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PCN: 25 Bromley Borough
Tony Prince
post Mon, 26 Mar 2018 - 10:59
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Hi All,

Received this pcn Code 25, having parked in a loading bay during restricted hours...

My vehicle was observed for a period of 5 minutes, on Cottingham Road, Penge, SE20 7PT.

Is there anything that can be done appeal wise? In advance, thank you.

Regards
Tony
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post Mon, 26 Mar 2018 - 10:59
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DancingDad
post Mon, 26 Mar 2018 - 11:03
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Looks like here
https://www.google.co.uk/maps/@51.4134449,-...3312!8i6656
The restriction sign seems to have shrunk which may be one opening.
Road legend looks worn on streetview but almost two years old, is it still worn, hopefully far worse (photo would be good)

I assume you were not loading else you would have said?
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PASTMYBEST
post Mon, 26 Mar 2018 - 11:03
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I think with the road markings being so faded, and the position of the sign, there's a reasonable shot at inadequate signage

https://www.google.co.uk/maps/@51.4134449,-...3312!8i6656


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Tony Prince
post Mon, 26 Mar 2018 - 13:28
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No, I wasn't unloading. The road markings are as per the Google Streetview image.
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PASTMYBEST
post Mon, 26 Mar 2018 - 13:37
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QUOTE (Tony Prince @ Mon, 26 Mar 2018 - 14:28) *
No, I wasn't unloading. The road markings are as per the Google Streetview image.


post the council photos


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Tony Prince
post Mon, 26 Mar 2018 - 14:41
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Photos uploaded.

https://we.tl/tsJitOvkGH
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PASTMYBEST
post Mon, 26 Mar 2018 - 15:02
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QUOTE (Tony Prince @ Mon, 26 Mar 2018 - 15:41) *
Photos uploaded.

https://we.tl/tsJitOvkGH


IMO the photos might well dam you, close to the sign and what can be seen of the markings are clear.


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Tony Prince
post Fri, 30 Mar 2018 - 13:17
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QUOTE (PASTMYBEST @ Mon, 26 Mar 2018 - 16:02) *
QUOTE (Tony Prince @ Mon, 26 Mar 2018 - 15:41) *
Photos uploaded.

https://we.tl/tsJitOvkGH


IMO the photos might well dam you, close to the sign and what can be seen of the markings are clear.




So, at this stage is there any sort of appeal I could compile? De minimis possibly?
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cp8759
post Fri, 30 Mar 2018 - 13:30
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QUOTE (Tony Prince @ Fri, 30 Mar 2018 - 14:17) *
So, at this stage is there any sort of appeal I could compile? De minimis possibly?

I can't see how any reasonable person would accept de minimis in the circumstances. Upload the back of the PCN so we can check for errors, but failing that, the discount looks attractive.


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Tony Prince
post Fri, 30 Mar 2018 - 15:20
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Tony Prince
post Fri, 30 Mar 2018 - 22:19
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Is there anything that can be used from this archived post?

http://forums.pepipoo.com/lofiversion/index.php/t59859.html

The loading bay where my car was parked has visible (although vague) double yellow lines.
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cp8759
post Sat, 31 Mar 2018 - 00:04
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The bay looks substantially compliant and the PCN looks fine too, I would suggest paying the discounted amount might be the best option.


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Tony Prince
post Wed, 16 May 2018 - 11:44
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Hi,

Received the NTO in the last week by post, and various news articles regarding Loading Places, London Borough of Bromley via email. This is response to an appeal I sent, based on the archived post.

https://we.tl/fGrHkEWm4x
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cp8759
post Wed, 16 May 2018 - 15:07
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Show us a copy of your representations.


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peterguk
post Wed, 16 May 2018 - 15:12
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QUOTE (Tony Prince @ Wed, 16 May 2018 - 12:44) *


The link wants me to download files. Sorry, i, and many others here don't do that.

QUOTE (Tony Prince @ Wed, 16 May 2018 - 12:44) *
Received the NTO in the last week


So why not tell us, or even better show us, what's happened since your last post.


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Tony Prince
post Fri, 18 May 2018 - 13:44
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To Whom This May Concern,

I understand that you are of the opinion that I have contravened a
restriction governed by a traffic order. I am aware that the legislation
enabling a traffic order to be made is the Road Traffic Regulation Act
1984.

Although you accuse me of this contravention you have not provided any
evidence that confirms that the restriction is supported by a legally
enacted traffic order. Therefore it is necessary for you to provide me
with a full copy of the traffic order that you believe has been
contravened and I require you to explain fully what article or articles I
allegedly contravened and to direct me to the specific entry for the
location concerned within the relevant schedule and to explain fully why
you believe that I do not qualify for one of the given exemptions
within the traffic order. It is paramount that the traffic order
includes the preamble and all the articles as well as the schedules and
is sealed and dated and accompanied by all maps. If the original order
has been amended then it is necessary that these amendments are also
provided in full. I will remind you that in the case between Terence
Chase v Westminster City Council, the adjudicator emphasised that a
council has a legal duty to provide all evidence at the earliest
opportunity to an appellant. Failure to do so is considered by the
courts to be prejudicial.

