parked on zigzags.
The Council has added zig zags to a designated parking bay without amending the relevant Traffic Management Order.
The Traffic signs Manual states that zig zags should be marked “along the edge of the main carriageway”. These deviate away from the main carriageway and into the designated parking bay.
As accepted in the NOR’s received for the other PCNs covered by the Tribunal case mentioned above, the markings are faded.
Please also note that the car was parked in dark and wet conditions, meaning the faded markings were not visible to the motorist.
In addition, there is a sign over the space marking it as ‘H1 Permit Parking Area’. This sign was clearly visible at all times and presented the spot in the bay as a designated parking place.
Procedural impropriety
• The PCNs were issued in January 2019 but the council did not issue notices to owner until April 2019. It is my opinion that there is evidence of procedural impropriety on the part of the council. I appealed these two PCNs in January after having viewed the PCNs on the council’s website.
• I sent representations for PCNs WA80610580 and WA80630511 on the 21st January. I received acknowledgements for each of these on the 21st January in which it says “Please be advised that if you have not received a reply from the Council within this time we have up to 56 days to reply to a formal challenge.”
• When I lodged my appeal referenced above, I also included these two PCNs in my appeal. Immediately I lodged this appeal, you emailed me (spelling my name incorrectly I must point out) on 4th April 2019 to say that the representations are rejected. This is 74 days after you acknowledged my representations. This letter then says I have 14 days from the date of this letter to pay £55 (I believe the delivered date has a legal definition which leads me to believe that this is Friday 5th April). However, you then send me a notice to owner dated 7 days after this and delivered to me on the 8th day afterwards in which the amount of the PCN has doubled to £110. You have not allowed me 14 days before sending the NTO at the increased rate.
• Finally, your acknowledgement of receipt of my representations says “All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order”
This has clearly not happened in this instance.

30th May 2019 - 2 challenged PCNs cancelled.
1st:
"I refer to your enquiry received on 07/05/2019 regarding the above Penalty Charge Notice.
I note from your letter that you have had other Penalty Charge Notices cancelled for parking at the location. I can confirm that the above Penalty Charge Notice has already been cancelled. With regards to the other Penalty Charge Notices you will receive a reply under separate cover."

2nd:
"I refer to your enquiry received on 07/05/2019 regarding the above Penalty Charge Notice.
I note from your letter that you believe that the above Penalty Charge Notice should be cancelled in light of the recent Adjudicators decision. I can confirm that the above Penalty Charge Notice has already been cancelled and the charge is now closed."

1st June 2019 - the two remaining PCNs cancelled:
"I refer to your enquiry received on 17/04/2019 regarding the above Penalty Charge Notices.
The Penalty Charge Notices were issued for being stopped on a pedestrian crossing or crossing area marked by zig-zags. The restriction is in force at all times.In order to view the photographic evidence, please visit our website on www.wandsworth.gov.uk/pcnonline, and enter the PCN number and vehicle registration number.
I note from your letter that other Penalty Charge Notices have been cancelled due to the adjudicators recent decision.
In view of the above I am pleased to inform you that I have cancelled the above Penalty Charge Notices. I apologise for the inconvenience caused."

In respect of the enquiry made on 17th April, I assume this was the enquiry made by London Tribunals as their email of 18th April says: "The London Borough of Wandsworth have confirmed that formal Notices of Rejection have not been issued."
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