Hi, can someone please help us?!
We received the attached letter today, which is the first and only letter received.
It has a penalty charge + 50% increase so is now £90 !
We don’t live locally so cannot return to check signage etc. This threw me as it’s from Gloucestershire County Council, via APCOA with an Uxbridge address - all this is why I’m here. All these things don’t seem to add up. Surely there’s something we can do to appeal against this?
You've said the important thing.... that you received no other notices.
This is now about process not the contravention so put what happened, signs etc aside for the moment.
The next notice in the chain is the Order for Recovery.
Which is the notification that the "debt" has been registered at "court"
The inverted commas are because the debt is not one that will impact on credit rating and the court is a paperwork clearing centre called TEC (Traffic Enforcement Centre, Northampton)
With the OfR will be a Statutory Declaration which you can truthfully tick the box and sign to say that the original PCN (Notice to Owner) was not received.
Follow instructions on the form, signature will need to be witnessed at local county court (free) or solicitors (small charge).
Sending this to TEC in time will cancel the CC and OfR and reset to PCN stage, so council can then send a new PCN and you can fight it or pay the discount.
OfR can be sent any time after 14 days, must be returned to TEC within 21(or 28 days, memory failing) or it will get messy.
Phone council in 2-3 weeks and ask where my Order for REcovery is? If they say sent and you haven't received come back, we can point you to forms you can download.
Just to add - is the address on the charge certificate exactly right for you (and is the car registered to you), and do you have any issues getting post. In any case as DD says, you need to check the next stage recovery letter is delivered to you.
OP------Since this is Gloucester and APCOA it is important that you post all pages of the Charge Certificate.
The relationship between the two bodies has been questioned in the past and the legislation states (my bold):-
"the enforcing authority may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent".
So there is a relationship issue that needs to be bottomed out if the Charge Certificate has been issued by APCOA.
Mick
and, so far, it's duff on a basic bit of content as well. Plenty to play with later.
Thank you all for your replies..
So am I right in thinking that now we sit & wait for 2-3weeks for an Order of Recovery to arrrive?
When it does we fill it in and return asap then wait again for the original PCN?
We’ve had no issues with our post & my details are all correct...
So am I right in thinking that now we sit & wait for 2-3weeks for an Order of Recovery to arrrive?
When it does we fill it in and return asap then wait again for the original PCN?
We’ve had no issues with our post & my details are all correct...
And the other page(s) of the CC?
Ah yes sorry. Here it is.. or not! I can’t seem to upload any photos. It says the file is too large?
Try this:
Do not attach docs/photos, but use this method:
Some are having problems with Tinypic at he moment.. try Flickr, where the BBcodes are concealed behind the curly arrow for sharing.
Photo or scan. see http://forums.pepipoo.com/index.php?showtopic=36858&st=0
for how to do it. I use Tinypic for stage 2 with no problems. Thera are other sites, such as Flickr, which enable you to paste the BBCodes into your post here.
STAGE 1 takes care of resizing. If you use Tinypic for Stage 2, on the left each image in Tinypic is a list of links. Highlight and copy the entire link 'for forums' from the list for each image - beginning with IMG and ending /IMG (include all the square brackets [ ] ), and paste each link into your post. Each copied and pasted link will embed a thumbnail link in your post.
Using the attachment method is not advised as it means quickly running out of attachment space.
Redact/obscure pers name, address, PCN number and reg.mark.
LEAVE IN all dates/times; precise location, Contravention code and description.
I think I’ve managed to sort the second page... here goes!
I see that the telephone payment option requires payment for the call at local rate, so could be construed as an illegal demand for payment over that defined in law, which is the PCN penalty. This has already been decided at the High Court for payment by Credit card, where a council attempted to collect a fee for using a credit card and was shot down in flames at the High Court judicial review of the case.
That’s interesting! Something to keep in mind I guess. Thank you!
So to recap, we are just waiting for the OofR to arrive?
Hi all,
So today we received the attached. I’m unsure quite what to do now On face value it appears serious?
Also just realised (probably not relevant, but in case) the documents we’ve received have been address to me as the car is registered in my name but my husband was driving at this time. I wasn’t even in the car!
Just reading back, I should have had a Statutory Declaration with this? There was nothing else in the envelope.
That letter sounds serious, and it is but not for you. They should not have sent it, it is outside the regulatory process and is nothing more than a threat. I will bet that when an adjudicator sees that they will not be impressed.
The next and at the moment only thing you need worry about is the order for recovery when you get that you can automatically re set the process to the PCN stage.
Keep an eye out if you do not have this in the next couple of weeks come back. Do that anyway to see if others add any other advice
+1.
That's misleading.
In any other sphere, an attempt to obtain funds by deception.
The Court will do what?!
FFS. No, they won't - not as implied anyway.
GLos CC already have form on this. There was a previous case last year where it was shown that the Enforcement Authority, (i.e.Glos CC) were not doing anything at all in relation to formal reps, and leaving it all to APCOA. The adjudicator lambasted them, and they lost. This looks very suspicious and as if they have not learnt their lesson. This letter, well outside the process defined in law, is IMHO illegal and should be regarded as a procedural impropriety, except these only apply to parking offences under the TMA 2004. This is not under the 2004 Act but there the statutory appeal grounds of "the penalty exceeded the relevant amount in the circumstances of the case" was used for parking before the TMA 2004. It applies here, I think.
Main thing now is to wait for the Order for Recovery and submit a Statutory Declaration. A lot of grist is now available to the mill. Gloucester CC really are the pits, aren't they.
This is a bus lane contravention and yet again we have payment directed to a third party APCOA. This is not consistent with the legislation nor the actions which can be taken at the appropriate time by the enforcement authority.
The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005
2(4) In determining, for the purposes of these Regulations, whether and when a penalty charge has been paid, it shall be taken to have been paid when the whole of the amount of the penalty charge applicable in the circumstances of the case is received by the approved local authority concerned.
