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BONGOBOY
post Wed, 14 Feb 2018 - 18:33
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Firstly, Thanks for all replies to my query.
I will post the photo of my car.
The PCN had the reason of
01 Parked in a restricted street during prescribed hours.

I am parked outside my business, not on the double yellow lines.
I managed to stop the parking attendant before he raced off, and he said i was given the ticket as i was parked on the pavement.
There are no signs to restrict parking on a pavement.
The council is Leeds.

Thanks
Bongoboy

This post has been edited by BONGOBOY: Sat, 17 Feb 2018 - 17:59
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post Wed, 14 Feb 2018 - 18:33
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cp8759
post Sat, 14 Apr 2018 - 16:58
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The points made by Mad Mick V are relevant because the PCN says "Failure to pay at this stage will result in the penalty charge increasing by 50%", this is a procedural impropriety which makes the PCN null and void. I would add the wording he has suggested to your formal representations.


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BONGOBOY
post Sat, 14 Apr 2018 - 17:05
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Front of PCN
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BONGOBOY
post Sat, 2 Jun 2018 - 09:48
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Mad Mick previously advised re this & advised to quote several PATAS cases when making formal represntations.
I cannot find where these PATAS cases are stored, in order to read them.

Would anyone please be kind enough to know.

Mad Mick previously advised as follows:

[color="#FF0000"][i]The PCN is ineffective for enforcement purposes because it contravenes the enabling legislation.

1. The PCN states that failure to pay will result in an increased charge. This relates to the Charge Certificate procedure. The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted. The legislation indicates the Council “may” but the Council indicates that charge “will” be increased rather than considering whether to do so under their discretionary power. This represents a procedural impropriety.

As regards the will/may situation I would refer the Council to TPT case UW05060M which adequately describes the issue.

2. The second issue on the PCN is that, in specifying that the charge will be increased and that action by baliffs will occur, the Council has indicated action will be taken well before it should. This step is procedurally premature and prejudicial to the PCN recipient.

This represents a procedural impropriety which renders the PCN a nullity and unenforceable. The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 clearly states:-

4(5) In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—

(a) the taking of any step, whether or not involving the service of any document, otherwise than—
(i)in accordance with the conditions subject to which; or
(ii)at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken;

I argue that the Charge Certificate actions noted in a PCN mean the Council has taken a step long before it is due and therefore this represents a procedural impropriety.
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stamfordman
post Sat, 2 Jun 2018 - 09:53
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You've done it again - this is about this?

http://forums.pepipoo.com/index.php?showto...p;mode=threaded
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John U.K.
post Sat, 2 Jun 2018 - 09:55
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Does trhis relate to this thread
http://forums.pepipoo.com/index.php?showto...amp;mode=linear

If so hit report and ask a Mod to merge.
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BONGOBOY
post Sat, 2 Jun 2018 - 10:06
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Yes it does refer to my previous post.
I couldnt locate my previous Topic, so apologies.

How do you search for your previous topics.
Its a mystery to me !
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cp8759
post Sat, 2 Jun 2018 - 10:09
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QUOTE (BONGOBOY @ Sat, 2 Jun 2018 - 11:06) *
Yes it does refer to my previous post.
I couldnt locate my previous Topic, so apologies.

How do you search for your previous topics.
Its a mystery to me !
wink.gif

There's a box in the upper right hand corner that says "Google Custom Search". You might also want to just bookmark your own thread as it's somewhat relevant to you.


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BONGOBOY
post Sat, 2 Jun 2018 - 10:10
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Hi,

I am about to make formal represntations.
Is there a link to previous PATAS cases in particular PATAS 212058885A ?

Thanks
BongoBoy
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cp8759
post Sat, 2 Jun 2018 - 10:18
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QUOTE (BONGOBOY @ Sat, 2 Jun 2018 - 11:10) *
Hi,

I am about to make formal represntations.
Is there a link to previous PATAS cases in particular PATAS 212058885A ?

Thanks
BongoBoy

Go to https://londontribunals.org.uk/ and open "Statutory Registers", then "search" under "Environment and Traffic Adjudicators (ETA)"


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BONGOBOY
post Sat, 2 Jun 2018 - 11:32
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Thanks CP8759. Very helpful. Appreciated.
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BONGOBOY
post Sat, 4 Aug 2018 - 15:04
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My formal appeal was as follows:


And the appeal was rejected without them actually mentioning the procedural impropriety, and i find it stange that they are also giving me the chance to pay the reduced fee at this stage.

