PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

PCN Code 86 Gloucester, Blacked out bays confusion
Glospcn666
post Thu, 25 Jan 2018 - 20:29
Post #1


New Member


Group: Members
Posts: 8
Joined: 23 Jan 2018
Member No.: 96,121



Hi All, no surprise I am here for some assistance if I may! My OH parked in a council car park at the end of November and was issued with a PCN code 86 from Apcoa for being 'parked beyond the bay markings. She took a photo of her car (with all the others) and initially I assumed that she had inadvertently parked the front of the car too far forward, as the photo looked like there was quite a bit of room from the back of her car to the white line. She was adamant she hadnt but couldnt remember if there was a verge or kerb other than it was thick with leaves. We immediately responded via email (text pasted below) on the basis that we believe she had parked within the bay.

Text from email to Apcoa:
I write with reference to a PCN I received, reference xxxxxxxxxxx.
Based on the fact I had paid the requisite fee for parking in the car park and this had not expired and I was parked in a bay, I wish to challenge this PCN. The reason recorded on the PCN is that my car was "PARKED BEYOND THE BAY MARKINGS".
I attach a photograph of my vehicle (along with others) at the time I returned to my vehicle to find the PCN, which can clearly be seen parked within the marked bays - this fact cannot be disputed and the bay markings are clearly visible to the left, right and rear of my vehicle - no markings were visible to the front due to the excessive leaf buildup (clearly an issue as these were actually being collected around the car park as I left).
What I find an absolute disgrace, is that the parking attendant watched me as I walked past him three times - firstly as I went from my vehicle to the ticket machine to purchase my ticket and back again; and then a third time as I had forgotten my bag. He clearly saw me, yet at no point did he indicate that my vehicle was in contravention and at risk of receiving a fine.
Based on the above I expect the PCN to be cancelled in full.








Subsequently Apcoa responded rejecting my email with the letter below, stating that the PCN was issued as the car was parked in a blacked out bay.


We have since revisited the car park and when empty it is shall we say more obvious that these are not operational parking bays - however when the OH originally visited the car park she drove round several times as it was very busy and then saw someone leaving and automatically parked in what appeared to be a vacant space. We have now received the NTO and I was wondering do we just have to suck it up or are there grounds to argue. The car park is not in the best condition and a lot of lines are worn and so supposed blacked out lines can just look like bare tarmac showing through between the broken up white marks. Having looked at the off street parking order and the sign in the car park which states notices may be issued for not parking in a bay, is there any legal definition of a 'bay' - can we argue that we were parked in a bay that has black lines? I have taken some further photos of the same bays recently and other people had inadvertently parked there (is there an argument for confusing lines?).

Photo of recent cars parked


Copy of NtO



sorry for the lengthy post but wanted to get all of the information in one place.
Thanks in advance

This post has been edited by Glospcn666: Thu, 25 Jan 2018 - 20:35
Go to the top of the page
 
+Quote Post
2 Pages V   1 2 >  
Start new topic
Replies (1 - 19)
Advertisement
post Thu, 25 Jan 2018 - 20:29
Post #


Advertise here!









Go to the top of the page
 
Quote Post
DancingDad
post Thu, 25 Jan 2018 - 21:16
Post #2


Member


Group: Members
Posts: 21,861
Joined: 28 Jun 2010
From: Area 51
Member No.: 38,559



My take on it.

The Contravention did not occur
I parked in what seemed like a clearly marked bay.
Your agents, Apcoa, have since informed myself while rejecting my informal challenge, that the bays were blacked out and none operational.
Pardon?
I parked in what seemed like marked bays.
The photos your agents took show marked bays.
The photos I took, enclosed, show marked bays.
Visiting after the event shows marked bays, plus plenty where the markings are worn to the point of being almost unrecognisable as markings.
Should the council not want people to park in these marked bays, it is the council's duty to ensure that appropriate markings or signs are applied and not to leave markings in a state where confusion and misunderstanding can so easily happen.
I parked in a clearly marked area of the car park within clear markings and saw nothing to indicate that I could not park there.
As such the contravention did not occur and the contravention cited is pants.
Please cancel the PCN
Hugs and Kisses

