PePiPoo Helping the motorist get justice Support health workers

Welcome Guest ( Log In | Register )

Contravention 86 - areas of carpark cordoned off for demolition, Parked beyond the bay markings
rondepickering
post Fri, 14 Sep 2018 - 11:36
Post #1


Member


Group: Members
Posts: 25
Joined: 13 Sep 2018
Member No.: 99,858



Hello,

I've read the advice given to a similar topic here: forums.pepipoo.com/index.php?showtopic=122098

The details of this incident are:

1. I am the RK of the vehicle and not the driver - does this have any bearing on the Penalty Charge Notice?
2. The incident occurred at a council run leisure centre here: Watford Woodside Leisure Centre
3. The driver was attending an event run by a local school who had hired out the athletics track at the sports centre
4. No payment was required for parking
5.The driver arrived at the carpark where they have been on previous school events (without incident) to find at least 12 bays blocked off by containers (see the attached picture) for some building work at the sports centre
6. The car park was full and there are no obvious alternatives nearby, exacerbated by the bays blocked off
7. The driver parked on the edge of a row of parking bays and received a PCN
8. The PCN was issued 13/07/2018
9. As the RK I received the Notice to Owner 05/09/18 - is there a time limit for receiving the NtO?

I'm completely new to this. I think the PCN is unjust under the circumstances and want to appeal. The PCN from the borough council states that as the owner/RK I am liable for the PCN. Is this correct?

Is there particular arguments I can use to appeal this PCN? What is the process I should follow? The NtO has space for me to detail my representations or mitigating circumstances.

I'd appreciate you advice and guidance in this matter. Many thanks in advance.

Attached thumbnail(s)
Attached Image
 
Go to the top of the page
 
+Quote Post
2 Pages V  < 1 2  
Start new topic
Replies (20 - 25)
Advertisement
post Fri, 14 Sep 2018 - 11:36
Post #


Advertise here!









Go to the top of the page
 
Quote Post
cp8759
post Tue, 18 Dec 2018 - 10:16
Post #21


Member


Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (rondepickering @ Mon, 17 Dec 2018 - 23:07) *
QUOTE (cp8759 @ Thu, 13 Dec 2018 - 18:59) *
100% appeal, they have shot themselves in the foot by issuing a rejection which directly contradicts the regulations, and numerous tribunal decisions, such as James Demery v London Borough of Bexley (case reference 2180251300) and David Greenberg v London Borough of Barnet (case reference 216022028A).

They've also repeated the same error again in the NoR, so a victory at this point is all but guaranteed. When you register the appeal, write "detailed grounds to follow" in the reasons box, the tribunal will then send you a deadline to submit your grounds of appeal. I will write these for you, I look forward to wiping the floor with them biggrin.gif


I've started the appeal. It is based solely on one argument, that of a procedural impropriety. @cp8759, please can you provide the detailed grounds that I can use?

Has the tribunal given you a date?


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
Go to the top of the page
 
+Quote Post
rondepickering
post Tue, 18 Dec 2018 - 23:25
Post #22


Member


Group: Members
Posts: 25
Joined: 13 Sep 2018
Member No.: 99,858



Hi,

I was going to use the following wording for my appeal. Please can you let me know if it is appropriate/correct? N.B. I cannot find case UW05060M on the PATAS website to copy and attach the whole ruling to my appeal.

I wish to appeal PCN WTXXXXX and will rely on two main points to support my appeal.

1. In the Notice to Owner, Watford Borough Council, has acted with procedural impropriety when they state that:

“…If full payment has not been received or you have not made Representations to the Council within the time allowed, the Penalty Charge will increase by 50%, thereby increasing the penalty charge to £75.00”

The procedural impropriety being that the council “will” issue a charge certificate rather than “may”.

2. In the Notice of Rejection, Watford Borough Council, have again acted with procedural impropriety. They state:

“If the direction was applied as you have suggested ‘”A Charge Certificate may be issued”’ instead of ‘”A Charge Certificate will be issued”’ there would be ambiguity regarding the next stage of the process”

The wording on both documents relating to will/may fetters the Council's discretion and at each point the Council are making a procedural impropriety.

Additionally in the Notice of Rejection, Watford Borough Council, have wrongly asserted that:

“Therefore, no procedural impropriety has occurred and hence, the penalty remains valid”

In doing so the Council are either intentionally or unintentionally intimidating me to pay the penalty.

I would like you to consider certain decisions made by the PATAS Tribunal via their statutory register here: https://londontribunals.org.uk. Some of the cases to consider are:

2110072817, 2100649871, 2110415753, 2120021652, 2130049862, 2120448511, 212058885A, 2130236316, 2140046893.

I have attached the Adjudicator’s decision, in full, regarding cases: UW05060M, 2110072817, 2180251300 and 216022028A.

