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Removal of vehicle for parking without permit
Mujahid
post Mon, 26 Mar 2018 - 13:42
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Hi all, yesterday my car was removed from the road and put in a car pound by Newham Council for parking in a controlled parking zone without a permit. The restrictions on this road are Mon-Sun 8am-6.30pm. The PCN was received at 9.15am and the car was removed at 9.46am 30 mins later.

As a result, I had to pay £265 to release the vehicle. They gave me an appeal form if I want to appeal within 28 days. Was it lawful for them to remove my car, given the fact that the car was not parked dangerously or obstructing, was insured and taxed?

Is there a case for me to take this further? I shall of course upload the PCN and other documents as soon as possible. They didn't give me any images and I'll have to check online if I could get any.
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post Mon, 26 Mar 2018 - 13:42
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cp8759
post Thu, 29 Mar 2018 - 14:04
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QUOTE (stamfordman @ Tue, 27 Mar 2018 - 23:00) *
have you looked on line for pics.

Someone will help with the appeal on disproportionate need to tow.

Useful cases: https://www.scribd.com/document/374695358/B...t-Protocol-ECHR and https://www.scribd.com/document/374695480/R...ol-City-Council


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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.
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Mujahid
post Sun, 1 Apr 2018 - 17:54
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I don't have the time of removal written down anywhere, it was just noticed at the time I went to collect the car from the pound when the officer was doing the paperwork. This was 0946. I'm still waiting for the pictures which will arrive most probably by post on Tuesday.
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cp8759
post Sun, 1 Apr 2018 - 18:06
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The time of removal should be on the paperwork from the council


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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.
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Mad Mick V
post Mon, 2 Apr 2018 - 09:27
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Two issues on the PCN which IMO render it a nullity and unenforceable:-

1) Wrong Contravention

A Code 16 should not be used for a residents parking bay. See the CEO handbook:-

https://www.londoncouncils.gov.uk/services/...vil-enforcement

2) No PCN Number

The old Secretary of State's Operational Guidelines stated:-

8.26 All Penalty Charge Notice (PCN) numbers should be unique and must have 10 characters

I cannot see that the provision of appeal documents alters the fact that this key data is missing from an enforcement document both in the body of the text and the payment slip.

If the prime document is unenforceable everything which stems from it like the tow is illegal IMO.

Mick
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stamfordman
post Mon, 2 Apr 2018 - 09:40
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The bays just say permit holders so not sure the residents bay holds up.

https://www.google.com/maps/@51.5027206,0.0...3312!8i6656

But good spot on the lack of a PCN number!

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Mad Mick V
post Mon, 2 Apr 2018 - 09:53
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The OP gave the information about the PCN number earlier but we need further input as to the legal position not just my opinion.

On the Code 16 it appears from the handbook that this should apply to designated bays--doctors--market traders etc. The bay in question is not a "special" bay it appears to be for resident permit holders. I doubt it can be classed as a shared bay but I would take advice on that.

As you have already said, the higher penalty makes this practice questionable for instance it kicks a Code 19 (lower penalty) right into the long grass.

Just like the towing protocols I would hold the Council to account in relation to published procedures. Let them justify why a Code 16 has been averred rather than a Code 12.

Mick
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Mujahid
post Mon, 2 Apr 2018 - 11:54
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There is a PCN number on the ticket, I just blanked it out.
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stamfordman
post Mon, 2 Apr 2018 - 12:40
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QUOTE (Mujahid @ Mon, 2 Apr 2018 - 12:54) *
There is a PCN number on the ticket, I just blanked it out.



Ah - fell for a sort of delayed April's fool there.

I'm not sure how much weight there is on the contravention code but you have nothing to lose by including it.

The disproportionate tow is the key in my view to at least getting that back. If it is the wrong code then as MMV says the tow falls anyway.

