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PCN incorrect make and CEO not in correct uniform
CryptoRod
post Fri, 13 Sep 2019 - 16:39
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Hi all,

On the 28th August I was 20 metres from my car not looking at it, when I then noticed a guy loitering next to it etc. I walked up to my car and drove off. He wasn't dressed as a CEO with any of the correct markings and he didn't affix a ticket the windscreen of my car. I thought nothing of it.

On the 2nd Sept I was sent a PCN relating to that day which incorrectly stated the make of my car as a Blue Seat when in fact it is a Blue Suzuki (I think the car parked way behind mine was a Blue Seat which is why there is a picture of a Blue Seat taken randomly below by the CEO).
Based on the PCN and their evidence attached below, can I appeal this ticket, or do I need to go full nuclear on them with this type of challenge copied below from a google search?

Thanks for your help





'I wish to appeal against the penalty charge as the make of car detailed in the PCN is incorrect. It should have been a Suzuki. I hope you accept this appeal as being truthful and cancel the penalty charge. If you do not accept this appeal on the point above then I require you to give proper consideration to the following other appeal points.

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. You may possess a few photos of my vehicle against the backdrop of a traffic sign but this is meaningless as evidence of a supposed contravention unless it is supported by a valid 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 as it is likely to effect the appellant’s judgement on whether their case for further appeal is strong or whether they should take advantage of any discount period.

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

(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 simple fact that a PCN was served is not in itself evidence that a uniform was worn correctly at the time of service and should not be construed as such.

I also bring to your attention the important fact that PCN fails to comply with regulation 3(2)(b) 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;

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. This requirement is repeated in paragraph 8.40 of the DfT published ”Operational Guidance to Local Authorities”;

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

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.

Considering this fact 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 regulation 3(2)(b).

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 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 next 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 and 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 Civil Parking Enforcement 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.
11) Please provide all maintenance records for the week prior and the week after the date of the alleged contravention for all the ticket machines located in the car park where the PCN was served.'

Thanks!
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post Fri, 13 Sep 2019 - 16:39
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nextdoor
post Fri, 13 Sep 2019 - 17:33
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IMO 99% of your reps are mere 'noise'.

What may be worth pursuing is that while the pics show that you were clearly parked there at 09.21, the pcn alleges the contravention took place at 09.25, yet their pic of 09.25 shows your car no longer there.
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PASTMYBEST
post Fri, 13 Sep 2019 - 17:39
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+1 The time is recorded as soon as they start to prepare the PCN the time is a statutory requirement it cannot be about 9.25 when you are in contravention


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Incandescent
post Fri, 13 Sep 2019 - 19:15
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I can see their eyes glazing over when they read that lot, most of which is totally irrelevant. Where on earth did you get this tosh from ?

It would seem you were parked in a bay that is restricted to resident parking only Mon-Sat between 8.00am to 6.30 pm. The rest of the time it is not restricted, and there are no restrictions on a Sunday. I assume you are not a resident with a permit, so why did you park there when the sign seems so clear ? If you were visiting somebody who lives nearby, they can normally purchase visitor permits for use when visitors come by car.

You have received a "Regulation 10 PCN" used where a PCN was in course of preparation, but the car driver drove off before it could be served. This facility for councils came in with the Traffic Management Act 2004, so it is all kosher. The person who was by your car was probably not the CEO anyway.

I have to say, correct me if I'm wrong, that you basically would seem to have chanced your arm, and unfortunately lost. Maybe you weren't aware of the facility to issue postal PCNs for drive-away situations. I cannot see any grounds for an appeal at all, frankly, but others may differ.
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CryptoRod
post Fri, 13 Sep 2019 - 20:39
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Thanks Pastmybest and Nextdoor, good point!
So I could say that at the time of contravention being 9:25 the Seat was there, and not my car (as evidenced by the picture and Make of car noted) and hence the PCN is invalid? Abandon the idea of the copied text completely?

Incandescent, the text I copied was from a thread on MoneySavingExpert. It seems to have worked for someone as their PCN was cancelled after using it. See link https://forums.moneysavingexpert.com/showth...d.php?t=2764708
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PASTMYBEST
post Fri, 13 Sep 2019 - 21:37
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QUOTE (CryptoRod @ Fri, 13 Sep 2019 - 21:39) *
Thanks Pastmybest and Nextdoor, good point!
So I could say that at the time of contravention being 9:25 the Seat was there, and not my car (as evidenced by the picture and Make of car noted) and hence the PCN is invalid? Abandon the idea of the copied text completely?