So a request that you pay a sum to someone other than the local authority is potentially prejudicial in that legislative time-scales cannot be met.
Mick
Thanks for your replies once again - certainly puts my mind at rest!
I noticed there were exactly 2 weeks between the 2 notices we’ve received, I guess this isn’t relevant then.
We will wait a while longer and see what appears through the door next.
Thanks again!
Just to explain a little further.
Registration of the debt, with the Court (TEC) is what we are waiting for and want.
At that time TEC will authorise GCC to issue the Order for Recovery we've told you to wait for
and which allows you to get this reset.
The Court WILL NOT authorise the issue of either a Notice of Enforcement or a Warrant
for a period of 36 days after registration.
That letter clearly implies they will do so immediately and automatically and that is simply
fraudulent imho.
and their terminology is wrong anyway on who does what, let alone when.
Ok, thank you. Sorry I must sound really stupid - not dealt with anything like this before. I’m learning! 🙂
Hi, just letting you know I’ve not heard/received anything since posting here last. Time is getting on.
I spoke to a lady on the phone this morning.
The conversation went like this after I’d given her the PCN No.
Me: I’d like to know if the debt has been registered yet and if it has the deadline please?
Lady: Let me have a look, what stage are you up to? Do you have an order...
Me: I’ve received some things but no Order of Recovery yet.
Lady: The debt hasn’t been registered yet, it’s not here with us so they can’t get a warrant yet. Ring back in a week.
Me: Ok thank you.
good advice, follow it unless one turns up in the post
[/quote]
Ok will do. Thanks 🙂
Good morning.
This arrived in the post this morning.
What do I do now?
Would I be right that, on the second page I fill in my name & address in section 2 and tick the ‘Did not receive notice to owner’ box.
My reason are ??
Then sign and date the form at one of the places mentioned?
How long do I have to do this? The first page states YOU MUST WITHIN 21 DAYS of the date shown on the postmark...
There is no postmark?!
If that’s correct, then what? I wait again for something else to arrive?
One of the other members will advise you on completing this form.
The issues on the charge certificate remain relevant to your appeal once the Order for recovery has been dealt with.
In essence the point I made about it being issued by APCOA relates to discretion. If we look at the Bus Lanes legislation of 2005 it states:-
Charge certificates
32.—(1) Where—
(a)a penalty charge notice is served on any person; and
(b)the penalty charge to which it relates is not paid before the end of the relevant period,
the enforcing authority may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
The word "may" is critical it is not a "shall", "must", or "will" which denote a mandatory action--it is discretionary.
If we go back to the Fosbeary case which considered the relationship between APCOA and the Council it made the following statement:-
16. It is clear, therefore, that the regulations impose duties on the enforcement authority which require the making of discretionary decisions in the light of information and representations that the authority has received. Because the discretion rests only with the enforcement authority, this is not a function which the enforcement authority can delegate to any external body. There are special provisions in the Local Government Act 2000 which enable local authorities to form joint working groups or committees for similar functions, which enable individual local authorities to enter into “agency” agreements with each other in connection with the enforcement of parking contraventions, but those special statutory rules are not applicable to contracts with outside contractors. They do not apply to the contract between the Council and the company.
Later in that Decision the relationship boundaries were detailed as:-
"the compliance with the Council’s public law duties, which include the duty of fairness and the duties under the Equality Act 2010. Those public law duties cannot be delegated to any outside contractor which is not itself a public authority".
Case here:-
http://forums.pepipoo.com/index.php?act=attach&type=post&id=30363
For the above reasons I would contend that the Charge Certificate is a nullity and cannot be enforced.
Mick
Arrrgh, I'm busy
but hold fire - something is odd.
Later, when I can.
Ok, just briefly, to move you on.
Hang on, WAIT
Something more drastically wrong that could cause a mishap!
Water
Please acknowledge and I'll explain - and what to do about it.
Have you filed (sent) the Statutory Declaration yet? DON'T yet.
I’ve not done anything yet, only just read all your replies...?
Ok.
I'll post tonight.
Nothing to worry about. But still important.
Ok, here we go.
Your next action is as advised, submit a Statutory Declaration to the effect 'No PCN received'.
EXCEPT there's a problem with the PE3 form APCOA have given you:
TEC only work with the 'date of contravention' but APCOA have this as 15th September as opposed
to the correct 1st September they have on the front.
(15th is PCN date)
It might be ok and TEC use the PCN number to process it BUT you should not risk the chance
that any error will spoil this normally automatic process.
(Note the PE3 specifically says the details in top right hand fields must match those on the OfR)
So, we could get and use a blank form ourselves ---- but we still can't be sure what date TEC have on file.
It is better to ring TEC 0300 123 1059 and ask them what they want you to do.
Specifically, tell them,
'where the Council have pre-filled details on the PE3, the date of contravention does not
match the Order for Recovery'
You have plenty of time.
--
and, of course, this very likely means you will pay nothing in the end.
To confirm then, tomorrow morning I’ll ring TEC and do just that, quoting exact same. Will post conversation here as before!
Thank you 😊
Cool.
I’ve just put the phone down after speaking to Kelly.
She said they shouldn’t have pre-filled in the form and I should do that. Would I like another form emailed to me? I asked for one to be posted as I’m low on ink (truth!). It’s being sent by first class post today.
It was registered with them on 29th Nov, I have 36 days to respond which makes it 4th January.
I said thank you, I’ll deal with it when it arrives.
Ok.
When you fill in the PE3 'applicant' is Gloucestershire County Council
Okey doke, will be back to check I’ve filled it in correctly before returning to them.
Received and filled in.
I’ve yet to fill in the PCN & car reg, my name & address. Also I need to sign & date and swear.
Other than that it’s ok to post?
Sorry, somehow managed to post several of the same pages!