This post has been edited by DancingDad: Thu, 25 Jan 2018 - 23:26
Go to the top of the page
 
+Quote Post
Incandescent
post Thu, 25 Jan 2018 - 21:35
Post #3


Member


Group: Members
Posts: 13,975
Joined: 22 Apr 2012
Member No.: 54,455



+1
As you now have the NtO it is a no-brainer to take them all the way to adjudication, as the discount is gone and the penalty doesn't increase. However first you must appeal the NtO, and if they unwisely reject you, take them to TPT. DD has given you a good basis for an appeal.
Go to the top of the page
 
+Quote Post
Glospcn666
post Fri, 26 Jan 2018 - 11:03
Post #4


New Member


Group: Members
Posts: 8
Joined: 23 Jan 2018
Member No.: 96,121



Thanks both for the speedy reply - do you recommend that I just go back short and sweet and avoid "the car park was busy and I waited until a space was available, etc, etc". On the reply to the NtO would I just tick 'The Alleged Contravention did not occur' box, as well as the 'Other Grounds' and point out it is the councils duty to ensure appropriate markings?
Thanks again
Go to the top of the page
 
+Quote Post
stamfordman
post Fri, 26 Jan 2018 - 11:11
Post #5


Member


Group: Members
Posts: 12,431
Joined: 12 Feb 2013
From: London
Member No.: 59,924



DD has done the appeal for you. I would go with that.

Also a general point - you have blanked all the times/dates and location in the docs. Often these are vital to see.
Go to the top of the page
 
+Quote Post
Glospcn666
post Fri, 26 Jan 2018 - 12:07
Post #6


New Member


Group: Members
Posts: 8
Joined: 23 Jan 2018
Member No.: 96,121



Thanks for that Stamfordman - just in case I have reattached the PCN and NtO with pertinent details retained.



Go to the top of the page
 
+Quote Post
DancingDad
post Fri, 26 Jan 2018 - 12:15
Post #7


Member


Group: Members
Posts: 21,861
Joined: 28 Jun 2010
From: Area 51
Member No.: 38,559



QUOTE (Glospcn666 @ Fri, 26 Jan 2018 - 11:03) *
Thanks both for the speedy reply - do you recommend that I just go back short and sweet and avoid "the car park was busy and I waited until a space was available, .......



General rule is avoid irrelevant information that has no bearing on the issue.
Like I could not find a space....which could imply that you were desperate, grabbed what looked like one and couldn't give a damn about markings.
Keep it simple and relevant.
Use my words by all means or reword to suit your style of writing.
But keep main points, it looked like a marked bay, it still looks like a marked bay, the photos show it looks like a marked bay.
That can and should win it though council may reject again.
But an adjudicator will be looking at the evidence if it gets that far and it is very difficult to align Blacked out Bays with the photos that show markings.
And yes, that may be a trick of the light and photo contrast but if it looks like a duck and quacks like a duck, it's a duck.

Bottom line is that councils have a duty to clearly sign restrictions, even in a car park.
If they want to remove lines and thus parking bays, they could have in many ways that did not leave the motorist confused or likely to misinterpret.
Go to the top of the page
 
+Quote Post
Glospcn666
post Fri, 26 Jan 2018 - 13:30
Post #8


New Member


Group: Members
Posts: 8
Joined: 23 Jan 2018
Member No.: 96,121



QUOTE (DancingDad @ Fri, 26 Jan 2018 - 12:15) *
QUOTE (Glospcn666 @ Fri, 26 Jan 2018 - 11:03) *
Thanks both for the speedy reply - do you recommend that I just go back short and sweet and avoid "the car park was busy and I waited until a space was available, .......



