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PCN 48 Stopped in a Restricted Area, Stopped in restricted area outside a school
materaz
post Sat, 16 Dec 2017 - 20:37
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Seasons Greetings Everyone!

Got PCN 48 Stopped in a Restricted Area but not sure, whether I have grounds to appeal.
Please see attached images and share your opinion please:

My observations are:
Stopped on single yellow lane outside controlled time for 8 seconds (picked up a person)
Stopped just before (or in line) with post “No Stopping on entrance markings” signed.
Did not stop on zigzag markings visible after “No Stopping on entrance” signed post.
In a safe manner made a 3 point turn reversing into “Keep Clear” drive way (the entrance itself)

I re-visted that place to make photos and discovered newly painted zigzag markings before “No Stopping on entrance” signed post. Also, I saw barely visible older zigzag markings which were not noticed on the day of contravention.

Was it illegal 3point turn? (see video in the link below)

VIDEO:
https://youtu.be/RNSoooFoRUw

Thanks for your time!


New markings:

This post has been edited by materaz: Sat, 16 Dec 2017 - 21:19
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post Sat, 16 Dec 2017 - 20:37
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materaz
post Fri, 12 Jan 2018 - 22:14
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Hi Everyone smile.gif

Got 'notice of rejection - formal' today (attached). Moreover, borough of Bexley considers the PCN is compliant with the regulations in ALL RESPECTS. Can't believe they indeed, carefully considered what I said.

Again and again, I do appreciate Pepipoo's users advises and time spent.

Thanks!
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PASTMYBEST
post Fri, 12 Jan 2018 - 22:20
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So what now pay or appeal. The notice of rejection is flawed also, but they wont accept it

Can you add the PCN again i can't find it

This post has been edited by PASTMYBEST: Fri, 12 Jan 2018 - 22:24
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Incandescent
post Fri, 12 Jan 2018 - 22:26
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I can't see you winning this one at adjudication as you were on the zig-zag markings, albeit they were worn. An adjudicator will note that you were right by the notice advising of not stopping on the road markings.
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hcandersen
post Fri, 12 Jan 2018 - 22:34
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The NOR is non-compliant as it misinforms you regarding your rights of appeal and the authority's power to serve a CC.

WTF is wrong with these morons that after more than 10 years they still cannot get these basics right.
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PASTMYBEST
post Fri, 12 Jan 2018 - 22:47
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QUOTE (Incandescent @ Fri, 12 Jan 2018 - 22:26) *
I can't see you winning this one at adjudication as you were on the zig-zag markings, albeit they were worn. An adjudicator will note that you were right by the notice advising of not stopping on the road markings.



I see a very strong case considering the number of PI's
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DancingDad
post Sat, 13 Jan 2018 - 00:29
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Any chance of popping on the final version of what you sent?
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materaz
post Sat, 13 Jan 2018 - 13:48
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QUOTE (DancingDad @ Sat, 13 Jan 2018 - 00:29) *
Any chance of popping on the final version of what you sent?




-----------------------------------------------------------------------
29/12/2017

Dear Sir or Madam,

PENALTY CHARGE NOTICE (PCN):
VEHICLE REGISTRATION MARK:
DATE OF THE SERVICE: 16/12/2017
DATE OF THE NOTICE: 14/12/2017
DATE OF THE CONTRAVENTION: 08/12/2017


I appeal on the following grounds:


1. The contravention did not occur:

Having reviewed the video and stills taken from it, I cannot see that I stopped in a restricted area outside a school. On the day, I pulled up for a matter of 8 seconds to what seemed like the start of restricted area, not seeing the very faded and worn lines that may have been present. I note that historical shots from Google Street View show lines present, but firmly believe that they were inadequate on the day. This is borne out by the authority repainting the lines shortly after the date of the contravention.


