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PCN Code 01 Birmingham, Stood next to car whilst being towed, no PCN handed
amenewood
post Mon, 7 May 2012 - 08:59
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I would like to challenge a PCN and removal fee from parking on a DYL in Birmingham city centre this weekend, and some advice on how to format the appeal--should I send it by post or do it online?

I saw 2 recovery vehicles arrive, one next to my car, and I started running towards it as it was being forklifted onto the lorry bed. The CEO said he wasn't allowed to lower the car once they had it, and handed me a piece of paper for the recovery site. At no point did the CEO hand me a PCN nor put one on the windshield. I had a friend with me at the time as a witness, and hopefully a camera on the towing vehicle that recorded the incident.

Only when I arrived at the recovery lot to pay the £140 was I given the PCN, plus the Vehicle Removal Document & Vehicle Release Fee Receipt. When I saw my car there was no PCN envelope stuck to it, and the recovery lot attendant also witnessed this.

The only scans I have are of the aforementioned 3 documents, but unfortunately didn't take photos of my car on the lorry bed as I was pretty distressed by what was happening. Just in case, I took a photo of the car in the recovery lot, and my friend filmed us in the building paying & collecting the PCN & receipts.

Thanks for any advice offered. Hopefully there are grounds for lodging an appeal as I've never done this before, but it gives me some comfort seeing so much advice given on this forum.

Front of PCN:
Attached Image
Back of PCN:
Attached Image
Vehicle Removal Document:
Attached Image
Release Fee Receipt:
Attached Image

Representations Procedure:
Attached Image
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post Mon, 7 May 2012 - 08:59
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Guest_Bogsy_*
post Mon, 7 May 2012 - 09:09
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In any appeal include all the text below.

Where civil enforcement occurs and a penalty charge imposed then it is the regulations made pursuant to s.80 TMA 2004 that regulate any appeal. It is Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 that satisfies s.80(1)(a), while Part 3 satisfies s.80(1)(b). As my vehicle was not immobilised (clamped), the correct appeal process for the council to apply therefore, was that under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. The TMA 2004 does not provide for any other possibility.

The council however, applied the appeal process made pursuant to s.101B RTRA 1984 and provided under Part 4 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Part 4 has no relationship with civil enforcement under the TMA 2004 as is made evident by s.80 and by the undeniable fact that the application of Part 4 is not dependent on a civil penalty charge having been imposed or paid.

It is a truth that Part 4 applies where charges are paid pursuant to s.101A RTRA 1984. However, the charges I paid were pursuant to s.102(2A) RTRA 1984 and this is indicated under paragraph 1(b) of the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007;

1. These guidelines apply to the setting by enforcement authorities outside Greater London—
(a) of penalty charges and charges for release from immobilisation devices to be imposed by
such authorities under the General Regulations; and
(b) of charges for removal, storage and disposal to be made by such authorities under section
102 of the Road Traffic Regulation Act 1984(
a),
in respect of vehicles found on or after 31st March 2008 in civil enforcement areas for parking
contraventions.


Also true is that the power to retain a vehicle until all charges are paid is regulated under s.102(4) and s.102(4A) RTRA 1984 and this power does not extend to civil enforcement authorities. A further truth is that s.102 RTRA 1984 does not include any power for a civil enforcement authority to recover any outstanding penalty charge. I submit that s.102 purposely does not include this power because there is already a statutory process set by the TMA 2004 for the recovery of any outstanding penalty charge and to include it would interfere with this set statutory process. I further submit that the right to retain possession of a vehicle until all charges are paid is not extended to civil enforcement authorities because such power is inappropriate for a civil matter and an enforcement authority has the option to recover any removal or storage charges in accordance with s.102(3) RTRA1984 where these charges are not voluntarily paid.

The council’s enforcement powers are pursuant to the TMA 2004, the penalty charge was imposed pursuant to the TMA 2004 and had the council correctly limited the charges to only those that s.102 RTRA 1984 permits then I would have been able to access an appeal process pursuant to the TMA 2004. I contend that the appeal process applied amounts to procedural impropriety and the retaining of my vehicle until all charges were paid was unlawful.

This post has been edited by Bogsy: Mon, 7 May 2012 - 09:16
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amenewood
post Mon, 7 May 2012 - 09:18
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Many thanks for the text Bogsy.

