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BUS LANE penalty notice from (surprise) Cardiff council after 3 years!
TouringMuso01
post Mon, 1 Oct 2018 - 21:02
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I just received today a charge notice apparently from Cardiff Council threatening all sorts of action from full penalty payments of hundreds of pounds to seizing assets etc.

It states that I did not respond to an initial penalty notice - a notice that I never received and have no knowledge of. More interestingly the apparent contravention is dated as 2016 nearly 3 years ago!

At first I thought this was a scam - but seems like a legit letter.

The letter I received had a last chance offer of over £125 on it however this 14 day period has now expired as the letter was dated start of September and I received it yesterday.

I have no knowledge of the incident it refers to and I haven't been to Cardiff for at least 3 years


What should I do with this and how should I proceed in replying? The threatening nature of this is concerning me and as I never received anything relating to this previously I don't know how best to deal with this. Im now worried how they will react to this apparent 'non compliance'

Can this be legit or applicable nearly 3 years after the fact....??
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post Mon, 1 Oct 2018 - 21:02
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PASTMYBEST
post Wed, 27 Feb 2019 - 22:19
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Got to be honest I am struggling a bit on the format of this so please correct me if required before I suggest it is submitted


https://1drv.ms/w/s!AtBHPhdJdppVqlda8DxykONamduK


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TouringMuso01
post Wed, 27 Feb 2019 - 23:28
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Thanks once again PMB - I drafted something very similar. As time's now pressing Ive melded the two and will submit as a short summary. Used some of HCAndersen's wording too to hit home the important point of delay.

Sadly doesnt look like you can reorder the evidence tree as this now goes straight to the bottom!
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PASTMYBEST
post Wed, 27 Feb 2019 - 23:35
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QUOTE (TouringMuso01 @ Wed, 27 Feb 2019 - 23:28) *
Thanks once again PMB - I drafted something very similar. As time's now pressing Ive melded the two and will submit as a short summary. Used some of HCAndersen's wording too to hit home the important point of delay.

Sadly doesnt look like you can reorder the evidence tree as this now goes straight to the bottom!



perhaps send it as an e mail


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PASTMYBEST
post Thu, 28 Feb 2019 - 10:44
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I have this morning recieved the TPT case referenced add it to the evidence tree with an explanatory note

https://1drv.ms/b/s!AtBHPhdJdppVqlhYT4EJPMdsNL26


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TouringMuso01
post Sun, 17 Mar 2019 - 14:35
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Gentlemen - APPEAL WON with NOTHING TO PAY!

Cant thank you all enough for your contributions in this matter - incredibly generous and PMB in particular for your multiple drafts.

Adjudicators reasons as follows - some interesting points from Anne Hockaday:

If there is any other information i can pass on to the community other than the below do let me know!


1. This appeal is about a PCN for driving in a bus lane on 15 April 2016. The case is unusual as it involves a period of inactivity by the Council of over two years. 


2. The procedure for the civil enforcement of a bus lane is set out in The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 and The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013, stemming from the Traffic Management Act 2004. 


3. The penalty is issued by and payable to the Council. It is only if there is non-payment of an established liability, that the Council may use County Court procedures to enforce payment as a civil debt. 


4. I accept that the Council posted a PCN to Mr **** in time, and that in the absence of receipt of a response they posted a Charge Certificate, using the correct address as supplied by the DVLA. This remains Mr ****’s address. Mr **** says that as a freelance touring musician, he frequently works away and sometimes for long periods of time. 


5. Regulation 21 says that if payment is not made within 14 days of the Charge Certificate, the Council may seek to recover the charge as if it were payable under a County Court order. 


6. The difficulty for the Council is that after posting the Charge Certificate on 31 May 2016, the next entry is ‘1 July 2016 debt registration prior review stage’ and then nothing happened for more than two years. The next step was not taken until 6 September 2018 when the Council wrote to Mr **** and repeated the letter on 12 September 2018 (evidence 6-7). 


