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CONTRAVENTION CODE 27, Threads merged x4
Thazz
post Sun, 18 Nov 2018 - 19:16
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I parked my vehicle in a residential street in North Tyneside on 8th November and returned to it the following day to discover not just one but two PCN's had been issued. The Contravention Code in both cases was 27, which claimed that it was parked adjacent to a dropped kerb. At first I assumed that this was true, since, like everyone else, I had parked the car with two wheels on the kerb and two on the carriageway, quite close to one of the many dropped kerbs in front of the residents' driveways, although when I was parking it I had made quite sure that I was not blocking that particular driveway in any manner whatsoever. It was only after doing some research on the internet that it dawned on me that the term "adjacent" in the context of the Road Traffic Act almost certainly means 'in front of' the dropped kerb, in other words blocking passage of invalid carriages, prams, bicycles, the blind and others such as residents who require use of the dropped kerb to emerge from their driveways. I have uploaded one photograph taken by the Traffic Warden and four taken by myself, for illustration. I am almost certain that I have strong grounds for appeal on the basis that no contravention has occurred, but I am just a tiny bit concerned that the black post with two white rings on it which is in front of my vehicle may have some bearing on matters. Before I make an appeal I wonder whether anybody would care to pass comment or offer advice. Thanks in advance for any helpful responses.










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post Sun, 18 Nov 2018 - 19:16
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hcandersen
post Wed, 21 Nov 2018 - 15:53
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IMO you're as guilty as a puppy sitting next to a pile of pooh and ultimately should not risk the discount on PCN 1.

PCN 2 is arguably a continuous contravention against a continuous prohibition and we should see how the authority respond before deciding whether to continue to dispute.

But you're entitled to challenge which if made no later than the end of the 14-day periods should see the discount re-offered.

I would never knowingly park where not permitted and was not aware that I had done so on this occasion. If I did, then I apologise.

However, having reviewed the authority's evidence in the form of the CEO's photos, I would challenge the PCNs for the following reasons:

PCN 1
The CEO's photos do not show a location where the footway is lowered to meet the carriageway. What they do show is that behind the car the footway does not meet the carriageway, this is self-evident because leaves have accumulated against the raised kerb, something which would be impossible if the footway was flush with the carriageway. As regards the area ahead of your car, the photos are indeterminate.


(We now know why they don't show a dropped footway - you are parked slap bang on top of it (I think an adjudicator would find that the footway has been lowered to be in substantial compliance with the criteria of the prohibition)

PCN 2
As for PCN 1 plus the grounds of continuous contravention.

As I understand it, the prohibition is continuous i.e. 24/7. As my car did not move between the PCNs ( something which would be borne out by the CEOs' notes - NB. OP, pl get the possessive apostrophe in the correct place, 2 PCNs, 2 CEOs, therefore CEOs' notes - it's an age thing!) then the contravention was continuous and the second PCN should therefore be cancelled.

I have not referred to your photos, why give them ammunition?

Some thoughts..
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Thazz
post Wed, 21 Nov 2018 - 16:50
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They are my photos.
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Thazz
post Wed, 21 Nov 2018 - 17:38
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Yes hcandersen, I agree. Can't really see a way out of PCN 1. However, as suggested, have appealed today, with a view to still copping for the discounted fine if rejected. Regarding PCN 2, I've also appealed against that on grounds of continuous contravention, and we shall see what the outcome of that is. Sadly, I did send some of my own photos to accompany the appeal against PCN1, thus giving them unnecessary ammo as you kindly pointed out, but it's too late now and probably wouldn't have made much difference if I hadn't.

Point taken about the apostrophes. I'm a stickler for them myself usually, but my Achilles heel has always been the plural of capitalised abbreviations. Somehow DVDs, CEOs, PCNs just 'looked wrong', but I'll change the habit in future.
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DancingDad
post Thu, 22 Nov 2018 - 10:24
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I would add in to challenge that the dropped footway is not self evident, seemingly part of a length of low kerb, with no distinct features except perhaps the pole, which is not something normally associated with dropped kerbs.

Personally I would include all of PCN1 challenge in PCN 2 and add the continuous contravention bit to the latter.
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Thazz
post Mon, 3 Dec 2018 - 22:47
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I've had a response to my appeal, in the shape of a pair of letters from the Council. I'd be grateful for any comments or advice.

