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Towed Away in Newham
ma8342
post Wed, 10 Jan 2018 - 20:31
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So, a long story but bear with me. After an Uber driver drove into the back of me I have had a hire car courtesy of my insurance company. Yesterday was the last day of the hire car as the repair company informed me that my car was ready. I had the call in the morning and was due to pick up my car in the afternoon but the call triggered something in my head and in a lapse of concentration i thought i was in my own car (with parking permit) and parked outside my place of work in the hire car (no permit). (approx 8;30am
So as I went to drive to a site at approx 2pm hours after parking up i found my car had been towed. I saw a warden and asked him and he confirmed it. After informing the hire company I drove to the pound this morning to see retrieve my personal belongings and after about half hour of signing forms and giving ID i was allowed to retrieve my stuff. As I approached the car I realised the car had NO PCN on the window. I asked my chaperone why and he didn't know. I pointed out that my car was one of the few that hadn't.
Back at the pound office I asked the charming young lady (read sarcasm) why there wasn't a ticket on the window and didn't know but showed me the ticket in the folder, i asked for a copy but she wouldn't give me it ( i asked if i could photograph it too) I said are you formally denying me access to this and she replied that she "was not allowed". I explained that I needed the PCN number to access photographic evidence on the Newham website but she refused to give it to me. Again I asked her to confirm that she was denying me access to evidence and she repeated that she was not allowed.

Please excuse me if I have not conformed to any site protocol but I would be grateful if any of the experts here could give me an opinion on my chances of disputing this case.

Pics and movie
https://photos.app.goo.gl/KSx7dgyJfLC30dRC2

Many thanks for your time
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post Wed, 10 Jan 2018 - 20:31
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4101
post Thu, 11 Jan 2018 - 19:29
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I think that you should be able to recover the car without paying, if the council wants to pursue the pcn they have to serve a notice to owner.

The NtO would go to the hire firm, they would then use the following appeal ground:


(4) The grounds referred to in paragraph (2)(b)(i) are—

(a)that the alleged contravention did not occur;
(b)that the recipient—
(i)never was the owner of the vehicle in question;
(ii)had ceased to be its owner before the date on which the alleged contravention occurred; or
(iii)became its owner after that date;
(d)©that the vehicle had been permitted to remain at rest in the place in question by a person who was in control of the vehicle without the consent of the owner;that the recipient is a vehicle-hire firm and—
(i)the vehicle in question was at the material time hired from that firm under a hiring agreement; and
(ii)the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement;



the council would then re-serve the NtO on you and you could then decide to pay the PCN or fight it. The removal and storage fees can only be enforced through the county court.

I expect this is confusing.
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PASTMYBEST
post Thu, 11 Jan 2018 - 21:30
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QUOTE (4101 @ Thu, 11 Jan 2018 - 19:29) *
I think that you should be able to recover the car without paying, if the council wants to pursue the pcn they have to serve a notice to owner.

The NtO would go to the hire firm, they would then use the following appeal ground:


(4) The grounds referred to in paragraph (2)(b)(i) are—

(a)that the alleged contravention did not occur;
(b)that the recipient—
(i)never was the owner of the vehicle in question;
(ii)had ceased to be its owner before the date on which the alleged contravention occurred; or
(iii)became its owner after that date;
(d)©that the vehicle had been permitted to remain at rest in the place in question by a person who was in control of the vehicle without the consent of the owner;that the recipient is a vehicle-hire firm and—
(i)the vehicle in question was at the material time hired from that firm under a hiring agreement; and
(ii)the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement;



the council would then re-serve the NtO on you and you could then decide to pay the PCN or fight it. The removal and storage fees can only be enforced through the county court.

I expect this is confusing.

This post is a bit confusing, Whilst what you think may well be the right thing, in practice it is not what will happen
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hcandersen
post Thu, 11 Jan 2018 - 22:13
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@4101, no.

The only person able to recover the vehicle is the person who, in this case, is permitted to exercise control over the vehicle.