Incandescent, the text I copied was from a thread on MoneySavingExpert. It seems to have worked for someone as their PCN was cancelled after using it. See link https://forums.moneysavingexpert.com/showth...d.php?t=2764708


Yes just that the contravention as alleged did not occur as you were not in that place at 09.25

What your challenge asked them to do was like you asking the police to give you a copy of the law that prohibits murder before the can charge you you have a reg 10 PCN not a reg 9 and you must make a FOI in the prescribed manner not ask parking, they would likely reject anyway as it is no more than a fishing expedition. and all that is needed would be provided at adjudication as required to present evidence that the PCN was correctly served and the contravention is valid


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Incandescent
post Fri, 13 Sep 2019 - 21:50
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Does the PCN have the correct registration number ? Photos are not a legal requirement. It seems to me that the OP is submitting reps on the basis that his car was not there. I can't see success here at the moment. Of course if the OP takes the matter all the way, I suspect that at NtO stage the person studying the formal reps stating that the photos are not of the car reg on the PCN, the PCN will likely be cancelled. However OP will have to risk the full PCN amount to find out, and the same at adjudication.
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nextdoor
post Fri, 13 Sep 2019 - 22:08
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QUOTE (Incandescent @ Fri, 13 Sep 2019 - 22:50) *
Photos are not a legal requirement.


Agreed. But since they exist, they form part of the evidence of the contravention.

Thefirst 2 pics are both taken from the same angle. The first at 09.21 shows the vehicle in situ, the second taken at the alleged time of the contravention on the pcn at 09.25 shows that the vehicle is no longer there. Therefore the contravention did not occur.

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CryptoRod
post Sat, 14 Sep 2019 - 11:23
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The PCN does have the correct Reg just not the correct make (which I know is not material).
Looks like the timing issue is the way to go and scrap the 20 page fluff afterwards.
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hcandersen
post Sat, 14 Sep 2019 - 12:29
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OP, it's not as straightforward as seems to be thought.

The PCN states, and may only be served if this condition is satisfied, that the CEO 'had begun to prepare the PCN for service...but the vehicle was driven away'.

Clearly therefore the CEO had concluded that a contravention had occurred before the vehicle drove away. It is therefore axiomatic that the time of the contravention must have been prior to the vehicle being driven away.

In this respect, you need to look at the CEO's photos which show:

4 photos of your vehicle stationary at the location taken from various angles. 3 of these are timed at 0921, one at 0922;
1 photo of a traffic sign timed at 0922;
1 photo of the location but with your vehicle not present timed at 0925.

Why is this inconsistent with the PCN?

The photos at 0921 and 0922 could have been taken preparatory to the CEO forming their reasonable belief that a contravention had occurred. That belief being formed at 0925 at which point you drove away.

There is nothing in the evidence which contradicts this scenario, in fact as you were not at the vehicle at 0921 it is plausible that you returned at the moment that the CEO was preparing the PCN and immediately drove away.

How would you evidentially counter the above scenario and argument if put forward by the authority?

And there is no NTO, this is the business end. You either pay or make reps. Next stage would be adjudication.

Discount is available up to and including 17th.
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CryptoRod
post Sat, 14 Sep 2019 - 14:17
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Wouldn't the CEO have made his judgement as to a contravention prior to taking his photos, otherwise why bother taking photos?
Therefore the contravention should have been noted as taking place prior to 9:25. However he noted it took place at 9:25
where no car was present. If he had stated the contravention took place at any time the prior pictures were taken then his PCN would be valid IMO.
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DancingDad
post Sat, 14 Sep 2019 - 15:53
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Total disagreement with HCA (nothing new)
The PCN must include the date and time that the alleged contravention occurred.
Nothing about belief or when it was formed.
This PCN says that the alleged contravention occurred at 9.25. Their own evidence disputes this.
I would challenge on that fact.
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Longtime Lurker
post Sat, 14 Sep 2019 - 16:39
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QUOTE (hcandersen @ Sat, 14 Sep 2019 - 13:29) *
...How would you evidentially counter the above scenario and argument if put forward by the authority?...


Simple. You've accused me of being parked there at 9:25. Your photos show I wasn't parked there at 9:25 so you must cancel this ticket.

If you wanted to accuse me of being there at 9:21, you should have followed the proper process and issued a PCN that says that. I'm fighting the ticket you sent me, not an infinite number of imaginary tickets you might have sent me.

This post has been edited by Longtime Lurker: Sat, 14 Sep 2019 - 16:43
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CryptoRod
post Yesterday, 10:25
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Thanks for all the help, very helpful.

I have made the following challenge and will post up the response when I get it.

'I am challenging the PCN sent via post for the following reason:

The civil enforcement officer has issued a PCN contravention code 12 - on the 28th August 2019 at 09:25. The civil enforcement officer's own picture at 09:25 does not show my car being parked there at the time indicated. Therefore, by his own admission, it is impossible for a contravention to have occurred at that time. He also indicates that the car in contravention is a SEAT. The VRN in fact relates to a Suzuki.

In light of these two procedural improprieties the PCN must be cancelled.'
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hcandersen
post Yesterday, 11:06
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DD, welcome back!

