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> When the FAQ is a PCN payable ? , aka to see a world in a grain of sand
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Note that the author is not a solicitor and has no legal qualifications.
Please keep that in mind.

This article applies to the Decriminalised Enforcement of Parking tickets (CPE) as done by councils.
It has nothing to do with Private Parking Companies (PPCs).

Before will delve into the question posed some backgound is needed.

Council parking enforcement (CPE), according to the law, is NOT a revenue raising measure nor has it ever been.
It is in place to assist traffic flow as part of managing the 'road network'.
However, in the view of many it IS used to raise revenue.
If you believe it is never used to raise revenue then you may not want to read on as this FAQ is to help people understand
the 'black is white, up is down' world or council parking.
Why is it a 'black is white, up is down world' ?
Because it IS used to raise revenue perhaps ?
Councils are 'statutory creatures' and can only do things that are expressly or impliedly allowed by statute so raising revenue
through CPE is strictly not allowed according to the law.
Council are allowed to keep the surplus revenue raised from parking, the regulations permit this
http://www.legislation.gov.uk/uksi/2007/34...ulation/26/made
Taking the surplus isnl' something that Councils give much publicity to for some reason and a 'five star' Council has the
ability to get their hands on the surplus very easily. Westminster is such a five star council and is very keen on CPE.
And ALL Councils put their revenue from Off-Street parking straight into the General Fund in their account.

Any Council that is using it to raise revenue this is in a quandry. Several in fact.
Firstly they must never admit publically in any way that they are doing so. That would be an admission of deliberate
unlawfulness. Another thing they must never do is to give the appearance of bias. Note it is the appearance of bias that
matters. In other words if they are biased they just must not show it.
Secondly it puts them into what could be considered a split personality mode.
They would be doing one (unlawful) thing but saying another, all the while being careful to give the appearance of acting lawfully
and of not being biased against the motorist (in favour or raising revene).
If a human being was such then their resultant behaviour would be viewed as manifesting traits of several possible
personality disorders. Possibly elements of psychopathy and schizophrenia but whatever the diagnosis these people would
not be ones that you could not have an open factual and properly reasoned conversation with.
Schizophrenia is characterised by:-
- hallucinations - hearing or seeing things that do not exist
- delusions - unusual beliefs that are not based on reality and often contradict the evidence
- muddled thoughts based on the hallucinations or delusions
- changes in behaviour
Psychopathy also has interesting traits which may apply.
(Psychopathy isn't just applicable to Norman Bates/Hannibal Lecter types)

I could give examples beyond measure of all these behaviours being exhibited by Councils from threads on the forum but I leave
it to the reader to spot them.

NOTE: I am describing organisational behaviour of such a revenue raising Council should one exist not that of the individuals employed by
any such Council should such a Council exist.

In such circumstance the individuals would on a day-to-day basis experience the tension created by the forces created by
having to say and behave one way when dealing with people when the actions and methods being used are to acieve opposite goals.
I have no idea what that would be called or what it would be like to experience, I do know that I could not in good conscience do
it myself.

Ask yourself what kind of dialogue you could have with such a person, could anything be taken at face value ?
Should anything be taken at face value ? I say it should not. Would you trust such a person to any degree at all ?
Their words or their actions ? Again I say not.

Patently we would entering deeply into the world of 'Double Speak'.

The question :-

"What is a Penalty Charge Notice (PCN), when does the 'charge' cystallise and thus when is it payable" ?.
(and what on earth do all those words on the PCN mean)
Do NOT confuse 'payable' in the sense that the council uses it, which is "we'll take your money for this"
with payable in the sense that it is debt (it isn't at this stage) or that to HAVE to pay it.
'Payable' for a PCN, or an NTO, just means "we will take money for this" - it does not confer on the Council
legal entitlement to your money. Though once one has been issued the whole tenor of the LAs is that
you 'did it' and you owe them money.

This has been discussed a fair amount and is the cause of this being written.
The council's view in invariably "We are right, you are wrong. The signs are 'clear', you should have looked at them. Pay up now !".
As we shall see this at the least extremely presumptive on their part.

