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Barnet PCN - A5 THE HYDE
cyrus1
post Fri, 15 Nov 2019 - 21:17
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Dear all,

My mother has just received a bus lane PCN, again from Barnet council, and this one is even more ridiculous that I received from them recently. Please would you be so kind as to assist with this one too? It seems to me that Barnet are just being very greedy at the moment. This isn't right.

https://imgur.com/a/B9s6IDU

Thank you.
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post Fri, 15 Nov 2019 - 21:17
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stamfordman
post Fri, 15 Nov 2019 - 22:07
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Think they've got an operator who's a bit trigger happy.

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cp8759
post Fri, 15 Nov 2019 - 22:22
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Clear case of de-minimis here.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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cyrus1
post Sat, 16 Nov 2019 - 00:35
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QUOTE (cp8759 @ Fri, 15 Nov 2019 - 22:22) *
Clear case of de-minimis here.


CP, could I burden you again for a draft please? Your previous one was fantastic.
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cp8759
post Sat, 16 Nov 2019 - 13:21
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Draft reps:

---------------

Dear London Borough of Barnet,

Liability for the penalty is denied on the following grounds. Firstly, the contravention is of a de-minimis nature. My vehicle only strayed very marginally into the bus lane, at no point was more than 50% of my car in the bus lane, in fact for most of its limited encroachment into the bus lane no more than 20% of my car had crossed the white line. On top of this, the length of bus lane where such encroachment took place did not exceed around 20 yards. In the circumstances, the contravention was de-minimis and therefore did not happen as alleged. If this is not accepted, this is clearly a case where the enforcement authority should exercise discretion to cancel the PCN.

In any event, the PCN is defective. The London Local Authorities Act 1996 provides as follows at section 4(3):

(3) A penalty charge notice under this Part of this Act must state—
...
(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement
notice may be served by the council or, as the case may be, Transport for London on the
person appearing to them to be the owner of the vehicle;
...
(g) the effect of paragraph 2 of Schedule 1 to this Act.


The tribunal has long held that where a discretionary power is bestowed upon the council by Parliament, that discretion cannot be fettered. The council always has a discretion not to pursue enforcement. However although the PCN attempts to pay lip-service to the regulations on page 1, page 2 states the following:

If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge.

The PCN, when read as a whole, conveys unequivocally that if the PCN is not paid or successfully challenged, service of an Enforcement Notice is a foregone conclusion. This is an unlawful fettering of discretion because the power to serve an Enforcement Notice is discretionary, the council is not allowed to say that something "will" happen when the regulations prescribe that something "may" happen.

Further to this, the PCN fails to convey the effect of paragraph 2 of Schedule 1 to the Act, which provides at sub-paragraph 3 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 enforcement notice in
question was served.


The PCN says that the 28 day period for representations to be made against the Enforcement Notice starts with the date of the Penalty Charge Notice, but that 28 day period will have expired before the Enforcement Notice is served. While a motorist might hazard a guess that the information given is the result of a drafting error and should not be taken literally, the motorist has no way of knowing what the correct period might be. It could be inferred that the council means 28 days from the date of the Enforcement Notice, or 28 days from the date of service of the Enforcement Notice, but this would be guesswork and the law requires certainty. The council might argue that the exact period does not need to be given at all at this stage, but that is besides the point: if the council chooses to include details from paragraph 2 of Schedule 1 in the PCN, those details must be accurate and must not mislead or confuse.

Therefore when read as a whole, the PCN does not comply with the requirements of the 1996 Act. In London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) the High Court held at para 41:

Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.

The same circumstances exist here: The 1996 Act creates a scheme for the civil enforcement of bus lane controls. As the statutory conditions in this case are clearly not met, the financial liability does not arise and no penalty is due.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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cyrus1
post Sat, 16 Nov 2019 - 17:43
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QUOTE (cp8759 @ Sat, 16 Nov 2019 - 13:21) *
Draft reps:

---------------

Dear London Borough of Barnet,

Liability for the penalty is denied on the following grounds. Firstly, the contravention is of a de-minimis nature. My vehicle only strayed very marginally into the bus lane, at no point was more than 50% of my car in the bus lane, in fact for most of its limited encroachment into the bus lane no more than 20% of my car had crossed the white line. On top of this, the length of bus lane where such encroachment took place did not exceed around 20 yards. In the circumstances, the contravention was de-minimis and therefore did not happen as alleged. If this is not accepted, this is clearly a case where the enforcement authority should exercise discretion to cancel the PCN.

