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PCN in Reading Town centre, Not parked on road
MFM
post Sun, 25 Feb 2018 - 20:36
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I got a PCN from Reading council today for not displaying a valid parking ticket. I wasn't parked on the road where the signs are and the restrictions apply. I was parked adjacent on a piece of land where they have a market every day apart from Sundays.

People have been parking there forever as they have never enforced the parking regulations there, plus there are no signs prohibiting you from parking there in the first place.

In the picture my car is the white Audi. The parking where you should display a parking ticket is to the left where the row of cars are. You can also see the sign. Should I fight this, as I think it's an overzealous parking warden taking a chance?
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post Sun, 25 Feb 2018 - 20:36
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cp8759
post Wed, 4 Apr 2018 - 11:25
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Section s4(2)(d)?

Anyway just to add to your arguments, there is a fatal flaw in the NtO. It states unequivocally that if the penalty is not paid and representations are not received, the penalty charge will increase and a charge certificate will be served. This makes the NtO unenforceable, have a read of the "will/may" cases listed here: http://forums.pepipoo.com/index.php?showtopic=90145

I think you should add in your representations that it would be wholly unreasonable for them to refuse to cancel, and if they force you to pursue this to adjudication you will be making an application for costs.

This post has been edited by cp8759: Wed, 4 Apr 2018 - 11:26


--------------------
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.
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MFM
post Wed, 4 Apr 2018 - 11:45
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QUOTE (cp8759 @ Wed, 4 Apr 2018 - 12:25) *
Section s4(2)(d)?

Anyway just to add to your arguments, there is a fatal flaw in the NtO. It states unequivocally that if the penalty is not paid and representations are not received, the penalty charge will increase and a charge certificate will be served. This makes the NtO unenforceable, have a read of the "will/may" cases listed here: http://forums.pepipoo.com/index.php?showtopic=90145

I think you should add in your representations that it would be wholly unreasonable for them to refuse to cancel, and if they force you to pursue this to adjudication you will be making an application for costs.


I'm trying to find in the regulations paragraphs 1(g) and (h) so I can familiarise myself with it, but I'm not getting any joy. Do you have a link perhaps?

EDIT: Found it.

This post has been edited by MFM: Wed, 4 Apr 2018 - 11:56
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MFM
post Wed, 4 Apr 2018 - 12:12
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Amended reps.

I was not parked in a parking bay.
I was not parked where payment was required.
There are no signs in the area where I parked that require payment or relate to that area.
The signs that relate to marked out bays on the carriageway only relate to those marked bays.
Section s4(2)(d) of the Traffic Management Act 2004 applies meaning no offense was committed.

Furthermore, Section 19 (2) (g) of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 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". Section 21 (1) goes on to say, "Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by the amount of the applicable surcharge".

The Notice to Owner served by Reading Borough Council states, "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 amount outstanding to £75 and a Charge Certificate will be served on you.

This is a clear case of procedural impropriety on the Council's part on which many appeals have been allowed at adjudication stage, making this PCN invalid.

The contravention cited is incorrect.
The contravention did not occur.

NTO
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cp8759
post Wed, 4 Apr 2018 - 12:35
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I would change

This is a clear case of procedural impropriety on the Council's part on which many appeals have been allowed at adjudication stage, making this PCN invalid.

to

This is a clear case of the authority unlawfully fettering its discretion, as it conveys that the decision of the council to issue and serve a charge certificate is a foregone conclusion. This is a procedural impropriety on the Council's part that means the penalty charge and the notice to owner must be cancelled.

Also you're still referring to s4(2)(d) of the Traffic Management Act 2004 which doesn't exist.



--------------------
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.
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MFM
post Wed, 4 Apr 2018 - 16:01
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QUOTE (cp8759 @ Wed, 4 Apr 2018 - 13:35) *
I would change

This is a clear case of procedural impropriety on the Council's part on which many appeals have been allowed at adjudication stage, making this PCN invalid.

to

This is a clear case of the authority unlawfully fettering its discretion, as it conveys that the decision of the council to issue and serve a charge certificate is a foregone conclusion. This is a procedural impropriety on the Council's part that means the penalty charge and the notice to owner must be cancelled.


That sounds good.

QUOTE (cp8759 @ Wed, 4 Apr 2018 - 13:35) *
Also you're still referring to s4(2)(d) of the Traffic Management Act 2004 which doesn't exist.


It's under - http://www.legislation.gov.uk/ukpga/2004/18/schedule/7. It's a little ambiguous as it doesn't really refer to anything meaningful, but it points to the fact that Reading isn't part of Exeter or Essex where it could be an offense. I might just leave it out if it serves no clear purpose.
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MFM
post Wed, 4 Apr 2018 - 19:45
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Edit.