They never tell you what it is that they have to do to 'make it stick' - and why should they tell you, after
all "ignorance of the law is no excuse". But that is a two way street and they are bound, and heavily so.
The success rate on Pepipoo makes it clear that most often they can't in fact 'make it stick' as they fail in all sorts of ways.

Before addressing the question some context is required.

Decriminalised Parking Enforcement is based on there being a breach of a lawful Traffic Regulation Order (TRO).
These are also called Traffic Management Orders (TMO) in London.
An Off-Street Parking Places Order (also called a PPO) is also such an Order.
From now on I will call them 'a Traffic Order' as the generic term that covers all flavours.

These Traffiic Orders are really council byelaws. They are made (sometimes quite badly smile.gif ) under permission
granted by the 1984 RTRA


Please Note:- The exercise of a power, as opposed to a duty, is always discretionary.

This will become important later. For now I point readers to the well known aspect of the Traffic
Management Act 2004 (TMA) that says that the council can exercise is discretion to cancel a PCN even
should they win at adjudication. And why the regs talk to the council having a duty not to fetter its discretion.
Now you know why these are embodied in the TMA.
The exercise of a power, as opposed to a duty, is always discretionary.
This is a legal principle which applies to them, But there are more !

The enforcement of these PCNs is firmly within the domain of Administrative Law which covers the actions
of the State against the individual.

"Administrative law" is the branch of law which governs public bodies in the exercise of their public
functions. Public bodies range from Government Departments and their agencies, to "nondepartmental
public bodies" (NDPBs), such as the Committee on Standards in Public Life and the
Independent Police Complaints Commission. The term includes the very large number of tribunals
and commissions exercising public (usually statutory) functions. "Administrative law" is part of
"Public Law": the two terms are more or less synonymous. "Public Law" is contrasted with
"Private Law" which governs the relationships between private individuals or private bodies (such
as companies) acting in their private capacity. The law of contract and of tort (civil wrong), for
example, is private law.

Administrative law (and the Court procedure called Judicial Review) is said to govern the making
of "decisions" by public authorities, and the application of decision-making procedures. "Decisions"
typically relate to a particular matter actually affecting an individual person or group.

Threads on the Parking Forum show that dealing with a council's "decisions" is part and parcel of
fighting a PCN.

Readers should note that besides the voluminous regulations, which get expertly filleted on the forums, the
law also operates on firm rules and principles. A philosophy if you will.
The regulations are subordinate to the overarching philosophy. They have to be, every game has its rules
and 'the rule of law' is a phrase we have all often heard.

Administrative law has developed a series of tests for measuring the lawfulness of an exercise of
public law powers:
Legality – acting within the scope of any powers and for a proper purpose;
Procedural fairness – so as for example to give the individual an opportunity to be heard;
Reasonableness or Rationality – following a proper reasoning process and so coming to a
reasonable conclusion;
Compatibility with the Convention rights and EC law.

Although there is not much scope in the last of these in CPE the first three are very applicable to the extant question.

As has been said many times on the forums and has been held by binding authority that "it is well known that local authorities
are statutory creatures and can do nothing except that which is expressly or impliedly authorised by statute". Hopefully
the reader can now see why that is true.

These principles run throughout the regulations. Once you are aware of these principles they jump off
every page ! For example see the Appeals Regulations.
Take notice of how they talk about 'duty' and how they impose these duties on the councils.
Duties are not discretionary - I told you that sentence would come again.

Note also how the regulations embody the legal tests listed above.
The council (and the adjudicator I might add) has to act according to that series of tests.
There is an even higher overarching principle involved and that is the 'Legal Control of Government',
see the book of that name by Swartz and Wade (Things have changed a tad since it was published but it is well worth the read IMO).

