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Notice of Rejection of Representations for PCN Briardale Gdns NW2, Notice of Rejection Briardale Gardens 50 (J) prohibited turn NW2
Mothy1
post Sat, 1 Sep 2018 - 11:03
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Hi guys,

I'm completely new to this forum and would like some advice please on a recently received Notice of Rejection for a PCN received on the 28/08/18.

The original PCN, issued on the 08/08/18, refers to an alleged contravention (50 (J) Performing a prohibited turn (camera enforcement), a topic that has already been discussed in some detail on this forum.

On receipt of the original PCN, prior to my finding this forum, I sent an initial email appeal (17/08/18) on the following grounds:

1/ Medical with all relevant documentation

2/ Confusing signage and photos


Having since discovered this forum, I sent another email on the 21/08 adding the following (it has already been outlined on related Briardale Gardens NW2 here as grounds for appealing on technical matters), and so for brevity sake will only show the opening paragraph that I copied and pasted from this forum, using the case of Biesty v Barnet (ref 2130412623):

'Whilst I am claiming mitigating circumstances in the first instance on medical grounds, I am submitting the following:

The PCN does not state the direction of turn.....'


Barnet has now formally rejected (letter received on 28/08/18) my initial appeal (I no of no one who has had an upheld PCN for this contravention to date), and so I'm wondering whether this is worth pursuing at all? I don't know if there is any precedent for paying the discounted fine and appealing, as I feel that Barnet has completely ignored my legitimate medical evidence in the first instance, failing to take into account my Biesty case reference and failing to refer to the updated Traffic Signs Regulations order (they quote 2002).

I can only apologise for not posting my initial draft to Barnet here first, but I was having difficulty attaching my documents and was conscious of getting an email off to Barnet as soon as possible.

I would appreciate any advice as to what to do now.

Many thanks

Mothy1
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Incandescent
post Sat, 1 Sep 2018 - 12:59
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If you pay, that closes the matter and the appeal avenue is closed off. All you can do is either (1) cough-up the discounted amount (if offered), or (2) register an appeal at London Tribunals. This means the discount option is lost. It all depends on how strongly you feel about their none-consideration of your reps. However medical reasons for missing a sign call into question why you are driving at all. Why not post your actual reps here and their response, then more considered advice can be given.
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Mothy1
post Sat, 1 Sep 2018 - 14:01
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Attached Image
Thanks for your reply to my post.
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cp8759
post Sat, 1 Sep 2018 - 20:02
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It would help if you could show us your initial representations, their reply, and a link to the location on Google Street View. However there's two technical flaws on the PCN:

1: The turn is not specified, you can use ground 2 from here: http://forums.pepipoo.com/index.php?showto...p;#entry1411505

2: The 28 day period is after which they can issue a charge certificate is also wrong, you can use the following wording to appeal this point:

----------------------------------
Ground 2: The penalty demanded exceeds the amount due in the circumstances of the case: The Penalty Charge Notice is not substantially compliant with the legislation:

The enforcement authority served a Penalty Charge Notice under section 4(2) of the London Local Authorities and Transport for London Act 2003. Section 4(8) provides that the PCN must state, amongst other things, "that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable".

The relevant 28 day period is found in paragraph 5 of schedule 1 to the Act, which specifies that:

"Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;
"

Paragraph 5 therefore prescribes that the enforcement authority may only increase the penalty charge if it has not been paid before the end of the period of 28 days beginning with the date of service of the PCN.

The PCN served by the enforcement authority however states that: "If the Penalty Charge is not paid before the end of the 28 day period beginning with the date of this notice an increased charge of 50% to £195.00 may be payable and a Charge Certificate may be served seeking payment of the increased charge".

While one might ponder why Parliament has required that the penalty charge notice must specify, under section 4(8)(iii) of the Act, that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice, but also that the 28 day period for the purposes of the charge certificate only starts with the date of service of the notice (which is two working days later), ultimately the legislation is what it is and the enforcement authority is required to comply with it if it wishes to lawfully impose penalty charges.