If still within the hire contract period, this would be the OP. But if not, it is the hire company, the OP being the ex-hiree as determined by their contract but with enduring conditions of contract as regards liability to the hire company.
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4101
post Fri, 12 Jan 2018 - 00:45
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QUOTE (hcandersen @ Thu, 11 Jan 2018 - 22:13) *
@4101, no.

The only person able to recover the vehicle is the person who, in this case, is permitted to exercise control over the vehicle.

If still within the hire contract period, this would be the OP. But if not, it is the hire company, the OP being the ex-hiree as determined by their contract but with enduring conditions of contract as regards liability to the hire company.



No, you are wrong and you have made no ref to the legislation.

Either the hire firm or the driver can recover the vehicle from the pound during the currency of the hire agreement.
http://www.legislation.gov.uk/uksi/2000/2546/schedule/2/made

As regards the RTRA:

101A Right of owner to recover vehicle or proceeds of sale
(1)If before a vehicle is disposed of by an authority under section 101 above it is claimed by
a person who–(a) satisfies the authority that he is its owner, and
(b) pays the relevant charges,
the authority shall permit him to remove the vehicle from their custody within such period as they
may specify or, in the case of an authority other than a local authority, as may be prescribed.


(5) If in the case of any vehicle it appears to the authority in question that more than one person is
or was its owner at the relevant time, such one of them as the authority think fit shall be treated as
its owner for the purposes of this section.



What happens if the person who hired the vehicle disappears? According to you, the hire firm has to pay the release fee.
So what appeal ground can it use?

(5) The grounds referred to in paragraph (4)(a) are—
(a) that the vehicle had not been permitted to remain at rest in a civil enforcement area for
parking contraventions in circumstances in which a penalty charge was payable by virtue
of regulation 4 of the General Regulations;
(b) that a civil enforcement officer had not, in accordance with [ regulation 9 or 9A ]
of the General Regulations, fixed a penalty charge notice to the vehicle or handed such a notice
to the person appearing to him to be in charge of the vehicle, before the vehicle was removed;
© that, at the time the vehicle was removed, the power to remove the vehicle conferred
by paragraph (2) of regulation 5C of the Removal and Disposal of Vehicles Regulations
1986 was, by virtue of paragraph (3) of that regulation, not exercisable;
(d) that the vehicle had been permitted to remain at rest in the place where it was by a
person who was in control of the vehicle without the consent of the owner;
(e) that the place where the vehicle was at rest was not in a civil enforcement area for
parking contraventions;
(f) that the penalty charge or other charge paid to secure the release of the vehicle exceeded
the amount applicable in the circumstances of the case; or
(g) that there has been a procedural impropriety on the part of the enforcement authority.


This question has been put to you before, I seem to remember. So far, silence is deafening.

This post has been edited by 4101: Fri, 12 Jan 2018 - 01:04
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hcandersen
post Fri, 12 Jan 2018 - 08:38
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@4101, either the hirer or hiree may collect the car, but only when both can be considered the 'owner'. Which is what I posted.

So,
1. The OP is within the period but between them they have already decided to let the hire company recover the vehicle, or
2. The OP is not, and therefore only the hire company may.

Either way, the hire company recovers the vehicle and therefore by virtue of the Appeal Regs is the only 'person' to be informed and who may make reps.

The OP may not, but posted 'I will pay the hire company and if appropriate I will contest.'

They cannot.

Where's the confusion?

You think that the OP 'should' be able to recover the vehicle without payment.

Well they cannot. De facto the vehicle will not be released other than by a legal direction (court or adjudication) and no amount of posts to the contrary on this or any other site will change this. The contra position may at some time be found to be correct, so be it. But it isn't councils' practice now and no amount of posts here will change this situation.

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Mad Mick V
post Fri, 12 Jan 2018 - 08:41
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@4101

We know who you are so please try to be civil. I think you have had more reincarnations than Dr. Who.