Ok, I’ll add that bit onto it.
No, I’ve not arranged to swear it yet ?
Sorry, crossed wires I think.
The ? was meant to ask why you had asked if I’d arranged to swear it yet. My apologies, should have been clearer (and I can’t work out how to do the quote thing!).
Thanks again.
Hi,
To keep you updated - I have sworn the PE3 at a local solicitors office and emailed a copy to tec@hmcts.gsi.gov.uk a few moments ago.
Hi all,
So this arrived today.
Do I need to do anything? It says I should contact the LA/Charging Authority, but then says they will contact me??
The ball is very much in their court, but it might be prudent to contact them after about 10 days if they have sent you nothing.
Ok, I’ll give it a little while.
We’re away next week so if there’s nothing waiting for us when we return I’ll give them a ring.
Thanks.
The PCN arrived this morning!
Here it is, 3 pages.
Need some input from Neil on this one but I would respond as follows:-
PCN Number ??????
I wish to contest this Penalty Charge and raise issues with the official procedures in reaching this stage.
1. The present Traffic Order is invalid
The Traffic Order relating to LLanthony Bridge is not valid and therefore any enforcement is itself invalid.
http://www.gloucestershire.gov.uk/media/19702/order.pdf
The Order indicates that it was "made" on 29th December 2017 but comes into operation on 15th January 2017 therefore it is legally unsound.
2. Previous Order cannot designate Llanthony Bridge as a Bus Lane
The Order noted above revoked the Gloucestershire County Council (Llanthony Road Gloucester) (Prohibition of Driving) (Bus Lane) Order 2012 which allowed residents and permit holders to cross the bridge.
In this respect I would argue that this is not a bus lane due to a large number of exceptions and would offer the Lendal Bridge TPT case (YR 05035C) to substantiate this argument.
3. Procedural Issues
(a) Payment to APCOA
The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005
"2(4) In determining, for the purposes of these Regulations, whether and when a penalty charge has been paid, it shall be taken to have been paid when the whole of the amount of the penalty charge applicable in the circumstances of the case is received by the approved local authority concerned."
Therefore it is impossible to keep to the statutory dates if an intermediary, which is not the enforcement authority, asks for payment to be made to itself.
(b) APCOA issue of Charge Certificate
An intermediary cannot issue a charge certificate because of two issues--they cannot exercise the discretion of the enforcement authority in that the legislation notes "the enforcing authority may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent" The "may" denotes discretion. Second, they cannot comply with the public law duty placed on the Council as stated in the legislation:-
"the enforcing authority may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent".
© APCOA's letter of 10 November is in Abuse of Process
APCOA has sought to dun payment outside the regulatory process and asked for payment to be made to APOCA not the body noted on the Charge Certificate. This is highly irregular as is the description of the Court process.
4. Signage
The bus lane signs 953 (as per the Traffic Signs Manual Chapter 3 2008) are too small and not to the advised size of 750mm as point 15.22 of the signage directives.
Signs 953 should have been preceded by a broken white line which is evident on the eastern side of the bridge. This is not present at the north western side of the bridge.
The advance warning signs for this bridge are inadequate with the result that drivers have difficulty avoiding the bridge.
Road markings should have indicated that most traffic should turn away from the approach road to avoid going over the bridge..
It should be noted that traffic on this road probably has an average speed of 25 mph and any prohibition signage should be readable from a distance of 60 metres as table 1-1 of the Traffic Signs Manual Chapter 3 2008.
I would aver that this signage does not conform to these specifications.
In the light of the above grounds I respectfully ask that the penalty charge be cancelled.
Before the 28th.
Mick
WATER.
I need your help again please.
You called TEC as suggested.
Wow! I’m getting lost in all this. I will be reading over again a few times until I’m not lost!
I get that you need me to phone TEC and ask only that. I will do exactly that on Monday morning and post the answer.
Thanks
Are there any advanced warning signs?
Water.
This for insertion into reps as 3 (d) in line with Mick's format.
(d) The Order for Recovery, served before this matter was reset, fails to comply with legislation.
As with the earlier documents mentioned payment is demanded by a third party rather than the creditor.
This raises the question of who exactly had registered the debt, at that time, with the Court.
This is a critical document in the process, reflecting a Court Order and, as such, it is crucial that it complies
with the law: It does not.
It fails to advise the correct period in which a recipient must act: That is -
It does not accurately describe the period in the 2005 Regulations s34 (1) ©
It does not state a deadline date as prescribed by Civil Procedure Rule 75.3 (4) (a).
The only period described is by reference to 'the postmark', which is not only wrong but I note that their
was no postmark! And, this vital notice was sent by only second class mail.
A further serious error is that, where you have chosen to partially pre-complete the Statutory Declaration
on the reverse, you have stated the wrong 'date of contravention', using instead a date that has no
connection to any stage in this matter to date.
-----
Probably better if I could be more concise but, hey-ho, it saves time writing it all again later.
All subject to others' comments and input.
I’ve just put the phone down.
I gave the PCN number and the lady immediately said it’s no longer with them. I asked the question above and the answer was:
‘We don’t have that information here. All we have is the debt was registered with us as an unpaid fine on 29th November’.
Is that any help??
Ah, just read the above posts. Oh well 😔
Do I now need to draft a letter copying Micks post adding in Neil’s part too?
OP-----don't worry if you don't see the relevance of some points in the draft. It was designed to be comprehensive in order to get the Council to drop this case like a hot potato. They won't want an adjudicator examining their procedures in any great depth after their previous debacle.
Mick
Ok, well the way I see it is that yes, we drove in a bus lane so should probably pay the fine. Guilty as charged & all that.
But on the other hand, it’s about the legality of their procedure and can only be a good thing to write the letter in the hope they will act on it and look into the problem while also causing less people hassle in future.
I’ll get the letter typed up tomorrow and post here before sending to check it’s all ok!