To quote Lord Diplock in his introduction to that book:-

'No man, wrote John Donne, 'is an island entire of itself'. To-day, three and a half centuries later, there are few corners of the citizen's
island into which the strong arm of executive government does not reach, to restrain him from doing what his duty to his neighbour at
common law does not forbid, to compel him to do what it does not demand.
In our modern highly organized societies on each side of the Atlantic, where administrative acts and decisions intimately affect
the well-being and happiness of so many citizens, particularly those who are poor, life would be intolerable if there were no
means of ensuring that interference by administrative action with the liberty or property of the individual did not exceed that which
had been authorised by a representative legislature and, in the case of the United States, also by the Constitution, and that
administrative decisions so authorized were fairly made."


Do not forget that we dispensed with unfettered government in the thirteenth century, this is not a new concept at all.

So councils can't just create and hand out fully formed 'penalties' and force you to pay up. There are 'rules', lots of them.

Note also that of the pages and pages of CPE rules and regulations almost every paragraph is framing what the councils have to
do so as to stay with those tests of Administrative Law. Such rules and contraints are fundamental
to the rule of Administrative Law. If the council acts outside these rules then they are acting outside their
powers - 'ultra vires' - and as a matter of law you have the right to determine if they are (I would go further and say
you have a duty to do so !) and whether or not their allegation has merit by testing it according to the laid down procedure.

There is very little indeed in the regulations which binds 'the person appearing to be the owner' and what there
is is related to deadlines and appeals. Basically, just the Procedure to follow to fight the PCN without falling into default.
This aspect will become important when I discuss the extant question.

And that time is now (thank heavens you cry !).


"What is a Penalty Charge Notice (PCN), when does the 'charge' cystalise and thus when is it payable".

A three part question.
Part the first:-
"What is a Penalty Charge Notice (PCN)"

It is exactly what it says it is. It is just a Notice. All you have to do is read it. If you ignore it things will get nasty later as
the process unfolds, nevertheless it is just a Notice.

The Notice of a thing and the thing itself are different entities completely.
Ask a mother who has recently given birth if there is much difference between that 4 line Notice in
the newspaper and the act of giving birth. See what she says - but stand back when you ask !

One thing for sure is, that happy yellow envelope is not a Penalty Charge.
This is re-enforced by those rare cases where the informal appeal to the PCN is accepted and the council writes back to say that
the PCN has been cancelled and there is no penalty payable.

And the General Regulations define the charge in reg 4.
"4. Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there
has been committed
in relation to that vehicle—"

And the PCN has established nothing as fact - its just a Notice of a CEO's 'reason to believe'.
The facts have not yet been determined, the allegation has not been tested.
The Courts have stated that the issuance of the notice was not a form
of determination of any facts (see below).

Regulation 8 in the General Regulations defines the PCN - as a Notice that has a format that adheres to some rules.
And thats it.
The two are clearly not synonymous but of course the council treats them as if they were.

The State can't just dish out actual penalties when it feels like. Re-read what Lord Diplock said.

If you do no more than read the PCN then the 'rules of the game' mean that other things may happen but
that is in the future. And of course they may not happen at all, the PCN could be stuck on the wrong car or
have the incorrect VRN on it.
But before we come to those let us see what these Notices actually say.
The pro forma regulation 9 PCN looks like this:-

NAME OF ENFORCEMENT AUTHORITY
PENALTY CHARGE NOTICE (PCN)
The Traffic Management Act 2004, s.78; Civil Enforcement of Parking Contraventions (England) General Regulations 2007;
Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
PCN Number: 1234567
Served on 1st April 2008 by Civil Enforcement Officer (CEO) X987 who had reason to believe that the following contravention had occurred and that a penalty charge is now payable

Parked in a restricted street during prescribed hours (Code 01)
Date of contravention: 1st April 2008 Time 14:55
Location: Acacia Road
Vehicle Registration No. X123ABC Make: Chrysler Colour: Pink
Tax disc: 0987654 Expiry: 02/08
Observed from: to: Pay & Display Ticket No: xxxx Expiry time: nn:nn:nn
A penalty charge of £60 is now payable and must be paid not later than the last day of the period of 28 days beginning
with the date on which this PCN was served

etc
etc
more 'rules of the game'

Now let us translate that.

