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Yellow box PCN - appeal based on video evidence
h2o
post Fri, 23 Mar 2018 - 17:32
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Hello

Mrs got a PCN for stopping in a yellow box.

Having watched the video I think there might be a valid appeal. A vehicle cuts into her lane (which results in her exit not being clear) as she hits the yellow box, so short of doing an emergency stop she had to enter. It is unfortunate that she doesn't edge forward at the end of the video but perhaps safest to keep a safe distance from the car in front? Maybe I'm just biased as I do not want to pay - let me know your thoughts.

Reg: ET12AVY
PCN: AG90229766

Just looking for comments on the video at this stage but happy to upload the actual PCN if helpful.

Many thanks

h2o
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post Fri, 23 Mar 2018 - 17:32
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cp8759
post Fri, 23 Mar 2018 - 17:35
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Please upload the actual PCN, and tell us there we can view the video.


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h2o
post Fri, 23 Mar 2018 - 17:47
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Doh- should have said its Barnet. Will upload the PCN in s mo

https://parkingservices.itsvc.co.uk/barnet/notices/
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h2o
post Fri, 23 Mar 2018 - 18:17
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Here is PCN
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PASTMYBEST
post Fri, 23 Mar 2018 - 18:21
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Your PCN contains the same error as in this case

217048098A

The Appellant was represented at this scheduled personal hearing by Mr Dishman but the Enforcement Authority did not attend and were not represented.
This Penalty Charge Notice was issued under section 4 of the London Local Authorities and Transport for London Act 2003.
Section 4(8)(a) of the Act provides that a penalty charge notice under this section must [amongst other things] state ... (iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice; ... (v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable; (vi) the amount of the increased charge; ... and (viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to the Act; and (8)(b) requires that they specify the form in which any such representations are to be made.
Paragraph 1(3) of the Schedule provides that the enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the penalty charge notice in question was served.
In this case the Penalty Charge Notice states: 'The penalty charge of £130 must be paid not later than the last day of the period of 28 days beginning with the date of this notice. If the penalty charge is not paid before the end of the 28 day period and no representations have been made, an increased charge of 50% to £195 may be payable and a charge certificate may be issued.'
It is submitted on behalf of the Appellant that this wording is not compliant with the requirements of the 2003 Act and, further, effectively limits the time he has to make representations.
I accept this submission. The wording does not comply with the requirements of the Act and therefore effectively limits the time a recipient has to make representations or, indeed, to pay the full penalty charge before a Charge Certificate is issued.
It may be that the wording of this type of Penalty Charge Notice has been subsequently changed but the Adjudicator is only able decide an appeal by making findings of fact on the basis of the evidence produced by the parties and applying relevant law.
Accordingly, this appeal must be allowed.


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h2o
post Sat, 24 Mar 2018 - 21:37
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Sorry if I’m being thick but what exactly is the error with my PCN? And will this technical argument likely be more successful than an appeal based on the video evidence?

Thanks!
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stamfordman
post Sat, 24 Mar 2018 - 22:12
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Here's the video. We've seen this box a few times recently. I agree with the OP that the other car cut in but of course wife could and should have moved forward.

However it's not cut and dried as wife is some way outside the box as the other car cuts across. Hard to tell if the speed is accurate though.

First is click through video and second is animated gif I'm testing. Does it work for you?



ezgif.com-video-to-gif by stamfordman, on Flickr

This post has been edited by stamfordman: Sat, 24 Mar 2018 - 22:20
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Incandescent
post Sat, 24 Mar 2018 - 22:40
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Looking at the video, one can see some temporary arrow signs and the car that blocked the OP obviously hadn't seen them on entering the box, (and I suspect the OP hadn't either). So this car then moved across into the path of the OP's car preventing exit from the box. In all honesty, I can't see how the OP's Mrs could possible have seen what would happen.The fact is there are two lanes in and two out in the direction the OP was taking, but one of them was blocked off.

Personally, I would take this to adjudication if the council won't give way. The motorist must evaluate when entering the box and what happened didn't happen until the OP's car was in the box. OK, the OP has to risk the full PCN amount but when I look at this video, it is clear that if anybody in the council ever looked at it, it was with the penalty dosh at the forefront of their mind.
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PASTMYBEST
post Sun, 25 Mar 2018 - 00:28
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QUOTE (Incandescent @ Sat, 24 Mar 2018 - 22:40) *
Looking at the video, one can see some temporary arrow signs and the car that blocked the OP obviously hadn't seen them on entering the box, (and I suspect the OP hadn't either). So this car then moved across into the path of the OP's car preventing exit from the box. In all honesty, I can't see how the OP's Mrs could possible have seen what would happen.The fact is there are two lanes in and two out in the direction the OP was taking, but one of them was blocked off.