Mick
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Guest_Bogsy_*
post Fri, 12 Jan 2018 - 10:22
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The council will as we all know rely on section 101A RTRA 1984 to impose charges on the "owner". When a vehicle is on hire at the time of recovery then the "owner" includes the hiree. Here is the definition trail

101A(6)In this section—

“ civil enforcement area for parking contraventions ” and “ penalty charge ” have the same meaning as in Part 6 of the Traffic Management Act 2004; and

“ owner ” has the same meaning as in section 101 above


s.101(8)
owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, includes the person entitled to possession of the vehicle under the agreement;


Councils use section 101A RTRA 1984 in all removal cases and yet the purpose of section 102 is never explained by them. Section 102 does not require any upfront payments inorder to recover a removed vehicle and it makes the removal and storage charges payable by the "person responsible". It also allows everything written on the back of a PCN to remain in effect. It's absurd that with the current removal process a PCN is served and yet it is meaningless to the recipient. How can a legal document that conveys false information (such as the right to make an informal challenge, the right to receive an NTO, the right to 28 days to pay) remain a legally valid notice? In removal cases the PCN is the only formal notice served and yet it is treated by councils as otiose apart from the penalty charge aspect. Where does the law allow that part of the PCN to apply but no other part?

This post has been edited by Bogsy: Fri, 12 Jan 2018 - 10:27
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Incandescent
post Fri, 12 Jan 2018 - 11:45
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QUOTE (Bogsy @ Fri, 12 Jan 2018 - 10:22) *
The council will as we all know rely on section 101A RTRA 1984 to impose charges on the "owner". When a vehicle is on hire at the time of recovery then the "owner" includes the hiree. Here is the definition trail

101A(6)In this section—

“ civil enforcement area for parking contraventions ” and “ penalty charge ” have the same meaning as in Part 6 of the Traffic Management Act 2004; and

“ owner ” has the same meaning as in section 101 above


s.101(8)
owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, includes the person entitled to possession of the vehicle under the agreement;


Councils use section 101A RTRA 1984 in all removal cases and yet the purpose of section 102 is never explained by them. Section 102 does not require any upfront payments inorder to recover a removed vehicle and it makes the removal and storage charges payable by the "person responsible". It also allows everything written on the back of a PCN to remain in effect. It's absurd that with the current removal process a PCN is served and yet it is meaningless to the recipient. How can a legal document that conveys false information (such as the right to make an informal challenge, the right to receive an NTO, the right to 28 days to pay) remain a legally valid notice? In removal cases the PCN is the only formal notice served and yet it is treated by councils as otiose apart from the penalty charge aspect. Where does the law allow that part of the PCN to apply but no other part?

Until this gets to Judicial Review we are stuck. And who is going to pay for that ? Alternative is amendments to the law to make the use of S102 mandatory on councils. However Parliament and the government are supine as we all know with ministers "just minding the shop" with not views of their own.
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Guest_Bogsy_*
post Fri, 12 Jan 2018 - 12:14
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QUOTE (Incandescent @ Fri, 12 Jan 2018 - 11:45) *
Until this gets to Judicial Review we are stuck. And who is going to pay for that ? Alternative is amendments to the law to make the use of S102 mandatory on councils. However Parliament and the government are supine as we all know with ministers "just minding the shop" with not views of their own.


We have shown that there is ambiguity in the law. Eg: is it s.101A or s.102 RTRA 1984 that applies? Why is a parking contravention subject to civil enforcement pursuant to the TMA 2004 not subjected to it but instead subjected to the RTRA 1984? Why is access to a fair hearing made discriminatory by being only available to those who can afford to pay upfront release fees?

The accepted legal principle where ambiguity exists is to find in favour of the defendant so why has no adjudicator done this? If they did, councils would be forced to take the matter to judicial review.