General rule is avoid irrelevant information that has no bearing on the issue.
Like I could not find a space....which could imply that you were desperate, grabbed what looked like one and couldn't give a damn about markings.
Keep it simple and relevant.
Use my words by all means or reword to suit your style of writing.
But keep main points, it looked like a marked bay, it still looks like a marked bay, the photos show it looks like a marked bay.
That can and should win it though council may reject again.
But an adjudicator will be looking at the evidence if it gets that far and it is very difficult to align Blacked out Bays with the photos that show markings.
And yes, that may be a trick of the light and photo contrast but if it looks like a duck and quacks like a duck, it's a duck.

Bottom line is that councils have a duty to clearly sign restrictions, even in a car park.
If they want to remove lines and thus parking bays, they could have in many ways that did not leave the motorist confused or likely to misinterpret.


Thank you, understood!
Just for my clarity so I should only be ticking the 'no contravention occurred' box - is there any benefit in waiting for closer to the end of the 28-day reply period, or just to get it in and see where it goes?
Go to the top of the page
 
+Quote Post
cp8759
post Sat, 27 Jan 2018 - 19:18
Post #9


Member


Group: Members
Posts: 15,311
Joined: 3 Dec 2010
Member No.: 42,618



There's an additional ground of appeal. In the first rejection letter it is stated: "You can formally challenge your PCN by using a Notice to Owner form. The vehicle's owner will automatically receive the form if the PCN has not been paid within 28 days of being issued"

The enforcement authority has a discretion to issue a NtO or not, this is confirmed in paragraph 1j of the schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007: "a notice to owner may be served by the enforcement authority on the owner of the vehicle". This is correctly conveyed in the PCN itself, which confirms the enforcement authority may issue a NtO.

By stating that a notice to owner will be issued "automatically", the enforcement authority has committed a procedural impropriety by unlawfully fettering its discretion.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
stamfordman
post Sat, 27 Jan 2018 - 20:23
Post #10


Member


Group: Members
Posts: 12,431
Joined: 12 Feb 2013
From: London
Member No.: 59,924



QUOTE (cp8759 @ Sat, 27 Jan 2018 - 19:18) *
By stating that a notice to owner will be issued "automatically", the enforcement authority has committed a procedural impropriety by unlawfully fettering its discretion.



I can just see council officers all over the country scratching their heads and wondering whether to send NTOs to people who haven't paid their PCNs...
Go to the top of the page
 
+Quote Post
cp8759
post Sat, 27 Jan 2018 - 22:54
Post #11


Member


Group: Members
Posts: 15,311
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (stamfordman @ Sat, 27 Jan 2018 - 20:23) *
QUOTE (cp8759 @ Sat, 27 Jan 2018 - 19:18) *
By stating that a notice to owner will be issued "automatically", the enforcement authority has committed a procedural impropriety by unlawfully fettering its discretion.



I can just see council officers all over the country scratching their heads and wondering whether to send NTOs to people who haven't paid their PCNs...

Well it's funny you should mention that, I happen to know of one case where Bristol City Council did exercise its discretion in this way: a fried on mine in uni parked in the city centre CPZ where the double yellow lines on that section of road had completely disappeared (Queen's Square specifically), there were remnants of it further up the road, but where he put his car there were plainly none at all. Still, an over-zealous CEO issued a PCN. It was clear-cut enough that I told him not to bother with informal reps and we'd just challenged it formally once the NtO came. So he didn't pay, never made any reps at all, and yet the council never sent a NtO. I guess someone in the office just looked at the photos and realised that the evidence plainly did not support the contravention, so a NtO should not be issued.

One might even speculate that those are the sort of circumstances Parliament had in mind when it enacted the regulations :-)

The fact that the discretion not to send the NtO might only be exercised once for every 10 million PCNs issued is neither here nor there, it's the will of Parliament that the discretion exists so it is unlawful for a NtO to be issued "automatically".

This post has been edited by cp8759: Sat, 27 Jan 2018 - 23:16


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Sun, 28 Jan 2018 - 10:45
Post #12


Member


Group: Members
Posts: 18,683
Joined: 6 Nov 2014
Member No.: 74,048



QUOTE (cp8759 @ Sat, 27 Jan 2018 - 22:54) *
QUOTE (stamfordman @ Sat, 27 Jan 2018 - 20:23) *
QUOTE (cp8759 @ Sat, 27 Jan 2018 - 19:18) *
By stating that a notice to owner will be issued "automatically", the enforcement authority has committed a procedural impropriety by unlawfully fettering its discretion.