This post has been edited by MFM: Wed, 4 Apr 2018 - 19:47
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cp8759
post Wed, 4 Apr 2018 - 22:09
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QUOTE (MFM @ Wed, 4 Apr 2018 - 17:01) *
It's under - http://www.legislation.gov.uk/ukpga/2004/18/schedule/7. It's a little ambiguous as it doesn't really refer to anything meaningful, but it points to the fact that Reading isn't part of Exeter or Essex where it could be an offense. I might just leave it out if it serves no clear purpose.

Ah, I see what you mean. Schedules don't have sections, they have paragraphs (although the confusion is understandable as I've come across experienced barristers who've got this wrong in the past). What you're actually referring to is correctly referenced as paragraph 4(2)(d) of Schedule 7 to the Traffic Management Act 2004 (which is nothing to do with section 4 of the same Act), however I think you've misinterpreted it and I don't think it adds anything to your argument (For clarity, it is very meaningful, in fact it is of crucial importance to make PCNs enforcable). I would leave it out.


--------------------
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.
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MFM
post Thu, 5 Apr 2018 - 09:17
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QUOTE (cp8759 @ Wed, 4 Apr 2018 - 23:09) *
QUOTE (MFM @ Wed, 4 Apr 2018 - 17:01) *
It's under - http://www.legislation.gov.uk/ukpga/2004/18/schedule/7. It's a little ambiguous as it doesn't really refer to anything meaningful, but it points to the fact that Reading isn't part of Exeter or Essex where it could be an offense. I might just leave it out if it serves no clear purpose.

Ah, I see what you mean. Schedules don't have sections, they have paragraphs (although the confusion is understandable as I've come across experienced barristers who've got this wrong in the past). What you're actually referring to is correctly referenced as paragraph 4(2)(d) of Schedule 7 to the Traffic Management Act 2004 (which is nothing to do with section 4 of the same Act), however I think you've misinterpreted it and I don't think it adds anything to your argument (For clarity, it is very meaningful, in fact it is of crucial importance to make PCNs enforcable). I would leave it out.


Perfect. I left it out and sent reps off. Awaiting rejection letter!
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MFM
post Tue, 17 Apr 2018 - 08:02
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Surprise surprise I received the notice of rejection.

So they admit that I was parked on the pavement and say that they agree with all the statements in my appeal about not being parked in or near the pay and display bays. Yet they still try to justify the PCN saying it's 'illegal' to park on the pavement - something they have no control over enforcing. They quote the Traffic Management Act 2004 on the first page, but don't seem to know what it means.

They also say their wording on the will/may issue is legally compliant, but then change their tune in the Notice of Rejection and say "Failure to pay may result in the issue of a charge certificate", all of a sudden. Plus they've made another mistake and say, "You may appeal on specified grounds 28 days from the date of service of this Rejection notice". Not within 28 days. This is corrected on the last page though.

Then I find the paragraph where they state the adjudicator may award costs against me if he finds that my appeal is vexatious quite threatening. Presumably because I said I would make an application for costs if they didn't cancel the PCN. Is it normal practice to state this?

Anything else anyone can see?

Notice of Rejection
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PASTMYBEST
post Tue, 17 Apr 2018 - 08:46
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The bit about costs is a required section so nowt wrong there.

To paraphrase. We dont like where you parked so have used the closest restriction to issue a PCN. Yeah but. parking on the pavement is not a contravention unless signed and a TMO is in place, it is a matter for the police.

The will/may bit, the are emboldened by a couple of wins where the adjudicator has dismissed it. We need to put together a stronger argument re fettered discretion and ambiguity re the number of adjudicators find it a PI
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MFM
post Tue, 17 Apr 2018 - 08:53
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QUOTE (PASTMYBEST @ Tue, 17 Apr 2018 - 09:46) *
The bit about costs is a required section so nowt wrong there.

To paraphrase. We dont like where you parked so have used the closest restriction to issue a PCN. Yeah but. parking on the pavement is not a contravention unless signed and a TMO is in place, it is a matter for the police.

The will/may bit, the are emboldened by a couple of wins where the adjudicator has dismissed it. We need to put together a stronger argument re fettered discretion and ambiguity re the number of adjudicators find it a PI


Can the council really be expected to win this on the basis of their original claim? I mean, if they are going to fine you for being outside of a pay and display bay, where does it end? Two streets down, next village along, the moon?
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PASTMYBEST
post Tue, 17 Apr 2018 - 09:03
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QUOTE (MFM @ Tue, 17 Apr 2018 - 09:53) *
QUOTE (PASTMYBEST @ Tue, 17 Apr 2018 - 09:46) *
The bit about costs is a required section so nowt wrong there.