2. The PCN/NtO is defective:

a)
2007 No. 3482
ROAD TRAFFIC, ENGLAND
The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

The PCN has failed to have regard to Secretary of States statutory guidance in that Enforcement Authority refuse to re-offer the discount despite that being the SoS recommendation.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the NOR contains certain information including that the Enforcement Authority may serve a charge certificate. This PCN states that the Enforcement Authority will serve a charge certificate if the recipient does not appeal or pay. Clearly, there is a substantial difference between 'may' and 'will'. The latter excludes the possibility that the Enforcement Authority have a discretion whether or not to proceed to the next stage of a charge certificate and an increased penalty charge.

b)
Law does not allow serving a hybrid notice that claims to be both a Penalty Charge Notice and a Notice to Owner. A NtO can only be served if a civil enforcement officer has served a PCN and it is not paid within 28 days of being served. In my case no CEO served a PCN.

c)
The date of service being the date delivered.

d)
PCN failed to include mandatory information regarding how to view the video. Whether you have online facilities or not, the legislation still requires the offer of an office and time of the recipient's choice.


Therefore, in view of the above, I require you to cancel the PCN/NtO with immediate effect.

Yours faithfully,

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

Thanks smile.gif
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materaz
post Sat, 13 Jan 2018 - 14:10
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QUOTE (PASTMYBEST @ Fri, 12 Jan 2018 - 22:20) *
So what now pay or appeal. The notice of rejection is flawed also, but they wont accept it

Can you add the PCN again i can't find it


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PASTMYBEST
post Sat, 13 Jan 2018 - 17:31
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Ok will run through both the PCN and NoR and draft something for you that includes all the errors. over the next few days

Bump on Thursday if you have heard nothing from me
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Incandescent
post Sat, 13 Jan 2018 - 18:49
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QUOTE (PASTMYBEST @ Fri, 12 Jan 2018 - 22:47) *
QUOTE (Incandescent @ Fri, 12 Jan 2018 - 22:26) *
I can't see you winning this one at adjudication as you were on the zig-zag markings, albeit they were worn. An adjudicator will note that you were right by the notice advising of not stopping on the road markings.



I see a very strong case considering the number of PI's

Of course if there are several PIs there is hope as these can win appeals, (at adjudication of course !)

Sorry, should have read this thread more thoroughly !
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materaz
post Sun, 14 Jan 2018 - 19:26
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QUOTE (PASTMYBEST @ Sat, 13 Jan 2018 - 17:31) *
Ok will run through both the PCN and NoR and draft something for you that includes all the errors. over the next few days

Bump on Thursday if you have heard nothing from me


Very kind of you!

Thank you smile.gif
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PASTMYBEST
post Thu, 18 Jan 2018 - 21:41
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have started drafting will be finished over the weekend. Plenty of time left
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materaz
post Fri, 19 Jan 2018 - 22:43
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QUOTE (PASTMYBEST @ Thu, 18 Jan 2018 - 21:41) *
have started drafting will be finished over the weekend. Plenty of time left


No problem at all Sir smile.gif

Thanks!
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PASTMYBEST
post Wed, 24 Jan 2018 - 22:58
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At last. Thought I'd never get a bit of time. Feel free to use verbatim, edit or chuck your choice. All the arguments are sound, but we can not guarantee anything.

Appeal against the imposition of PCN number xxxxxx
Vehicle registration mark AB 23 CDE

Your name and address.

I make this appeal under the statutory grounds of

1:- the contravention did not occur

2:- For various reasons, That there has been a procedural impropriety on the part of the authority


My representation to the council were made for the same reasons, though in their notice of rejection they merely re iterated the reason for the issue of the PCN and asserted that the PCN was compliant

I submit that the contravention did not occur because the signage was inadequate to the extent that if fails to comply with the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 regulation 18

I did not have the benefit of an elevated position as is captured by the CCTV. From a drivers perspective the position I stopped was before the road markings commenced and before the upright sign, I would expect to mark the beginning of the restricted area. That the markings were re-painted shortly after this alleged contravention is testament to the lines being non compliant.