I can just see council officers all over the country scratching their heads and wondering whether to send NTOs to people who haven't paid their PCNs...

Well it's funny you should mention that, I happen to know of one case where Bristol City Council did exercise its discretion in this way: a fried on mine in uni parked in the city centre CPZ where the double yellow lines on that section of road had completely disappeared (Queen's Square specifically), there were remnants of it further up the road, but where he put his car there were plainly none at all. Still, an over-zealous CEO issued a PCN. It was clear-cut enough that I told him not to bother with informal reps and we'd just challenged it formally once the NtO came. So he didn't pay, never made any reps at all, and yet the council never sent a NtO. I guess someone in the office just looked at the photos and realised that the evidence plainly did not support the contravention, so a NtO should not be issued.

One might even speculate that those are the sort of circumstances Parliament had in mind when it enacted the regulations :-)

The fact that the discretion not to send the NtO might only be exercised once for every 10 million PCNs issued is neither here nor there, it's the will of Parliament that the discretion exists so it is unlawful for a NtO to be issued "automatically".


It is a valid argument, but not one to hang your hat on. The rejection of informal reps is not a regulatory document so any minor peccadillos are not given a great deal of weight by adjudicators


--------------------
All advice is given freely. It is given without guarantee and responsibility for its use rests with the user
Go to the top of the page
 
+Quote Post
cp8759
post Sun, 28 Jan 2018 - 12:18
Post #13


Member


Group: Members
Posts: 15,311
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (PASTMYBEST @ Sun, 28 Jan 2018 - 10:45) *
It is a valid argument, but not one to hang your hat on. The rejection of informal reps is not a regulatory document so any minor peccadillos are not given a great deal of weight by adjudicators

I don't disagree, but just for good measure, I've sent a FOI request to clarify what their current business practices are. If they confirm they do in fact always issue a NtO automatically, let's just say APCOA might have caused their client a bit of a problem that extends beyond this particular case.

But clearly this particular case is a winning appeal anyway for the reasons outlined by DancingDad.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
DancingDad
post Sun, 28 Jan 2018 - 12:28
Post #14


Member


Group: Members
Posts: 21,861
Joined: 28 Jun 2010
From: Area 51
Member No.: 38,559



QUOTE (cp8759 @ Sun, 28 Jan 2018 - 12:18) *
......But clearly this particular case is a winning appeal anyway for the reasons outlined by DancingDad.


Just to clarify for the OP.
The main ground of "it was marked so WTF are you waffling on about?" (in diplomatic language of course) should be a winner, as close to 100% as we can predict.
But the extra points that the lads have raised also are valid and you never know, may become relevant.
So are worth adding to the challenge.

So main point
The contravention did not Occur...wording already drafted for you
Followed by....
Procedural Impropriety CP's words will work for that
I also note that in the first rejection letter it is stated:
"You can formally challenge your PCN by using a Notice to Owner form. The vehicle's owner will automatically receive the form if the PCN has not been paid within 28 days of being issued"
The enforcement authority has a discretion to issue a NtO or not, this is confirmed in paragraph 1j of the schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007: "a notice to owner may be served by the enforcement authority on the owner of the vehicle". This is correctly conveyed in the PCN itself, which confirms the enforcement authority may issue a NtO.
By stating that a notice to owner will be issued "automatically", the enforcement authority has committed a procedural impropriety by unlawfully fettering its discretion.