THIS IS US, SUCH AND SUCH COUNCIL
THIS IS ONLY A NOTICE (A PCN)
These are the rules of this game and the presumptions that we are operating on.
AIUI the law operates on presumptions, and its your task to rebut any presumptions you do not agree with.

This PCN Number identifies this belief/allegation (or 'case') we are making which is merely that -
On this date, our agent X987 had reason to believe that the following contravention had occured...

Everything after that is predicated on both the reason and the belief of the CEO being correct !
If he is wrong in either of these then their allegation is false.
Every single communication you get from the council after these words on the PCN "had reason to believe" assumes that the CEO
is correct. As we know that often isn't so.

So what is this PCN ? It is a Notice averring the belief of a CEO.

And what does 'payable' mean ? It does NOT mean its a debt - which is the way many will read it - it just
means they will accept payment against that PCN number. Its just an entry on their 'books' that they will happily
take payment for. It does not mean that it has been established that you owe them any money.

A PCN is a Notice of a rebuttable presumption of fact. And as the forum testifies they get rebutted all the time.

It claims the CEO has 'reason' for this belief but the CEO's reasoning is of course not even part of the Notice. Nor can it be.
How many CEOs read and understand all the Traffic Orders for their beat ? How many know the TSRGD by heart ? And any specially
authorised signs ? And whether or not the council is acting lawfully ? Or that they can see into the future and see that during
the progress of the 'case' that the council will not 'break the rules' and render their 'case' unsupportable.
None of them, thats how many, as it impossible.

So you have a PCN. Does the 'charge' exist at this stage ? Not at all. Just a belief.

The next formal stage is the 'Notice to Owner' (NTO).
What is this and what does it mean. The clue is in the name. Its just another Notice. But what of ?
Just two things:-
1) that you appear to the owner (by virtue of being the Registered Keeper - the RK)
and it merely re-iterates that
2) A CEO had reason to believe that a following contravention had occurred

and then goes on to expound on more procedural 'rules of the game' that apply at this stage.
(there are plenty of NTOs to look at on the forum or you could look at the
samples provided to the councils


You should, after the Administrative Law comments, be able to see why they have to expound the procedural rules
at every stage of the game due to the constraints placed upon them by their duty.

So all the NTO does is to hang the allegation upon the owner. It is still just an allegation.
The facts have still not been determined under proper Administrative process.
A process that the council has a duty (and remember duties are not discretionary) to tell you about and
which you have the absolute right to use should you so choose.


As a general point I would suggest that anytime that the council fails in one it's many duties - one example is the 56 day response
to the formal appeal to the NTO but there are many more - that a phrase such as this is included:-
"It is matter of Public and Administrative Law that the performance of a duty is not discretionary, it is mandatory.
The council has failed in it's duty imposed by
(quote the exact regulation by name such as for example the 56 day response it would be)
Regulation 5 (2) (b) of The Civil Enforcement of Parking Contraventions (England) Representations and
Appeals Regulations 2007 S.I. 3482/2007) and so has acted unlawfully."


Adjudicators seem to shy away from making any comment at all when a clear failure of duty on the council's part is
demonstrated even beyond doubt. For example an appalling unenforceable Traffic Order is a failure of their constant statutory duty imposed by S.122 of the 1984 RTRA. Adjudicators for some reason have bypassed this in appeals. Why I don't know as they are after all independent. But the consequences on finding on it are two fold, a double whammy for the council. And the second whammy is much bigger than the first.
The first impact is they lose the case.
The second impact is far larger I believe.
It is my understanding that breach of a legal duty constitutes an injury. Following an injury the question of damages arises. Such a finding by an adjudicator would thus open the door to tort action against the council. Bearing in mind the purpose of the Administrative Law and that adjudications are in fact Administrative Tribunals I find it very difficult to comprehend why independent adjudications have never found on breach of duty even when the case has been clearly made. Results as "The Redbridge scandal" take on an even worse aspect when this is considered.