As can be seen by following earlier posts in this thread, I appealed on the grounds that a) my vehicle had remained parked in the same place from when the first PCN was issued at 14.07 on 08/11/2018 until the second PCN was issued at 11.06 on 09/11/2018 (while I took a train to Leeds and stayed overnight there, returning the next day) and that it was therefore a continuous contravention and consequently the second PCN should be disregarded,

and b) that the slope in the associated kerbstones on either side of the DK was so slight as to render the drop negligible.

As can be seen from the scanned letters (see below), the Council misleadingly state that I have questioned whether the signs or road marking were correct. They are saying they have visited the site and that "the signs and road markings there were correct and are clearly visible upon inspection." However, there are no signs and road markings there and indeed none are required for the purposes of denoting a DK. Thus they have completely ignored my argument that the DK is impossible to be noticed without extremely close scrutiny of the kerb there.

However, what is most bizarre, and what prompts my request for advice, is this:-

With regard to the PCN dated 08/11/2018 the Council state in their letter that it is their policy to cancel a contravention 27 against a DK on the first occasion, but that subsequent contraventions for the same code may not be cancelled. This is indeed welcome, as it means I do not have to pay the fine. Yet their second letter, referring to the PCN dated 09/11/2018, states that they will not cancel the subsequent PCN because they have already cancelled a previous PCN for the same contravention. In other words, they are tacitly refusing to accept that there has been a continuous contravention of code 27.

I am tempted to hold out for an NtO and to fight to establish a continuous contravention. Views on the advisability of that would be welcome, bearing in mind that presumably I might have to somehow show that the vehicle had not been moved between the issuing of the two PCNs. I don't know how I would do that. None of the photos are clear enough to show wheel nuts or tyre valves. However, things are further complicated by the fact that I am due to go abroad on December 15th and not return until January 7th or thereabouts. If an NtO were to arrive during the period that I am out of the country I would be physically unable to complete the form and send it back. From the wording of the second letter it would seem that the NtO cannot be dealt with online. I am unsure how many days I am allowed before it is due to be returned. Can anyone tell me please? Any guidance at all in this matter would be gratefully received. This is all unknown territory to me.



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PASTMYBEST
post Mon, 3 Dec 2018 - 22:53
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IMO it would be 50/50 as to whether an adjudicator would rule in your favour, they should because that PCN is still a continuous contravention. But as the principle is that you cannot be punished twice for one offence and you have not been punished for the first they might find the penalty due.

You got the result you expected I would take the discount


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Thazz
post Tue, 4 Dec 2018 - 00:12
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Hmm...
Thanks for your input.

Still, if it's a continuous contravention then it would seem to logically follow that it is one single contravention, not two separate ones, and if the Council's policy is to cancel a first contravention then it would seem to logically follow that the continuous contravention (i.e. both PCNs) should be disregarded.

At least, that's the way I tend to see it. I might wait a little longer to see what others have to say, but I appreciate your advice and might take it in the absence of any better alternative.
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Thazz
post Tue, 4 Dec 2018 - 16:03
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The more I think about it the more I believe that a continuous contravention of Code 27 can only logically be regarded as one single contravention, and if a Council has a policy of cancelling a first contravention of Code 27 then they cannot logically argue that the second PCN of the continuous contravention is valid and payable. Anyone got any advice as to how to proceed?
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PASTMYBEST
post Tue, 4 Dec 2018 - 16:29
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QUOTE (Thazz @ Tue, 4 Dec 2018 - 16:03) *
The more I think about it the more I believe that a continuous contravention of Code 27 can only logically be regarded as one single contravention, and if a Council has a policy of cancelling a first contravention of Code 27 then they cannot logically argue that the second PCN of the continuous contravention is valid and payable. Anyone got any advice as to how to proceed?

your argument along those lines has merit. My concerns.

The council decision to cancel the first PCn is discretionary. It having done so an adjudicator may find your right to be punished once has not been breached as from an enforcement point of view the first PCN does not exist. Adjudicators are human and will see an example of p poor parking worthy of a PCN. the council cancelled one but for the wrong reason, will an adjudicator find that the council did not act fairly in the circumstances. Its your double or quits gamble


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Thazz
post Tue, 4 Dec 2018 - 18:50
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Hmm...yes, I agree. My second reason for appealing - that it's not at all clear that there is a DK there, and the statement in their letter saying that there are signs and road markings showing it, when there aren't - might help. I shall have to think about this. I still have a couple of days to make a decision how to proceed. Thanks, again.
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Thazz
post Tue, 8 Jan 2019 - 21:06
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I parked my vehicle and left it for 24/7. I got two PCNs (Contravention Code 27), during which time the vehicle did not move. I understand that this is called a continuous contravention. My appeal on that basis has been simply ignored and I've been issued with an NTO with regard to the second PCN. I intend to make representations to the Council, and then if necessary appeal to the independent Adjudicator.