To paraphrase. We dont like where you parked so have used the closest restriction to issue a PCN. Yeah but. parking on the pavement is not a contravention unless signed and a TMO is in place, it is a matter for the police.

The will/may bit, the are emboldened by a couple of wins where the adjudicator has dismissed it. We need to put together a stronger argument re fettered discretion and ambiguity re the number of adjudicators find it a PI


Can the council really be expected to win this on the basis of their original claim? I mean, if they are going to fine you for being outside of a pay and display bay, where does it end? Two streets down, next village along, the moon?


i cannot see the council winning this. The TMA gives them power to penalise specific contraventions, parking on the pavement is not one of them in this instance nor has it been alleged. It has however been acknowledged that this is what you did.

we have had a few similar cases where the council tried to issue PCN's to blue badge holders for parking on DYL with there badge, but within 10 metres of a junction. They cannot because the law does not give them the power to do so, this is fundamentally the same
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MFM
post Tue, 17 Apr 2018 - 09:38
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Should I appeal in writing seeing as the council made a fuss over my wife not giving written permission for me to appeal on her behalf?
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PASTMYBEST
post Tue, 17 Apr 2018 - 09:44
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QUOTE (MFM @ Tue, 17 Apr 2018 - 10:38) *
Should I appeal in writing seeing as the council made a fuss over my wife not giving written permission for me to appeal on her behalf?


It wont matter just ensure that your wife does give written permission or do the appeal in here name with you as nominated representative for the hearing. My advise , dont rush it lets get the best appeal together that we can I have A few ideas i 'm putting together for another reading case and i am sure others do also
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MFM
post Tue, 17 Apr 2018 - 09:53
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QUOTE (PASTMYBEST @ Tue, 17 Apr 2018 - 10:44) *
QUOTE (MFM @ Tue, 17 Apr 2018 - 10:38) *
Should I appeal in writing seeing as the council made a fuss over my wife not giving written permission for me to appeal on her behalf?


It wont matter just ensure that your wife does give written permission or do the appeal in here name with you as nominated representative for the hearing. My advise , dont rush it lets get the best appeal together that we can I have A few ideas i 'm putting together for another reading case and i am sure others do also


Aye aye. I just want to start drafting the appeal so we have something to work from.
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MFM
post Tue, 17 Apr 2018 - 13:43
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A quick initial draft.


Penalty Charge Notice Number XXXXXXXXXX

Vehicle Registration Number XXXXXXX

Date of Issue 25/02/2018

Alleged contravention, “Not parked correctly within the marking of the bay or space”.

Dear sir/madam,

I am appealing against the above PCN as I believe the contravention did not occur.

My representation to Reading Borough Council consisted of two main points:

1. The location of where I was parked in relation to the alleged contravention
2. The wording and legal basis of the Notice to Owner I received

1. The council alleges that I was, “Not parked correctly within the markings of the bay or space” at the time of the alleged contravention. I made note of the following points:
- I was not parked in a parking bay
- I was not parked where payment was required
- There are no signs in the area where I parked that require payment or relate to that area
- The signs that relate to marked out bays on the carriageway only relate to those marked bays

The council responded, and agreed with me by saying, “These statements are all true, because the vehicle was parked on a public pavement and not in a marked parking space”. Surely if they agree with me then the contravention did not occur? They go on to say that it is illegal to park on the pavement, but the council has no power to enforce parking regulations on pavements in Reading. Furthermore, I don’t see what relevance this has to the original PCN and alleged contravention. If the council are implying that they can fine a motorist for not being parked within the markings of a bay, when the motorist is clearly not parked anywhere what could be constituted as being near a designated bay, then where does it stop? Presumably they can then fine motorists for the same offense a street or two away?

2. The second point I raised was with the wording of the Notice to Owner. Section 19 (2) (g) of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 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". Section 21 (1) goes on to say, "Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice “may” serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by the amount of the applicable surcharge".

The Notice to Owner served by Reading Borough Council states, "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 amount outstanding to £75 and a Charge Certificate “will” be served on you.

This is a clear case of procedural impropriety on the council's part, as it conveys that the decision of the council to issue and serve a charge certificate is a foregone conclusion. The council responded by saying that this wording is legally complaint when several appeals have been allowed at the adjudication stage on this point alone, which would suggest otherwise.

Considering the above, I believe the contravention did not occur.

Your sincerely

XXXXXXXXXXXXXXX

This post has been edited by MFM: Tue, 17 Apr 2018 - 13:44
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hcandersen
post Tue, 17 Apr 2018 - 14:02
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Premature.

