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BaNES PCN - Double yellow lines - collection of takeaway "goods"
zwekk
post Sat, 10 Nov 2018 - 17:21
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PCN
PCN here

Informal challenge
1. At the time of the alleged contravention, the driver of the vehicle with registration [...], was [...] who is also the registered keeper.
2. On 28/10/28 at 12:52, the driver telephoned [...] to place an order for goods, which consisted of cooked food to be consumed by a group of eight people at a property around 2 miles away, and up hill, from [...].
3. Being perishable, it was not practical for the goods to be collected except for by vehicle. In particular, the goods contained rice for which the advice from the NHS is to serve "as soon as it has been cooked". The premises of [...] does not have an off-street loading area or any land otherwise suitable for this purpose. Therefore, the driver drove to Somerset Street and stopped the vehicle in a place which was adjacent to [...] but not causing an obstruction, at or around 13:05.
4. The driver arrived at [...] and paid for the pre-ordered goods at 13:07. He then received the goods at or around 13:11. Given that the premises is both a restaurant and takeaway service and it was the busy Sunday lunch period, it is neither surprising nor unreasonable, that there was a delay before all the goods could be packaged.
5. The driver returned to his vehicle at or around 13:13 and was handed the ticket by the Civil Enforcement Officer. He loaded the goods on the passenger seat of the vehicle and moved the vehicle as soon as the road was clear.
6. It is admitted the the vehicle was stationary for the period observed by the Officer. It is denied that the driver caused the vehicle to wait for any longer than was reasonably necessary to enable collection of the goods.
7. It is denied that there was any road nearby which was not restricted from which the goods could conveniently be collected.
8. As the driver stopped his vehicle on the road soley for the purposes of collecting pre-ordered goods and engaged in no other activities before moving the vehicle, it is denied that any contravention took place.

Response from council
Response from Council here

Many thanks for your help!

This post has been edited by zwekk: Sat, 10 Nov 2018 - 17:23
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peterguk
post Sat, 10 Nov 2018 - 17:26
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IMHO bang to rights on the contravention. Picking up fast food is AFAIK not an exemption.


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stamfordman
post Sat, 10 Nov 2018 - 17:40
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QUOTE (peterguk @ Sat, 10 Nov 2018 - 17:26) *
IMHO bang to rights on the contravention. Picking up fast food is AFAIK not an exemption.



Indeed, a case of fast food not being fast enough. Nice try on the advice from the NHS is to serve "as soon as it has been cooked".

but it's your right to take this further. But PCN seems correctly served and I can't see anything wrong with it. It has got an 0845 number - we have a member who is as hot as a wok fried rice on this.

This post has been edited by stamfordman: Sat, 10 Nov 2018 - 17:44
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PASTMYBEST
post Sat, 10 Nov 2018 - 17:49
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this is the test that is applied to loading

https://www.londontribunals.gov.uk/sites/de...r%20Hamlets.pdf

And as regards the 0845 number if it charges a service charge then this is illegal and has been found so in the high court

www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/295.html&query=(camden)+AND+(v)+AND+(the)+AND+(parking)

copy and paste the link into your browser see paragraphs 27,28 and 29


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zwekk
post Sat, 10 Nov 2018 - 18:01
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Firstly can I object to the goods being called "fast food". It is, in my opinion, the best restaurant of its cuisine for many miles. This was the motivation in choosing to takeaway from there and not somewhere more easily accessible.

QUOTE (PASTMYBEST @ Sat, 10 Nov 2018 - 17:49) *
this is the test that is applied to loading

https://www.londontribunals.gov.uk/sites/de...r%20Hamlets.pdf

And as regards the 0845 number if it charges a service charge then this is illegal and has been found so in the high court

www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/295.html&query=(camden)+AND+(v)+AND+(the)+AND+(parking)

copy and paste the link into your browser see paragraphs 27,28 and 29


Many thanks!

When I stopped the car, I had no idea of this kind of case law. I did however read this document after receiving the PCN. Now I'm aware of all the complexities in the law, I will just choose a different takeaway venue.

The relevant sentence of is course the following:
"The key test as to whether something is heavy or bulky enough to qualify is whether the use of a vehicle was reasonably necessary for its
transport."