7. This ‘advisory letter’ informed him of their intention to apply to the County Court for a warrant to recover £105 unless he paid within 14 days. 


8. Mr **** replied to express his alarm and distress at receiving the advisory letter and to say that he never received the PCN and now had no recollection of the journey (evidence 8). He objected that the advisory letter omitted significant information about the option to apply to Court set aside an order for recovery. He also objected to the delay. 


9. The Council registered the debt and Mr **** applied to set aside the order on the basis that he had not received the PCN. The Court issued a revoking order, putting the matter back to £70. 


10. The Council posted a fresh PCN and Mr **** made detailed representations (he has also expressed his concern that his requests for the Council to use particular contact details at that time were overlooked, for which the Council have since apologised). The Council sent a Notice of Rejection and the case is now with this Tribunal. Mr **** sets out detailed reasons and provides materials to support his appeal. Analysis 


11. I accept that Mr **** did not in fact receive the original PCN (as accepted by the Court when making the revoking order) or the Charge Certificate. I accept that he was not aware of the bus lane allegation until the advisory letters arrived in September 2018. 


12. The complete inactivity of over 2 years, between posting the Charge Certificate and applying to register the debt at the County Court, may not breach any express time limit set out in the regulations listed above, or in the Statute of Limitations, but is in my view very significant in the context of seeking to enforce a penalty for a bus lane contravention that is the subject of a PCN. 


13. The alleged contravention was filmed by a static camera. There was no event at the time to alert Mr **** to the need to recall the circumstances. It can be hard enough to recall the details when the owner/driver reads a PCN a few weeks later. When more than 2 years elapse before becoming aware of the allegation, a driver cannot reasonably be expected to recall the journey satisfactorily. 


14. The delay causes inevitable evidential prejudice to Mr **** in relation to putting forward a potential defence, for example about exceptional traffic conditions at the time or about adequacy of the signage along the route that he had taken. I refer to the issues with the signage when drivers approach on Bute Street and turn left into Custom House Street in my decision in Appeal QC00314-1807. That decision is not a precedent as each case must be considered on its facts at the time. It is clear that an assessment would have to examine the signs and markings as at April 2016. The Council would have to produce images from that time. 


15. Mr **** provides the decision made in 1988 by Adjudicator Hickinbottom as he then was, now a Lord Justice of Appeal, The Right Honourable Lord Justice Hickinbottom: Davis (and others) v The Royal Borough of Kensington and Chelsea, Parking Appeals Service Case No.1970213021.

16. The 54-page decision sets out a thorough analysis of the issues that arise when enforcement of a parking contravention under the civil law by the issue of a PCN is interrupted by inactivity by a council. 


17. I note the following:
1. The paramount purpose of the regulations is not fiscal but good traffic management and better 
future compliance and the Council is not bound to pursue every penalty but have discretion to take account of the circumstances. The Council has public responsibilities quite different from a private plaintiff who seeks personal compensation (page 22-24). This is equally apt under the current Wales Statutory Guidance to local authorities on the civil enforcement of bus lane and moving traffic contraventions, July 2014; 

2. “I have come to the conclusion ... that the proper construction [of the civil enforcement regulations] requires the enforcing authority to take each step in the process within a reasonable time. Such an implication is necessary, so that justice is done and the purposes of the statute are not frustrated” (page 29); 

3. The Council’s obligation to act with timeliness is part of their wider duty to act fairly in the exercise of their statutory powers (page 50), having explained this duty in detail and citing R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 Lord Mustill, ‘Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances’; 

4. It is difficult to see how the pursuit of stale penalties after a lengthy period of time can in any way assist the purpose of good management of traffic (page 36); 

5. Factors of potential relevance following service of the charge certificate (page 48-49) and the consequences of a breach of the duty to act in a timely manner and fairly (page 50 - 51). 


18. I find that a period of inactivity for over two years was unreasonable and is inadequately explained. I find that the delay has caused evidential prejudice to Mr ****. I find that the Council failed to comply with its obligation to act within a reasonable time. The consequence is that they cannot now pursue the penalty. I allow the appeal. Mr **** has nothing to pay. 