@DD, from the regs:

9. Where a civil enforcement officer has reason to believe that a penalty charge is payable with respect to a vehicle which is stationary in a civil enforcement area, he may serve a penalty charge notice—

(a)by fixing it to the vehicle


So the CEO's belief is paramount. Whether they choose to take photos - possibly based on an inkling or suspicion - prior to concluding their reasoning is up to them.

I say again, the OP's account as yet does not rebut the scenario I've set out. But of course whether this is what occurred can only be tested by the OP who is perfectly entitled to make reps on the basis that 9.21 precedes 9.25 and therefore the reg 10 PCN fails to include the correct time of contravention.

I could see an adjudicator not buying this, but it would depend on how the authority's NOR was phrased.

@Longtime Lurker

Simple. You've accused me of being parked there at 9:25. Your photos show I wasn't parked there at 9:25 so you must cancel this ticket.

Equally simple. You've chosen to believe that these two events could not BOTH have occurred at 9.25.

There is no evidential basis for such an assumption.
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DancingDad
post Yesterday, 11:44
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Reg 10 PCNs must (that is MUST) include certain information.
This includes the time of contravention.
And is included on the PCN, 9.25.
However the evidence that is presented shows that there was no vehicle in the parking place at 9.25
Therefore the contravention cannot be substantiated at the time stated on the PCN.

This is no different to some YBJ cases where they mucked up the time.
No different to the wrong date or location being put on the PCN.
It is mandatory information that has to reflect the contravention.
It doesn't, at the time shown on the PCN there was no contravention.

That the CEo formed a belief earlier makes no difference, they could and should have issued the PCN when their belief was formed, not 4 minutes later.
That 4 minutes would not be an argument had the PCN been timed 4 hours later.
I would also question that the vehicle was driven away after the PCN was started.
It simply does not take 4 minutes to issue a PCN.
To me that lends some credence to a CEO out of uniform lurking and not wanting to serve a regulation 9 PCN as they knew they were out of order.
Proving that is another matter.


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hcandersen
post Yesterday, 11:52
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However the evidence that is presented shows that there was no vehicle in the parking place at 9.25
Therefore the contravention cannot be substantiated at the time stated on the PCN.


This is simply incorrect with the evidence to hand. We do NOT know when the CEO began to prepare the PCN.

We do know that this could not be before they believed that a contravention had occurred because this is the law.

Whether we choose to guess that the CEO had not begun to prepare the PCN even by entering a single character into the HHC, fine.

There is circumstantial evidence both ways IMO and whether the OP's challenge has been crafted so as to tease out the detail from the authority only time will tell.

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DancingDad
post Yesterday, 12:08
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QUOTE (hcandersen @ Mon, 16 Sep 2019 - 12:52) *
However the evidence that is presented shows that there was no vehicle in the parking place at 9.25
Therefore the contravention cannot be substantiated at the time stated on the PCN.


This is simply incorrect with the evidence to hand. We do NOT know when the CEO began to prepare the PCN...……….



I don't care when the CEo started the PCN, even if I suspect that they hadn't before the vehicle drove away.


The PCN is the legal document, the notice that says everything needed.
Including the time.
If there is contradictory information that shows that at the time stated there is no contravention, the PCN cannot be upheld.


It is not the OP's job to second guess how the system works, whether the PCN time is automated and only put on at the end of the process.
Or for that matter at the beginning, that is something the council would have to show to an adjudicator should they wish to argue along your lines.
It is within their power to put the correct time on, even if altered by hand and signed.
They could not be bothered to!

I am looking at the simplistic.
The PCN says I was in contravention at 9.25. Your photo shows I wasn't, cancel the beasty.
To do otherwise would allow CEOs to turn up tomorrow and put a PCN on vehicles because they saw them in contravention yesterday.



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hcandersen
post Yesterday, 13:36
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???

The CEO states:
The contravention occurred at 9.25.
There is a photo timed at 9.25 which in this context would substantiate the postal PCN.
There is NO evidence that the CEO had not begun to prepare, but there is to the contrary i.e. it states as much in the PCN.
This may be challenged, but there is no evidence to this effect which is in play, only speculation.

SO I am not gung-ho because there is no evidence to this effect.


0925 CEO begins to prepare, OP returns, CEO takes another photo.
0925 OP returns, CEO is beginning to prepare but takes time out to take a photo of OP driving off but OP too quick.

But anyway, the OP has sent off their reps so we can but wait.

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cp8759
post Yesterday, 13:36
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QUOTE (DancingDad @ Mon, 16 Sep 2019 - 13:08) *
I am looking at the simplistic.
The PCN says I was in contravention at 9.25. Your photo shows I wasn't, cancel the beasty.
To do otherwise would allow CEOs to turn up tomorrow and put a PCN on vehicles because they saw them in contravention yesterday.

+1, no reason to over-complicate things.


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No, I am not a lawyer.
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