Hello,
I've been in a bit of a battle with East Riding Council since November over a PCN. The councils TRO for the car park in question has the incorrect charges, for example, the TRO states that the parking is 30p for 1 hour but the council are charging 50p. The matter has gone to the adjudicator and the council have referenced the TRO in question and quoted from it but given the wrong amounts.

Does anyone know what the situation is when the council are charging more than they have set out in the TRO? Are PCN's still enforceable? Has anyone had any experience with this?

Regards

What are the council arguing? It's possible that since the TRO came into force the council has published a notice of variation

http://www.legislation.gov.uk/ukpga/1984/27/section/35C

The council are not arguing anything in relation to the TRO yet, this whole mess stems from last November when a bailiff traced me to my new address (the original NTO had gone to my old address). I never received a PCN for the ticket which was 18 months old so didn't believe it was mine. I asked the council to send a new NTO as per the Gov' Guidance to Loc Auths but they refused and insisted that I pay the bailiff a few hundred pounds. Since then it's took me until June just to see the evidence of the PCN after I appealed the PCN.

Would the council not have to publish a Notice of Variation - and if so where?

http://www.legislation.gov.uk/uksi/1996/24...ulation/25/made

The council should include a copy of any notice of variation with the evidence they send you and to the adjudicator.

Thanks, the councils incredibly huge evidence sent to me and adjudicator contains every document under the sun. It does not include a variation notice. On the page that talks about the TRO it simply states the information from Schedule 2 of the relevant TRO but when you go online to check it the information in the document is different to what they have written.

So not only do the charges being levied not match those set out in the TRO but the evidence the council have supplied to the adjudicator is at best incorrect and at worst untruthful.

The question is, how legal are the charges when the TRO is wrong?

Can you post the page where the council name the relevant order?

It may not be the TRO that is wrong but simply that the council employee is unaware of a variation notice. If the TRO does not state the correct current charges and no new order or variation notice has been submitted in evidence then you can argue that this casts doubt on the councils evidence. First we need to establish facts.

The TRO page of evidence[/img]

Here is the page of the council's evidence that details the TRO that is incorrect (08/11/2012). There is no Notice of Variation.

I don't see any order under East Riding with that title registered in the TPT library.

http://tro.parking-adjudication.gov.uk/Default.aspx

If an order is not registered with the TPT then a copy should be included in the evidence otherwise no one will know if the alleged contravention has any legitimacy.

The nearest order in the library is this one.

It would IMO depend on the contravention.

If it related to the amount paid then a variation would be needed, for example if underpayed.

But if for not parking in marked bays or something similar, the original TRO is likely to be correct.

If the authority have submitted incorrect evidence then the adj would take a very dim view and possibly allow the appeal on this basis alone.

But to be honest, I cannot follow your thread because you've missed out so many relevant and important stages.

What is the contravention?
Did you make reps and did you receive a NOR?
On what grounds have you appealed to the adj?
When is your appeal to be determined and is it a postal decision or are you attending a hearing?

Bogsy - Yes, I believe that is the order that they are referring to, YE17.

hcanderson - The contravention is a Parking Charge Notice for staying too long in a car park, it is from 2013. I did not receive a PCN at the time and only found out about this in November last year. At the time I tried to get more info from the council but they would not supply me with any details or reissue the NtO. After 6 months I finally got them to re-issue the NtO (4 court hearings later), I used the ticket info and tried to get the evidence (pictures etc) from the council website but when I entered the information it said 'No penalty exists' so I appealed on the grounds that it never existed in the first place. At this point I was finally sent pictures by the council. Given the issues I had getting to the bottom of the situation and the council's failure to follow Gov' Guidance I appealed to the adjudicator on the grounds that the council had not followed the procedures.

The adjudicator found in the council's favour earlier this week but made no mention of the TRO - nor did the council in their rebuttal. I wrote to the adjudicator yesterday to ask if they had considered the TRO evidence I sent and I received a letter today via email saying:

"I acknowledge receipt of your request for a review of the Adjudicator’s Decision. Your application will be placed before an Adjudicator for a preliminary view and Directions, a copy of which will be sent to you."

So I am still non the wiser...

If the TRO showed a contravention of parking longer then allowed time then any variation would not be needed.
Except that allowed time would likely be shown on the schedules and if no schedule (or one that is out of date) is included, then how can anyone decide if the order has been contravened?
How does anyone know if the schedule is out of date? Parking charges that are not as shown on the car park board/machine.