Now while it does follow that a heavy or bulky good makes the vehicle "reasonably necessary for its transport", it does not say that something being neither heavy nor bulky does not make the vehicle "reasonably necessary for its transport". I therefore make the case that perishable goods can make it reasonably necessary to use a vehicle for transport. My question is whether it would require a judicial review (which could go either way), to make a decision as to whether a good being perishable is sufficient, as it is for a good to be heavy, bulky (or "commercial").

The 0845 point, which I saw from other threads only after receiving a PCN, will be my second or perhaps first ground. While it does seem a technical point, it is no more technical than the complicated and vague legal tests required in asserting whether a "thing" is a "good" and whether it is being loaded, unloaded, collected or delivered. After all, in the common sense interpretation, these are goods (which attract VAT) being collected having been pre-ordered.
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cp8759
post Sat, 10 Nov 2018 - 18:08
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The tribunal is unlikely to accept that loading was necessary. The key test is this: Would it have been impracticable for you to take the goods being loaded to the nearby pay & display parking bays? If not, the necessity test fails, so I wouldn't bother with the loading exemption as it's hopeless and will not win.

As has been mentioned BANES have an 0845 number on the back of the PCN, and they kindly advise on their website at http://www.bathnes.gov.uk/pay that the service charge for this number is 3p per minute. Here's what you can submit to the tribunal, include PDFs of all the web pages referenced below and keep all bold and italics exactly as per the below (you might want to just make a PDF document called Grounds of Appeal and add it to your case as an attachment):

-------------------

On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0845 372 3501. The Office of Communications confirms on its website at www.ofcom.org.uk/phones-telecoms-and-internet/advice-for-consumers/costs-and-billing/how-much-does-a-phone-call-really-cost that:

"The cost of calling 0843, 0844 and 0845 numbers is made up of two parts: an access charge going to your phone company, and a service charge set by the organisation you are calling.

The service charge for calls to 084 numbers is between 0p and 7p per minute
"

A quick internet search confirms numerous telecoms providers offer 0844 and 0845 numbers to businesses and the public sector alike, as a means of generating additional revenue, for example the website www.08direct.co.uk/numbers/earn-rebate/ proudly claims that "Creating a new revenue stream for your business through your inbound calls could not be easier. You can make money every time somebody picks up the phone and contacts your business.", just above a pricing table confirming an 0845 number obtained through this particular company can generate an income of between 1.5 and 4p per minute, depending on the volume of calls.

My research on the topic has even revealed an entertaining story from BBC News published at www.bbc.co.uk/news/technology-23869462 where one individual, annoyed by a high number of marketing calls, set up his own number and netted £300 in profit simply by keeping cold callers on the phone for as long as possible.

In this instance the authority confirms on its website at http://www.bathnes.gov.uk/pay that "This call will cost you 3p per minute plus your phone company’s access charge"

Therefore when calling the council's 0845 number, the caller is charged a 3p per minute service charge, which is set by the organisation being called, in this case the enforcement authority. In London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) at paragraphs 28 and 29 the High Court ruled as follows:

"28. Mr Coppel submits that the only form of payment that the Council are obliged to accept as a matter of law is cash in legal tender, unless they agree otherwise. As a matter of strict theory that may be right, although I venture to suggest that a Council which required parking contraveners to pay cash in notes, or coins of £1 or higher value (current legal tender) would be vulnerable to a challenge on grounds of rationality. Nobody is forced to pay by credit card. The Council suggest that it is not increasing the penalty charge but rather recovering an external cost associated with making a convenient method of payment available to those guilty of parking contraventions. Mr Coppel accepts that if this argument were right (and subject always to the vires to make any charge), then so far as the parking enforcement regime was concerned, the Council could recover by way of administrative fee the cost of dealing with any mechanism of payment except cash presented in denominations which were legal tender. There was no evidence before me of any external costs to a merchant associated with payment by debit card or cheque but such facilities are rarely free. There is clearly a significant cost in staff time and systems administration involved in accepting any form of payment. Cheques are especially labour intensive and costly. No doubt any enforcing authority could easily identify the global costs of collecting penalty charges by category and then attempt to divide those costs by the number of penalty charges they expect to recover to determine an administration fee appropriate to each. Yet that is far from the limit of the administrative charges that an inventive enforcing authority might seek to add to the penalty charge authorised by law. Civil enforcement officers must be employed, paid and equipped. There will, in addition, be an administrative superstructure which costs money. It is, submits Mr Coppel, only because the Parking Adjudicators failed to understand that there is a critical difference between the penalty charge and the costs of recovering that charge that they fell into the error of concluding that the penalty charge exceeded the amount prescribed by the statutory scheme. Mr Rogers, who appears for the Parking Adjudicators, submits that whatever label the Council attempt to attach to the 1.3% fee, it is in substance a surcharge that results in a demand for payment of a sum which exceeds that authorised under the statutory scheme.