By purporting to empower itself to serve a charge certificate some two days earlier than is permitted, the enforcement authority is acting prejudicially and it is depriving the recipient of the PCN of two days during which the option of either making representations, or indeed paying the £130 penalty charge, when these options should still be available.

While the decisions in previous cases are not binding they can be persuasive and I submit Robert Atlas v London Borough of Barnet (case reference 2170053479) as persuasive authority in this instance. The decision and its review are lengthy and are attached in full to this appeal, however the relevant passages for the purposes of this appeal are as follows:

"Section 4(8)(a) of the London Local Authorities and Transport for London Act 2003 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.

Mr Atlas correctly points out that 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.’

Mr Atlas submits 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.
...
Accordingly, I accept the application for review and the appeal must be allowed.
"

I submit that the same principle applies in the present case, the Penalty Charge Notice does not show substantial compliance with the 2003 Act and it follows that the only penalty that may be demanded is nil.
-----------------------------------

Obviously attach the full text of Robert Atlas v London Borough of Barnet and Austin Biesty v London Borough of Brent to the appeal, you'll find them on https://londontribunals.org.uk


--------------------
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Mothy1
post Sat, 1 Sep 2018 - 21:29
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Many thanks indeed for your very helpful and informative answer. I'm sorry for not being able to upload all the documents, but I've been having difficultly adding them all here and am not that tech savvy. For some reason, I seem also to be having trouble uploading more than one file at a time, so will endeavour to work this out as soon as possible.

In my initial appeal, in which I stated I was appealing mainly on medical grounds, I did refer to your first point and referred to the Biesty case which I copied and pasted (albeit in a bit of a hasty way).

The Notice of Rejection, in no way refers to any of my outlined contentions, merely stating that they have reviewed all my evidence. Presumably this is all a moot point now unless I raise these at Tribunal stage?

Furthermore, whilst I understand that payment of the initial reduced fine is, at least according to Barnet council, confirmation of one's culpability and, therefore, in their eyes, a closed case, is there any precedent I wonder for paying the fine (or a portion of it) but adding the caveat that I still wish to appeal?

In any event, I will do my best to provide you with the council's response and the Google link as soon as possible.

Many thanks again.

Mothy1
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cp8759
post Sat, 1 Sep 2018 - 21:54
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In simple terms:

1) You cannot pay and appeal, it's an either / or decision. My advice is to appeal as I think you have a good case. If you pay, it's game over.

2) To upload documents, it's better to upload them to imgur.com and then post a link on here, the upload facility on here doesn't work very well

3) If they have not specifically addressed one of your representations, Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) is a good case to quote:

The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed.


--------------------
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Mothy1
post Sun, 2 Sep 2018 - 07:06
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Much appreciated. Will upload everything as soon as for you to look at and advise.

All best

Tim
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Mothy1
post Sun, 2 Sep 2018 - 11:05
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My initial appeal prior to notice of rejection as requested. I will add documents as soon as.

'I wish to appeal the alleged PCN (50j performing a prohibited turn) on the 08/08/18 at 15.12 on grounds of mitigating circumstances and technicalities, if I may:

1/ Medical grounds:

My medical evidence attached will confirm that I suffer from inflammatory bowel disease, amongst other things, more commonly known as ulcerative colitis, which means that I suffer from chronic diarrhoea on a daily basis and am therefore in urgent need of getting to toilet facilities.

In addition, my life has been incredibly stressful of late, as I have been looking after an older brother recently diagnosed with cancer, and my condition is naturally and rather unfortunately aggravated by stress.

I had an ileostomy bag for a while and was provided with a Blue Badge for my specific condition, as it made travelling and parking generally much easier. Bizarrely, when the ileostomy was reversed, the Council did not allow me to renew the badge, even though my physical symptoms (and post-operative complications from major surgery over many years) were made far worse, and so I am now often left trying to find the shortest and safest route possible in order to avoid any unnecessary stress (which, admittedly, is very difficult) and personal embarrassment.

On the date in question, I was attempting to get to my mum's flat in a hurry, which is only across the road from Briardale, in order to use the toilets at her apartment block, which is generally far quicker than the double traffic lights at the Hendon Way/Finchley Road junction, which can only make my stressful route longer.

