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Advice with Apcoa PCN please
AlexPrince
post Sun, 14 Jan 2018 - 12:49
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Just after some advice. Where I live I have no resident parking but as I work in the day I only really have to worry about parking on a Saturday. This is usually in the car park
near my home. Therefore I would park up on a Friday evening, buy a ticket for the following day and that was that.
However back in August with the issue of the new pound coins the machines were updated and the new software did not allow you to prepay for a ticket either by machine or
online. This has meant that since then I have to make sure I'm up at eight every Saturday morning to buy a ticket. I did write to the council to complain and they said they would
chase up the contractors to get the software changed back as this was not acceptable. To date this has not been done and as such today my worse fears were realised as I
overslept and by time I went to pay for my ticket I had already received a PCN. This is by apcoa so I'm assuming they are acting for the council?

Now I'll hold my hand up and agree I didn't have a ticket for the time the PCN was issued and if needs be I'll pay the fine. However I want to make a complaint because the
software still hadn't been updated which would have allowed me to buy the ticket at the time I parked the car. I still have a copy of the e-mails between me and Forest of Dean
council relating to this.

Before I do fill in the challenge I would just like to ask for any advice in regards of what might be best to say and more importantly what not to say.
Also had this been the council itself I would have simply made the challenge but because it is an outside company and I know that sometimes there are issues surrounding them
so how 'legit' is this PCN. I've heard stories of additional charges afterwards so I'm worried about contacting them and giving them my address details.

Any advice welcome and thanks.








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post Sun, 14 Jan 2018 - 12:49
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PASTMYBEST
post Fri, 23 Feb 2018 - 00:01
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QUOTE (Mad Mick V @ Thu, 22 Feb 2018 - 23:17) *

Ta


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AlexPrince
post Sat, 24 Feb 2018 - 16:30
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QUOTE (Mad Mick V @ Thu, 22 Feb 2018 - 19:17) *
This is getting juicy if the first time the Forest of Dean enters the fray is at the NTO stage.

Subject to the views of others I would keep the appeal simple--duff PCN and failure to consider.

If an appeal to TPT is necessary then I am sure we can draft something which echoes the Fosbeary ruling.

Mick



It's also interesting that after receiving the parking ticket I e-mailed the original council worker who I had been in contact with in regards to the lack of update
to the software as promised but received no answer. I then also e-mailed the councils compliant account about it on the 28th Jan but again received no answer from the council.
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AlexPrince
post Sun, 25 Feb 2018 - 22:27
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Ok I've been trying to right the reply to the NtO. I've made the point as highlighted in post 34 about ground 2.
However I'm not sure how to word it in regards to the procedural improprieties, both with the original ticket and with the appeal rejection letter.
Could someone give me some pointers please.
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PASTMYBEST
post Sun, 25 Feb 2018 - 23:13
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QUOTE (AlexPrince @ Sun, 25 Feb 2018 - 22:27) *
Ok I've been trying to right the reply to the NtO. I've made the point as highlighted in post 34 about ground 2.
However I'm not sure how to word it in regards to the procedural improprieties, both with the original ticket and with the appeal rejection letter.
Could someone give me some pointers please.



yes post what you have and give me a couple of days


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AlexPrince
post Mon, 26 Feb 2018 - 23:25
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This is basically what I have written so far.



The alleged penalty occurred due to the fact that the car was parked in the car park after 6pm Friday night at a time when the purchase of a ticket was not available despite a previous complaint to the council in August 2017 who promised to get the issue dealt with within a reasonable time frame. I would argue that five months is pass a reasonable time frame.

I am challenging the notice therefore on the following grounds:
I contend that that the contravention did not occur because the software upgrade created the fault within the system that prevented the timely payment of the parking fee, as confirmed by the correspondence from the local council. (See enclosed)
I further challenge the penalty notice on the grounds of Procedural Impropriety.
The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 schedule at (1) list the information that is required within the body of a PCN (1)(b) being "the name of the enforcement authority"

This information is clearly missing from the PCN. Failing to convey this information is a procedural impropriety as per 4(4)(f) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

3(5) defines procedural impropriety thus " 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"

The response to my informal challenge to the PCN also contains further procedural improprieties as their failed to consider all ground of my appeal.
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PASTMYBEST
post Fri, 2 Mar 2018 - 09:38
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bumping to remind myself


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AlexPrince
post Sat, 10 Mar 2018 - 15:46
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QUOTE (PASTMYBEST @ Fri, 2 Mar 2018 - 09:38) *
bumping to remind myself


Hi. Sorry to chase you on this as I know you are doing this out of your own time but just wondering how its going as there is only a few days left?