29. I am unable to accept Mr Coppel's argument that for the purposes of regulation 4(4)(e) the 1.3% fee can be separated from the penalty charge. As is common ground, an enforcing authority is not at liberty to set its own penalty charges but is limited to the sums set under the statutory scheme. The substance of what the Council did was to increase their penalty charge if payment were to be made by credit card to 101.3% of the sum authorised under that scheme. On Mr Coppel's argument the Council might just as well have introduced other administrative charges and added those too. It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge. It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law.
"

In this instance, by imposing a 3p per minute service charge for telephone payments, the council is offering a payment method which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant.

The council has to be admired for its inventiveness in using an 0845 number, no doubt to help offset the cost of processing payments, but nonetheless I submit this means the amount being demanded exceeds the amount due in the circumstances of the case. It follows that the appeal must be allowed.

This post has been edited by cp8759: Sat, 10 Nov 2018 - 18:12


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PASTMYBEST
post Sat, 10 Nov 2018 - 18:08
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QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:01) *
Firstly can I object to the goods being called "fast food". It is, in my opinion, the best restaurant of its cuisine for many miles. This was the motivation in choosing to takeaway from there and not somewhere more easily accessible.

QUOTE (PASTMYBEST @ Sat, 10 Nov 2018 - 17:49) *
this is the test that is applied to loading

https://www.londontribunals.gov.uk/sites/de...r%20Hamlets.pdf

And as regards the 0845 number if it charges a service charge then this is illegal and has been found so in the high court

www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/295.html&query=(camden)+AND+(v)+AND+(the)+AND+(parking)

copy and paste the link into your browser see paragraphs 27,28 and 29


Many thanks!

When I stopped the car, I had no idea of this kind of case law. I did however read this document after receiving the PCN. Now I'm aware of all the complexities in the law, I will just choose a different takeaway venue.

The relevant sentence of is course the following:
"The key test as to whether something is heavy or bulky enough to qualify is whether the use of a vehicle was reasonably necessary for its
transport."

Now while it does follow that a heavy or bulky good makes the vehicle "reasonably necessary for its transport", it does not say that something being neither heavy nor bulky does not make the vehicle "reasonably necessary for its transport". I therefore make the case that perishable goods can make it reasonably necessary to use a vehicle for transport. My question is whether it would require a judicial review (which could go either way), to make a decision as to whether a good being perishable is sufficient, as it is for a good to be heavy, bulky (or "commercial").

The 0845 point, which I saw from other threads only after receiving a PCN, will be my second or perhaps first ground. While it does seem a technical point, it is no more technical than the complicated and vague legal tests required in asserting whether a "thing" is a "good" and whether it is being loaded, unloaded, collected or delivered. After all, in the common sense interpretation, these are goods (which attract VAT) being collected having been pre-ordered.


Heavy is subjective, I'm 60 with a heart condition what is heavy to me might not be to a 20 year old


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cp8759
post Sat, 10 Nov 2018 - 18:12
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I should add also send a copy of https://www.bailii.org/ew/cases/EWHC/Admin/2011/295.html with your appeal, you can grab the PDF version of it from https://www.scribd.com/document/390825757/L...-EWHC-295-Admin


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peterguk
post Sat, 10 Nov 2018 - 18:14
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Am i understanding the experts correctly - it's a DYL exemption to collect my KFC in future???

This post has been edited by peterguk: Sat, 10 Nov 2018 - 18:15


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cp8759
post Sat, 10 Nov 2018 - 18:15
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QUOTE (peterguk @ Sat, 10 Nov 2018 - 18:14) *
Am i understanding the experts correctly - it's a DYL exemption to collect my KFC in future???

No, the penalty for that is death by heart attack biggrin.gif


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zwekk
post Sat, 10 Nov 2018 - 18:29
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Many thanks for the 0845 number stuff.

QUOTE
The tribunal is unlikely to accept that loading was necessary. The key test is this: Would it have been impracticable for you to take the goods being loaded to the nearby pay & display parking bays? If not, the necessity test fails, so I wouldn't bother with the loading exemption as it's hopeless and will not win.