I was completely shocked then to receive a PCN for a turn I have been doing for the last 25 years!


2/ Poor/confusing signage/non-specific PCN


The PCN does not show at all any alleged contravention, other than state a 50 J prohibition, as neither the photographic evidence or video show any signage at all indicating I have made any prohibited turn, or indeed whether the turn was right or left. It was only after going online and revisiting the sign locations 'in person' that I was made aware of what I had done. The huge number of issued tickets (a staggering 8000, I believe, in the space of only a few months) since the signage was erected, clearly shows that the signage is pretty unclear and insufficient.


Moreover, it appears that this is a fairly new prohibition (I believe April/May this year), and the Council should at the very least make provision for drivers to get used to the new signage and perhaps issue a note or warning at an initial offence rather than an immediate fine of £65 which seems completely out of proportion to this specific contravention, which is clearly only designed as a traffic-calming measure and not because it is any way dangerous to do so.

There appear to be signs further down on the Finchley Road opposite or near to the Child's Way traffic lights, but if you are driving down Pattison Road (no sign exists at the bottom of this street, only on the Finchley Road when you have already turned left) as I was on this occasion, and turning left onto the Finchley Road and then into Briardale, it's next to impossible to view and take the time to see and read the signage from the driver seat (the signs are on poles almost 5 feet in the air and not at driver height in my Mazda 2), and then take appropriate and possibly dangerous action when you're already on one of the busiest roads (Finchley Road) in North West London.

The Council certainly needs to position a sign both lower down on the poles and at the top end of both Briardale and Pattison, as well as distribute letters to all local residents in the area, in order to alert more drivers to the changes, which I don't believe was ever done.



I attach my medical notes (and photographs) below, and hope very much that you will uphold my appeal on genuine medical grounds first and foremost and certainly take into account my other reasons for failing to notice the new signage on this isolated occasion.'


And I followed this up by email on the 21st, having come across this forum, which I forgot to edit in haste!



'Further to my earlier email (Friday 17th August) please add the following to my appeal for the above PCN for further clarification:

Whilst I am claiming mitigating circumstances in the first instance on medical grounds, I am submitting the following to add to my second point:


The PCN does not state the grounds on which the enforcement authority believe a penalty charge is payable:


The PCN does not state the direction of turn (or the operating times) and the operating dates and times cannot be seen on the supplied images either in the photos or the video supplied.

If the PCN does not state what sort of prohibited turn was performed (it merely states 50 J Performing a prohibited turn), I am therefore clarifying my additional challenge (alongside my medical one) that it does not set out the grounds in which the council believes the penalty is payable or allows the recipient of the penalty to understand the nature of the allegation.


Although these proceedings are civil in nature, it is a long established principle of law that anyone accused of wrongdoing must be given unambiguous particulars of the nature of the accusation he faces. The penalty charge served by the enforcement authority does not specify whether the prohibited turn is a left turn, a right turn or a u-turn. It simply states “50 Performing a prohibited turn” (camera enforcement).

While previous decisions are not binding they can be persuasive and I submit Austin Biesty v London Borough of Brent (case reference 2130412623) as persuasive authority in this instance. In that case the tribunal held that:

“The Penalty Charge Notice ('PCN') in this case describes the alleged traffic contravention as Failing to comply with a sign indicating a prohibited turn. However, the PCN fails to particularise what turn is prohibited, left or right. Also, whilst the Penalty Charge Notice ('PCN') includes superimposed pictures, it is impossible to see in the copy filed any actual traffic sign(s) that the appellant is alleged to have failed to comply with and there is no copy of the sign(s) themselves superimposed on the PCN.

In the circumstances, I find that the PCN is invalid and unenforceable as it fails to comply with the requirements of section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 ('LLA & TFL Act 2003'), which states that the PCN "must (a) state (i) the grounds on which the council...believe that the penalty charge is payable with respect to the vehicle".

Thanks for your help again cp8759!

I could not find any case reference number for ground 2, may I appeal without it?