The various decisions from PATAS take a strict approach. They state that the wording to be adopted by the Council is set down in the statutory regulations, and any variation from it will amount to procedural impropriety. I direct the Council to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007, part 5, regulation 19 (2) (g) here: http://www.legislation.gov.uk/uksi/2007/34...ulation/19/made which states:

“that if, after the payment period has expired, no representations have been made under regulation 4 of the Representations and Appeals Regulations and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the applicable surcharge;”
Go to the top of the page
 
+Quote Post
cp8759
post Wed, 19 Dec 2018 - 10:48
Post #23


Member


Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



Try this instead. I have put the text in a template here: https://drive.google.com/open?id=1EBdOu1RWx...33GIvuklTHvOjMq

Download the template, add the tribunal case number in the upper right hand corner of the first page (see text in red), replace the red text that says "Your name" with your full name, change all text to black, save as a PDF and upload it to the tribunal website. I know there's a drop down box that asks you what type of attachment it is, in that drop down select "other".

I've put the text below so others can see.

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

Ground 1: There has been a procedural impropriety on the part of the enforcement authority:

The Notice to Owner served by the authority asserts that "If full payment has not been received or you have not made Representations to the Council within the time allowed, the Penalty Charge will increase by 50%, thereby increasing the penalty charge to £75".

The contents of a Notice to Owner are prescribed by regulation 19(2) of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 which provide, in so far as is relevant, that:

(2) A notice to owner served under paragraph (1) must, in addition to the matters required to be
included in it under regulation 3(3) of the Representations and Appeals Regulations, state—
...
(g) that if, after the payment period has expired, no representations have been made under
regulation 4 of the Representations and Appeals Regulations and the penalty charge has not
been paid, the enforcement authority may increase the penalty charge by the applicable
surcharge;


Therefore the regulations provide that the Notice to Owner must state that the enforcement authority may increase the penalty charge. While the wording of the regulations does not need to be copied verbatim, the correct meaning must be conveyed.

This principle is illustrated in the case of David Greenberg v London Borough of Barnet (case reference 216022028A):

"The Notice of Rejection in this matter states that the Enforcement Authority will serve a charge certificate.
Again the inclusion of the word 'will' imports a fixed and persistent intent, as distinguished from 'may' which expresses a possibility.
The legislature chose the word may, to my mind, to reflect the fact that the Enforcement Authority is bestowed with discretion which may be invoked at any stage, thus the issue of a charge certificate cannot be taken as a foregone conclusion.
"

It is no answer to say that the council would not in practice exercise its discretion not to increase the charge, as found in James Demery v London Borough of Bexley (case reference 2180251300) (my emphasis):

"The Authority also submits that while it has discretionary powers to review a PCN at any point, in reality such reviews occur largely as a result of "statutory exchanges". It is uncommon for there to be a non-statutory review. The Authority went on to say that its policy is not to interfere with the statutory progression of a PCN.

One might disagree with this position in terms of parking law as well as administrative law but that is not the point. The point is not about whether the Authority is entitled to or likely to issue a Charge Certificate, it is whether it is permitted to say in the PCN that a Charge Certificate will be issued.

The Regulations provides that a postal PCN must state, inter alia, that if after the last day of the period referred to in subparagraph no representations have been made in accordance with Regulation 4 of the Representations and Appeals Regulations; and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased.

It seems to me that the Authority has been given a discretion to issue a Charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.

The PCN is non-compliant. It is invalid and cannot be enforced. It also amounts to a procedural impropriety. I allow the appeal.
"

It is also no answer to say that no prejudice is caused to the recipient of such a document, the High Court ruled as follows in London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) at paragraph 41:

"Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

The above line of authorities was recently followed by the Traffic Penalty Tribunal in Anthony Hall v Kent County Council (with Tunbridge Wells BC) (case reference JU-00042-1810), where the tribunal held as follows at paragraphs 6(G) and 6 (I):

g) The wording of the regulation makes it clear that the word ‘may may’ applies both to the increase in the penalty charge and to the taking of further steps in enforcement, however, the PCN sent by the council does not reflect this and I therefore find that the wording used does not correctly convey the meaning of the regulation

l) For the reasons given, I find that the PCN issued by the council in this case was invalid.


For the reasons given above, the Notice to Owner is invalid and must be cancelled.

Ground 2: There has been a procedural impropriety on the part of the enforcement authority:

The Notice of Rejection amounts to open defiance against the jurisprudence established by the tribunals over many years. It is said on behalf of the council that the Notice to Owner correctly states the penalty charge will be increased if no payment or representations are received, despite the contrary wording found in the regulations.

I submit that such a fundamental misunderstanding of the law amounts to a procedural impropriety in its own right.

Ground 3: There has been a procedural impropriety on the part of the enforcement authority:

The Notice of Rejection is contradictory. In the paragraph 10 of the Notice of Rejection, above the bold text “PAYMENT OF PENALTY CHARGE”, it is asserted that if no appeal is made to the tribunal, and no payment is made, the council “may” serve a charge certificate. However in the very next paragraph, it is asserted that in this eventuality the council “will” serve a charge certificate.