Thats true - I prefer that way of saying it!
I’ve literally copied and pasted the drafts from both Mick & Neil into a letter on Word. I’ve not added anything else (other than the usual standard stuff, my address & date)
I’ve signed it off ‘yours’ and printed my name underneath.
On the How To Pay Page there is a section - How to make a representation against the Penalty Charge.
There are details of a website with an online form. I’ll keep a copy of the letter on Word in my files and fill in their online form by copying/pasting as above.
Just checking it’s the ‘Representation’ I need to go for..?
And if so, which if these options do I choose please?
edit
Edit
Edit.
@Neil
Yes, but make sure that website does not have a BL page.
Mick
Would it help if I screenshot each page?
Get a written appeal in but add that trying to appeal on the stated website does not accord with the Bus Lane legislation and that you regard this as a procedural impropriety which is highly prejudicial. Add screen-shots to the appeal if necessary.
Tempus fugit and all that.
Mick
Hi, just letting you know I’ve filled in the online form and submitted it.
It says I should receive a response within 10 working days.
Make sure you've printed off a hard copy of what you have written.
I put it all onto a Word document then copied & pasted onto their form, so have a copy saved.
Thanks.
Hi all,
It’s gone 10 working days, tomorrow will be 15 I believe, and I’ve heard nothing.
Is no news good news? Should I chase someone up?
Thanks again.
Ok no problem waiting. I was enquiring as when I submitted the form it said they’d respond within 10 working days.
I’ll keep you informed.
Is it possible to check?
I’ve tried with the login details which I used for the above, logging in there again just takes you to the same page, ie to send details again.
Hi,
I’ve received a response - the 3 pages below.
I must admit it’s not what I was expecting!
we need to see what you have sent
I sent a letter which I basically copied & pasted from Mad Mick V on 20.01.18 at 10:55hrs (page 3) with the insert from Neil B on 22.01.18 at 23:22hrs (page 4).
I will find the document as a whole and post it.... 2 secs..
Screenshots of the letter:
That IMO nicely sets up an appeal
Right ok - So what’s the advice for the next step?
Are others in agreement with PASTMYBEST?
I notice page 3 has details of how to appeal through the Traffic Penalty Tribunal.
@Water
Your decision----- they have re-offered the discount.
My view is to continue but it's neither my money or time.
I still believe you have a strong case which is made stronger by them not responding to the issues raised.
They have a duty to act fairly, whatever the legislation, and they have demonstrably failed in that regard by sending a boiler plate rejection.
Mick
Thanks for your replies once again.
I was half expecting a ‘ok we’ve thrown it away’ type response - what do I know!
I’ve spoke to my husband and we have decided to carry on - there has been a lot of time and effort gone into giving me advice for this & it’ll be a shame to give up now! And anyway, I’m not one to give up!
The thing is I’m running to you guys for help, if you’re happy to keep providing me with the right things to say?!
I’ll have a look in the morning at the appeal website to see what information I need and screenshot pages where necessary?
Thanks again
@Water
That's what I wanted to hear!
Subject to the views of others, we should agree on the bullet points and draft something for the adjudicators.
Mick
Haha great 😁
I’ll check back tomorrow!
OP---- we need the Chuckle Brothers input on this one:-
Note; that you need to submit copies of some docs and the envelope.
APPEAL TO TRAFFIC PENALTY TRIBUNAL
PENALTY CHARGE NOTICE-- NO. ???????????
The Charge
Vehicle not of the type permitted to be in a bus lane (as per the PCN)
1. The Circumstances
I apparently crossed Llanthony Bridge which I now understand is a bus lane in both directions. The first I knew about this alleged contravention was the receipt of a Charge Certificate from APCOA which started a protracted case which has ended with a Notice of Rejection either from APCOA or Gloucester County Council.
With respect, I would ask TPT to consider all aspects of this case from the Charge Certificate onwards since to do otherwise would prejudice my case.
I would also ask that TPT considers the relationship boundaries between APCOA and the County Council particularly the latter’s public law duties and its discretionary powers. It should be noted that the grounds submitted in this respect have been ignored in the NOR. This failure to consider might not be a procedural impropriety within the bus lane legislation but I would have expected common law fairness to prevail.
2.The Appeal
This appeal sets out a series of major errors, both procedural and statutory, made in the enforcement process which can each refute the Council’s case.
(i) The present Traffic Order is invalid
The Traffic Order relating to LLanthony Bridge is not valid and therefore any enforcement is itself invalid.
The Gloucestershire County Council Bus Lane Order 2017 can be found here:-
http://www.gloucestershire.gov.uk/media/19702/order.pdf
The Order indicates that it was "made" on 29th December 2017 but comes into operation on 15th January 2017 therefore it is legally unsound and manifestly bad on its face. In this respect I would refer the parties to Case BC 05031M (Mr Aubrey Isaacson and Bury Metropolitan Borough Council) in which it was stated:-
“The amended Schedule 3 to the Road Traffic Act 1991 applies and Parliament has
specifically created a ground of appeal relating to the validity or otherwise of the relevant
Order. This seems to me not so much a case of striking down a TRO, as deciding that a
particular PCN should be cancelled because the relevant TRO is not valid in the sense
of not being well-grounded, or legally sound and effective. No judicial authority should
collude in the enforcement of law which is manifestly bad on its face, at least not unless
Parliament specifically says that it should do so. Here, Parliament has specifically
indicated that an invalid Order is a ground for fighting the PCN. Put simply, if a Parking
Adjudicator concludes that a TRO is legally unsound, legally ineffective, or falsely based
or reasoned then, if these matters go to the heart and structure of the TRO, and are not
merely peripheral, a PCN based upon it should not be upheld.”
