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PNC Loading bay
w90210
post Sun, 17 Mar 2019 - 15:38
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[attachment=62672:Loading_bay.pdf]

HI, received this PNC from the driver, who says she parked for under 10 minutes in this bay. The car is on an operating lease so the company is the registered keeper at DVLA. The car wasn't being used on business at the time. the tarmac is marked Loading Only and there is a small sign that says Loading Bay but nothing else. Is there any way out of paying this or is it a case of pay the £35 and forget. Any input appreciated, thanks.
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post Sun, 17 Mar 2019 - 15:38
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stamfordman
post Sun, 17 Mar 2019 - 16:08
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Here:

https://www.google.com/maps/@50.2630645,-5....3312!8i6656

What do you think could be a challenge? Any loading going on?

0845 number on PCN.
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w90210
post Sun, 17 Mar 2019 - 17:13
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loading I'd say, but is proof required?
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PASTMYBEST
post Sun, 17 Mar 2019 - 17:17
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QUOTE (w90210 @ Sun, 17 Mar 2019 - 17:13) *
loading I'd say, but is proof required?


Yes tell us what were you loading? and how long did it take


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DancingDad
post Sun, 17 Mar 2019 - 17:19
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Some sort of proof or evidence is required.
For instance, if something large or heavy had been ordered on click and collect from Argos, then provide receipts and click and collect confirmation.
If popped into Subway to collect lunch, forget it.


Give us some details and we can advise based on more then supposition.
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cp8759
post Sun, 17 Mar 2019 - 22:11
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QUOTE (w90210 @ Sun, 17 Mar 2019 - 17:13) *
loading I'd say, but is proof required?

What was being loaded?

The 0845 number is a ground of challenge in its own right.


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w90210
post Mon, 18 Mar 2019 - 17:43
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Hi, thanks for the replies. Have now spoken to driver and drop off was made to Save the Children and pick up of medicines from Boots the Chemist, in all 10 minutes at most. Will appeal on this point and the 0845 as suggested.
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cp8759
post Mon, 18 Mar 2019 - 18:47
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QUOTE (w90210 @ Mon, 18 Mar 2019 - 17:43) *
Hi, thanks for the replies. Have now spoken to driver and drop off was made to Save the Children and pick up of medicines from Boots the Chemist, in all 10 minutes at most. Will appeal on this point and the 0845 as suggested.

No, don't rush ahead. We need more information to give your challenge a reasonable prospect of success.

What was being dropped off?


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w90210
post Tue, 19 Mar 2019 - 07:12
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Just a bin bag of clothes and shoes.
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cp8759
post Tue, 19 Mar 2019 - 11:18
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QUOTE (w90210 @ Tue, 19 Mar 2019 - 07:12) *
Just a bin bag of clothes and shoes.

How bulky / heavy was the bin bag?


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w90210
post Tue, 19 Mar 2019 - 17:25
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It was massive, stuffed to the ties.

Is the lack of clear signage an issue at this bay, shouldn't the Council be stating the time allowed for loading before penalty charged, if such a law exists.
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DastardlyDick
post Wed, 20 Mar 2019 - 10:34
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QUOTE (w90210 @ Tue, 19 Mar 2019 - 17:25) *
It was massive, stuffed to the ties.

Is the lack of clear signage an issue at this bay, shouldn't the Council be stating the time allowed for loading before penalty charged, if such a law exists.


I'd say that the signage is clear enough. As there is no from/to time stated, the restriction applies 24/7 and you can load for as long as you need, but you must be loading, which includes time to check the stuff you're loading, sign paperwork etc. Most Council's give a 5 minute "observation period" and if no activity is seen then a PCN is issued. It then becomes the RK/drivers responsibility to prove their entitlement to the exemption.

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DancingDad
post Wed, 20 Mar 2019 - 10:47
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QUOTE (w90210 @ Mon, 18 Mar 2019 - 17:43) *
Hi, thanks for the replies. Have now spoken to driver and drop off was made to Save the Children and pick up of medicines from Boots the Chemist, in all 10 minutes at most. Will appeal on this point and the 0845 as suggested.


We need more.
Drop off at charity shop is fine, assuming a large enough (or bulky) item.
Pick up at Boots may well come into shopping.


Time allowed for loading is as long as needed, but not one second more.
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w90210
post Wed, 20 Mar 2019 - 18:31
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Thanks, this looks like a shakedown for £35. The charity shop is a couple of minutes walk each way and then drop off so lurking warden could have observed as he said, easy pickings. What about the 0845 angle, I like this if it stands up. Just checked my Bt deal and it would cost me 15ppm plus service charge from my landline.