I`d draft it like the following:

Ground 1: The PCN does not state the grounds on which the enforcement authority believe a penalty charge is payable:

Although these proceedings are civil in nature, it is a long established principle of law that anyone accused of wrongdoing must be given unambiguous particulars of the nature of the accusation he faces. The penalty charge served by the enforcement authority does not specify whether the prohibited turn is a left turn, a right turn or a u-turn, it simply states “50 Performing a prohibited turn”

While previous decisions are not binding they can be persuasive and I submit Austin Biesty v London Borough of Brent (case reference 2130412623) as persuasive authority in this instance. In that case the tribunal held that:

“The Penalty Charge Notice ('PCN') in this case describes the alleged traffic contravention as Failing to comply with a sign indicating a prohibited turn. However, the PCN fails to particularise what turn is prohibited, left or right. Also, whilst the Penalty Charge Notice ('PCN') includes superimposed pictures, it is impossible to see in the copy filed any actual traffic sign(s) that the appellant is alleged to have failed to comply with and there is no copy of the sign(s) themselves superimposed on the PCN.

In the circumstances, I find that the PCN is invalid and unenforceable as it fails to comply with the requirements of section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 ('LLA & TFL Act 2003'), which states that the PCN "must (a) state (i) the grounds on which the council...believe that the penalty charge is payable with respect to the vehicle".

In these circumstances, I must allow this appeal.”

In this case, as in Austin Biesty v London Borough of Brent, the PCN fails to particularise what turn is prohibited and the signs which are alleged to have been contravened are not visible on the PCN.

It follows that the PCN in this case also fails to comply with section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 and the appeal must be allowed.
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Mothy1
post Sun, 2 Sep 2018 - 11:57
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Ok, all relevant paperwork here - hopefully!!


https://imgur.com/a/RRM56Kj


Do let me know if you need anything else.

Much appreciated.


https://imgur.com/a/SMpKCyV


And the Google street link:

https://maps.apple.com/?address=Briardale%2...Gardens&t=m



Many thanks for all your help.

I await your advice.

All best
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cp8759
post Sun, 2 Sep 2018 - 17:08
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I will draft something tomorrow evening.


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Mothy1
post Mon, 3 Sep 2018 - 10:19
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That would be very kind indeed.

Thanks so much.

Have a good day.

Best wishes
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cp8759
post Mon, 3 Sep 2018 - 19:55
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Here's your appeal for the tribunal. Keep all formatting (bold and italics) exactly as I have used it below, it may be easier if you put this all in a word or pdf document and attach it to the appeal. Also include the following:
From the https://londontribunals.org.uk website: Austin Biesty v London Borough of Brent (case reference 2130412623) , Robert Atlas v London Borough of Barnet (case reference 2170053479), Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) and Eyong Besong v Transport for London (case reference 2180132152)

This PDF file: https://www.londoncouncils.gov.uk/download/file/fid/20848

-------------------------------------------
Ground 1: The alleged contravention did not occur: I was compelled to drive along the route in question due to reasons beyond my control:

My medical evidence attached will confirm that I suffer from inflammatory bowel disease, amongst other things, more commonly known as ulcerative colitis, which means that I suffer from chronic diarrhoea on a daily basis and am therefore in urgent need of getting to toilet facilities.

In addition, my life has been incredibly stressful of late, as I have been looking after an older brother recently diagnosed with cancer, and my condition is naturally and rather unfortunately aggravated by stress.

I had an ileostomy bag for a while and was provided with a Blue Badge for my specific condition, as it made travelling and parking generally much easier. Bizarrely, when the ileostomy was reversed, the Council did not allow me to renew the badge, even though my physical symptoms (and post-operative complications from major surgery over many years) were made far worse, and so I am now often left trying to find the shortest and safest route possible in order to avoid any unnecessary stress (which, admittedly, is very difficult) and personal embarrassment.