(ii) Previous Order cannot designate Llanthony Bridge as a Bus Lane
The Order noted above revoked the Gloucestershire County Council (Llanthony Road Gloucester) (Prohibition of Driving) (Bus Lane) Order 2012 which allowed residents and permit holders to cross the bridge.
In this respect I would argue that this is not a bus lane due to a large number of exceptions and would offer the Lendal Bridge TPT case (YR 05035C) to substantiate this argument. This is further confirmed by the contravention given in the PCN “ vehicle not of the type permitted to be in a bus lane”
(iii) Procedural Issues
(a) Payment to APCOA
The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005
"2(4) In determining, for the purposes of these Regulations, whether and when a penalty charge has been paid, it shall be taken to have been paid when the whole of the amount of the penalty charge applicable in the circumstances of the case is received by the approved local authority concerned."
Therefore it is impossible to keep to the statutory dates if an intermediary, which is not the enforcement authority, asks for payment to be made to itself.
(b) APCOA issue of Charge Certificate
An intermediary cannot issue a charge certificate because of two issues--they cannot exercise the discretion of the enforcement authority in that the legislation notes "the enforcing authority may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent" The "may" denotes discretion. Second, they cannot comply with the public law duty placed on the Council as stated in the legislation:-
"the enforcing authority may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent".
With respect, I would remind TPT of the Fosbeary case which considered the relationship between APCOA and the Council in which the following statement was made:-
16. It is clear, therefore, that the regulations impose duties on the enforcement authority which require the making of discretionary decisions in the light of information and representations that the authority has received. Because the discretion rests only with the enforcement authority, this is not a function which the enforcement authority can delegate to any external body. There are special provisions in the Local Government Act 2000 which enable local authorities to form joint working groups or committees for similar functions, which enable individual local authorities to enter into “agency” agreements with each other in connection with the enforcement of parking contraventions, but those special statutory rules are not applicable to contracts with outside contractors. They do not apply to the contract between the Council and the company.
Later in that Decision the relationship boundaries were detailed as:-
"the compliance with the Council’s public law duties, which include the duty of fairness and the duties under the Equality Act 2010. Those public law duties cannot be delegated to any outside contractor which is not itself a public authority".
I would therefore contend that the Charge Certificate which instigated this case (copy attached) is non compliant as it is an APCOA document.
(c ) APCOA's letter of 10 November is in Abuse of Process (copy attached)
APCOA has sought to dun payment outside the regulatory process and asked for payment to be made to APOCA not the body noted on the Charge Certificate. This is highly irregular as is the description of the Court process which is not correct. The Court will not authorise the issue of either a Notice of Enforcement or a Warrant for a period of 36 days after registration. The APCOA letter clearly implies they will do so immediately and automatically. This is simply a means to unfairly pressure the recipient into making payment and which fails to comply with proper procedures and times-scales.
(d) The Order for Recovery fails to comply with legislation.
Payment is demanded by a third party rather than the creditor. This raises the question of who exactly had registered the debt, at that time, with the Court.
This is a critical document in the process, reflecting a Court Order and, as such, it is crucial that it complies with the law: It does not:-
It fails to advise the correct period in which a recipient must act;
It does not accurately describe the period in the 2005 Regulations s34 (1) (c );
It does not state a deadline date as prescribed by Civil Procedure Rule 75.3 (4) (a).
The only period described is by reference to 'the postmark', which is not only wrong but I note that there was no postmark. This vital notice was sent by second class mail. (copy of envelope attached).
A further serious error is that, APCOA has chosen to partially pre-complete the Statutory Declaration on the reverse and stated the wrong 'date of contravention', using instead a date that has no connection to any stage in this matter to date.
(e) Non Compliance with legislation as to submitted grounds
The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 states:-
Response to representations
10.—(1) Where representations are duly made to an authority under regulation 9 and they are made within the 28 day period, it shall be the duty of the authority—
(a) to consider them and any supporting evidence provided;
(b) in relation to each ground on which representations are made, to serve on the person by whom the representations are made notice of their decision as to whether or not they accept that the ground has been established.
Given the NOR is deficient as regards the principal grounds of my appeal it should be regarded as invalid.
I believe that I have advanced compelling reasons which have not been considered by either the Council or its contractor APCOA.
(iv) Signage
The bus lane signs 953 (as per the Traffic Signs Manual Chapter 3 2008) are too small and not to the advised size of 750mm as point 15.22 of the signage directives.
Signs 953 should have been preceded by a broken white line which is evident on the eastern side of the bridge. This is not present at the north western side of the bridge.
The advance warning signs for this bridge are inadequate with the result that drivers have difficulty avoiding the bridge.
Road markings should have indicated that most traffic should turn away from the approach road to avoid going over the bridge..
It should be noted that traffic on this road probably has an average speed of 25 mph and any prohibition signage should be readable from a distance of 60 metres as table 1-1 of the Traffic Signs Manual Chapter 3 2008.
I would aver that this signage does not conform to these specifications.
(v) Synopsis
It's awesome Mick.
I don't think my little bit needs anymore, unless we want to actually quote the Regs and CPR.
Thanks for adapting context and tidying it up. I just don't find time these days; hard enough
doing things for myself.
I wonder what attitude adjudicators will have towards the duff OfR and PDR, they being a past and
resolved event, not related to the contravention being decided upon. I can quite imagine that very
attitude being the kind of dismissive twaddle a TPT adjudicator might come out with.
We shall see - - if this gets contested and I think that itself must be in doubt.
Hi all,
That’s for your reply and response I will be sending to appeal.
So, I’ve registered with the TPT and guess I will literally copy & paste the response above? Noted the attachments I need to add also.
I’m assuming you know the procedure, anyhow would screenshots of each screen be needed/wanted by anyone?
What I’m thinking should be obvious - which should I choose?
OP---just go for contravention did not occur.
Mick
Ok. All done!
There was a maximum of 500 words so I attached everything as supporting evidence and made a note to say what I’d done.