I feel that they probably know that if i take it to the adjudicator that the council will lose, and its an attempt to at least get some money out of me.

I am still at a loss to understand how they think i am parked on DYL's.

Do you think i should pay up the £35 or do you think i'll win ??
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cp8759
post Sat, 4 Aug 2018 - 15:24
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You should not pay, the council are going to lose. I'm a bit confused about which stage of the process you're at, have you received a Notice to Owner, and is the rejection you've sent a Notice of Rejection telling you to pay or appeal to the Tribunal? Or is it just a rejection of informal representations?


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BONGOBOY
post Sat, 4 Aug 2018 - 16:03
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Yes, received Notice to Owner, and this is a Rejection to the formal appeal.
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cp8759
post Sat, 4 Aug 2018 - 19:47
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Draft appeal, keep all bold and italics as per the below:

Ground 1: The alleged contravention did not occur:

It is self-evident from the council’s pictures that my vehicle was parked adjacent to the entrance to business premises, there are double yellow lines either side of the entrance but they do not extend across it. It follows that the alleged contravention did not occur.

However even if the above is incorrect, at the time of the alleged contravention my vehicle was stationary while I collected the keys to the gate so I could access the aforementioned premises.

As my vehicle was only stationary for as long as was strictly necessary for me to obtain the keys from inside the premises and return to unlock the gate, and in such circumstances it is permissible for a vehicle to be stationary on double yellow lines for a brief time providing there is no unnecessary delay, the alleged contravention did not occur.

Ground 2: There has been a procedural impropriety on the part of the enforcement authority:

The PCN states, under “IF THE PENALTY CHARGE IS NOT PAID OR CHALLENGED” that “Failure to pay at this stage will result in the penalty charge increasing by 50%

Regulation 21(1) of The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 provides that (my emphasis):

Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by the amount of the applicable surcharge.

Therefore there is no duty or obligation on the council to increase the charge by 50%.

It has long been held that where Parliament has indicated an enforcement authority “may” carry out a step in the enforcement process, that discretion cannot be fettered and the outcome of that decision cannot be a foregone conclusion.

I draw the tribunal’s attention to the London Tribunals case of James Demery v London Borough of Bexley (case reference 2180251300), where it was held that:

The PCN stated, under the heading of Further Recovery Actions, that if the prescribed amount is not paid and no representations have been made, a 50% surcharge will be made and a Charge certificate will be issued. The Appellant submits that the power is discretionary so the Authority must use the word "may" in stead of "will".

The Authority has made numerous reference to the Notice of Rejection. They have no direct relevant to this debate. The issue is whether the PCN contains the information which the legislation requires it to contain.

The Authority also submits that while it has discretionary powers to review a PCN at any point, in reality such reviews occur largely as a result of "statutory exchanges". It is uncommon for there to be a non-statutory review. The Authority went on to say that its policy is not to interfere with the statutory progression of a PCN.

One might disagree with this position in terms of parking law as well as administrative law but that is not the point. The point is not about whether the Authority is entitled to or likely to issue a Charge Certificate, it is whether it is permitted to say in the PCN that a Charge Certificate will be issued.

The Regulations provides that a postal PCN must state, inter alia, that if after the last day of the period referred to in subparagraph no representations have been made in accordance with Regulation 4 of the Representations and Appeals Regulations; and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased.

It seems to me that the Authority has been given a discretion to issue a Charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.

The PCN is non-compliant. It is invalid and cannot be enforced. It also amounts to a procedural impropriety. I allow the appeal.


The Traffic Penalty Tribunal has also ruled that the difference between the words “will” and “may” is a matter of substance and not semantics, and is sufficient to render a statutory documents such as a Notice to Owner or Penalty Charge Notice invalid, I submit Mrs H v Worthing Borough Council (case reference UW 05060M) as persuasive authority.

Therefore by stating that the council “will” increase the charge by 50% if the penalty is not paid or challenged, the authority has failed to substantially comply with the regulations and this is a procedural impropriety, it follows that the appeal must be allowed.

Ground 3: There has been a procedural impropriety on the part of the enforcement authority:

My formal representations, although less extensive, were in essence the same as grounds one and two above.