Thanks again for your help.
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Mad Mick V
post Sat, 10 Mar 2018 - 18:01
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OP---I think PMB's post 21 can be used again plus the failure to consider point made by cp8759 later.

I don't think there is any mileage in quoting the Fosbeary case at them at this stage.

I don't like "compelling reasons" as a ground because you had a "legitimate expectation" you could continue to buy a ticket for the next day as you had done for (months? years?). It is obvious that the Council had plans (not brought into force) that overnight stays would be administered by a £50 pa permit. Without discussion or prior warning they introduced the new system which meant you could not buy a ticket from the machine nor purchase time by phone--nowt to do with the new coins. Ergo there is unfairness and prejudice because the Council did not give advance warning of the changes.

ETA case 2150253522 (Extract)

"a legitimate expectation may arise from either an express promise or assurance given on behalf of an authority, or from the existence of a regular practice which the claimant can reasonably expect to continue.

Given the many years over which the practice of parking on the pavement at this location had been tolerated and the restriction not enforced, a reasonable expectation had arisen and as such because the Enforcement Authority had not given advance warning of enforcement they had act[ed] in such a way as to be so unfair and prejudicial to the owner of a vehicle in issuing a PCN or NTO that it would not be proper for that authority to pursue a penalty based upon the PCN or NTO".

Mick
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PASTMYBEST
post Sat, 10 Mar 2018 - 18:50
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QUOTE (Mad Mick V @ Sat, 10 Mar 2018 - 18:01) *
OP---I think PMB's post 21 can be used again plus the failure to consider point made by cp8759 later.

I don't think there is any mileage in quoting the Fosbeary case at them at this stage.

I don't like "compelling reasons" as a ground because you had a "legitimate expectation" you could continue to buy a ticket for the next day as you had done for (months? years?). It is obvious that the Council had plans (not brought into force) that overnight stays would be administered by a £50 pa permit. Without discussion or prior warning they introduced the new system which meant you could not buy a ticket from the machine nor purchase time by phone--nowt to do with the new coins. Ergo there is unfairness and prejudice because the Council did not give advance warning of the changes.

ETA case 2150253522 (Extract)

"a legitimate expectation may arise from either an express promise or assurance given on behalf of an authority, or from the existence of a regular practice which the claimant can reasonably expect to continue.

Given the many years over which the practice of parking on the pavement at this location had been tolerated and the restriction not enforced, a reasonable expectation had arisen and as such because the Enforcement Authority had not given advance warning of enforcement they had act[ed] in such a way as to be so unfair and prejudicial to the owner of a vehicle in issuing a PCN or NTO that it would not be proper for that authority to pursue a penalty based upon the PCN or NTO".

Mick


Sorry things keep getting in the way. For some reason i thought this was at appeal, but no. For reps to council (ha) follow micks advice. Change compelling reasons to consider to legitimate expectation and add CP's bit re consideration


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AlexPrince
post Sun, 11 Mar 2018 - 09:32
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No problem and thanks guys.
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AlexPrince
post Sun, 11 Mar 2018 - 15:16
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I will send this off tomorrow along with copies of all documents involved.

Dear Mr parking

Re penalty charge notice number
vehicle registration mark

I challenge the above PCN as follows.

I light of the correspondence (copies enclosed) with the local council I was somewhat surprised and aggrieved to receive this PCN. Because of this I took advice and undertook research into the issue of penalty charge notices. I find as follows

1:- The authority commit Procedural impropriety.


The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 schedule at (1) list the information that is required within the body of a PCN (1)(b) being "the name of the enforcement authority"

This information is clearly missing from the PCN. Failing to convey this information is a procedural impropriety as per 4(4)(f) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

3(5) defines procedural impropriety thus " 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"

Regulation 7(2) of the same appeals regulations say this.

If, on an appeal under this regulation, the adjudicator after considering the representations in question together with any other representations made to the effect referred to in regulation 4(2)(b) and any representations made by the enforcement authority, concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal and may give such directions to the enforcement authority as he may consider appropriate for the purpose of giving effect to his decision, and such directions may in particular include directions requiring—

(a) the cancellation of the penalty charge notice;

(b) the cancellation of the notice to owner; and

© the refund of such sum (if any) as may have been paid to the enforcement authority in respect of the penalty charge.