Found this recent case elsewhere on the forum which I could copy.

3) Ground 3 - The amount demanded exceeds the amount due in the circumstances of the case:
On the rear of the PCN it is stated that payment can be made by telephone by calling the payment line 0845 601 7620.

Ofcom confirms on its website
https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost that

"The cost of calling 0843, 0844 and 0845 numbers is made up of two parts: an access charge going to your phone company, and a service charge set by the organisation you are calling.

The service charge for calls to 084 numbers is between 0p and 7p per minute"

According to EE, a call to 0845 601 7620 would incur a service charge of 5p per minute.
https://ee.co.uk/content/dam/everything-eve...august-2018.pdf

In this instance, by imposing a 5p per minute service charge for telephone payments, the council is offering a payment method which exposes the motorist to having to pay a total amount which exceeds the statutory penalty prescribed by law. The High Court has already ruled that where one payment method attracts a surcharge, the availability of other payment methods that do not attract the surcharge is not relevant and an appeal must be allowed on the basis that the penalty demanded exceeds the penalty due under the statutory scheme. It follows that regardless of whether the alleged contravention occurred, the PCN must be cancelled.

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cp8759
post Fri, 22 Mar 2019 - 23:09
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w90210 the 0845 ground has the potential to be successful but, when it comes to appealing to the tribunal, you'll have to leave the drafting to us.


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Wretched Rectum
post Sat, 23 Mar 2019 - 00:35
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QUOTE (cp8759 @ Fri, 22 Mar 2019 - 23:09) *
w90210 the 0845 ground has the potential to be successful but, when it comes to appealing to the tribunal, you'll have to leave the drafting to us.


The 0845 ground failed recently in an adjudication case. If I recall correctly you advised in another post against repeating EDW's s101A v s102 RTRA 1984 towing argument because the adjudicator in Robinson v Edinburgh did not see the merit. Why is your 0845 argument worthy of being pushed despite being dismissed as having no merit but not EDW's RTRA 1984 argument?

This post has been edited by Wretched Rectum: Sat, 23 Mar 2019 - 00:36
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PASTMYBEST
post Sat, 23 Mar 2019 - 08:39
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QUOTE (Wretched Rectum @ Sat, 23 Mar 2019 - 00:35) *
QUOTE (cp8759 @ Fri, 22 Mar 2019 - 23:09) *
w90210 the 0845 ground has the potential to be successful but, when it comes to appealing to the tribunal, you'll have to leave the drafting to us.


The 0845 ground failed recently in an adjudication case. If I recall correctly you advised in another post against repeating EDW's s101A v s102 RTRA 1984 towing argument because the adjudicator in Robinson v Edinburgh did not see the merit. Why is your 0845 argument worthy of being pushed despite being dismissed as having no merit but not EDW's RTRA 1984 argument?


So far we have put this argument 3 times, 1 refused, but if you read the decision the adjudicator accepted the point but found the increase de minimis and also that the OP was not disadvantaged. Both findings wrong in law and against the will of parliament. In 1 the adjudicator picked up on the signage issue and made it up as they went along re the legality of the signs and the last the adjudicator argued a point not made by the OP or the council in order to allow the appeal without considering the only ground of appeal the 0844 number


The section 101 argument will never win at tribunal because TMA 2004 gives the council the power to remove a vehicle, It would need to be argued at JR




This post has been edited by PASTMYBEST: Sat, 23 Mar 2019 - 08:42


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hcandersen
post Sat, 23 Mar 2019 - 11:04
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The OP made the point in post #1

The car is on an operating lease so the company is the registered keeper at DVLA.

So any thoughts of adjudication are not relevant, it seems clear the OP would not want to even get involved in trying to get the registered keeper to make reps against a NTO in order to transfer liability to them so that they could submit their own reps and go to adjudication on the basis of less-than-certain grounds.

I read them as being pragmatic.

Submit a challenge no later than 28th by all means, but without proof, be prepared to pay the discount.
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cp8759
post Sun, 24 Mar 2019 - 17:47
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QUOTE (Wretched Rectum @ Sat, 23 Mar 2019 - 00:35) *
QUOTE (cp8759 @ Fri, 22 Mar 2019 - 23:09) *
w90210 the 0845 ground has the potential to be successful but, when it comes to appealing to the tribunal, you'll have to leave the drafting to us.


The 0845 ground failed recently in an adjudication case. If I recall correctly you advised in another post against repeating EDW's s101A v s102 RTRA 1984 towing argument because the adjudicator in Robinson v Edinburgh did not see the merit. Why is your 0845 argument worthy of being pushed despite being dismissed as having no merit but not EDW's RTRA 1984 argument?