On the date in question, I was attempting to get to my mum's flat in a hurry, which is only across the road from Briardale, in order to use the toilets at her apartment block, which is generally far quicker than the double traffic lights at the Hendon Way/Finchley Road junction, which can only make my stressful route longer. Although these are civil proceedings, the law recognises that such circumstances can amount to a defence on medical grounds, I refer the tribunal to the widely reported case of R v Sir Alex Ferguson (Bury Magistrates Court, October 1999) where the defendant successfully defeated a charge of driving on the hard shoulder of a motorway due to a severe attack of diarrhoea.

I attach my medical notes in support of the above.

Ground 2: The alleged contravention did not occur: The signage is inadequate:

There appear to be signs further down on the Finchley Road opposite or near to the Child's Way traffic lights, but if you are driving down Pattison Road (no sign exists at the bottom of this street, only on the Finchley Road when you have already turned left) as I was on this occasion, and turning left onto the Finchley Road and then into Briardale, it's next to impossible to view and take the time to see and read the signage from the driver seat (the signs are on poles almost 5 feet in the air and not at driver height in my Mazda 2), and then take appropriate and possibly dangerous action when you're already on one of the busiest roads (Finchley Road) in North West London.

The Council certainly needs to position a sign both lower down on the poles and at the top end of both Briardale and Pattison, in order to alert drivers to of the restriction.

I attach photographs of the signage.

Ground 3: The amount demanded exceeds the amount due in the circumstances of the case: The PCN does not state the grounds on which the enforcement authority believe a penalty charge is payable:

Although these proceedings are civil in nature, it is a long established principle of law that anyone accused of wrongdoing must be given unambiguous particulars of the nature of the accusation he faces. The penalty charge served by the enforcement authority does not specify whether the prohibited turn is a left turn, a right turn or a u-turn, it simply states “50 Performing a prohibited turn”. However the list of contravention codes published by the London Councils provides that for contravention code 50, "Code-specific suffixes apply." and the following suffixes are provided on page 4: "50 l) no left turn r) no right turn u) no U-turn"

While previous decisions are not binding they can be persuasive and I submit Austin Biesty v London Borough of Brent (case reference 2130412623) as persuasive authority in this instance. In that case the tribunal held that:

The Penalty Charge Notice ('PCN') in this case describes the alleged traffic contravention as Failing to comply with a sign indicating a prohibited turn. However, the PCN fails to particularise what turn is prohibited, left or right. Also, whilst the Penalty Charge Notice ('PCN') includes superimposed pictures, it is impossible to see in the copy filed any actual traffic sign(s) that the appellant is alleged to have failed to comply with and there is no copy of the sign(s) themselves superimposed on the PCN.

In the circumstances, I find that the PCN is invalid and unenforceable as it fails to comply with the requirements of section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 ('LLA & TFL Act 2003'), which states that the PCN "must (a) state (i) the grounds on which the council...believe that the penalty charge is payable with respect to the vehicle".

In these circumstances, I must allow this appeal.


In this case, as in Austin Biesty v London Borough of Brent, the PCN fails to particularise what turn is prohibited and the signs which are alleged to have been contravened are not visible on the PCN. There is also no explanation from the council as to why they have not used the contravention code suffix listed by London Councils.

It follows that the PCN in this case also fails to comply with section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 and the appeal must be allowed.

Ground 4: The penalty demanded exceeds the amount due in the circumstances of the case: The Penalty Charge Notice is not substantially compliant with the legislation:

The enforcement authority served a Penalty Charge Notice under section 4(2) of the London Local Authorities and Transport for London Act 2003. Section 4(8) provides that the PCN must state, amongst other things, "that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable".

The relevant 28 day period is found in paragraph 5 of schedule 1 to the Act, which specifies that:

"Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;
"

Paragraph 5 therefore prescribes that the enforcement authority may only increase the penalty charge if it has not been paid before the end of the period of 28 days beginning with the date of service of the PCN.

The PCN served by the enforcement authority however states that: "If the Penalty Charge is not paid before the end of the 28 day period beginning with the date of this notice an increased charge of 50% to £195.00 may be payable and a Charge Certificate may be served seeking payment of the increased charge".