Personally, I would take this to adjudication if the council won't give way. The motorist must evaluate when entering the box and what happened didn't happen until the OP's car was in the box. OK, the OP has to risk the full PCN amount but when I look at this video, it is clear that if anybody in the council ever looked at it, it was with the penalty dosh at the forefront of their mind.


Not disagreeing totally, but the cut in happened before the Op's car entered the box. A negative to that argument


QUOTE (Incandescent @ Sat, 24 Mar 2018 - 22:40) *
Looking at the video, one can see some temporary arrow signs and the car that blocked the OP obviously hadn't seen them on entering the box, (and I suspect the OP hadn't either). So this car then moved across into the path of the OP's car preventing exit from the box. In all honesty, I can't see how the OP's Mrs could possible have seen what would happen.The fact is there are two lanes in and two out in the direction the OP was taking, but one of them was blocked off.

Personally, I would take this to adjudication if the council won't give way. The motorist must evaluate when entering the box and what happened didn't happen until the OP's car was in the box. OK, the OP has to risk the full PCN amount but when I look at this video, it is clear that if anybody in the council ever looked at it, it was with the penalty dosh at the forefront of their mind.


Not disagreeing totally, but the cut in happened before the Op's car entered the box. A negative to that argument


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cp8759
post Sun, 25 Mar 2018 - 01:24
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QUOTE (PASTMYBEST @ Sun, 25 Mar 2018 - 01:28) *
Not disagreeing totally, but the cut in happened before the Op's car entered the box. A negative to that argument

I agree, I'm sure the council will argue as much anyway.


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h2o
post Sun, 25 Mar 2018 - 07:38
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QUOTE (cp8759 @ Sun, 25 Mar 2018 - 01:24) *
QUOTE (PASTMYBEST @ Sun, 25 Mar 2018 - 01:28) *
Not disagreeing totally, but the cut in happened before the Op's car entered the box. A negative to that argument

I agree, I'm sure the council will argue as much anyway.


I also agree. But we are talking about split seconds here. Very easy to judge watching the video but very hard to stop in that time in reality. Regarding the moving forward at the end - maybe she could have edged forward a bit more but the angle makes difficult to take a view on that.

Is my best bet to put both arguments forward (incorrect PCN and exit was clear) hoping they forget to respond to one? Does someone mind explaining in simple terms what is wrong with the PCN?
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DancingDad
post Sun, 25 Mar 2018 - 09:26
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It's 50/50 on the contravention but one which I'd love to see dashcam footage of.
What warning signs were present of the road narrowing ??
Would it have been visible as vehicles approached and not as the blocking car seems to suggest, unexpected?

Half tempted to say that the stop was due to road works and not stationary vehicles (bit tongue in cheek)
Certainly due to the blocking vehicle making an unanticipated manoeuvre but would have been better had wifie braked earlier.... made it look like more of a WTF moment (hindsight is 20/20)

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PASTMYBEST
post Sun, 25 Mar 2018 - 14:30
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It would be best to make representations against the contravention (you were cut up) and the error on the PCN

Contravention did not occur is the first ground then second

Penalty exceeds the relevant amount in the circumstances of the case. This is because it the PCN is invalid due to not conforming to regulations then no penalty can be demanded

The error is this Your PCN states

In this case the Penalty Charge Notice states: at paragraph 4


'The penalty charge of £130 must be paid not later than the last day of the period of 28 days beginning with the date of this notice. If the penalty charge is not paid before the end of the 28 day period and no representations have been made, an increased charge of 50% to £195 may be payable and a charge certificate may be issued.'

As per the case I quoted this does not comply with the regs in that both representations may be made until 28 days beginning with the date of service, some two days later. The same applies for the CC

read the case it explains it well and is an adjudicators view on it


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h2o
post Sun, 25 Mar 2018 - 16:43
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I googled the case ref you mention above but nothing comes up. Where can I find the full case?