I respectfully ask the adjudicator to consider the view a driver would have, the worn condition of the road markings and the position of the upright sign and find that these in combination give rise to a finding that the contravention did not occur.

That there has been a procedural impropriety on the part of the authority

The PCN

paragraph two of the fourth chapter of the PCN entitled How to make representations, states

That if neither payment or representations are made within the 28 day period the penalty WILL increase by 50% and a charge certificate WILL be issued. Two issues need be considered here.

The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 at the schedule 2(f) set out the time after which a charge certificate MAY be served. This is “the last day of the period of 28 days beginning with the date on which the penalty charge notice is served;”

The date of service is made at 3(2) of the regulations and is in the normal course of events two working days after date of posting. This is taken to be the date of notice unless it can be shown otherwise.

The term within by accepted legal convention would start the counting on the next day after posting, extending the time the regulations allow by at least one day.

I submit in support of this view finding of adjudicator Anthony chan in case number2130536182 where he follows the finding in the key case of Al's bar vs Wandsworth case number 2020106430

The second part of this procedural impropriety is in the use of the term WILL where the regulations allow only that the term MAY be used, thus maintaining the authorities discretion. And them not falling foul of the common law by fettering their discretion to choose to continue enforcement or not.

This point has been before the tribunal numerous times, and I respectfully ask that the findings of the following adjudicators be considered in reaching your finding..

Belinda pearce 216022028A She found as follows
The second contention concerns wording in the Notice of Rejection letter which Mr Dishman maintains is not compliant with the governing legislation by dint of its employment (again) of the word will instead of may.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the Notice of Rejection contains certain information including that the Enforcement Authority may serve a charge certificate.
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.
I do not accept the theory that the word will reflects a greater warning element, since its meaning is distinctly at variance to that of the word may.
Mr Dishman cites previous PATAS/ETA Cases in support.
The Enforcement Authority quote from PATAS/ETA Case Decisions.
Each Case is determined upon its individual evidential merit and an Adjudicator's interpretation of the governing law; my finding in this Case is that the Notice of Rejection letter is substantially non-compliant since I consider that there to be manifest distinction between 'may' and 'will' which is substantial as opposed to semantics. Therefore I find the Notice of Rejection to be invalid, thus this Penalty Charge Notice cannot be enforced.
Accordingly, In light of my findings, I allow this Appeal.

And also adjudicator's

John Lane 2160211959 Sean stanton-Dunn 2160210490 Christopher Rayner 2160211926

Michael Lawrence 2160422149 Joanne Oxlade 2150379790 and Neeti haria 2150479729

I submit that the errors within the PCN amount to procedural impropriety and as such the PCN must be cancelled

The notice of rejection

I submit that the NoR falls into procedural impropriety by failing at 5(2)(b) of the appeals regulations.

The authority are required by the above regulation to consider any representations. I contend that by, on the first point of my representation, merely re-iterating the contravention no consideration has been given to my representation.

Similarly with my representation re the errors on the PCN, a bland statement that the PCN is compliant is not evidence of consideration.

Further page two of the NoR sets out the time frame for action. It states 21 days from date of service for payment of the discounted amount. 28 days from date of service for the payment of the full amount or to make an appeal. It suffixes all of these time frames with the word delivered in brackets.

The term from as with the term within would cause counting to start the day after service not as the regulations require “beginning with the date of service”

This error is compounded by the inclusion of the word delivered. The date of service is set by regulation as stated earlier. It sets an unambiguous time frame all parties both parties would use the same start and end dates for actions Whereas the day of delivery is an ambiguous date. The postal service is not universally reliable and delivery could well be 3,4,5 or even more days after posting. The recipient ,using the time frame given by the authority, would be out of step by whatever period, after the two days the post was delivered. The authority on the other hand using the mandated two working days from date of posting

A person may wish to pay but for whatever reason needs to wait until the last minute. If the date of delivery was after the two days allowed for service, they could easily find they attempt to pay late, an increased penalty them being demanded.