Do you have an opinion on whether I should submit the appeal via the council's website or by post?
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Guest_Bogsy_*
post Mon, 7 May 2012 - 09:25
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My preference is email as you usually get an automated acknowledgement of receipt or if not then it easy to chase them for confirmation.
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amenewood
post Mon, 7 May 2012 - 19:32
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If I'm appealing on the grounds of "no PCN handed or affixed to car," should I request camera evidence from CEO to confirm that? Just wondering how much additional info to include in the appeal without including more than necessary.

Thanks again!
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hcandersen
post Mon, 7 May 2012 - 20:42
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You do not request anything in the sense you mean.

You're making reps, pure and simple: you're not asking for information.

But what you will do, should they reject your reps, is to require them to provide evidence that a PCN was affixed to your car. There's no need for you to mention photos because if their established practice is to take photos, then that's what you'll expect. But I wouldn't prompt them in this respect.

But to be realistic, parking on DYLs means you're playing catch up.

HCA
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amenewood
post Mon, 7 May 2012 - 23:18
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I'm OK with paying for the PCN for parking on a DYL; it's the towing & its fee I'm opposing.

But is it correct that if I'm lodging an appeal it has to be for both the PCN and the removal? Or am I getting ahead of myself?
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SchoolRunMum
post Mon, 7 May 2012 - 23:46
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You are appealing for all the money back so do not say that you are OK with paying for the PCN. After all, a double yellow does NOT mean 'no stopping at all' because you could have been loading/unloading which is allowed. And they only observed the vehicle for six mins before issuing the PCN and must then have called for the tow truck just after that.

Because the guidelines say that towing should only be a last resort, this rush to tow away the car just over 15 mins after issuing the PCN (and possibly without the PCN being on the windscreen) is arguably disproportionate and you can appeal against the whole amount, PCN and all.

Look at other towing cases on the first 3 or 4 pages of this forum. You should find examples of the appeals used - long appeals with lots of points. Do some reading of those other threads then draft your own version. Post it here for comments first.
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hcandersen
post Tue, 8 May 2012 - 10:39
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Time of contravention - 13.57

Vehicle lifted - 14.15. The ink was barely dry on the PCN (wherever it might have been!)

Instruction to lift given --- ??????, but clearly very soon after service of the PCN.

Towing is not a way for councils to squeeze more money from motorists. The penalty charge is prescribed and that's what they get. If a council is seen to be adding to its coffers by making unnecessary tows, then this is grounds for representation and appeal.

So, also make reps on basis that the tow was disproportionate and not in accordance with the council's published policy. If they reject then you require them to provide you with evidence of such a policy (not bland statements, but extracts from published policy).

IMO, unless the council have a clear policy which refers to "instant" tows in your circumstances (contravention/location/time) then you've got the basis of an appeal to an adj.

HCA
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amenewood
post Tue, 8 May 2012 - 11:47
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Thanks for your further comments.

SchoolRunMum: according to the Birmingham's guidelines (.doc attachment at the bottom of http://birmingham.gov.uk/cs/Satellite/vehicleremovals), CEOs seem to be allowed 5 minutes observation before a PCN is issued.

Here is a rough 1st version of my appeals letter cobbled together from related posts, with Bogsy's section of text intact. I haven't included any text that references how Reg 9 PCNs should be served how this failed to happen in my situation--pls let me know if including this in my letter is advised.



PCN ##### and vehicle removal on 5 May 2012

I am writing with regard to the above Penalty Charge Notice and wish to appeal it and the Vehicle Removal Fee on the grounds of the PCN not being served, procedural impropriety and that the towing of my car was disproportionate and not in accordance with Birmingham City Council's published policy.

The PCN was not served to me when I arrived & spoke with the CEO as my car was being towed; all I was given was the address for the recovery lot. When I arrived at Mansfield Rescue & Recovery to collect my car, I received my PCN with after payment and again confirmed that nothing was affixed to my car to indicate a PCN was fixed to it. I have witnesses at the location of the contravention and at Mansfield Rescue & Recovery who can confirm that the PCN was not handed to me or affixed to my car.

