Barnet PCN - A5 THE HYDE Options

[cyrus1]

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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[stamfordman]

Think they've got an operator who's a bit trigger happy.

[cp8759]

Clear case of de-minimis here.

[cyrus1]

Clear case of de-minimis here.

CP, could I burden you again for a draft please? Your previous one was fantastic.

[cp8759]

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.

[cyrus1]

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.

[cyrus1]

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

[stamfordman]

I would do the same as the other.

[cp8759]

So would I.

[cyrus1]

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?

[cp8759]

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.

[cyrus1]

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.

[cp8759]

Dear London Borough of Barnet,

Liability for the penalty is denied on the following four grounds.

My first ground is that 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.

My second ground is that 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.

My third ground is that 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.

My fourth ground is that the council has failed to consider my representations against the PCN properly or at all. My informal representation against the PCN was essentially identical to grounds one to three above, however grounds two and three were completely ignored by the council and the informal rejection notice makes no mention them at all. The council was entitled to reject my second and third grounds of challenge, but it could not ignore them.

I refer the council to the decision in Jaffer Husseyin v Royal Borough of Greenwich (2170256432, 03 July 2017) where the tribunal held as follows:

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 Barnet's response of 23 November has every appearance of a pro-forma letter and does not deal at all with the second and third ground. The response required was a simple one, namely that the wording of the PCN is, in the council's view, substantially compliant with the legislation, or that any non-compliance even if made out does not impact the validity of the PCN. I should have been given an explanation, even if brief, of why my second and third grounds were rejected.

It follows that it cannot be established the council has properly discharged its duty to consider the representations made, this is a breach of the council's common law duty to act fairly as per R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8 and in such circumstances, liability to pay the penalty does not arise.

[cyrus1]

Dear London Borough of Barnet,

Liability for the penalty is denied on the following four grounds.

My first ground is that 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.

My second ground is that 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.

My third ground is that 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.

My fourth ground is that the council has failed to consider my representations against the PCN properly or at all. My informal representation against the PCN was essentially identical to grounds one to three above, however grounds two and three were completely ignored by the council and the informal rejection notice makes no mention them at all. The council was entitled to reject my second and third grounds of challenge, but it could not ignore them.

I refer the council to the decision in Jaffer Husseyin v Royal Borough of Greenwich (2170256432, 03 July 2017) where the tribunal held as follows:

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 Barnet's response of 23 November has every appearance of a pro-forma letter and does not deal at all with the second and third ground. The response required was a simple one, namely that the wording of the PCN is, in the council's view, substantially compliant with the legislation, or that any non-compliance even if made out does not impact the validity of the PCN. I should have been given an explanation, even if brief, of why my second and third grounds were rejected.

It follows that it cannot be established the council has properly discharged its duty to consider the representations made, this is a breach of the council's common law duty to act fairly as per R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8 and in such circumstances, liability to pay the penalty does not arise.

Thank you very much CP, I will send this off today.

[cyrus1]

https://imgur.com/a/mCMVsWV

My mother received this and then paid £65 without letting me know!

Is it still worth appealing to the independent Traffic Adjudicator?

[stamfordman]

No, paying close the case. That's a shame as in reoffering the discount they were probably hoping to stave off adjudication - I really couldn't see the tribunal upholding this one.

This post has been edited by stamfordman: Sun, 16 Feb 2020 - 16:24

[hcandersen]

No, paying close the case.

Why?

It closes the case when the initiative lies with the authority e.g. if you pay they may not serve any subsequent notices thereby effectively bringing an end to the matter.

Ultimately..no NOR, no appeal.

But here the initiative lies with the owner.
Why can't they initiate an appeal?
They've paid but now wish the matter to be determined by the adjudicator.

What legally, as opposed to anecdotally, prevents them initiating an appeal - they must state at the start that they have paid but have now contacted the authority to have the money refunded?

OP, if this was done on behalf of your mother she must be prepared to risk the full penalty.

This post has been edited by hcandersen: Sun, 16 Feb 2020 - 17:29

[stamfordman]

Well I'm sure you are right and the OP could lodge an appeal with the tribunal as they have the required code. It would be interesting to see what happens.

[Mr Mustard]

A decision needs to be made. pay or Appeal.

Any Appeal is at the 100% value of the PCN as it is the entire PCN which is being challenged; if the day is won the sum paid already will be refunded. If lost, the second 50% has to be paid.

[hcandersen]

They have paid at the discount pursuant to the offer made in the authority's NOR.

The issue is whether to request a refund from the authority and appeal or let the matter lie. (I am not suggesting that the owner needs to apply to the council for a refund in order to be empowered to appeal, it's more of a practical and evidential step than a legal one)

This post has been edited by hcandersen: Mon, 17 Feb 2020 - 11:59