Similarly, if a person wants to appeal, but leaves it until the last moment, they could find their appeal rejected as out of time.

This is compounded by the failure to accurately convey the correct time for making appeals. Omitting that an adjudicator may allow such additional time as they deem fit

I respectfully submit that for any one or all of the reasons stated the enforcement of this PCN be invalid and it be ordered cancelled.







This post has been edited by PASTMYBEST: Thu, 25 Jan 2018 - 09:22
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DancingDad
post Wed, 24 Jan 2018 - 23:23
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QUOTE
This error is compounded by the inclusion of the word delivered. The date of service is set by regulation as stated earlier. Whereas the day of delivery is an ambiguous date. The postal service is not universally reliable and delivery could well be 3,4,5 or even more days after posting.

By including the word delivered the authority implies that the recipient can use that date to calculate deadlines while the authority will be working to the deemed date of service as laid down within the regulations. This creates real prejudice and the risk that the recipient will miss deadlines while working to a date that only they could know.

I'm also wondering if the fact that the authority repainted the ZZs shortly after the contravention date can be used to illustrate the poor state and that the authority knew they were below the standard needed ??
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PASTMYBEST
post Thu, 25 Jan 2018 - 09:23
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QUOTE (DancingDad @ Wed, 24 Jan 2018 - 23:23) *
QUOTE
This error is compounded by the inclusion of the word delivered. The date of service is set by regulation as stated earlier. Whereas the day of delivery is an ambiguous date. The postal service is not universally reliable and delivery could well be 3,4,5 or even more days after posting.

By including the word delivered the authority implies that the recipient can use that date to calculate deadlines while the authority will be working to the deemed date of service as laid down within the regulations. This creates real prejudice and the risk that the recipient will miss deadlines while working to a date that only they could know.

I'm also wondering if the fact that the authority repainted the ZZs shortly after the contravention date can be used to illustrate the poor state and that the authority knew they were below the standard needed ??



Have edited slightly to include your input

ta
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materaz
post Sun, 28 Jan 2018 - 11:24
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QUOTE (PASTMYBEST @ Wed, 24 Jan 2018 - 22:58) *
At last. Thought I'd never get a bit of time. Feel free to use verbatim, edit or chuck your choice. All the arguments are sound, but we can not guarantee anything.

Appeal against the imposition of PCN number xxxxxx
Vehicle registration mark AB 23 CDE

Your name and address.

I make this appeal under the statutory grounds of

1:- the contravention did not occur

2:- For various reasons, That there has been a procedural impropriety on the part of the authority


My representation to the council were made for the same reasons, though in their notice of rejection they merely re iterated the reason for the issue of the PCN and asserted that the PCN was compliant

I submit that the contravention did not occur because the signage was inadequate to the extent that if fails to comply with the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 regulation 18

I did not have the benefit of an elevated position as is captured by the CCTV. From a drivers perspective the position I stopped was before the road markings commenced and before the upright sign, I would expect to mark the beginning of the restricted area. That the markings were re-painted shortly after this alleged contravention is testament to the lines being non compliant.

I respectfully ask the adjudicator to consider the view a driver would have, the worn condition of the road markings and the position of the upright sign and find that these in combination give rise to a finding that the contravention did not occur.

That there has been a procedural impropriety on the part of the authority

The PCN

paragraph two of the fourth chapter of the PCN entitled How to make representations, states

That if neither payment or representations are made within the 28 day period the penalty WILL increase by 50% and a charge certificate WILL be issued. Two issues need be considered here.

The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 at the schedule 2(f) set out the time after which a charge certificate MAY be served. This is “the last day of the period of 28 days beginning with the date on which the penalty charge notice is served;”

The date of service is made at 3(2) of the regulations and is in the normal course of events two working days after date of posting. This is taken to be the date of notice unless it can be shown otherwise.