Thanks!
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PASTMYBEST
post Sun, 25 Mar 2018 - 16:52
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QUOTE (h2o @ Sun, 25 Mar 2018 - 17:43) *
I googled the case ref you mention above but nothing comes up. Where can I find the full case?

Thanks!


In post 5 of this thread


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h2o
post Wed, 11 Apr 2018 - 13:27
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Ok decision time guys. I received the attached response after sending the below representations.

On the balance of probabilities, what would you do?



I make this representation under two grounds (1) That the contravention did not occur, and (2) that the penalty exceeds the relevant amount in the circumstances of the case.

1. Having reviewed the video evidence, I note that both lanes visible in the video allow for a right turn after the yellow box. At the traffic light, there are temporary road works blocking the left of the two lanes. I do not recall there being any warning signs for the lane closure and this is evident by the blue van which sharply cuts (without indicating) from the left lane into the right lane (the lane I was in) once it notices the lane closure. My understanding is that if another vehicle cuts across to take my exit space and this cannot have been foreseen by me the contravention does not occur. In this case, your video shows the blue van drive across my lane and, unsure of its intention, the rear of my vehicle was left stuck in the yellow box. While there was a bit more space in front of my vehicle, I felt it was not safe to move too close to the blue van following its sporadic movements.

2. Whilst undertaking research I had reason to study the enforcing regulations. I find that the PCN misstates the time period for the service of a charge certificate. It quotes the period as being 28 days beginning with date of notice:

Extract from PCN:
"'The penalty charge of £130 must be paid not later than the last day of the period of 28 days beginning with the date of this notice. If the penalty charge is not paid before the end of the 28 day period and no representations have been made, an increased charge of 50% to £195 may be payable and a charge certificate may be issued.'"

The regulations are clear. At schedule 1(5)(2)(a) they require that the date after which a charge certificate may be issued is 28 days beginning with the date of service.

The date of service, when a document is served by post is again set by regulation. It being in the normal course of events, two working days after the date of posting.

In the case of this PCN the 28 day period commencing with the date of notice by which the PCN state a Charge certificate may be issued would be the 17th of April 2018.

The date the regulations allow would be the 19th of April, foreshortening the time I have to make representations by two days. This too is not in accordance with the regulations (Schedule 1, paragraph 1(3)) which is supported by the attached tribunal decision (217048098A).

A PCN that does not fulfil all obligations under the regulations cannot be used to demand a penalty, thus the relevant amount can only be Nil.

Either of the two points of themselves or both, are reason that this PCN be cancelled. I look forward to confirmation of this.

This post has been edited by h2o: Wed, 11 Apr 2018 - 13:40
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PASTMYBEST
post Wed, 11 Apr 2018 - 13:45
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I would appeal, there are errors in the timescales within the NoR also that can be used. Also you can use the NoR against them. they state that any incursion other than nominal is a contravention. I would argue that the incursion by your car was nominal thus de minimis applies


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h2o
post Fri, 13 Apr 2018 - 11:15
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QUOTE (PASTMYBEST @ Wed, 11 Apr 2018 - 14:45) *
I would appeal, there are errors in the timescales within the NoR also that can be used. Also you can use the NoR against them. they state that any incursion other than nominal is a contravention. I would argue that the incursion by your car was nominal thus de minimis applies


Thanks - do you mind elaborating to help me shape my appeal? Do I have to wait to receive the NOR to put in a formal appeal?

Any other observations?
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PASTMYBEST
post Fri, 13 Apr 2018 - 11:18
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QUOTE (h2o @ Fri, 13 Apr 2018 - 12:15) *
QUOTE (PASTMYBEST @ Wed, 11 Apr 2018 - 14:45) *
I would appeal, there are errors in the timescales within the NoR also that can be used. Also you can use the NoR against them. they state that any incursion other than nominal is a contravention. I would argue that the incursion by your car was nominal thus de minimis applies


Thanks - do you mind elaborating to help me shape my appeal? Do I have to wait to receive the NOR to put in a formal appeal?

Any other observations?



You have the NoR so next step is appeal. Yes I will help bump the thread on Wednesday next week if you have not heard anything


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DancingDad
post Fri, 13 Apr 2018 - 11:18
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QUOTE (h2o @ Fri, 13 Apr 2018 - 12:15) *
......... Do I have to wait to receive the NOR to put in a formal appeal?

Any other observations?


You have posted the formal NOR.
Within that should be instructions how to appeal to London Tribunals.
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