It may be that the author got their templated paragraphs mixed up, but the result is the council has created the sort of ambiguity it was professing to want to avoid. In any event the wording used cannot be correct because regulation 6(1) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides as follows:

Rejection of representations against notice to owner
6.
—(1) Where representations are made under regulation 4 and the enforcement authority serves
a notice of rejection under regulation 5(2)(b), that notice shall—

(a) state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—

(i) the penalty charge is paid; or

(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge;


The regulations therefore provide that the notice of rejection shall state that a charge certificate may be served, the enforcement authority has no powers to fetter its discretion or adopt wording which does not convey the meaning mandated by the regulations.

It is therefore a procedural impropriety for the Notice of Rejection to assert that the penalty charge will be increased and a charge certificate will be served.

Ground 4: There has been a procedural impropriety on the part of the enforcement authority:

The Notice of Rejection also asserts in unambiguous terms that if the charge certificate is not paid, the council will apply to the County Court to register the debt. However regulation 22 of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides that:

Enforcement of charge certificate
22. Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the enforcement authority may, if a county court so orders, recover the increased charge as if it were payable under a county court order.


For the same reasons illustrated above, because the regulations provide the council with a discretion to enforce the charge certificate, the council cannot assert in its notices that the discretion does not exist, even if in practice the discretion will seldom be exercised in the motorist’s favour.

Costs:

I also apply for an order for costs against the enforcement authority under paragraph 13(1)(b) of the schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007:

Costs
13.—(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to subparagraph (2) make such an order—

(a)against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b)against an enforcement authority where he considers that the disputed decision was wholly unreasonable.
(2) An order shall not be made under subparagraph (1) against a party unless that party has been given an opportunity of making representations against the making of the order.

(3) An order under subparagraph (1) shall require the party against whom it is made to pay to the other party a specified sum in respect of the costs and expenses incurred by that other party in connection with the proceedings.


For the reasons given above and in ground 2 in particular, the disputed decision was wholly unreasonable, as the Notice of Rejection is based on logic that has been repeatedly and explicitly rejected in countless tribunal decisions. It can be inferred that the decision maker did not have the regulations before them at the time of the disputed decision, nor could they have read or taken into account any of the relevant case law.

Whatever the reasons for the authority’s defiance of the law, the disputed decision is wholly unreasonable, the corollary of this is that the tribunal has jurisdiction, under paragraph 13(1)(b), to make an order for costs, and that power exists even if the enforcement authority chooses not to contest this appeal.

In the circumstances of the case, I apply for an order for costs in the amount of £76, which represents the 4 hours I have spent researching the law and preparing my appeal, at the litigant in person rate of £19 per hour.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
Go to the top of the page
 
+Quote Post
rondepickering
post Sat, 19 Jan 2019 - 14:15
Post #24


Member


Group: Members
Posts: 25
Joined: 13 Sep 2018
Member No.: 99,858



Hi,

I lodged an appeal based solely on a procedural impropriety via Traffic Penalty Tribunal. The council have submitted their evidence, basically PCN, photos, NtO, DVLA return, NoR, and they added a photo (which I've attached) that was not included in the original photos provided.

I have been given two options: Option A: I would like the adjudicator to decide my case now or Option B: I would like a telephone hearing.

Given that my appeal is solely based on procedural improprieties as per @cp8759 template should I not bother with a telephone hearing?

KR,Attached File  true.pdf ( 129.55K ) Number of downloads: 58
Go to the top of the page
 
+Quote Post
DancingDad
post Sat, 19 Jan 2019 - 15:08
Post #25


Member


Group: Members
Posts: 25,726
Joined: 28 Jun 2010
From: Area 51
Member No.: 38,559



Unless you are competent and confident in addressing the issues and any antipathy from the adjudicator, I would rely on papers.
CP has outlined the arguments, it is for the adjudicator on the day to decide whether or not to accept in this case.
Nothing worse in a personal hearing when an adjudicator asks "Does it make a difference?" or makes a statement similarly and the appellant sits there going uhm, okay then instead of countering.
Go to the top of the page
 
+Quote Post
cp8759
post Sat, 19 Jan 2019 - 16:15
Post #26


Member


Group: Members
Posts: 38,006
Joined: 3 Dec 2010
Member No.: 42,618



I forgot to say, you should also upload the full text of the previous cases you are relying on to the tribunal website, namely:

From https://londontribunals.org.uk (you can search by case number):
David Greenberg v London Borough of Barnet (case reference 216022028A)
James Demery v London Borough of Bexley (case reference 2180251300)


Anthony Hall v Kent County Council (with Tunbridge Wells BC) (case reference JU-00042-1810) you can get from http://bit.ly/2RY5w9C

London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) you can get from http://bit.ly/2RwLZgJ

As per DancingDad, I would recommend a decision on the papers.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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, 29th March 2024 - 05:22
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.
IPS Driver Error

IPS Driver Error

There appears to be an error with the database.
You can try to refresh the page by clicking here