Back to the NTO..
So it is a Notice of a Notice ! Even further removed from creating an actual 'Charge'.
It is just the next step in the procedure that they must follow.

The language in the regulations when you get to the NTO parts does talk more and more about the charge being 'payable'. But remember the definition of the 'penalty charge' - where there has been committed.
Has it been established at the time of the NTO that there has been committed anything at all ?
No, it has not.
The language changes and the costs escalate, some may say so as to discourage people from fighting, but
the determination that a contravention has occured (and that the council has acted properly) has still not been made.

Everything you have received from the council and the wording of the regulations is based on the assumption that the
'reason to believe' allegation holds up. Do not be misled by this. The councils want you to be in ignorance as that means more people will just pay 'the penalty'. Which does not yet exist ! Only an untested belief exists.

Part the second:
"when does the 'charge' cystalise"

Well it hasn't yet!

We have an NTO which is:-
a Notice of a Notice that someone had a reason to believe that a contravention occured and that he believes a charge
is payable as a consequence.

Thats what it is but it reads as pretty thin when expressed like that doesn't it.
Which may be why the costs go up and the language gets more assertive...

Belief is a matter of faith not of fact nor law.
Does a belief in fairies at the bottom of the garden create them as a reality ? No.
Does a belief that Tony Blair/ Gordon Brown/Any Politician/ is an honest and honourable person make them
honest and honourable ? No.

Can the charge have been created as a matter of faith. No, not at all.

So when is the charge crystallised into existence ?

In my opinion if first appears at the Charge Certificate (CC) stage as described in the
Enforcement Regulations
But that is arguable as it has not yet been determined if there has been committed a contravention
has it ? Nor has it been found that a Charge is payable. You find lots of adjudications where the contravention did occur but no charge is payable. Both have to be 'found'.

Part the third:-
"when is it payable"

Many would say now that the CC is issued the charge has crystallised as a payable item.
I will disagree. Let me explain by way of example.

The parking forum has many examples where for one reason or another the first someone hears of the 'case'
is the arrival of an Order for Recovery (OfR) or even when the bailiffs turn up out of the blue.

BUT in many of these cases the statutory procedure is followed to reset the case to an earlier stage.
Again it is hoped that readers can see why this reset ability HAS to be in the regulations due to constraints placed on the exercise by the rules of Administrative and Public Law.
Procedural fairness – so as for example to give the individual an opportunity to be heard;

The end result in these resets is often that the appellant wins and it is found that after a determination has been made according to the prescribed Administrative procedure no charge is payable as the alleged liability is dismissed !

In such a case when was the penalty charge 'payable' - the answer is never. Despite the multiple iterations of the
CEOs 'reason to believe'. And despite the existence if the Charge Certificate and the Order for Recovery (OfR).

There is a possible dual path in dealing with a PCN, pay what is asked or fight it.
'Fight or fold' in Pepipoo speak.

You can fight a PCN all the way to adjudication, appeal that adjudication within the adjudication service and you can take it
to Judicial Review (JR) should you want to (and can afford to !).
You lose at JR then you pay (I am ignoring any potential higher court issues here).
It hoped that by now the reader can see why the JR stage is included as an option in the regulations.
It HAS to be. It is part of the overarching rules of Administrative Law. They didn't throw JR into the regs out of kindness, they had no choice.

But this is just the view of someone who fights parking tickets some may say.
Is there any corroboration ? Yes there is. And it comes from the adjudication service !

See The NPAS ANNUAL REPORT 2003
This talks to the 1991 Act which predates the TMA but that is of no consequence as it is still Civil Enforcement and those pesky rules of Administrative Law still apply:-

"There is a further matter of concern to the Adjudicators with some councils’ computer screen prints. At least
one of the PCN processing systems that the industry supplies to councils presents the vehicle
owner details under the heading "debtor". This is an extremely regrettable word to describe the owner of a vehicle.
Not only will it be extremely offensive to a motorist to see himself or herself described as such in the council records
but also it must reflect to a certain degree the councils’ approach to the vehicle owner within the office.
If council staff when a vehicle owner rings up with a query, brings up the case file on the screen and sees
that the person to whom they are speaking is described as a debtor it has derogatory implications.
Debtor is a word used in credit control and even then usually when a case is being considered
for enforcement by the courts. Adjudicators would emphasise that under the Road Traffic Act 1991
scheme the penalty charge cannot be regarded as a debt owing to the council at the stage when
there remains the potential for representations or an appeal. Until all the opportunities for representation
of appeal have been exhausted liability for payment of the penalty charge has not been fully established.