This post has been edited by stamfordman: Mon, 2 Apr 2018 - 12:40
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cp8759
post Mon, 2 Apr 2018 - 12:49
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In any event you can challenge the tow as disproportionate and contrary to your rights, specifically Article 1 of Protocol 1 of the European Convention on Human Rights. See the two cases linked here http://forums.pepipoo.com/index.php?s=&...t&p=1370774

The key thing is it is for the council to show that the tow was a proportionate interference with your property rights, just saying "it's our policy" is unlikely to satisfy this requirement.


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Mujahid
post Mon, 2 Apr 2018 - 19:30
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Should I add these points in the appeal to Newham or do a generic appeal to Newham and expect them to reject and wait for the PATAS appeal?
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hcandersen
post Mon, 2 Apr 2018 - 21:28
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I do wish dated and factually very different cases were not quoted as if to establish a general principle, as here.

In the quoted case from NPAS, the adjudicator was clear that in the first case it was the absence of any policy which gave rise to the finding that removal was ad-hoc and in the second that it was the misapplication of the policy.

The corrollary being that if there is a reasoned policy (approved by the competent decision-maker and taking account of guidance) then provided this was implemented correctly, then it is lawful.

It is not for adjudicators or courts to interfere with council policy provided it is properly reasoned and has the necessary regard to guidance.

This post has been edited by hcandersen: Mon, 2 Apr 2018 - 21:30
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cp8759
post Mon, 2 Apr 2018 - 23:14
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hcandersen they establish a very clear principle, the council needs to show that the decision to tow was a proportionate interference with the OP's property rights; it is not for the OP to show the decision to tow was disproportionate (Just as it's for the council to show that a contravention occurred in the first place, it is not for the OP to show that it did not). Therefore it is for the council to show that the decision to tow was a proportionate action to take when the OP's ECHR rights are considered.

If the adjudicator forms the view that the tow was a disproportionate response under ECHR, he is bound to find the tow to be unlawful by virtue of sections 6(1) and 6(3) of the Human Rights Act 1998 no matter what the council policy says on the subject. Section 7 of the Human Rights Act allows the OP to "rely on the Convention right or rights concerned in any legal proceedings", this includes proceedings before the London Tribunals.

This post has been edited by cp8759: Mon, 2 Apr 2018 - 23:21


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hcandersen
post Tue, 3 Apr 2018 - 07:00
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All that's required is for the authority to show that removal was effected by a competent person (both trained and authorised) who rationally implemented a council policy. If this occurs, then IMO this cannot be successfully challenged and the authority is not required to go beyond the policy. The policy is a relevant council policy which the authority's officers are required to implement, not second-guess.

The OP needs to discover the policy (including any associated internal guidance), who authorised removal, their authority and competence.

But few do, they just think that writing ECHR in an appeal without establishing any contextual policies and facts is all that's required.

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stamfordman
post Tue, 3 Apr 2018 - 08:44
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I posted the removal policy earlier. It's in:

https://www.newham.gov.uk/Documents/Transpo...-procedures.pdf
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hcandersen
post Tue, 3 Apr 2018 - 11:40
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Thanks.

Then the OP constructs their reps against this background setting out the facts and eliciting further info from the authority.

IMO, you do not need to go beyond the lawfulness of what happened as regards the RTRA and TMA.

Parliament has not given councils the power to remove any car committing any contravention in the absence of other factors: parliament has mandated penalty charges for the purpose of enforcing road traffic contraventions under Schedule 7. Having been served with a PCN is simply a precondition of removal NOT justification in itself, therefore IMO ANY policy which purports to authorise removal in such a catch-all manner without any further criteria being considered must be ultra vires. But on what basis was removal justified? We don't know because no attempt has been made to find out. If under Priority 3, then the authority must say so. And if this is the case, then they must be pressed on whether the authority remove every vehicle issued with a 'serious parking penalty charge' and if not what were the stand-out features in this case which justified removal.

The OP must elicit the rational from the authority by asking questions, not by making sweeping statements about the ECHR.

Ultimately, you'd like to be in a position to appeal to an adjudicator either on the basis that the authority did not respond to these questions or adopted a stance of 'we may therefore we did (because we had spare removal resources!!)' Even better, that removal was effected under Priority 4 without any further justification.