It is impractical in so far as, if I knew at the time that I had to do so, I would have ordered from elsewhere. I believe that, when it comes to talking about collection of a pre-ordered perishable hot meal, the reasonable person would not expect to have to pay for 2 hours of parking (the minimum tariff near by) and/or enter a multi-story car park to do so.

But at the same time, if one really really wanted to collect from this and no other restaurant, perhaps they might just be willing to enter a multistory car park, pay the 2 hour charge and be gone within 10 minutes.

I believe the question is what the original exemption was meant to cover. Perhaps it was meant to allow a commercial takeaway delivery driver to park on double yellows, so as not to make a commercial driver have to use a multi-story car park, but not to allow the same privilege to an ordinary member of the public.
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cp8759
post Sat, 10 Nov 2018 - 18:30
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QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:29) *
I believe the question is what the original exemption was meant to cover. Perhaps it was meant to allow a commercial takeaway delivery driver to park on double yellows, so as not to make a commercial driver have to use a multi-story car park, but not to allow the same privilege to an ordinary member of the public.

Ultimately unless you want to spend a few grand on a judicial review, the exemption as currently understood is what it is.


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zwekk
post Sat, 10 Nov 2018 - 18:36
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QUOTE (cp8759 @ Sat, 10 Nov 2018 - 18:30) *
QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:29) *
I believe the question is what the original exemption was meant to cover. Perhaps it was meant to allow a commercial takeaway delivery driver to park on double yellows, so as not to make a commercial driver have to use a multi-story car park, but not to allow the same privilege to an ordinary member of the public.

Ultimately unless you want to spend a few grand on a judicial review, the exemption as currently understood is what it is.


What's the breakdown of costs? The 0845 issue, if it failed, could be covered at the same time I guess?

This post has been edited by zwekk: Sat, 10 Nov 2018 - 18:39
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cp8759
post Sat, 10 Nov 2018 - 18:41
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QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:36) *
QUOTE (cp8759 @ Sat, 10 Nov 2018 - 18:30) *
QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:29) *
I believe the question is what the original exemption was meant to cover. Perhaps it was meant to allow a commercial takeaway delivery driver to park on double yellows, so as not to make a commercial driver have to use a multi-story car park, but not to allow the same privilege to an ordinary member of the public.

Ultimately unless you want to spend a few grand on a judicial review, the exemption as currently understood is what it is.


What's the breakdown? The 0845 issue, if it failed, could be covered at the same time I guess?

Courts fees are around £1k. If you want a slicitor you're looking at something between £10k-£20k but you don't have to use a solicitor (in which case you should familiarise yourself with this https://www.gov.uk/government/publications/...l-review-guide).

If you want a barrister for the hearing, this will normally be at lest another £1k if not more.

If the council contest and you lose, you will have to pay their legal costs as well, so the total bill could be as high as £50k.

But to be honest I wouldn't invest any time or energy looking into that right now, the 0845 stuff should win at the tribunal. If it doesn't, and you want to take it to the High Court, we'll do what we can to help you.


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stamfordman
post Sat, 10 Nov 2018 - 18:43
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QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:29) *
the reasonable person would not expect to have to pay for 2 hours of parking (the minimum tariff near by) and/or enter a multi-story car park to do so.


is that correct - a P&D ticket is a minimum 2 hours? How much does it cost?

There is a simple solution to this - next time take one of your fellow diners with you.

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DancingDad
post Sat, 10 Nov 2018 - 18:44
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QUOTE (peterguk @ Sat, 10 Nov 2018 - 18:14) *
Am i understanding the experts correctly - it's a DYL exemption to collect my KFC in future???


Depends how big the order is. smile.gif


For OP, you seem to have grasped the essential that the goods need to be heavy or bulky enough to warrant the need to park close by.
In parking terms, size matters.
What surprises me, is that you speak of meal for 8. Which I may be envisaging incorrectly but that is the sort of order I get when I go to my local Chinese. Basically 8 dishes, 8 packs of rice plus a few odds and sods like prawn crackers.
By the time that lot is packed, it fills a quite sizeable box and is reasonably heavy. Not impossibly so and would not bother a fit 20-30 year old to carry it 50 yards.
But I cannot walk 50 yards without a stick these days and often, the takeaway staff carry the box to the car for me (don't get old, it's a PITA)
Point I am making is that if you can convince an adjudicator that the takeaway was large enough, heavy enough or that your particular circumstances warranted the exception being granted, you can win.