In addition, I am aware of the provision under section 76(3) of the
Traffic Management Act 2004;

(3)Civil enforcement officers—
(a) when exercising specified functions must wear such uniform as may be
determined by the enforcement authority in accordance with guidelines
issued by the appropriate national authority, and
(b) must not exercise any of those functions when not in uniform.

The council has provided no evidence that the CEO was wearing a uniform
in compliance with section 76(3)(a) and with the guidance given in
section 42 of the Secretary of State's Statutory Guidance;

42. When exercising prescribed functions a CEO must wear a uniform. The
uniform should clearly show:
that the wearer is engaged in parking enforcement;
the name of the local authority/authorities of whose behalf s/he is
acting;
and a personal identity number.

As the wearing of uniform by the CEO is mandatory when serving a
regulation 9 PCN, it is reasonable to conclude that an efficient and
conscientious enforcement authority will inspect and keep a record of
each officer before they begin their patrol to ensure a uniform is worn
and that it complies with the guidance. Since it is a mandatory
requirement, the burden of proof must remain with the enforcement
authority. This principle is supported in the adjudication case between
Derek Jack Hayward v London Borough of Croydon. Therefore, I require
unequivocal evidence that the officer who served the PCN upon my vehicle
was wearing the correct uniform in the correct manner. Without any
evidence to the contrary, it is not unreasonable to assert that the PCN
was served by the CEO in contravention of section 76(3)(a) thus
invalidating the PCN served. A parallel can be drawn here in that where
an authority fails to provide evidence that a PCN was affixed to the
vehicle then an adjudicator will often allow the appeal. The wearing of a
uniform is given no less mandatory weight in law than the affixing of a
PCN and if the council cannot provide any records to satisfy the burden
of proof then there is nothing to swing the balance of probabilities in
their favour. The basic fact that a PCN was served is not evidence to
prove a uniform was correctly worn at the time and should not be
construed as such.

I also bring to your attention the important fact that PCN fails to
comply with regulations 3(2)(b) and 3(2)(b)(ii) contained within
Statutory Instrument 2007/3482 and it is therefore my belief that the
PCN is not lawful.

3(2) A penalty charge notice served under regulation 9 of the General
Regulations must, in addition to the matters required to be included in
it under paragraph 1 of the Schedule to the General Regulations, include
the following information—
(a) that a person on whom a notice to owner is served will be entitled
to make representations to the enforcement authority against the penalty
charge and may appeal to an adjudicator if those representations are
rejected; and
(b) that, if representations against the penalty charge are received at
such address as may be specified for the purpose before a notice to
owner is served—
(i) those representations will be considered;
(ii) but that, if a notice to owner is served notwithstanding those
representations, representations against the penalty charge must be made
in the form and manner and at the time specified in the notice to
owner.

These requirements are repeated in paragraph 8.40 of the DfT published
”Operational Guidance to Local Authorities”;

8.40 “A PCN served on the vehicle or to the person who appears to be in
charge of
the vehicle (a 'regulation 9' PCN) must contain the following
information:

that, if representations against the penalty charge are received at such
address as may be specified for the purposes before an NtO is served:

but that, if an NtO is served not withstanding those representations,
representations against the penalty charge must be in the form and
manner
and at the time specified in the NtO."

Although the PCN does say that representations will be considered, it
fails to make the recipient aware of the period of time they are
lawfully entitled to in which to submit such representations. The lawful
period is given by regulation 3(2)(b) and it is given as any time
before the NtO is served and as such a PCN must convey this fact to the
recipient.

Failure to include this specific statutory information on a PCN could
prejudice the recipient and consequently such a failure should not be
considered immaterial. For example, a person (where the NtO has not yet
been served) may only remember about the PCN on the 30th day after its
service and as the PCN only makes reference to “challenges” in sentences
that refer either to a 14 day or 28 day period, that person may
conclude that it is too late to make representations even though that
person is lawfully entitled to make representations at any time before
an NtO is served. Thus the failure of the PCN to convey the information
given by regulation 3(2)(b) is, or could be, critical to the response of
the driver/owner to the PCN.

The important purpose of the absent regulation 3(2)(b)(ii) is to explain
that should a person receive an NtO while expecting a reply to their
informal appeal they should not ignore the NtO but take heed of it and
appeal formally in the time specified by the NtO.

If a PCN does not make this point then a person waiting for a reply to
their informal appeal may ignore the NtO thinking that as an appeal is
already being considered there is no point appealing against the NtO
until a reply is received against the informal appeal. However, a reply
may never arrive and by the time this is realised the statutory time in
which to respond to the NtO may have expired.