My question to the forum is this: does a continuous contravention constitute a "procedural impropriety" by the enforcement authority by "failing to comply with any requirement imposed by the Traffic Management Act 2004, by the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 or by the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 Regulations"?

I ask, because I am trying to decide on which grounds to make my representations against the penalty charge. Other appropriate options seem to be that "The alleged contravention did not occur" and/or "Other Grounds".

However, there is one other, which I do not understand at all, viz: that "The Order which is alleged to have been contravened in relation to the vehicle concerned is invalid. (Please explain why you believe that the Order in question is invalid. Please note that this ground will not apply in respect of a provision in an Order to which Part VI of Schedule 9 to the Road Traffic Regulation Act 1984 applies)". What does it all mean, and could it apply in this case?

The enforcement authority have written to say that their policy is to disregard a contravention on a first occasion. As the vehicle did not move between PCNs my argument is that the two PCNs constitute a single contravention, and thus, in accordance with the policy, both PCNs should be cancelled, not just the first. But on which of the above grounds am I to base my representation?

This post has been edited by Thazz: Tue, 8 Jan 2019 - 21:07
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stamfordman
post Tue, 8 Jan 2019 - 21:11
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QUOTE (Thazz @ Tue, 8 Jan 2019 - 21:06) *
The enforcement authority have written to say that their policy is to disregard a contravention on a first occasion.



Really? I think you'd better post everything.

Put pics on https://imgbb.com or such like.
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Starworshipper12
post Tue, 8 Jan 2019 - 21:17
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Related to this?

http://forums.pepipoo.com/index.php?showto...24182&hl=Yu
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stamfordman
post Tue, 8 Jan 2019 - 21:35
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Yes you're right - more fog on the tyne. Have asked for a merge but I think the OP should have settled this one.
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Fredd
post Tue, 8 Jan 2019 - 21:46
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@Thazz: You've had 4 threads merged for this case now. Any further ones will just be deleted - we don't have the time to tidy up behind people who can't be bothered to follow a simple rule like "one case, one thread".


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Thazz
post Tue, 8 Jan 2019 - 23:16
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Oh heck, I'm sorry, and please, everyone, accept my sincere apologies. It wasn't a case of "can't be bothered to follow simple rules". It's a case of not quite understanding the rules. I haven't posted since early December about this and, thinking my previous posts would be at the bottom of the heap by now, I wished tonight's post to be prominent.

In response to Stamfordman's request for a picture of the enforcement authority's letter, I have already uploaded a copy of it on 3rd December. It is Post #45.

In case anyone is prepared to overlook my annoying transgression and is willing to still offer me some assistance, I reproduce below the text I posted earlier tonight:

I parked my vehicle and left it for 24/7. I got two PCNs (Contravention Code 27), during which time the vehicle did not move. I understand that this is called a continuous contravention. My appeal on that basis has been simply ignored and I've been issued with an NTO with regard to the second PCN. I intend to make representations to the Council, and then if necessary appeal to the independent Adjudicator.

My question to the forum is this: does a continuous contravention constitute a "procedural impropriety" by the enforcement authority by "failing to comply with any requirement imposed by the Traffic Management Act 2004, by the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 or by the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 Regulations"?

I ask, because I am trying to decide on which of the grounds offered by the enforcement authority I should best make my representations against the penalty charge. Other possibily appropriate options that are offered seem to be that "The alleged contravention did not occur" and/or "Other Grounds".

However, there is one other, which I do not understand at all, viz: that "The Order which is alleged to have been contravened in relation to the vehicle concerned is invalid. (Please explain why you believe that the Order in question is invalid. Please note that this ground will not apply in respect of a provision in an Order to which Part VI of Schedule 9 to the Road Traffic Regulation Act 1984 applies)". What does all that mean, and could it apply in this case?

The enforcement authority have written to say that their policy is to disregard a contravention on a first occasion. As the vehicle did not move between PCNs my argument is that the two PCNs constitute a single contravention, and thus, in accordance with the policy, both PCNs should be cancelled, not just the first. But on which of the above grounds would members recommend that I base my representation?

Grateful for any help.
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DancingDad
post Tue, 8 Jan 2019 - 23:51
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I haven't read all the way through so may be adrift but
When two PCNs are served for the same contravention this is against common law.
Which says you cannot be punished twice for one offence.
In that respect, the common action by adjudicators, assuming they agree that it is a single offence, is to cancel one PCN.
Councils may or may not agree, greedy ones will not cancel either until told to.