This post has been edited by Bogsy: Fri, 12 Jan 2018 - 12:14
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4101
post Fri, 12 Jan 2018 - 12:51
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QUOTE (Incandescent @ Fri, 12 Jan 2018 - 11:45) *
QUOTE (Bogsy @ Fri, 12 Jan 2018 - 10:22) *
The council will as we all know rely on section 101A RTRA 1984 to impose charges on the "owner". When a vehicle is on hire at the time of recovery then the "owner" includes the hiree. Here is the definition trail

101A(6)In this section—

“ civil enforcement area for parking contraventions ” and “ penalty charge ” have the same meaning as in Part 6 of the Traffic Management Act 2004; and

“ owner ” has the same meaning as in section 101 above


s.101(8)
owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, includes the person entitled to possession of the vehicle under the agreement;


Councils use section 101A RTRA 1984 in all removal cases and yet the purpose of section 102 is never explained by them. Section 102 does not require any upfront payments inorder to recover a removed vehicle and it makes the removal and storage charges payable by the "person responsible". It also allows everything written on the back of a PCN to remain in effect. It's absurd that with the current removal process a PCN is served and yet it is meaningless to the recipient. How can a legal document that conveys false information (such as the right to make an informal challenge, the right to receive an NTO, the right to 28 days to pay) remain a legally valid notice? In removal cases the PCN is the only formal notice served and yet it is treated by councils as otiose apart from the penalty charge aspect. Where does the law allow that part of the PCN to apply but no other part?

Until this gets to Judicial Review we are stuck. And who is going to pay for that ? Alternative is amendments to the law to make the use of S102 mandatory on councils. However Parliament and the government are supine as we all know with ministers "just minding the shop" with not views of their own.



What happens if you cannot pay the release fee? Example: you park outside your home in London in a res bay and have a valid permit. You go into hospital. Later that day the yellow sign goes up saying bay suspended in 7 days. A week later the suspension kicks in and vehicle is ticketed and impounded. Owner gets out of hospital and the release fee is:
PCN £130
Removal £200
Storage 30 x£40 £1,200

[b]total £1,530

What happens if you dont have £1,530 to hand? What if the car is worth £500 (like mine)?

If the Adjs are correct (which they are not) then the rich can appeal and get their car back and the poor lose thier car to the scrap yard and cannot appeal.

This breaches right to a fair hearing. A fair hearing is one which is free to all. Same as for criminal law. You dont pay to contest a parking ticket in a mags court.

This post has been edited by 4101: Fri, 12 Jan 2018 - 12:52
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PASTMYBEST
post Fri, 12 Jan 2018 - 14:07
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QUOTE (4101 @ Fri, 12 Jan 2018 - 12:51) *
QUOTE (Incandescent @ Fri, 12 Jan 2018 - 11:45) *
QUOTE (Bogsy @ Fri, 12 Jan 2018 - 10:22) *
The council will as we all know rely on section 101A RTRA 1984 to impose charges on the "owner". When a vehicle is on hire at the time of recovery then the "owner" includes the hiree. Here is the definition trail

101A(6)In this section—

“ civil enforcement area for parking contraventions ” and “ penalty charge ” have the same meaning as in Part 6 of the Traffic Management Act 2004; and

“ owner ” has the same meaning as in section 101 above


s.101(8)
owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, includes the person entitled to possession of the vehicle under the agreement;


Councils use section 101A RTRA 1984 in all removal cases and yet the purpose of section 102 is never explained by them. Section 102 does not require any upfront payments inorder to recover a removed vehicle and it makes the removal and storage charges payable by the "person responsible". It also allows everything written on the back of a PCN to remain in effect. It's absurd that with the current removal process a PCN is served and yet it is meaningless to the recipient. How can a legal document that conveys false information (such as the right to make an informal challenge, the right to receive an NTO, the right to 28 days to pay) remain a legally valid notice? In removal cases the PCN is the only formal notice served and yet it is treated by councils as otiose apart from the penalty charge aspect. Where does the law allow that part of the PCN to apply but no other part?