The first stage at which a possible debt to the council arises is on the issue of the Charge Certificate and even
then it is providing a further opportunity for a vehicle owner simply to settle the matter."


So this isn't just my opinion at all. Without establishing liability there is no charge (debt) to be paid.

The debt first exists as a 'debt' when the Charge Certificate comes into being - and not before.
There is no enforceable debt until the determination has been made - unless you ignore the statutory process and miss your deadlines, never ever do that.
Note they say
Until all the opportunities for representation of appeal have been exhausted, that includes up to JR if you choose to go that far but you may wish to settle for an earler determination within the appeals service or course. That is your right.

That quote is so apt as it leads us to the final point (cheers all round from any readers who have got this far).
Notice the words "a further opportunity for a vehicle owner simply to settle the matter."

As the final point is:-
"What of I pay before the determination has been made - at the PCN or NTO stage let us say.
As there is no 'debt' or 'Charge' existing what exactly have I paid and what are the consequences ?"


So what did you do ?
NPAS tells us, and they are right - you 'settled the matter'.
But they don't tell us much, so lets explore what they did say.

No debt - you didn't settle a debt.
No Charge - you didn't pay (settle) a Charge.
There is no pending litigation so you didn't end litigation.

But what exactly is 'the matter' and thus what is 'settling' ?
Unless we know what the object - the 'matter' - is we cannot (yet) decide what action(s) we can take upon
that object and what those action(s) mean.

In the land we live in Penalty Notices of all kinds get issued every day. FPNs are popular. Just like PCNs they are
an allegation and can be fought (the facts determined by due process) or paid.
What does paying a FPN Notice do ?
The Court of Appeal tells us.

Let us look at what Thomas LJ said:-
THOMAS LJ, delivering the judgment of the court, said that the fixed penalty notice scheme was a method of dealing with low level crime without the need to prove the offence and commission of it by the person to whom it was issued.
It involved no admission of guilt, nor did it create a criminal record. These are important limitations.
The scheme went no further than that.
If the notice was accepted, payment of the penalty provided that no further action could be taken. The notice was
distinct from a caution, where commission of a crime was acknowledged. Its issue was not a form of justice, as
justice normally included guilt. It was not a conviction, admission of guilt, any proof that a crime had
been committed, or a stain on the persons character. It therefore followed that it was not admissible
as an admission of an offence or of bad character in the sense of impugning the defendant’s character."


Now, and I ask the forbearance of Thomas LJ should he ever read this, let us translate that in the world of CPE and PCNs.

"the CPE/PCN notice scheme is a method of dealing with low level parking contraventions without the need
to prove the contravention and commission of it by the person held responsible. It involves no admission of culpability or liability.
The scheme goes no further than that. If the notice was accepted, payment of the penalty provided that
no further action could be taken
. The issuance of the notice was not a form
of determination of any facts, as determination of the facts involves a prescribed judicial proceeding - in the first instance a tribunal.
It was not a conviction, admission of guilt, or any proof that a contravention had been committed,..."

Also see the referenced case which clearly tells us
that:-
Thus the notice provides the opportunity to a potential defendant to discharge any possible liability to conviction on
payment of the penalty. The liability is discharged on payment of the penalty.


So payment of the penalty does not admit liability it discharges it. i.e. it annuls liability, this 'settles the matter'
in the words of NPAS.
That is very very different from an admission. A world apart in fact - except in the minds of councils who want to
keep your money.
Payment annuls any liability to the motorists but it does not remove any liability of the council

Note this If the notice was accepted, payment of the penalty provided that no further action could be taken.
Think back to what the PCN actually says.
CPE XYZ has reason to believe that ABC happened.
and then lists all the actions that will take place.