While one might ponder why Parliament has required that the penalty charge notice must specify, under section 4(8)(iii) of the Act, that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice, but also that the 28 day period for the purposes of the charge certificate only starts with the date of service of the notice (which is two working days later), ultimately the legislation is what it is and the enforcement authority is required to comply with it if it wishes to lawfully impose penalty charges.

By purporting to empower itself to serve a charge certificate some two days earlier than is permitted, the enforcement authority is acting prejudicially and it is depriving the recipient of the PCN of two days during which the option of either making representations, or indeed paying the £130 penalty charge, should still be available.

While the decisions in previous cases are not binding they can be persuasive and I submit Robert Atlas v London Borough of Barnet (case reference 2170053479) as persuasive authority in this instance. The decision and its review are lengthy and are attached in full to this appeal, however the relevant passages for the purposes of this appeal are as follows:

"Section 4(8)(a) of the London Local Authorities and Transport for London Act 2003 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.

Mr Atlas correctly points out that 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.’

Mr Atlas submits 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.
...
Accordingly, I accept the application for review and the appeal must be allowed.
"

I submit that the same principle applies in the present case, the Penalty Charge Notice does not show substantial compliance with the 2003 Act and it follows that the only penalty that may be demanded is nil.

Ground 5: The penalty demanded exceeds the amount due in the circumstances of the case: The council has not shown any proper consideration of my representations::
My representations to the council were in essence a summary of grounds 1 to 4 above. The Notice of Rejection does not deal with my representations in relation to medical evidence, which have been completely ignored, nor does it dignify me with a response in relation to the non-compliance of the PCN. I respectfully draw the tribunal's attention to Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432):

"The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed."

In this case the response required was also a simple one, namely that my medical evidence was not accepted by the council either as a defence in law or as sufficient mitigation to merit discretionary cancellation of the penalty, and that the alleged non-compliance of the PCN with the legislation was not made out or not sufficient to invalidate the penalty charge notice. However the Notice of Rejection i entirely silent on these matters, so the council cannot show that these representations have been considered properly or indeed at all.

Furthermore, the council has applied its mind to the wrong legal framework, in the Notice of Rejection it makes reference to the Traffic Signs Regulations and General Directions 2002, which were repealed over two years before the date of the alleged contravention. I draw the tribunal's attention to Eyong Besong v Transport for London (case reference 2180132152):

"The Appellant makes a relatively simple point: how can I be satisfied that the Respondent has properly considered her representations when they have made references to the incorrect law? Or perhaps properly, how can I be satisfied that they have met their statutory duty?
The Respondent made reference to the Traffic Signs Regulations and General Directions 2002, these were revoked by Traffic Signs Regulations and General Directions 2016/362 Sch.19(1) para.1 on 22 April 2016, before this contravention is said to have occurred.
The Respondent acknowledges the error but avers it matters not as the prohibition is identical. Whilst I do not demur from that as a statement of fact, it is not a sufficient rebuttal to the Appellant's point.
In my view, it would be wrong for this Tribunal to find that the Respondent has fulfilled its statutory duty to consider representations when it has referred to the incorrect statutory framework.
It follows that I allow the appeal.
"

I submit that it would be wrong in this instance for the tribunal to find that the Respondent has fulfilled its statutory duty to consider representations when it has referred to the incorrect statutory framework, and when it has ignored the majority of the representations that were submitted against the PCN.


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Mothy1
post Tue, 4 Sep 2018 - 10:08
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Sorry for my delay in replying, as I have just seen this. I'm extremely grateful indeed for your input, as this must have taken considerable time on your part.

Two quick points, if I may:

Whilst I'm no legal authority, I note that we are stating 'no contravention took place' for grounds 1 and 2 even though, 'in reality', I obviously turned left. But because of the grounds on which we are appealing we are claiming no contravention took place?

And if I am going to send this off via email for haste (not sure if it makes sense to post and email), can I assume that just attaching a PDF document as you suggest and following the online appeal instructions to the letter will suffice?

Thanks very much again for all your help and I will of course keep you updated.