I know that TPT accept that an order does not need to be in the evidence pack if one is lodged within the TPT library. And Bogsy has failed to find it.

I think your reasoning is incorrect in that incorrect charges in the TRO will not invalidate the PCN.
But spot on in that the TRO supplied may not include sufficient information to show what the allowable time is.

Post up what you wrote to TPT pls, may need a follow up.

Here is what I wrote to the TPT - the council also included a photo of the parking charges shown on the board and this matches what they had written in the evidence but do not match the TRO.

Here is the text:

Further to my previous letter, upon inspection of the council's Traffic Regulation Order I believe that there is an error in the charges being applied at the Butchers Row Car Park.

YE17 Schedule 2 published in 2012 states that the charges are as follows:

30p ­ 1⁄2 hour

50p ­ 1 hour

£1.10 ­ second hour

There is no subsequent update to this in either order YE18, YE19 and the latest YE20 yet the charges being applied at the car park are (as displayed in the council’s evidence page 102):

50p ­ up to 30 minutes

£1.00 ­ up to 1 hour

£2.00 ­ up to 2 hours

Therefore the penalty should not be enforceable as the charges being levied are incorrect. The information given by the council on page 112 of the evidence pack is also incorrect ­ the TRO referred to (YE17) is attached for your convenience.

Even if you fail to take this further with TPT all is not lost. You can make a formal complaint to the Council alleging that unless the council is able to prove to the contrary the current car park charges have no legitimacy since they are not prescribed by order or by a published variation notice. If the council cannot prove to the contrary you take the complaint all the way to the ombudsman and seek to have the council refund all the money overcharged and seek possible compensation for those wronged.

Next time you get a PCN come to us sooner so we give you a better chance of success. In this case I would have looked at article 31 in the order and the definition of pay and display machine given on page 7 of the order and asked for evidence that the machine had been approved by the sec of state. I doubt any authority actually seeks approval and it's 50/50 whether the machine supplier has.

putting in such details is a schoolboy error when creating a TRO.
Consistent and on-point advice about how to write TROs has been around since 1984 !
If they followed it it would be easier (and cheaper!) for them and motorists would win fewer cases.
Councils, with their ever increasing 'create work and jobs scheme' (i.e. government bods) end up so fractured and so compartmentalised that these kind of snafus happen all the time. They seem to lose sight of the fundamental 'hows and whys'. Maybe their eyes are, in practice, on a different goal...

OP, you've leapt over an incredible amount of process info, but frankly this is for historians now, not you.

You appealed, you lost. You subsequently wrote to the adjudicator and it appears to have been accepted as an in-time request for a review. According to you, ' ..I wrote to the adj yesterday to see if they had considered the TRO evidence..' We don't know the form of this letter unless it's the one you posted at 22.34 yesterday, in which case you will not get a review and the game's over. You will not get a review because you have not made your application in the specified form. If this letter is not the one you submitted after your appeal, then pl post this.

As regards the contravention, there is no such one as 'parked for too long..' As we know that charges were payable, it was either failure to display a P&D ticket or, more probably given the thrust of your thread, that you parked after the expiry of paid for time. The evidence in question is the P&D ticket, not the order ( and as the contravention appears to have occurred in an off-street car park, TROs are irrelevant because they apply on-street only, the correct designation for off-street is just 'order' although it would normally be cited as **** Off-Street Parking Places Order). You do not seem to dispute that you were parked after the expiry of paid for time but I'm assuming that your claim is that had the m/c been set to the tariff in the order you would have received parking time which would not have expired at the time of the contravention. Or would you still have been parked 'too long'? In which case, what is the basis of your argument? If that the charges were unlawful because they were not supported by a lawful order, then you should say so - IMO expressing this as a problem with the order is back to front: no order = unlawful charges.

As regards your potential parallel complaint to the authority, IMO you should focus on the illegality of the charges, not the order i.e. charges are unlawful by virtue of .... If you could also make the argument that had the charges been set at the correct level you would have been parked in time then make it.

Schedule 2 of the order regulates the maximum duration of stay as 2 hours with no return within 1 hour. Article 21 of the order prohibits exceeding parking beyond the maximum duration. The charge for a 2 hour ticket is £1.10. It's possible that where a 2 hour ticket is purchased and expires a CEO can choose between two contraventions.