Go to the top of the page
 
+Quote Post
stamfordman
post Sun, 28 Jan 2018 - 13:08
Post #15


Member


Group: Members
Posts: 12,431
Joined: 12 Feb 2013
From: London
Member No.: 59,924



In practice the process of issuing an NTO if a PCN isn't paid is pretty much automated I would have thought - is it known that an official reviews each one first?
Go to the top of the page
 
+Quote Post
DancingDad
post Sun, 28 Jan 2018 - 13:53
Post #16


Member


Group: Members
Posts: 21,861
Joined: 28 Jun 2010
From: Area 51
Member No.: 38,559



QUOTE (stamfordman @ Sun, 28 Jan 2018 - 13:08) *
In practice the process of issuing an NTO if a PCN isn't paid is pretty much automated I would have thought - is it known that an official reviews each one first?


It is not what the various authorities do in practice.
It is down to what the regulations say.

Even if they use an automated process, as long as they retain an option to review before sending, that counts.
Now prove which of the authorities who use computerised systems to raise, print and maybe post, NTOs, do not retain that option.

It is similar tp authorities who use software to generate rejections (cough Newham cough)(and others)
The council oik sticks in contravention, ticks a box on any reasons they think match what the challenge says and a letter is spewed out depending on software algorithm.
Not a lot of consideration there but as long as the authority can alter algorithms and review what the computer says, very difficult to argue with.
Go to the top of the page
 
+Quote Post
Glospcn666
post Tue, 30 Jan 2018 - 12:37
Post #17


New Member


Group: Members
Posts: 8
Joined: 23 Jan 2018
Member No.: 96,121



Again, thank you all for the replies, sorry for the delay in responding but for some reason the replies were not updating on my phone so resorted to my laptop......you certainly all know your stuff!!

I will respond to the NtO as advised and will report back any replies.

Thanks again smile.gif
Go to the top of the page
 
+Quote Post
cp8759
post Thu, 1 Feb 2018 - 12:26
Post #18


Member


Group: Members
Posts: 15,311
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (stamfordman @ Sun, 28 Jan 2018 - 13:08) *
In practice the process of issuing an NTO if a PCN isn't paid is pretty much automated I would have thought - is it known that an official reviews each one first?

Well, we now have a confession from the council that the NtO is issued automatically. This raises the question, are all Gloucester City Council NtOs unlawful, at least until they change their processes?

This post has been edited by cp8759: Thu, 1 Feb 2018 - 12:27
Attached File(s)
Attached File  Gmail___Freedom_of_Information_Request___01394374.pdf ( 115.93K ) Number of downloads: 50
 


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
stamfordman
post Thu, 1 Feb 2018 - 12:50
Post #19


Member


Group: Members
Posts: 12,431
Joined: 12 Feb 2013
From: London
Member No.: 59,924



QUOTE (cp8759 @ Thu, 1 Feb 2018 - 12:26) *
QUOTE (stamfordman @ Sun, 28 Jan 2018 - 13:08) *
In practice the process of issuing an NTO if a PCN isn't paid is pretty much automated I would have thought - is it known that an official reviews each one first?

Well, we now have a confession from the council that the NtO is issued automatically. This raises the question, are all Gloucester City Council NtOs unlawful, at least until they change their processes?



I can't see the issue with the case in the thread as the challenge was considered and rejected, so the EA has established the grounds to send the NTO without another review if the PCN isn't paid.

If no challenge is made we are faced with the situation where EAs must decide what to with probably a million or so unpaid/unchallenged PCNs around the country. I can't see that they would ever review the CEO's evidence and grounds for issuing an NTO except where there is a group of PCNs where a common fault/successful challenge/appeal has been identified/made.
Go to the top of the page
 
+Quote Post
Glospcn666
post Thu, 1 Feb 2018 - 14:50
Post #20


New Member


Group: Members
Posts: 8
Joined: 23 Jan 2018
Member No.: 96,121



Hi - I was just looking at my options for submitting my representations (paper or email) and viewed the Apcoa on-line form - my preference was a paper copy, but out of interest with their online form they only actually allow you tick one box for the 'specified grounds' even though the NtO states to 'tick the relevant boxes....'. Paper copy it is then.
Go to the top of the page
 
+Quote Post

2 Pages V   1 2 >
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Friday, 13th December 2019 - 16:57
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.