19. Given this finding, there is no need for me to go on to make a finding whether or not the advisory letter amounts to a procedural impropriety as defined in regulation 4(5) of the Appeals Regulations. I agree with Mr **** that the advisory letter suffered from a significant omission, in that it did not describe the option to apply to Court to have some of the enforcement steps revoked to return the amount to £70. 
The ‘advisory letter’ is not part of the prescribed procedure. The fact of sending an extra letter of itself is not a procedural impropriety. I leave open the question whether sending an extra letter that contains an unsatisfactory description of the process could be a procedural impropriety as defined. 


Annie Hockaday Adjudicator 16/03/2019
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John U.K.
post Sun, 17 Mar 2019 - 14:50
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Well done smile.gif

I see you have added the case decision to
https://1drv.ms/b/s!AtBHPhdJdppVqlhYT4EJPMdsNL26

Cardiff have form for digging up ancient PCNs and this decision will be of value to others subjected to similar 'resurrections'

Hopefully someone more computer savvy than me will be able to put the decision docs in one or both of these sticky threads

http://forums.pepipoo.com/index.php?showto...p;#entry1471138

http://forums.pepipoo.com/index.php?showtopic=123170

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Neil B
post Sun, 17 Mar 2019 - 14:56
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icon_super.gif icon_eyes.gif icon_kidra.gif occasion14.gif hello2.gif


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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DancingDad
post Sun, 17 Mar 2019 - 15:25
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That is a good result.
Kudos to all that contributed and to Annie Hockaday.

Well done that man, raise a toast tonight, well deserved.


If you could, the TPT number for the case would be useful for if/when this is referenced in the future.
And this one is a keeper.

This post has been edited by DancingDad: Sun, 17 Mar 2019 - 15:26
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Mad Mick V
post Sun, 17 Mar 2019 - 15:42
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OP----Very well done to seeing this through.

Subject to the views of others I would go for costs. The Council have been wholly unreasonable IMO.

The other issue I might look at is DPA-------were the Council correct to retain the video file for that amount of time? After all that is their only evidence.

Mick
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PASTMYBEST
post Sun, 17 Mar 2019 - 16:31
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Please let us have a PDF of the decision. it will help others

I could not see a different result really

This post has been edited by PASTMYBEST: Sun, 17 Mar 2019 - 16:32


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PASTMYBEST
post Sun, 17 Mar 2019 - 16:52
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QUOTE (Mad Mick V @ Sun, 17 Mar 2019 - 15:42) *
OP----Very well done to seeing this through.

Subject to the views of others I would go for costs. The Council have been wholly unreasonable IMO.

The other issue I might look at is DPA-------were the Council correct to retain the video file for that amount of time? After all that is their only evidence.

Mick


My first thought was I don't see much chance but then given the particular mention by the adjudicator of the alarm and distress caused by the 2018 letter and the failing to inform of the options to re set the penalty, I would go for it using that letter as a starting point for all the research. Perhaps 5 hours @£19 per hour


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TouringMuso01
post Mon, 18 Mar 2019 - 14:56
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QUOTE (DancingDad @ Sun, 17 Mar 2019 - 15:25) *
If you could, the TPT number for the case would be useful for if/when this is referenced in the future.
And this one is a keeper.


Case number: QC00048-1902

This post has been edited by TouringMuso01: Mon, 18 Mar 2019 - 15:21
Attached File(s)
Attached File  Decision_47883_QC00048_1902_EDIT.pdf ( 136.61K ) Number of downloads: 28
 
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TouringMuso01
post Mon, 18 Mar 2019 - 15:27
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QUOTE (PASTMYBEST @ Sun, 17 Mar 2019 - 16:52) *
QUOTE (Mad Mick V @ Sun, 17 Mar 2019 - 15:42) *
OP----Very well done to seeing this through.

Subject to the views of others I would go for costs. The Council have been wholly unreasonable IMO.