On the point of procedural impropriety, where civil enforcement occurs and a penalty charge imposed then it is the regulations made pursuant to s.80 TMA 2004 that regulate any appeal. It is Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 that satisfies s.80(1)(a), while Part 3 satisfies s.80(1)(b). As my vehicle was not immobilised (clamped), the correct appeal process for the council to apply therefore, was that under Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. The TMA 2004 does not provide for any other possibility.

The council however, applied the appeal process made pursuant to s.101B RTRA 1984 and provided under Part 4 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Part 4 has no relationship with civil enforcement under the TMA 2004 as is made evident by s.80 and by the undeniable fact that the application of Part 4 is not dependent on a civil penalty charge having been imposed or paid.

It is a truth that Part 4 applies where charges are paid pursuant to s.101A RTRA 1984. However, the charges I paid were pursuant to s.102(2A) RTRA 1984 and this is indicated under paragraph 1(b) of the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007;

1. These guidelines apply to the setting by enforcement authorities outside Greater London—
(a) of penalty charges and charges for release from immobilisation devices to be imposed by
such authorities under the General Regulations; and
(b) of charges for removal, storage and disposal to be made by such authorities under section
102 of the Road Traffic Regulation Act 1984(a),
in respect of vehicles found on or after 31st March 2008 in civil enforcement areas for parking
contraventions.

Also true is that the power to retain a vehicle until all charges are paid is regulated under s.102(4) and s.102(4A) RTRA 1984 and this power does not extend to civil enforcement authorities. A further truth is that s.102 RTRA 1984 does not include any power for a civil enforcement authority to recover any outstanding penalty charge. I submit that s.102 purposely does not include this power because there is already a statutory process set by the TMA 2004 for the recovery of any outstanding penalty charge and to include it would interfere with this set statutory process. I further submit that the right to retain possession of a vehicle until all charges are paid is not extended to civil enforcement authorities because such power is inappropriate for a civil matter and an enforcement authority has the option to recover any removal or storage charges in accordance with s.102(3) RTRA1984 where these charges are not voluntarily paid.

The council’s enforcement powers are pursuant to the TMA 2004, the penalty charge was imposed pursuant to the TMA 2004 and had the council correctly limited the charges to only those that s.102 RTRA 1984 permits then I would have been able to access an appeal process pursuant to the TMA 2004. I contend that the appeal process applied amounts to procedural impropriety and the retaining of my vehicle until all charges were paid was unlawful.

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and substantiate any reason for rejection then I will bring this failure to the attention of the adjudicator.

Sincerely,
amenewood
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SchoolRunMum
post Tue, 8 May 2012 - 21:02
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I can't find B'ham stated policy or COP on towing or traffic enforcement?

Found this page but could not download the Traffic Enforcement Protocol (too big):

http://birmingham.gov.uk/cs/Satellite/traf...rendermode=live

Not even sure it's relevant, there seems to be a lack of information for motorists.

You need to find the guidelines/quotes from Caroline Sheppard, Chief Parking Adjudicator, where she states that towing must only be a last resort because a PCN is normally sufficient to communicate the contravention.

In those 15 mins to rush to tow your car how could they be sure you weren't loading/unloading something at nearby premises? You have 20 mins to be involved in loading activity and yet they watched your car for six mins then put what seems to be an immediate call out for the tow truck = disproportionate.
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bama
post Tue, 8 May 2012 - 21:34
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QUOTE
Found this page but could not download the Traffic Enforcement Protocol (too big):


29 meg
too big how ?


--------------------
Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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amenewood
post Tue, 8 May 2012 - 22:39
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(Reference to self & others re: Caroline Sheppard quote)
http://www.telegraph.co.uk/news/1527509/Pa...man-rights.html
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SchoolRunMum
post Tue, 8 May 2012 - 23:10
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QUOTE (bama @ Tue, 8 May 2012 - 22:34) *
QUOTE
Found this page but could not download the Traffic Enforcement Protocol (too big):


29 meg
too big how ?





Dunno...took ages to download even a small percentage of it so I gave up!
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hcandersen
post Wed, 9 May 2012 - 07:43
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And where's the argument regarding their disproportionate action.

PCN "served" - 13.57.

Vehicle lifted - 14.15

18 minutes for car to move from state where PCN only is the prescribed penalty to situation where council consider they have a legal right to tow the vehicle; for a CEO to note this; for an instruction to be given to tow; for the tow truck to attend; for the vehicle to be lifted.