Just adding the confirmation of registration.
I’ve recieved a reply and some information to go through which I’ll download and post now. I have 7 days (from yesterday) to respond. Eeeekkkkkk...!
Copy/pasted. (More to follow)
Authority Summary: The permits referred to in the order were not resident permits and were permits intended specially to coaches. No such permit had been issued and the prevision was subsequently revoked. The legal process for Parking Enforcement is set out in Part six of the Traffic Management Act 2004 (TMA), implemented in 2007, and associated Regulations. Guidance to the Act exists in two parts the first being The Secretary of State's Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions issued in 2015 and referred to in this briefing as Statutory Guidance, the second being Operational Guidance issued by the Department for Transport (DfT). Statutory Guidance recognises that councils may employ contractors and makes reference to this throughout the document, for example 12.1 states “Enforcement authorities can improve the efficiency and effectiveness of their civil parking enforcement regimes by maintaining a regular dialogue - and undertaking joint activity where appropriate - with their on-street contractor” Statutory Guidance states at 7.3 Authorities that outsource any area of parking enforcement to private companies should ensure that the contractor fulfils all the requirements set down for the authority itself. The contracting out of this function is known to be common practise among larger authorities in the public parking sector. Statutory Guidance also states at point 10.13 “Many enforcement authorities contract out on-street and car park enforcement and the consideration of informal representations. Enforcement authorities should not contract out the consideration of formal representations” Consideration is given to mean the decision making process subsequent to a formal representation The Council believes that its process for managing Parking Enforcement is fully in accord with all statutory requirement and current guidance. The Council also believes that the signage fully complies with TSRGD – The Traffic Signs Regulations and General Directions 2016. It is the driver’s responsibility to take account of the traffic restrictions/signs on the highway. In this instance the bus lane is supported by the correct prescribed signs and lines advising drivers of the oncoming bus lane restriction. The extra photos submitted from pages 5-9 show the signage that would have been passed before the driver entered the bus lane.
Several photos have been added as evidence, here’s some (others are all very similar):
Now I fill screenshot further evidence provided by GCC.
Handheld device notes, 2 pages.
Handheld device notes, pg3.
Case state report/system audit:
There is a DVLA return showing the car is registered to me.
A copy of the PCN
Copy of Formal Representation.
Next is Copy of Notice of Rejection and the photographs of the car driving in the ‘bus lane’,
Supporting evidence (certificate)
There’s a video clip which I can’t view for some reason or another, it’s title is ‘Moving Contravention’
Traffic Regulation Order; TRO & Schedule.
And last of all, TEC Document:
The titles I’ve given each document I’ve posted is the title they’ve given it on the Case.
I did notice in particular the witness statement being from APCOA.
A chunk of ‘evidence’ also talks a lot about parking and nothing to do with this.
Not got the time to look through this at present probably tomorrow.
On Neil's first point Appendix 4 here (authorised officer) is pertinent:-
http://www.manchester.gov.uk/site/scripts/download_info.php?fileID=4429
This document is highlighted in the SoS Operational Guidance.
OP------ check on their website to make sure the penalty remains as per the PCN. Second what's the new address or new addressee referred to?
Mick
I'll have some further comments in the next couple of days as well.
I never feel particularly confident with TPT adjudicators so best we make sure they have something to chew on.
Adding screenshots of the PCN & website showing the penalty fee.
I’ve no idea why they changed me from Mrs to Ms. Everything else is the same throughout. The DVLA return has ‘Mrs’ on it so they’ve not got it from there.
FYI, I usually referred to myself as Ms at that time. I’m now Mrs as have since gotten married so my name on all this is my previous name. Still me though!
It's worth adding that the discount period is wrong. They say "within 14 days", but the regulations provide "that if the penalty charge is paid before the end of the period of 14 days beginning with the date of service of the notice, the penalty charge will be reduced by one half"
TBH I don't think we should analyse the job progression sheets to the "nth" degree. I would be happier pulling apart their highly transparent statement that the appeal boils down to a "procedural impropriety" which everyone knows is not a ground stated in the Bus Lanes legislation.
Subject to the input of others I would write back to TPT on the following basis:-
I have considered the Council's evidence which continues to class my appeal ground as a procedural impropriety which is wholly inappropriate. My appeal is predicated on 10 separate grounds none of which have been properly considered or defended by the Council.
What the Council has averred on signage is meaningless without a route map.
I have no doubt that the Council can employ APCOA as a sub-contractor but that does not answer the issues I have raised about the Council's delegation of its public law duties and the fact that ACPOA has acted improperly in that regard.
I do notice that the Council has not submitted the 2017 Order which revoked the 2010/2012 Orders and which I stated is invalid. Perhaps the Council would like to comment on the appeal ground that a contravention cannot occur if the appropriate Order is manifestly bad on its face.
Yours
_____________
Mick
I’ll wait for other input as per Mick above, when decided do I ‘add evidence’ as a word document or send a message (as per the pic below) ?
@Water
I would use their system.
Mick
Mick, both options are available on their website. I’m unsure whether I should copy/paste your piece to a Word document and ‘add evidence’, or send it as a message.
The ‘To’ message options are either ‘tribunal only’ or ‘Gloucestershire and Tribunal’
I would send it as a message, it's a legal submission rather than evidence. Also, you must send it to both the tribunal and the council.
I've been hesitant to post any further input for fear of affecting focus, throwing a spanner in the works or pushing
ideas of my own that either might clutter or simply be wrong or less relevant.
I will try to say a couple of things today but they will be suggestions and I'm happy to go with any consensus.
Meanwhile.
Where Mick has said -
@Neil B
My concern about this case, my fault largely, is that the case is unwieldy because of the amount of appeal grounds put forward. That's why I suggested that we did not focus on more points arising from the job sheets.
I certainly agree that the letter to TPT re-emphasise that the adjudicator should consider the case from the Charge Certificate stage.