Until this gets to Judicial Review we are stuck. And who is going to pay for that ? Alternative is amendments to the law to make the use of S102 mandatory on councils. However Parliament and the government are supine as we all know with ministers "just minding the shop" with not views of their own.



What happens if you cannot pay the release fee? Example: you park outside your home in London in a res bay and have a valid permit. You go into hospital. Later that day the yellow sign goes up saying bay suspended in 7 days. A week later the suspension kicks in and vehicle is ticketed and impounded. Owner gets out of hospital and the release fee is:
PCN £130
Removal £200
Storage 30 x£40 £1,200

[b]total £1,530

What happens if you dont have £1,530 to hand? What if the car is worth £500 (like mine)?

If the Adjs are correct (which they are not) then the rich can appeal and get their car back and the poor lose thier car to the scrap yard and cannot appeal.

This breaches right to a fair hearing. A fair hearing is one which is free to all. Same as for criminal law. You dont pay to contest a parking ticket in a mags court.


Yes, But what will happen if you turn up at the pound and say2 i want my car back, but I'm not paying until after I appeal and lose" You wont get your car back.

What did the minister for justice say when you put this to them, or the minister for transport or any high court judge. The need for change is not argued against on here, but telling OPs that is what should be as though it will make a difference will.

This case looks like the perfect denial of access to justice as the OP will end up paying without any right of appeal. How can they be helped?

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4101
post Fri, 12 Jan 2018 - 17:54
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The DfT were asked to explain why it thinks pay before release is legal and 4 weeks later they came back with 'er, no comment'.
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hcandersen
post Fri, 12 Jan 2018 - 21:49
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Our task is not to debate what should or shouldn't be, there will surely be other forums for this.

OPs come here for best advice on what is. And what is is that the relevant charges must be paid to secure the release of the vehicle. We know that it's possible to make reps without recovering the vehicle, but this risks escalating storage charges. The confusion here being that these are not the subject of any appeal which can only deal with the penalty charge, but if an appeal is successful then no charges are payable.

In any event, the OP's problem is with the hire company and whether they will or may simply pay the relevant charges and then charge to the OP under their hire agreement. There is not a hope in hell that the hire company is going to be in the vanguard of 4101's or any other likeminded posters challenge to the present de facto and de jure position.

IMO, the increasing volume of posts is making the OP's position less and not more clear to them.
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Fredd
post Fri, 12 Jan 2018 - 22:11
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QUOTE (hcandersen @ Fri, 12 Jan 2018 - 21:49) *
Our task is not to debate what should or shouldn't be, there will surely be other forums for this.

OPs come here for best advice on what is. And what is is that the relevant charges must be paid to secure the release of the vehicle.

Quite. If people want to debate the theory, and perhaps what course of action could lead to getting the practice changed, then by all means do that in the Flame Pit. The purpose of posts in this section of the forums is to provide practical help to the OP with their problem, not to persuade them to go down in flames on a point of principle.


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Guest_Bogsy_*
post Sat, 13 Jan 2018 - 08:49
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At this point I don't see that we can assist the OP since he has no right to make representations. If the hire company recover the vehicle they will have that right and all the OP can do is ask them to let him make representations on their behalf. @OP.......you need to be aware that the hire company may not just invoice you for the removal and storage charges but also for their costs in having to recover the vehicle and deal with the admin. Usually this is in the region of £50 to £100.

This post has been edited by Bogsy: Sat, 13 Jan 2018 - 08:58
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4101
post Sat, 13 Jan 2018 - 09:58
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QUOTE (Bogsy @ Sat, 13 Jan 2018 - 08:49) *
At this point I don't see that we can assist the OP since he has no right to make representations. If the hire company recover the vehicle they will have that right and all the OP can do is ask them to let him make representations on their behalf. @OP.......you need to be aware that the hire company may not just invoice you for the removal and storage charges but also for their costs in having to recover the vehicle and deal with the admin. Usually this is in the region of £50 to £100.



correct.
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