This post has been edited by hcandersen: Tue, 3 Apr 2018 - 11:42
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cp8759
post Tue, 3 Apr 2018 - 14:44
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QUOTE (hcandersen @ Tue, 3 Apr 2018 - 08:00) *
All that's required is for the authority to show that removal was effected by a competent person (both trained and authorised) who rationally implemented a council policy. If this occurs, then IMO this cannot be successfully challenged and the authority is not required to go beyond the policy.

Actually they are required to go beyond what's on the face of their policy. See section 3(1) of the Human Rights Act 1998:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

and also section 6(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

This is not a silver bullet, but it's also not a silver bullet for the authority to say "we followed our policy in a rational manner therefore we can't be challenged on the lawfulness of our decision", parking regulations do not exist in a vacuum and the council must conduct itself in a way which is compatible with its other public law duties. The HRA 1998 makes it plain that if the adjudicator considers the council dispropirtionately interfered with the OP's rights under article 1 of protocol 1, the adjudicator is bound to find the decision of the council to be unlawful no matter what the council policy says.

It is absolutely correct that the OP should elicit the rationale from the authority to establish how they justify the removal, but that rationale can then be challenged on all the normal public law grounds, including the Human Rights Act. If for whatever reason no rationale is provided, the OP is bound to win at adjudication as it is for the council to justify the removal.

Mujahid, at this point you should simply ask the council to justify their decision to remove the vehicle, see what they come back with.


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Mujahid
post Tue, 10 Apr 2018 - 08:15
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On which grounds should I do the representation to Newham?

Options:

1. The vehicle had not been permitted to remain at rest in a civil enforcement area in circumstances in which a penalty charge was payable by virtue of regulation 4 of the General Regulations.

2. The Civil Enforcement Officer (CEO) had not fixed a Penalty Charge Notice (PCN) to the vehicle, or handed it to the person appearing to him to be in charge of the vehicle, before the vehicle was removed.

3. The power to remove the vehicle under paragraph 2 of regulation 5C of he Removal and Disposal of Vehicles Regulations 1986 was not exercisable by virtue of paragraph 3 of that regulation.

4. The vehicle had been permitted to remain at rest in the place where it was by a person who was in control of the vehicle without the consent of the owner - please provide evidence (e.g. police crime report, insurance claim).

5. The place where the vehicle was at rest was not in a civil enforcement area for parking contraventions.

6. The penalty charge or other charge paid to secure the release of the vehicle exceeded the amount applicable in the circumstances of the case.

7. There has been a procedural impropriety on the part of enforcement authority.
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Incandescent
post Tue, 10 Apr 2018 - 08:40
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Number 6
Grossly disproportionate action in towing. A PCN would have sufficed.
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Mujahid
post Tue, 10 Apr 2018 - 08:58
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Also, Newham are yet to send me the images. I requested this on 29/03/18 and they said they'll send it via 1st class on the day or the first day after the bank holiday which was 03/04/18. I called again today and they said they don't know what happened but they'll put the request in today again.
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Mujahid
post Tue, 10 Apr 2018 - 09:32
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How about this:

"I am the registered owner of this vehicle and I am making a representation against parking penalty xxxxxxx where my vehicle was removed. I believe that the removal of my vehicle was grossly disproportionate and a PCN would have sufficed. My vehicle was not parked dangerously and was not causing obstruction. It was parked within the confines of the bay, albeit without a valid parking permit. The road was not crowded and there were plenty of vacant bays for other permit holders to park. I ask that Newham Council justify their decision to remove my vehicle. Why was my vehicle removed? Was it under Priority 3 or Priority 4? If it was under Priority 3, then the authority must clearly state this. If it is the case that the vehicle was removed under Priority 3, then I ask the authority whether they remove every vehicle issued with a 'serious parking penalty charge' and if not, what were the stand-out features in this case which justified removal?"
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