Now, as you rightly say, the principal threat is that the adjudicator concentrates on the reissued PCN and nothing more. So if this happens and the appeal is lost we are in the realms of a Review request. As insurance we might keep your points in reserve together with the "within" issue suggested by cp8759 for any Review. If we mention those points now they are "lost" for any Review.
However if you believe the point about the programming is too serious to ignore at this stage ----bang it in.
Mick
When I asked for help with this I didn’t think it would - could - ever get so involved!
Thursday is the 7th day, the day I have to submit anything further by, and the day I have to opt for a telephone hearing or not, by.
I’ve no idea whether I have until the exact hour (11:02am to be precise!) to do this or by 23:59:59 tomorrow. Or I suppose until midnight on Thursday?
Just come to this thread - fascinated by the number of posts so found I could ignore no longer.
So this puts me in the same position as an adj, fresh to the matter.
Immediate impressions:
How the hell and why does the appellant expect me to look through their very lengthy appeal, the vast majority of which is simply repeating their formal reps?
Could this not be simplified ( I've got another dozen cases today!)?
To this end, could we put aside what appears to be a recurring theme which, if rejected (as in my opinion it would be in the absence of specific and detailed points), would make a big hole in the appeal.
Forget APCOA, or at least relegate the issue to ...and I would also ask the adj to note..
Why can't a contractor issue a CC in the circumstances of this case i.e. PCN issued and no reps received?
Why can't a contractor receive and process payments on behalf of the council? It happens every day up and down the land. This is a simple 'back office function' which has been outsourced since at least the 1990s. Where is the evidence that this involves the council unlawfully delegating a function which only they may exercise?
Every letter and notice is signed or titled GCC. How much clearer could this be?
As I understand it, the OfR was issued by TEC, but their errors, which are history anyway, can't be laid at the door of GCC without further proof.
The big paradox:
The 2012 order is invalid because it was revoked by a 2017 order which had a date error on its face ( but was signed and sealed when???).
You cannot have grounds of appeal which attack the validity of the 2017 order when, as posted recently, the authority have stated in evidence that the extant order is 2012. The appeal must deal with the evidence.
Was there an order?
Which one and was it valid?
Was there a contravention of this order, a pre-condition of which is that the necessary signs were in place?
IMO, the appeal must prioritise the new info - that received for the first time since the NOR - and not rehearse at length arguments already in evidence. And when referring to reps and contrasting these with the NOR (and any contradictions between the NOR and the case summary) why not just refer to the reps (page * para *, a document which would be in the adj's bundle) and their NOR, similarly in the bundle, and draw out the point at issue without restating either of the source docs at length.
But maybe unpicking the considerable effort made to date would be more problematic than making best use of what we've got?
Thanks hca--appreciate your input and comments.
The Paradox
Yes, the Order was signed and sealed:-
https://www.gloucestershire.gov.uk/media/19702/order.pdf
It revoked the 2012 Order.
Ergo, it has to be submitted with the Appeal.
APCOA
First, we know the history of Gloucester and this company which can be exploited.
Second, if the OP is regarded as being in a bus lane, a technical defence is critical.
Third, mea culpa, the appeal,which has been submitted, could have been streamlined.
I don't expect the OP to appear or have a telephone hearing so the adjudicator will have more time to undertake a paper exercise.
Mick
Wow. I feel as though I should have some input here, but don’t know what to say!
I am, almost literally, sitting back awaiting instruction from you very knowledgeable people. I’ll check back later to see if there’s any updates and instruction on what to send to the Tribunal.
Thanks.
If the 2012 Order is revoked then there is no evidence of a restriction and the contravention did not occur. Even if the 2017 revocation continued some of the 2012 restrictions, then the 2017 Order is stilll the one in force and MUST be presented in evidence. (even better if the 2017 Order is in TPT's library.. I refer the adj to order **** (TPT library reference number) held in the tribunal's library, which has the citation ***** and which at article **** revokes order ***** which is the one submitted by the authority in its evidence).
IMO, this must be the lead point.
I would still put the APCOA issue second, or even third! Make life easy for the adjudicator: no order, no restriction, no contravention.
Yes, but with respect this is not the key issue.
The only order in evidence does not exist. Ergo, no contravention.
I posted in another thread a few weeks ago how OPs have a habit of not posting an authority's evidence to the adjudicator and thereby denying themselves a successful appeal purely because the evidence did not prove the allegation.
But well done this OP. You win.
And to keep MMV happy, wouldn't it be the icing on the cake if the mistake in not presenting relevant evidence was down to APCOA
This is actually quite exciting... in an strangely odd, never would admit in public, kinda way 😂.
I’m so glad I came here for advice, I’m being educated every time I look at this. It’s very interesting to say the least!
Still, I’ll sit here awaiting my next instruction. I am just the bystander!
As already stated, the appeal is in so the next action is to give TPT comments about the Council's submission/evidence.
Taking account of hca's and cp8759's comments I would write back to TPT on the following basis:-
I have considered the Council's evidence which continues to class my appeal ground as a procedural impropriety which is wholly inappropriate. My appeal is predicated on 10 separate grounds none of which have been properly considered or defended by the Council.
The Council's evidence sent to me does not prove the contravention because the only Order submitted as evidence has been revoked. Therefore there is no evidence of a restriction and the contravention did not occur. Even if the 2017 revocation continued some of the 2012 restrictions, then the 2017 Order, which has been signed and sealed, is still the one in force and MUST be presented in evidence.
Furthermore, as I have stated in my appeal, the contravention can never occur if the appropriate 2017 Order is manifestly bad on its face.
As to the other Council evidence:-
1) What the Council has averred on signage is meaningless without a route map showing where each sign is located.
2) I have no doubt that the Council can employ APCOA as a sub-contractor but the Council's response does not answer the issues I have raised about the Council's delegation of its public law duties and the fact that ACPOA has acted improperly in that regard.