Considering these facts I expect you to cancel this penalty charge
forthwith. If you do not cancel then I will require you to explain fully
why you think the PCN does comply with regulations 3(2)(b) and
3(2)(b)(ii).

Under the provisions of the Traffic Management Act 2004 I am entitled to
a submit an appeal that you have a duty to consider and to which you
have a duty, should you reject my appeal, to provide me with clear and
full reasons in reply to my points of appeal. This duty is set down in
the Secretary of State's Statutory Guidance and the Traffic Management
Act 2004 under section 87 clearly advises that local authorities must
have regard to this statutory guidance. Therefore should you fail to
reply specifically to each point and provide the required evidence then I
will be, due to your improper consideration, including a further charge
of procedural impropriety when my defence is submitted for adjudication
and in addition I will proceed with a formal complaint, regarding your
maladministration, to the office of the council's Chief Executive.

In addition, in the event of this appeal being rejected then I require
the council to formally and immediately acknowledge the following
request as a request for information under the Freedom of Information
Act 2000. It is somewhat ironic that to assist my further appeal I have
to put the council to an expense that far exceeds the worth of the
penalty charge. However this request is necessary to enable a more
informed appeal to be submitted by myself at the formal representation
stage.

1) Please provide all notes and photographs taken by the Civil
Enforcement Officer in regard to this Penalty Charge Notice (PCN).
2) Please provide a print out of the case summary /log history as well
as the on street log history in regard to this PCN from your PCN
processing system.
3) Please provide the full title of the traffic order I am alleged to
have contravened in regard to this PCN.
4) Please confirm if the traffic order named above has been amended. If
it has, then please confirm on how many occasions and provide the full
title of each amending order and the date each one came in to force.
5) Where traffic orders are named in reply to 3 and 4 above, please
provide copies of the Notice of Proposal and Notice of Making in each
case and confirm in each case where and when these notices were
advertised.
6) Please confirm the number of council employees or contracted staff
whose duty it is to consider parking appeals.
7) Please confirm the number of staff that have attended accredited
training courses on the provisions of the Traffic Management Act 2004 or
any other parking related courses.
8) Where courses have been attended then please give the date of
attendance and indicate how many staff attended and provide the course
title and the full name and address of the training providers.
9) Please confirm whether the council obtain registered keeper details
direct from the DVLA or whether the council use a third party to do so.
If the council use a third party then please name the third party.
10) If a third party is used then please provide details on how this
third party satisfies regulation 27 of the Road Vehicles (Registration
and Licensing) Regulations 2002.

In addition, it would appear the loading bay in question has double yellow lines running through it. A loading bay is not permitted to have a double yellow line running through it as it indicates "No Waiting At Any Time" which clearly cannot be the case if you're permitted to wait to load/unload. I would like to question that my vehicle was in fact parked on a double yellow line, and the presence of said double yellow line was sufficient to reasonably believe the loading only restriction was not applicable since the law does not permit them to be used in conjunction.

Sincerely
xxxxxx
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Tony Prince
post Fri, 18 May 2018 - 14:00
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Bromley reply NTO



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cp8759
post Fri, 18 May 2018 - 14:19
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If I had been the council, I would have also replied to your reps with a Notice to Owner. The council is under a duty to consider informal reps, but it is not under any duty to reply. The council only have to prove the contravention on the balance of probabilities, not beyond all doubt. It's more likely than not that the CEO was wearing a uniform (why wouldn't he?), so in the absence of evidence to the contrary, the adjudicator will find that he was wearing a uniform. The council will in all likelihood supply a TRO, although it is reasonable for you to ask for a copy. It is not however "necessary" for the council to provide the TRO as early as you suggest (or else you could argue CEOs should include a copy with the PCN that is affixed to the car), but they will probably send you one at the NtO stage. The PCN plainly complies with regulations 3(2)(b) and 3(2)(b)(ii) and this representation is borderline vexatious.

At this point I think your only options are:

1) Get hold of the TRO and hope there's a flaw.
2) Ask the council for discretion to cancel (but your prolix informal reps have probably killed off any chance of that working).

You might as well submit *something* in response to the NtO, at least this will give you time to save up the £110. Unfortunately unless the TRO is flawed or the council commit an actual procedural impropriety, I don't see how you'll be getting out of this one.


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Tony Prince
post Fri, 18 May 2018 - 22:00
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Bromley have also sent the following:

LONDON BOROUGH OF BROMLEY
Traffic Management Order 2009 No.57

The Bromley (Loading Places) Order 2009


and various news articles from The London Gazette and News shopper regarding loading bays, years 1997 and 2009.
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cp8759
post Fri, 18 May 2018 - 22:33
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Yes and your case is still close to hopeless. If you show us the TRO we can check.


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