While the Notice of Rejection shows the council has considered and rejected ground 1, no consideration whatsoever is shown of ground 2. I submit Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) as persuasive authority. In that case the London Tribunals held, in so far as is relevant, that:

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 a simple one, namely that the council was entitled to indicate on the Penalty Charge Notice that it “will” increase the charge by 50%, or that the use of the term “will” did not mean the Penalty Charge Notice did not comply with the regulations, or that the use of the term “will” did not, for whatever reason, amount to a procedural impropriety or affect the council’s ability to pursue the charge.

However the Notice of Rejection is entirely silent on this ground, indeed the Notice of Rejection shows no consideration whatsoever of the representations made in relation to the alleged procedural impropriety. As per Jaffer Husseyin v Royal Borough of Greenwich, motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected.

As one of the grounds of representations has been completely ignored by the enforcement authority, the tribunal cannot be satisfied that the council has properly performed its statutory duty to consider the formal representations that I submitted, this failure to consider amounts to a procedural impropriety which means the appeal must be allowed.


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BONGOBOY
post Sun, 5 Aug 2018 - 10:31
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Many thanks. CP8759.
I will do my best and report back..

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hcandersen
post Sun, 5 Aug 2018 - 13:29
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Hold it.

Post the full notice of rejection first.

Once we’ve read it and discovered any other procedural improprieties, then you register your appeal, but IMO there is no need to make it in such detail at this stage, a skeleton argument would do.




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BONGOBOY
post Thu, 9 Aug 2018 - 17:40
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The attached arrived today. All i can think is that we had the council over a barrel, and they cut their losses as they knew we would win at the tribunal with the independent adjudicator.

One question i have is this. Having received the formal appeal rejection letter 2 weeks ago, they gave me 14 day to pay the reduced fee (i thought they should have given me 28 days). In any case, as i had wanted to go to the independent adjudicator, was it down to myself to appeal to the adjudicator, or was i correct in thinking that i wait for the council to send a letter to set up the tribunal meeting ?

Anyway, i can only thank the forum members for their help & advice, in particular CP8759, without your detailed help i doubt i wouldnt have had the confidence to continue. You are doing a great job for the public.

PS: The council were still adamant that i was parked on DYL. I am still adamant that i was not !!!

This post has been edited by BONGOBOY: Thu, 9 Aug 2018 - 17:44
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cp8759
post Thu, 9 Aug 2018 - 18:27
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There's a flaw in the acceptance letter, it says that in future the department "may not be able" to cancel a penalty charge, this is is an unlawful fetter of their discretion: as per Nirakar Vaidya v London Borough of Newham:

"The local authority was wrong to say in the Notice of Rejection that it was unable to cancel the Penalty Charge Notice or refund the removal fee. The local authority is able to do so and the local authority is obliged to consider whether there is compelling mitigation. The local authority by stating that it is unable to do something that it is able to do has in my opinion fettered its discretion.

I find that the local authority failed in a duty imposed by the regulations I find that there has been a procedural impropriety and I allow this appeal.
"

Keep the acceptance letter, it may be useful in future. I'd also be interested to know what error occurred in the appeal process, you could always ask them, under GDPR, for details of what the error was.

As for your other question, you're dead wrong: once you get the formal rejection, you either pay or file an appeal with the tribunal. The council won't send any letter setting up a tribunal meeting, if you do nothing the council would eventually have sent the bailiffs to collect the (greatly increased) penalty.


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BONGOBOY
post Thu, 9 Aug 2018 - 19:14
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Thanks CP8759, i am guessing that you are or were a lawyer (based on the case law you frequently and very helpfully quote).

Well its a bloody good job that they sent the cancellation letter then, as i thought the council would send me a letter detailing the date/time of the tribunal.

I will ask them what the error was. I am as curious as you are.

Standby for an update........................................................
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DancingDad
post Sat, 11 Aug 2018 - 09:56
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Nice one on the NOA... someone looked again... or were looking in here.

No matter, tis the result that counts but for future reference you are the one that must appeal, council does nothing until you do and the appeal is registered by adjudication services.
If you do nothing, the council can and likely will, send a Charge Certificate and you will lose chance to appeal or indeed do much except pay the penalty plus 50% surcharge.


As an aside, I disagree with CP on the "may not" fettering discretion. May not is not the same as will not.
It would only become relevant should council not cancel another because they had already cancelled this one.
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