All the very best
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cp8759
post Tue, 4 Sep 2018 - 16:25
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Regarding points 1 & 2, the contravention is not "turning left", I turn left all the time. The contravention is turning left when this is prohibited by law. If the signs are inadequate, or you are acting under duress of circumstances, then legally the contravention did not occur, even though you turned left (just as Sir Alex Ferguson didn't commit the offence of driving along the hard shoulder of the motorway unlawfully, regardless of the fact that he drove down the hard shoulder, and just as you wouldn't be guilty of murder if you killed someone in self-defence).

As for attaching a PDF to an email, I'm not sure what you're referring to. You have a notice of rejection so you need to appeal to the tribunal, you can do this by going to https://londontribunals.org.uk, clicking on "Create a new appeal" and following the on-screen instructions, you will need the appeal code included in the Notice of Rejection. Once you've created an appeal online, as I understand it you'll be able to upload the PDF, together with any other evidence, directly to the tribunal website.

This post has been edited by cp8759: Tue, 4 Sep 2018 - 16:26


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Mothy1
post Tue, 4 Sep 2018 - 16:31
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Trying to search for the aforementioned Biesty, Atlas and Husseyin cases you have kindly given me the links to, but when I go to the London Tribunals link I see two registers (environment and traffic adjudicator, and road user charging adjudicator), both of which ask me for case numbers, surnames etc and other details. I only know the case ref and the names, nothing else, and nothing comes up immediately if at all.

Is is possible to search just with a case reference number? Perhaps I'm looking at the wrong link?

Many thanks and sorry to trouble.

All best

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Mothy1
post Tue, 4 Sep 2018 - 16:50
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My apologies for any confusion, so thanks very much for clarifying. No worries about attaching a PDF, as I realise these things will be submitted via email according to their instructions.

I'm having difficulty accessing the case reference details on the Tribunal Link, so is there a quick way of locating these just by adding the case ref number?

Many thanks again

No worries re-my last reply. Just managed to locate all relevant case references now for some reason.

Have a good evening and many thanks again for all your trouble.
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cp8759
post Tue, 4 Sep 2018 - 19:26
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Don't forget to include the PDF file with the London Councils contravention codes. If the council contest the appeal they will upload a case summary to the tribunal, post it on here when you get it.


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Mothy1
post Wed, 5 Sep 2018 - 10:35
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Many thanks for the reminder. Yes, of course, will do that.

Much appreciated.


Best wishes


Tim
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Mothy1
post Wed, 5 Sep 2018 - 13:52
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Just printing out all the paperwork etc, and because there is a lot of it I am going to post it all off recorded delivery. Having never gone through an appeal before, will it be ok to fill in the basic details (name/address etc) on the form itself and then write in box 6 (for details of appeal) 'see all attached paperwork'? Or should I very briefly summarise details here as well?

And in box 5 (grounds for appeal), I tick the following:

The contravention alleged by the authority on the PCN did not occur

The penalty charge exceeded the amount applicable in the circumstances of the case


And finally, is it necessary to email/send a copy of the video the council sent me?

I just want to make sure this is as watertight as possible.

Many thanks

Tim
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cp8759
post Wed, 5 Sep 2018 - 23:32
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QUOTE (Mothy1 @ Wed, 5 Sep 2018 - 14:52) *
Just printing out all the paperwork etc, and because there is a lot of it I am going to post it all off recorded delivery. Having never gone through an appeal before, will it be ok to fill in the basic details (name/address etc) on the form itself and then write in box 6 (for details of appeal) 'see all attached paperwork'? Or should I very briefly summarise details here as well?

I would put "see attached grounds of appeal" in the box and put your grounds in a document clearly headed "Grounds of appeal"

QUOTE (Mothy1 @ Wed, 5 Sep 2018 - 14:52) *
And in box 5 (grounds for appeal), I tick the following:

The contravention alleged by the authority on the PCN did not occur

The penalty charge exceeded the amount applicable in the circumstances of the case

Yes tick both

QUOTE (Mothy1 @ Wed, 5 Sep 2018 - 14:52) *
And finally, is it necessary to email/send a copy of the video the council sent me?

No, the council will send that to the tribunal. If they don't, you'll automatically win as there will be no evidence of the contravention.


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