The consideration of challenges and representations are the start of the legal process culminating in appeal. Where a ground is found proven at the challenge stage then the PCN should be cancelled at that stage. To do otherwise is to risk the incursion of costs that an appellant might reasonably seek to recover at appeal.


2:- A legitimate expectation may arise from either an express promise or assurance given on behalf of an authority, or from the existence of a regular practice which the claimant can reasonably expect to continue.


That the software upgrade created the fault within the system that prevented the timely payment of the parking fee. As per the correspondence from the local council, amounts to a compelling reason to cancel this PCN in that there was a legitimate expectation that the software would be returned to its previous version to allow the purchase of tickets outside parking hours as was the regular practice.

3:- Procedural impropriety

A further impropriety is committed by a failure to convey the information required at 3(2)(b)(ii) of the appeals regulations.

The crucial part of this regulation is that even though a challenge has been made, if the appeals process is to continue the recipient of the notice to owner must make representations as directed.

This PCN only states that they MAY. If no response to the informal challenge has been received (and the regulation do not require one) then a person may well upon receipt of the NTO wait for a response to their challenge.

The information required is not conveyed. Case law has it that the wording of the regulations do not need be transcribed word for word, but the must convey the exact meaning. This PCN does not. Therefore Procedural impropriety is established.

Further to this the rejection letter to my informal challenge gives two more procedural improprieties. Firstly they have completely failed to consider grounds 1 and 3 of the appeal, secondly they have stated that a NtO will be issued "automatically". I would suggest this is an unlawful fetter of the council's discretion.

For any one or all of these reasons I submit that this PCN be cancelled now to avoid additional costs to both the authority and myself. I will surely seek recompense at adjudication if that route is needed.
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cp8759
post Sun, 11 Mar 2018 - 18:30
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I would take out the last line.

If they don't cancel, we will need to refine the PI argument a bit, but it should be a reasonably straightforward win at adjudication.


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AlexPrince
post Sun, 11 Mar 2018 - 20:23
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Thanks. Just one more thing. When I send everything off with regards to making representations on the form for specified grounds (see post 36, page 4)
which do I tick. That there has been procedural impropriety or other grounds?


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cp8759
post Sun, 11 Mar 2018 - 20:42
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QUOTE (AlexPrince @ Sun, 11 Mar 2018 - 20:23) *
Thanks. Just one more thing. When I send everything off with regards to making representations on the form for specified grounds (see post 36, page 4)
which do I tick. That there has been procedural impropriety or other grounds?

You can tick more than one box, I would have thought "the contravention did not occur" and "procedural impropriety" would be applicable here.


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AlexPrince
post Mon, 9 Apr 2018 - 20:09
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Got home from work today to a letter from the Council. I'm not going to post a copy I'll just highlight what it says.

I have reviewed the case and I can confirm that the PCN does not meet the requirements set out in the act as the
Enforcement Authority name is not shown on the document. This is down to a printing error, which the enforcement
officer did not notice when they issued the PCN.

Please accept my apologies that this issue was also not address in your original challenge.

I can confirm that the above PCN had now been cancelled.

So a success. Thanks everyone for you help. Slightly disappointed that they didn't cancel it on the ground that they
failed to update the software as promised but happy its over.
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cp8759
post Mon, 9 Apr 2018 - 20:34
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Excellent, thanks for letting us know the outcome.


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DancingDad
post Mon, 9 Apr 2018 - 22:57
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Excellent.

Have they sorted the machine software yet?
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AlexPrince
post Tue, 10 Apr 2018 - 18:17
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QUOTE (DancingDad @ Mon, 9 Apr 2018 - 23:57) *
Excellent.

Have they sorted the machine software yet?


I have no idea, I'll have to check sometime. Since the ticket I've not been parking in there often and never outside hours.
Luckily I have found somewhere else I can usually park for free.
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AlexPrince
post Tue, 8 May 2018 - 21:59
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QUOTE (DancingDad @ Mon, 9 Apr 2018 - 23:57) *
Excellent.

Have they sorted the machine software yet?



Just to update I had to park in said car park Sunday so tried out the machine to see if I could pay for a ticket for Monday but no the software still isn't updated.
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cp8759
post Tue, 8 May 2018 - 22:06
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QUOTE (AlexPrince @ Tue, 8 May 2018 - 22:59) *
QUOTE (DancingDad @ Mon, 9 Apr 2018 - 23:57) *
Excellent.

Have they sorted the machine software yet?



Just to update I had to park in said car park Sunday so tried out the machine to see if I could pay for a ticket for Monday but no the software still isn't updated.

You can force the issue by making a formal complaint.


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