Slow down, you are getting ahead of yourself.

Stage 1 would normally be that the registered keeper would register their appeal. NOT write in at length as you have, but to get online and simply register. A simple box ticking exercise, 5 minutes tops. No detail, just that a NOR has been received - you've got the online code - and that an appeal is submitted under the following grounds - contravention did not occur; procedural impropriety. Elect for personal hearing and look at TPT's website for the most convenient adjudication venue (TPT are peripatetic).

In the narrative box, I would add that as regards the grounds of procedural impropriety these not only apply to the argument made in your representations, they also arise in consequence of the NOR which clearly and significantlly fails to comply with the simple but specific requirements of the Appeals Regulations. You would also add that although you are registering an appeal you will be writing to the authority in response to their NOR whose reasoning is unsound and conclusions untenable in an endeavour to give them the opportunity even at this late stage to cancel the PCN without the need to burden the adjudication system.



They're dead, and they're stupid, the problem is that they probably don't know either of these.

If you're happy to do this, I could draft a letter for the authority whose actions are nothing short of outrageous - nearly as bad as flagrantly parking on the pavement, so you're not on the side of the virtuous, it's just that this is a legal process.

This post has been edited by hcandersen: Tue, 17 Apr 2018 - 16:03
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PASTMYBEST
post Tue, 17 Apr 2018 - 14:24
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QUOTE (hcandersen @ Tue, 17 Apr 2018 - 15:02) *
Premature.

Slow down, you are getting ahead of yourself.

Stage 1 would normally be that the registered keeper would register their appeal. NOT write in at length as you have, but to get online and simply register. A simple box ticking exercise, 5 minutes tops. No detail, just that a NOR has been received - you've got the online code - and that an appeal is submitted under the following grounds - contravention did not occur; procedural impropriety. Elect for personal hearing and look at TPT's website for the most convenient adjudication venue (TPT are peripatetic).

In the narrative box, I would add that as regards the grounds of procedural impropriety these not only apply to the argument made in your representations, they also arise in consequence of the NOR which clearly and significantlly fails to comply with the simple but specific requirements of the Appeals Regulatins. You would also add thatalthough you are registering an appeal you will be writing to the authority in response to their NOR whose reasoning is unsound and conclusions untenable in an endeavour to give them the opportunity even at this late stage to cancel the PCN without the need to burden the adjudication system.



They're dead, and they're stupid, the problem is that they probably don't know either of these.

If you're happy to do this, I could draft a letter for the authority whose actions are nothing short of outrageous - nearly as bad as flagrantly parking on the pavement, so you're not on the side of the virtuous, it's just that this is a legal process.


+1 Whist I am not sure about the merit of writing further to the authority i defer to HCA's wisdom. But before any submission to the tribunal point 2 needs be strengthened considerably
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MFM
post Tue, 17 Apr 2018 - 14:27
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QUOTE (hcandersen @ Tue, 17 Apr 2018 - 15:02) *
Premature.

Slow down, you are getting ahead of yourself.

Stage 1 would normally be that the registered keeper would register their appeal. NOT write in at length as you have, but to get online and simply register. A simple box ticking exercise, 5 minutes tops. No detail, just that a NOR has been received - you've got the online code - and that an appeal is submitted under the following grounds - contravention did not occur; procedural impropriety. Elect for personal hearing and look at TPT's website for the most convenient adjudication venue (TPT are peripatetic).

In the narrative box, I would add that as regards the grounds of procedural impropriety these not only apply to the argument made in your representations, they also arise in consequence of the NOR which clearly and significantlly fails to comply with the simple but specific requirements of the Appeals Regulatins. You would also add thatalthough you are registering an appeal you will be writing to the authority in response to their NOR whose reasoning is unsound and conclusions untenable in an endeavour to give them the opportunity even at this late stage to cancel the PCN without the need to burden the adjudication system.



They're dead, and they're stupid, the problem is that they probably don't know either of these.

If you're happy to do this, I could draft a letter for the authority whose actions are nothing short of outrageous - nearly as bad as flagrantly parking on the pavement, so you're not on the side of the virtuous, it's just that this is a legal process.


Thanks for the advice, I'll go and register online.

Any reason to opt for a personal hearing? I'd rather do this in writing unless it's absolutely necessary as it's a massive inconvenience to attend in person currently.

Oh and if it's any consolation, I don't think I'll be parking on the pavement again. biggrin.gif
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MFM
post Wed, 18 Apr 2018 - 07:58
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Ok, appeal submitted. Will I actually have to write to the council again to give them chance to cancel, or just go through the appeals process?
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