When you get an Notice all you have to do is read it.
After reading it you can then either ignore it or accept it. What do you have to do to accept the Notice ?
Send the council some money - that is 'settling the matter'.

Just as with paying an FPN paying a PCN merely discharges the liability for the follow on statutory process.
It discharges liability of the Owner.
That is all. And it is perfectly in line with the opinion of Thomas LJ in my view.

But what does the council say the consequence of paying a PCN is?

The will say 'the case is closed'. Err, what 'case' is that then ?
Its not a legal case as there is none and they have no power to close legal cases anyway !
What they refer to is an entry on their computer system for that PCN, thats all.
Big whoop, we knew that already as the liability to the Owner for follow on statutory proceedings has been discharged.
That does NOT mean there is no remaining justiciable controversy.
Councils can be liable for tort and mal/misfeasance. They may have 'unjustly enriched' themselves through unlawful actions.

The council will also say (and you will see this in various council documents posted in the Parking Forum)
that they will 'deem payment to be an acceptance of liability'.
So now the council has reversed reality - anullment is not acceptance.


'Deem' ? Hmm. Whats that ?

'Deemed' just means 'concluded upon consideration' or 'determined'.

I think deemed means 'a legal opinion or view' or possibly 'considered to be something which it imay not be when put to
proof or tested' and nothing more. As such it is a matter of law and not fact and which can be tested by due process.

So why do they take this stance of 'acceptance of liability' . And frankly who gives two hoots, or even
one very small hoot, for anything they 'deem' ? What statutory provision gives them this abliity to 'deem' on this issue ? What
standing does this 'deeming' have ? None that I can see.

The reason that the councils take the view that it is the 'acceptance of liability', in stark contrast to Thomas LJ who
sits in the Criminal Court of Appeal, is if course refunds.
A well known maxim of law says
"No man may be a judge in his own cause".
The council is doing just that when it deems "Payment of the PCN is deemed an admission".
I think of it as a child in the playground stamping its foot and saying 'because I say so".

But many would say that its really it's them trying to paint over the fact that payment annuls your liability but not theirs.

If you pay the PCN you discharge your (the Owner's) liability for follow on statutory process.
But you have not discharged any liability the council may have. What if you find post facto that the council did
not act lawfully because of those pesky tests of Administrative Law.
Legality – acting within the scope of any powers and for a proper purpose;
Procedural fairness – so as for example to give the individual an opportunity to be heard;
Reasonableness or Rationality

Where is your remedy ? Aye, there's the rub.
If you go the small claims route the council will scream 'wrong venue'.
I don't have the final answer to that... but it looks like a Private Law tort action to me.
But that needs work
.

But hopefully this tract goes some way to explaining not only the broader aspects of a PCN and what it is, it also goes some way
to explaining the 'up is down. black is white, we are right and you are wrong. PAY US !' world of the councils. And that
there is much more involved than Traffic Orders, the TSRGD and the wording of PCNs, NTOs and NoRs.
"The game's afoot Watson !"

The nearest we ever see to a council coughing to the truth - and its not that near ! - is when they issue a
cancellation due to a 'technical processing error'. What ever the heck that is ! Its not in the regs thats for sure, which is probably why they use that phrase - it is free of admission of guilt or wrongdoing.

Couldn't be because of them falling foul of the overarching principles and rules of the game of Administrative Law could it ?
Or that the council has done something that is not expressly or implied by allowed by statute ?
Or they have failed in one or more of their mandatory duties ?
That they have acted unlawfully or ultra vires ?
Or that the CEO was wrong in his beliefs in the first place ?

All of the wins we get on Pepipoo falls into one or more of those questions. Don't they ?


Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.

Last update: Fri, 6 Apr 2012 - 18:57 by bama    Created: Fri, 26 Aug 2011 - 00:23 by bama    Edits: 15    Views: 10,849
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