The difference is simple: The 0845 angle is, at the very least, arguable. I have written a full rebuttal of Anna Hockday's reasoning here http://bit.ly/2E7bg94 and I suspect that this would prevail at judicial review, the only reason it's not being taken that far is because, understandably, Hannah Clark doesn't want to spend a minimum of £1k in court fees to make the point. But in a new adjudication where the matter is being considered afresh, rather than as a review, these arguments could and should prevail.

The towing argument has never had any legs whatsoever: The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2007 makes it clear that the will of Parliament is that when a vehicle has been issued with a PCN under the TMA 2004, the council concerned has a power to tow it and the owner must pay to recover the vehicle in order to access the appeals process. In Scotland, where the Road Traffic Act 1991 applies, the same powers of removal in relation to decriminalised parking contraventions are found in The Removal and Disposal of Vehicles (Amendment) Regulations 1998.

Any argument against the decision in Gareth Robinson v The City of Edinburgh Council (case reference 30537) is guaranteed to fail because Parliament passed both The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2007 and The Removal and Disposal of Vehicles (Amendment) Regulations 1998, so the will of Parliament is that a council can tow a vehicle that's been issued with a PCN, and the owner must pay to recover the vehicle before they can access the appeals process. You might argue this is unfair, but that's a political argument, not a legal one, and the courts are bound to apply the law as Parliament enacted it.

QUOTE (hcandersen @ Sat, 23 Mar 2019 - 11:04) *
...it seems clear the OP would not want to even get involved in trying to get the registered keeper to make reps against a NTO in order to transfer liability to them...

Not sure how you arrived at this conclusion from "Any input appreciated" but let's find out:

w90210, is the lease in your name? The Notice to Owner would go to the lease company, and you would need to ask the lease company to appeal the PCN on the hire ground, which allows them to name you (or whoever it is who leased the car) as the hirer. The council then cancels the NtO to the lease company and issues a new Notice to Owner to whoever has been named by the lease company. Many lease companies get this process wrong so they need to be (somewhat forcefully) nudged in the right direction.

Of course you might decide it's all too much hassle (for some reason hcandersen thinks all lease / hire car cases are too much hassle and the discount should be paid), but if you want to pursue this past the informal stage this is the process you must follow.


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Wretched Rectum
post Sat, 20 Apr 2019 - 21:00
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QUOTE
The towing argument has never had any legs whatsoever:


Really? Why has no moderator or member on here ever found any obvious fault with it then? The guys and girls on here are pretty sharp and don't tolerate nonsense posts.

QUOTE
The 0845 angle is, at the very least, arguable, I suspect that this would prevail at judicial review,


Where is your evidence to support this? The towing argument is just as equally arguable. A TMA 2004 PCN is issued but nothing further under the TMA 2004 proceeds despite Parliament passing the TMA 2004. How can parking enforcement hop from the decrim TMA 2004 Act to the criminalised 1984 Act?

What about human right legislation instructing that paying up front fees for a fair hearing is unlawful? The case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent).

https://www.supremecourt.uk/cases/docs/uksc...ess-summary.pdf

I'm not saying I'm right and you are wrong. I'm saying adjudicators who may be complicit in implementing a wrong process cannot be trusted. A Scottish adjudication decision should not be relied upon to define English law such as the TMA 2004. The higher courts have shown adjudicators to be wrong more than once or twice.

The small print on a PCN says you have particular rights. If those rights are wrong, is that PCN legally valid? What use is a PCN if what it says about your rights is bullshit? The Scottish adjudicator did not counter this despite being confronted with it. As far I can see, the PCN is the ONLY formal notice served with removals but we are told that the PCN is nonsense other than the penalty it imposes. It's the PCN that enables a 50% discount to be paid. How come this discount aspect is processed but no other aspect of the PCN is processed? Something is wrong when bits of a PCN can apply but other bits cannot! Councils can't just pick and choose legislation that suits. A PCN is either fully valid or fully invalid!

Personally I agree with your 0845 point. It's well argued and should succeed IF given a fair hearing. In my opinion this argument should extend to the service fees charged to park using pay by phone companies. Any charge to park on street must be prescribed pursuant to s.46 RTRA 1984 http://www.legislation.gov.uk/ukpga/1984/27/section/46

but most council TRO's/TMO's do not incude the pay by phone service charges. This means they are likely to be unlawful.

This post has been edited by Wretched Rectum: Sat, 20 Apr 2019 - 23:36
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