The term within by accepted legal convention would start the counting on the next day after posting, extending the time the regulations allow by at least one day.

I submit in support of this view finding of adjudicator Anthony chan in case number2130536182 where he follows the finding in the key case of Al's bar vs Wandsworth case number 2020106430

The second part of this procedural impropriety is in the use of the term WILL where the regulations allow only that the term MAY be used, thus maintaining the authorities discretion. And them not falling foul of the common law by fettering their discretion to choose to continue enforcement or not.

This point has been before the tribunal numerous times, and I respectfully ask that the findings of the following adjudicators be considered in reaching your finding..

Belinda pearce 216022028A She found as follows
The second contention concerns wording in the Notice of Rejection letter which Mr Dishman maintains is not compliant with the governing legislation by dint of its employment (again) of the word will instead of may.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the Notice of Rejection contains certain information including that the Enforcement Authority may serve a charge certificate.
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.
I do not accept the theory that the word will reflects a greater warning element, since its meaning is distinctly at variance to that of the word may.
Mr Dishman cites previous PATAS/ETA Cases in support.
The Enforcement Authority quote from PATAS/ETA Case Decisions.
Each Case is determined upon its individual evidential merit and an Adjudicator's interpretation of the governing law; my finding in this Case is that the Notice of Rejection letter is substantially non-compliant since I consider that there to be manifest distinction between 'may' and 'will' which is substantial as opposed to semantics. Therefore I find the Notice of Rejection to be invalid, thus this Penalty Charge Notice cannot be enforced.
Accordingly, In light of my findings, I allow this Appeal.

And also adjudicator's

John Lane 2160211959 Sean stanton-Dunn 2160210490 Christopher Rayner 2160211926

Michael Lawrence 2160422149 Joanne Oxlade 2150379790 and Neeti haria 2150479729

I submit that the errors within the PCN amount to procedural impropriety and as such the PCN must be cancelled

The notice of rejection

I submit that the NoR falls into procedural impropriety by failing at 5(2)(b) of the appeals regulations.

The authority are required by the above regulation to consider any representations. I contend that by, on the first point of my representation, merely re-iterating the contravention no consideration has been given to my representation.

Similarly with my representation re the errors on the PCN, a bland statement that the PCN is compliant is not evidence of consideration.

Further page two of the NoR sets out the time frame for action. It states 21 days from date of service for payment of the discounted amount. 28 days from date of service for the payment of the full amount or to make an appeal. It suffixes all of these time frames with the word delivered in brackets.

The term from as with the term within would cause counting to start the day after service not as the regulations require “beginning with the date of service”

This error is compounded by the inclusion of the word delivered. The date of service is set by regulation as stated earlier. It sets an unambiguous time frame all parties both parties would use the same start and end dates for actions Whereas the day of delivery is an ambiguous date. The postal service is not universally reliable and delivery could well be 3,4,5 or even more days after posting. The recipient ,using the time frame given by the authority, would be out of step by whatever period, after the two days the post was delivered. The authority on the other hand using the mandated two working days from date of posting

A person may wish to pay but for whatever reason needs to wait until the last minute. If the date of delivery was after the two days allowed for service, they could easily find they attempt to pay late, an increased penalty them being demanded.

Similarly, if a person wants to appeal, but leaves it until the last moment, they could find their appeal rejected as out of time.

This is compounded by the failure to accurately convey the correct time for making appeals. Omitting that an adjudicator may allow such additional time as they deem fit

I respectfully submit that for any one or all of the reasons stated the enforcement of this PCN be invalid and it be ordered cancelled.


Wow. I am speechless... So impressive! smile.gif

Thank you very much PASTMYBEST and DancingDad! Do appreciate your time and talented support! Will update as soon as get a reply from them.
smile.gif
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