Although you mention "disproportionate" in the intro to your reps, I can't find the supporting argument.

HCA



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bama
post Wed, 9 May 2012 - 10:46
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QUOTE (SchoolRunMum @ Wed, 9 May 2012 - 00:10) *
QUOTE (bama @ Tue, 8 May 2012 - 22:34) *
QUOTE
Found this page but could not download the Traffic Enforcement Protocol (too big):


29 meg
too big how ?





Dunno...took ages to download even a small percentage of it so I gave up!


yeah - it is slow from there (throttled) but it will get there.
this may be quicker
http://www.davidmarq.com/bama/Birmingham%2...col_Issue_3.pdf


--------------------
Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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SchoolRunMum
post Wed, 9 May 2012 - 22:31
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QUOTE (bama @ Wed, 9 May 2012 - 11:46) *
QUOTE (SchoolRunMum @ Wed, 9 May 2012 - 00:10) *
QUOTE (bama @ Tue, 8 May 2012 - 22:34) *
QUOTE
Found this page but could not download the Traffic Enforcement Protocol (too big):


29 meg
too big how ?





Dunno...took ages to download even a small percentage of it so I gave up!


yeah - it is slow from there (throttled) but it will get there.
this may be quicker
http://www.davidmarq.com/bama/Birmingham%2...col_Issue_3.pdf






Aha so it's not anything like a useful Code of Practice; it's a document drawn up by a pen-pusher to justify their existence as the office flow-chart expert!!

So, back to advice for the OP:

I still can't find B'ham's stated policy or Code of Practice on towing or traffic enforcement. Can anyone else?

If there isn't one, that's quite a failure for the general public, by public servants and surely needs including in your appeal as a procedural impropriety in itself.

Along with the Caroline Sheppard quote I mentioned before (easily found by Googling her name and towing disproportionate' or her name and 'breach human rights'. That helps to justify your argument as explained clearly by HCA in the post above - EIGHTEEN MINUTES to get from PCN to towed away on a double yellow where during those initial SIX minutes observation you could have been loading/unloading, could have been fetching a child, could have been involved in an exempt activity. How reasonable is their rush to tow? NOT!
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SchoolRunMum
post Wed, 9 May 2012 - 23:10
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Tried again and found their parking report until 2010/2011 downloadable from their website here:

http://www.birmingham.gov.uk/parking

...and if you then start to read that report (the latest one linked), it gives you this GEM!:

QUOTE
'Part 6 of the TMA also recommends that
Enforcement Authorities should have clear and transparent parking policies. The City Council has published its parking policy...which sets out a comprehensive freamework for dealing with parking issues'
QUOTE

And the link they give to that transparent policy DOES NOT WORK!

http://www.birmingham.gov.uk/parkingpolicy.bcc = page not found!

It then goes on to say that enforcement is contravted to NSL and a separate Vehicle Removal contractor who 'work together' but again the only info given is a link to NSL's own generic wishy washy customer charter. NOthing useful there then (I looked!).

But if you read on there is some hidden gold, I can't copy & paste it but look at page 11 'vehicle removal plan' which says:

QUOTE
'seizure of a driver's vehicle is seen as the ultimate sanction and is therefore used to address the most serious contraventions...'
QUOTE

...then it lists priorities, have a look! And then at the bottom there is 'Appendix 2' where the 'Vehicle Removals Criteria' is as clear as mud! Apparently 'parked no waiting' (double yellows) is game for immediate removal...yet 'kerb marking indicating no loading would raise to Priority 1'.

So how fast are their Priority 1 removals then?!

As for the actual website where you would expect to find a policy - maybe the one where the page doesn't work,moved but still easily findable? - no! All I could find were some FAQs and a a link to the guidelines for consideration of challenges.

But no 'clear and transparent parking policy', for a massive and busy City like Birmingham??
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bama
post Wed, 9 May 2012 - 23:35
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QUOTE
'Part 6 of the TMA also recommends that
Enforcement Authorities should have clear and transparent parking policies.


really ?

try and find it in part 6 of the TMA

(or any other act of parliament that 'recommends' something)


--------------------
Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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SchoolRunMum
post Wed, 9 May 2012 - 23:37
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So more misleading stuff from them then? Quelle surprise! And yet it drops them in it soooo nicely, as they then fail to have that 'clear and transparent policy'!
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