The other issue I might look at is DPA-------were the Council correct to retain the video file for that amount of time? After all that is their only evidence.

Mick


My first thought was I don't see much chance but then given the particular mention by the adjudicator of the alarm and distress caused by the 2018 letter and the failing to inform of the options to re set the penalty, I would go for it using that letter as a starting point for all the research. Perhaps 5 hours @£19 per hour




Just as you think you've put it to bed wink.gif

I'll look in to this later on today or tomorrow - if there's nothing to lose and you think its worth a shot...
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PASTMYBEST
post Mon, 18 Mar 2019 - 15:48
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QUOTE (TouringMuso01 @ Mon, 18 Mar 2019 - 15:27) *
QUOTE (PASTMYBEST @ Sun, 17 Mar 2019 - 16:52) *
QUOTE (Mad Mick V @ Sun, 17 Mar 2019 - 15:42) *
OP----Very well done to seeing this through.

Subject to the views of others I would go for costs. The Council have been wholly unreasonable IMO.

The other issue I might look at is DPA-------were the Council correct to retain the video file for that amount of time? After all that is their only evidence.

Mick


My first thought was I don't see much chance but then given the particular mention by the adjudicator of the alarm and distress caused by the 2018 letter and the failing to inform of the options to re set the penalty, I would go for it using that letter as a starting point for all the research. Perhaps 5 hours @£19 per hour




Just as you think you've put it to bed wink.gif

I'll look in to this later on today or tomorrow - if there's nothing to lose and you think its worth a shot...



it costs nothing so for the sake of an e mail. I will draft something later


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TouringMuso01
post Tue, 19 Mar 2019 - 15:09
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Thanks PMB - Just 3 small boxes on the form:

1.Please Explain why you think they should pay your costs

2.Costs You are applying for

and

3.Amount
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PASTMYBEST
post Tue, 19 Mar 2019 - 16:56
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QUOTE (TouringMuso01 @ Tue, 19 Mar 2019 - 15:09) *
Thanks PMB - Just 3 small boxes on the form:

1.Please Explain why you think they should pay your costs

2.Costs You are applying for

and

3.Amount


The reason they should pay is that they were wholly unreasonable in pursuing enforcement and contesting your appeal

Explanation I will draft for you

and amount at the litigant in person rate of £19 per hour say 5 hours so £95


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TouringMuso01
post Fri, 22 Mar 2019 - 14:15
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QUOTE (PASTMYBEST @ Tue, 19 Mar 2019 - 16:56) *
QUOTE (TouringMuso01 @ Tue, 19 Mar 2019 - 15:09) *
Thanks PMB - Just 3 small boxes on the form:

1.Please Explain why you think they should pay your costs

2.Costs You are applying for

and

3.Amount


The reason they should pay is that they were wholly unreasonable in pursuing enforcement and contesting your appeal

Explanation I will draft for you

and amount at the litigant in person rate of £19 per hour say 5 hours so £95



Ok! I presume it should be quite a brief explanation give the space they lay out for you
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DancingDad
post Fri, 22 Mar 2019 - 14:22
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QUOTE (TouringMuso01 @ Fri, 22 Mar 2019 - 14:15) *
........Ok! I presume it should be quite a brief explanation give the space they lay out for you


Reasons Attached or similar does not take up much room wink.gif
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Mad Mick V
post Wed, 17 Apr 2019 - 14:17
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Just musing over this one again.

The Council's letter re. the Charge Certificate stated:-

"At the time of the contravention a PCN was sent out to your address on 26/04/2016, this was not responded to so a Charge Certificate was sent out on 31/05/2016. At this time we did not have the relevant legislation to progress the fine further to enforcement. This legislation has now been granted so all unpaid fines are being progressed in line with this."

The DPA Guidelines:-

Article 5(1)(e) says (my bold):-

“1. Personal data shall be:

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’)”

IMO there was no purpose for the data to be retained because, as the Council has helpfully admitted,they could not process the data. It just so happened that something else came along which allowed them to process data from that point in time NOT in retrospect.

Mick
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