I have never seen both PCNs cancelled and cannot see why the first would be assuming correctly served.
There is no PI involved in service of a PCN.
Subsequent ones yes, they should be cancelled and it is a failure of common law, ie a PI or Other Grounds to continue enforcement once it has become clear that it is a double whammy.
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hcandersen
post Wed, 9 Jan 2019 - 08:23
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OP, pl crystalise this thread:

You were issued with PCNs on consecutive days, 8/9 Jan;
These were for the same contravention;
The car did not move between these PCNs;
You challenged the first which they cancelled under their policy of discretion;
They rejected your challenge in respect of the second PCN and issued a NTO which we have not seen.

You have carried out a forensic examination of the wordng of their letter, and website for all I know, and you're trying to establish that a 'policy to cancel a contravention on a first occasion' means as many PCNs as were issued even if a vehicle did not move because it's only a single contravention!

Good luck with this. With respect, it's nonsense.

You cannot cancel a contravention, only a PCN. They meant, and IMO their letter could not be read in any other way, they cancel the first PCN. Don't p**s-off an adjudicator by pursuing this.

Your argument is that the PCN (it is the PCN because only one is in play) should be cancelled on the grounds of continuous contravention. Just stick to this line.
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cp8759
post Wed, 9 Jan 2019 - 17:44
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OP have you received a Notice to Owner yet? If not, there's not much to be done at this point apart from waiting.


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Thazz
post Mon, 14 Jan 2019 - 20:12
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N.B. I am aware that I have upset the administrator and one or two other members by my inadvertent failure to observe etiquette by needlessly starting new threads when posting. I have also been informed previously by a member on this forum that my supposed opinion is nonsense. I would appreciate it if it could be accepted that I am posting in good faith, that navigation of both the forum and the law is fairly new territory to me, that I am learning, and that if I am mistaken in understanding my legal position I am perfectly happy to be POLITELY and CONSTRUCTIVELY corrected. In my opinion this forum is a wonderful asset, I appreciate the time and effort which its members put into helping others, and I have recommended it to my friends and acquaintances.

To recap:
I parked my vehicle at my local suburban rail station on 8th November last year, and travelled to Leeds, staying there overnight.

Returning within 24 hours to my vehicle the following day, 9th November, I discovered two PCNs affixed to the windscreen.

The vehicle had not been moved during that period.
The two PCNs were both for the same offence, Contravention 27.
The two PCNs were issued by two different CEOs.

From a perusal of the posts on this website I’ve been led to believe that under such circumstances this constitutes a Continuous Contravention - which I assume means a single contravention rather than two separate ones.

I therefore appealed against both the PCNs, providing photographic evidence that the DK in question is far from clear and obvious (the drop in it being so slight as to be negligible), and pointing out that one or other of the PCNs was invalid anyway because the vehicle had not moved within a 24 hour period.

The enforcement authority wrote back to say that the first PCN (8th Nov) was correctly given but that they had cancelled it as a gesture of goodwill as it is their policy to cancel a contravention on the first occasion against a DK, but that any additional contraventions for the same contravention may not be cancelled.

The enforcement authority also wrote back on the same day in a separate letter to say that they would not cancel the second PCN (9th Nov) as they had already cancelled a previous PCN (8th Nov) for the same contravention. (at the same time mistakenly claiming that I had questioned whether the signs or road markings were correct, stating that after a visit to the site the signs and road markings there were correct and clearly visible, when in fact there are no signs or road markings there at all and what I actually wrote was that the drop in the kerb is barely noticeable).

It appeared from these responses that the enforcement authority were avoiding my contention that only a single contravention had occurred (2 PCNs within a 24 hour period, no movement of the vehicle) and that it had addressed an issue about road signs which I had not raised).

I therefore decided to await the NTO.

The NTO has now arrived, and I still have a few days left to make my representations as to why the PC should not be paid.

I intend to make those representations, based on the same grounds that I have mentioned above viz. that there was only a single continuous contravention in the first place, that therefore one or other of the PCNs was invalid anyway, and that hence the enforcement authority's goodwill gesture of cancelling the first PCN should logically entail cancelling the second PCN too).

My question to the forum is this:
On which of the grounds specified on Page 3 of the NTO by the enforcement authority should I make my representations? There are 11 options, and to my mind I can only envisage two, or maybe three, possibilities. They are:
a) The alleged contravention did not occur
b) There has been a procedural impropriety by the enforcement authority
c) Other Grounds








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