We can't guess and don't expect a council or adjudicator to, you need to explain in any further challenge or appeal.

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zwekk
post Sat, 10 Nov 2018 - 18:59
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QUOTE (stamfordman @ Sat, 10 Nov 2018 - 18:43) *
QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:29) *
the reasonable person would not expect to have to pay for 2 hours of parking (the minimum tariff near by) and/or enter a multi-story car park to do so.


is that correct - a P&D ticket is a minimum 2 hours? How much does it cost?

£3.20 for 2 hours for the nearest council car park. Half of it is flat and the other half multistory. £3.50 for 2 hours for the nearest private one.

QUOTE
Point I am making is that if you can convince an adjudicator that the takeaway was large enough, heavy enough or that your particular circumstances warranted the exception being granted, you can win.

I'm afraid not. Now I know the plethora of case law surrounding the loading exemption, I'd probably just choose an easier place to collect food. I think my only claim is that the food is perishable, are health grounds, that the vehicle was necessary (I could jog the 2 miles the food would be cold and it's unsafe to reheat rice) and that the law was about making the streets clearer however driving around the block (it would have been) to find a multistory would lead to more traffic and more pollution.

If the perishable good argument fails, I think it's just the 0845 argument.


QUOTE
But to be honest I wouldn't invest any time or energy looking into that right now, the 0845 stuff should win at the tribunal. If it doesn't, and you want to take it to the High Court, we'll do what we can to help you.

Agreed, and thanks. Do I argue both grounds (perishable goods and 0845) or just the 0845 ground in the representation and to the Tribunal?

This post has been edited by zwekk: Sat, 10 Nov 2018 - 19:03
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PASTMYBEST
post Sat, 10 Nov 2018 - 19:16
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QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:59) *
QUOTE (stamfordman @ Sat, 10 Nov 2018 - 18:43) *
QUOTE (zwekk @ Sat, 10 Nov 2018 - 18:29) *
the reasonable person would not expect to have to pay for 2 hours of parking (the minimum tariff near by) and/or enter a multi-story car park to do so.


is that correct - a P&D ticket is a minimum 2 hours? How much does it cost?

£3.20 for 2 hours for the nearest council car park. Half of it is flat and the other half multistory. £3.50 for 2 hours for the nearest private one.

QUOTE
Point I am making is that if you can convince an adjudicator that the takeaway was large enough, heavy enough or that your particular circumstances warranted the exception being granted, you can win.

I'm afraid not. Now I know the plethora of case law surrounding the loading exemption, I'd probably just choose an easier place to collect food. I think my only claim is that the food is perishable, are health grounds, that the vehicle was necessary (I could jog the 2 miles the food would be cold and it's unsafe to reheat rice) and that the law was about making the streets clearer however driving around the block (it would have been) to find a multistory would lead to more traffic and more pollution.

If the perishable good argument fails, I think it's just the 0845 argument.


QUOTE
But to be honest I wouldn't invest any time or energy looking into that right now, the 0845 stuff should win at the tribunal. If it doesn't, and you want to take it to the High Court, we'll do what we can to help you.

Agreed, and thanks. Do I argue both grounds (perishable goods and 0845) or just the 0845 ground in the representation and to the Tribunal?


I would argue both, I'm with DD a meal for 8 could easily fall within the heavy/bulky spectrum


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stamfordman
post Sat, 10 Nov 2018 - 19:17
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P&D bay surely allows a shorter time?
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zwekk
post Sat, 10 Nov 2018 - 19:23
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QUOTE (stamfordman @ Sat, 10 Nov 2018 - 19:17) *
P&D bay surely allows a shorter time?

1 hour is possible 7 minutes walk away.

(There is legal parking on the other side of the road, but it was full. At the point I reverse my car, it was probably 30 seconds walk to the P&D car park on foot, but driving around the block would probably have been 5-10 minutes. But then I understand that the law says a taxi who arrives early has to drive around the block, so it seems reducing emissions and traffic is not a valid legal point.)

QUOTE
I would argue both, I'm with DD a meal for 8 could easily fall within the heavy/bulky spectrum

Sadly the CEO may have noted he saw me run to the car with the bag when he saw me. It's why I've always gone for the "perishable" argument.

This post has been edited by zwekk: Sat, 10 Nov 2018 - 19:32
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