I attach for the Adjudicator's attention a copy of the 2017 Order and a copy of the Council's evidence.
Yours
----------------------------------------------------------------------------------------
Mick
Thank you Mick.
I’ll send that in a message to ‘Gloucestershire & The Tribunal’.
With that message I’ll attach those 2 pieces.
The 2017 Order I can see links to above. When you say ‘copy of the Councils evidence’ what is it I need to attach for that? (Sorry, no doubt a stupid question!)
Sorry - also would it be acceptable to add the link to the Order or should I screenshot & add multiple pages?
Edited to say - is the Councils evidence the Authority Summary I copied into post #109 ? And should I copy/paste it onto a Word Document & attach to the message?
We're a bridge over troubled Water.
Ok, so I’ve posted Micks response as a message and attached 6 pages of the Order & 1 page of council evidence. I’ve assumed it’s the bit I posted on #109. I haven’t yet chosen the No Telephone Hearing option as I’m not sure that means I cannot post any further in the morning (in case what I attached with the message is wrong!).
Confirmation here
This morning (Thursday) just before 9am these were added:
At 10:02 this morning other evidence was added. It’s a video clip, 19 seconds long, of our car driving over the bridge followed by another car. I’ve managed to open the video previously posted as evidence - it’s the same video.
So now it’s Monday & the case is still open to add evidence/send messages or whatever. It was supposed to automatically go to the adjudicator after 7 days. I’m inclined to leave it in case there’s anything else I need to add, but on the other hand am thinking I should choose the option to send to adjudicator as a matter of complying...
Just though I’d let you know of the no-update!
Hey - guess what?
You done it! 😁
Thank you all for your help, time and patience with this. It was worth it! (Sounds like a certain shampoo advert!)
I’ll post the details below.
Screenshot with some details:
Adjudicators reasons - 24 of them:
The Council must prove the contravention on 1 September 2017. I must assess all the evidence and decide if there is a reason to allow the appeal. I resolve a dispute of fact by deciding what is more probable than not on the evidence available to me.
The Council’s case is that as at 1 September 2017 a bus lane restricts Llanthony Road from its junction with Merchants’ Road for 88 metres west (including the bridge). It applies at all times.
The bus lane is different from the type that runs alongside a general lane. It requires general traffic to take an alternative route. The video shows Mrs * car drive westbound in the bus lane.
The Council sent the PCN to Mrs *. They did not hear from her and so continued to send enforcement documents.
In late 2017 Mrs * applied to set aside the enforcement steps and the court put the process back to £60 (I have not seen her application). The Council sent a fresh PCN and Mrs * sent representations.
Mrs * challenged the PCN and the official procedures setting out detailed points (evidence 10). She challenged the adequacy of the signage, noting that the advance warning signs are inadequate with the result that drivers have difficulty avoiding the bridge. She also challenged the validity of the traffic regulation order and the role of Apcoa.
For her appeal she provides another detailed statement (evidence 1) and the charge certificate and letter dated 10 November giving notice of intention to register the debt (evidence 2 and 3).
By message on 4 April she objects that the traffic regulation order dated 4 May 2012 that is relied on by the Council (evidence 16) has been revoked by a 2017 order which is not provided by the Council and which she says is bad on its face.
She attaches photos of pages of an order dated 29 December 2017. Article 14 says that the 2012 order is revoked in full.
Traffic regulation order
The order dated 29 December 2017 is not relevant because it was made after the date of her journey on 1 September 2017. The Council are correct to provide the traffic regulation order that applied at the time of her journey at evidence 16.
Information for drivers
A key issue is whether the Council have proved that the signs and markings provide adequate information for drivers about the restriction when travelling westbound (regulation 18 of The Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996; The Traffic Signs Regulations and General Directions 2016).
Where a bus lane fills a route, a driver needs a reasonable chance to prepare to avoid it by taking an alternative route.
The video shows the car already past the entry point and so does not show the signs at or before it.
In the Notice of Rejection the Council say that there are signs at the entry point and also ‘well in advance of the bus lane which explain the restriction ahead’ but did not give details.
The Council provide a map with numbers on it to indicate the location of signs (evidence 18).
Separately, they provide photos of signs and say that the driver would have passed the signs at pages 5-9 (evidence 14 and summary). Unfortunately, they do not link the photos to the map.
I can establish that the photos at page 5, 6 and 9 are close-ups of the round blue signs and lettering at the entry point. But the evidence does not show the location of the two advance signs in the photos at page 7 and 8. It is unclear why the map shows more numbers on the relevant side of the bridge than these two signs.
Because the photos of the entry point are close-ups, they do not show the earlier carriageway or if there is an alternative route for drivers to take if they reach this point. The Council have not said what other routes are available to avoid the bus lane.
On the evidence available to me in this appeal, the Council have not proved that sufficient advance information is provided on the approach routes to give reasonable notice to drivers that the route ahead becomes restricted as a bus lane and how to take an alternative route to avoid the bus lane.
On the evidence available to me the Council have not proved that the signs and markings considered as a whole were adequate to inform drivers of the restriction.
I accept that Mrs * (who does not live locally) had no prior knowledge of this bus only route. I find that she was not given reasonable advance notice of the restriction and did not realise that it was a bus only route until it was too late.
I find that the evidence available to me is not sufficient to prove the contravention. There is no need for me to consider the remaining points raised by Mrs *.
I allow the appeal. Mrs * has nothing to pay.
In future the Council is asked to provide clearer evidence of the information available to westbound drivers before they reach the entry point and of the alternative routes.
well done but a shame they did not go on to consider the other points cop out by the adjudicator
Yes I must admit I was a little disappointed the other points weren’t considered and action taken on them. It allows the same procedure to continue, and no doubt works for them by way of people paying up and them earning a few quid. Shame.
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