In any event, the PCN is defective. The London Local Authorities Act 1996 provides as follows at section 4(3):

(3) A penalty charge notice under this Part of this Act must state—
...
(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement
notice may be served by the council or, as the case may be, Transport for London on the
person appearing to them to be the owner of the vehicle;
...
(g) the effect of paragraph 2 of Schedule 1 to this Act.


The tribunal has long held that where a discretionary power is bestowed upon the council by Parliament, that discretion cannot be fettered. The council always has a discretion not to pursue enforcement. However although the PCN attempts to pay lip-service to the regulations on page 1, page 2 states the following:

If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge.

The PCN, when read as a whole, conveys unequivocally that if the PCN is not paid or successfully challenged, service of an Enforcement Notice is a foregone conclusion. This is an unlawful fettering of discretion because the power to serve an Enforcement Notice is discretionary, the council is not allowed to say that something "will" happen when the regulations prescribe that something "may" happen.

Further to this, the PCN fails to convey the effect of paragraph 2 of Schedule 1 to the Act, which provides at sub-paragraph 3 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 enforcement notice in
question was served.


The PCN says that the 28 day period for representations to be made against the Enforcement Notice starts with the date of the Penalty Charge Notice, but that 28 day period will have expired before the Enforcement Notice is served. While a motorist might hazard a guess that the information given is the result of a drafting error and should not be taken literally, the motorist has no way of knowing what the correct period might be. It could be inferred that the council means 28 days from the date of the Enforcement Notice, or 28 days from the date of service of the Enforcement Notice, but this would be guesswork and the law requires certainty. The council might argue that the exact period does not need to be given at all at this stage, but that is besides the point: if the council chooses to include details from paragraph 2 of Schedule 1 in the PCN, those details must be accurate and must not mislead or confuse.

Therefore when read as a whole, the PCN does not comply with the requirements of the 1996 Act. In London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) the High Court held at para 41:

Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.

The same circumstances exist here: The 1996 Act creates a scheme for the civil enforcement of bus lane controls. As the statutory conditions in this case are clearly not met, the financial liability does not arise and no penalty is due.


Thank you very much for your help. Your help is very much appreciated.
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cyrus1
post Wed, 27 Nov 2019 - 12:34
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Hi all, unfortunately, this appeal has also been rejected, they have yet again failed to acknowledge the points that were raised.

https://imgur.com/a/WMIEYMN
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stamfordman
post Wed, 27 Nov 2019 - 14:21
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I would do the same as the other.

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cp8759
post Thu, 28 Nov 2019 - 01:19
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So would I.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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cyrus1
post Fri, 20 Dec 2019 - 20:18
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QUOTE (cp8759 @ Thu, 28 Nov 2019 - 01:19) *
So would I.


Good evening CP, the council have not yet sent out an "Enforcement Notice" following the rejection letter. They sent it out for my Saab's PCN, to which I have replied, but this one (my mother's PCN) is still at £65. Should I chase them up or just wait?
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cp8759
post Sun, 22 Dec 2019 - 23:26
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Just wait, the council has six months from the date of the contravention to issue the EN. You never know, if you're lucky it might time-out.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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cyrus1
post Thu, 16 Jan 2020 - 15:12
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QUOTE (cp8759 @ Sun, 22 Dec 2019 - 23:26) *
Just wait, the council has six months from the date of the contravention to issue the EN. You never know, if you're lucky it might time-out.


Dear CP, I have just received the EN. https://imgur.com/a/FYem7ki

Can I trouble you again for a draft, please?

Thanking you in advance, and for everything else that you've helped me with.
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