Code 82: Parked after the expiry of paid for time

or

Code 80 : Parked for longer than permitted

But if schedule 2 is not the valid version, as evidenced by the incorrect charges, then there is no evidence that the 2 hours limit is still valid.
This can only be by a variation order.
IMO if there is no variation order, the schedule 2 would be valid, charging the incorrect amount does not invalidate the order.
Though could leave the council with no lawful authority to levy the new charges and potentially liable to massive refunds.
Not that any such happenstance would help the OP in this case.

I was rather giving the OP the benefit of the doubt because they harp on about charges.

Like most of us, I'd rather not speculate, but in the absence of relevant info from the OP what's left?

OP, we need to know exactly what you wrote to the adjudicators after your appeal. We also need to know the contravention and circumstances e.g. I parked for 3 hours when the max. stay was 2, I bought a P&D for 1 hour but parked for 2.

hcanderson - The quoted text (in blue above) was from the letter that I sent for the original appeal to the adjudicator as additional evidence. When the adjudicator dismissed my appeal I wrote via email to the person dealing with my case to ask if this evidence (ie, inconsistency with the TRO) had been considered. I then got back the attached letter...

Regarding the contravention, it was a council run off street public car park, I had paid for parking but the time had expired. I had paid for an hour and stayed 27 minutes over.

OP, a request for review falls under para. 12 of the following:

http://www.legislation.gov.uk/uksi/2007/3482/schedule/made


Did your email comply?

And would the charge paid have bought 87 minutes' parking on the old tariff?

Yes, I believe it did, I made it quite clear that I believed there had been an administrative error in not considering the second email regarding the TRO and it was made after 9 days so within the time allowed.

Yes the old tariff would have purchased 90 minutes of parking.

Your request must state, not imply, one of the specified grounds and not just rehearse the arguments put forward at your hearing:

(b)any decision to determine that a notice of appeal does not accord with paragraph 2 or to dismiss or allow an appeal, or any decision as to costs, on one or more of the following grounds—
(i)the decision was wrongly made as the result of an administrative error;
(ii)the adjudicator was wrong to reject the notice of appeal;
(iii)a party who failed to appear or be represented at a hearing had good and sufficient reason for his failure to appear;
(iv)where the decision was made after a hearing, new evidence has become available since the conclusion of the hearing, the existence of which could not reasonably have been known of or foreseen;
(v)where the decision was made without a hearing, new evidence has become available since the decision was made, the existence of which could not reasonably have been known of or foreseen; or
(vi)the interests of justice require such a review.

The email that I sent was simply to ask the lady who handled the case (admin wise) if she had or had not seen the second email that I sent with the TRO evidence contained in it. She did not reply either way - I simply received that letter the next day saying that it would be reviewed - the problem is that I cannot definitely declare that I believe there has been an administration error as it could be the case that the adjudicator did receive the evidence and simply did not consider/comment upon it.

You lost your appeal. Your options are therefore to pay or request a review.

According to you, your email was not a request therefore if you intend to request a review then IMO you must contact the adj and state that you've received their correspondence dated **** and clearly there is some confusion. You apologise if you have contributed to this. Tell them your email dated *** was not a request for review which is an option still under consideration.

Do you intend to pay? If not then what is the date of the adjudicator's written decision letter? A request for review may only be made within a short specified period. Post the adj's letter please.

The adj's letter was the snippet that I included in an earlier post - or do you mean the initial decision? I've no problem paying, I'm just wound up at this point having had to argue with them for 6 months just to see the photos, its turned into a point of principle!

I have received in the post this morning a letter from the council containing additional evidence, It contains a copy of the Notice of Variation that the council made on the 28th February 2013.

I assume that the reason they have sent this is because the case is being reviewed? And now that they've pulled a NoV out of the hat, that's the end of that?

OP, the letter we need to see is the one rejecting your appeal, you opportunity to apply for a review counts from this as stated in my earlier post:

(2) An application under subparagraph (1) must—

(a)be delivered to the proper officer within the period of 14 days beginning with the date on which the copy of the register entry is served on the parties; and

(b)state the grounds in full.

Here is the original response from the adj. It makes no mention of the TRO.

OP, my request was simple: the DATE of the letter from the adjudicator, please, please, please.

You received a letter which told you your appeal was not allowed and that the adj's reasons were attached. You've posted the reasons but not the letter.

We need the date of the letter.

My apologies, the Adj letter is dated the 16th August and the Email that contain it was dated the 17th August.

On the 26th August I raised the issue in an email which I have attached below.

You are out of time. The decision was served on you on 17th therefore the 14-day period expired on 30th.

However, given that this was a Sunday and today a BH, then I suppose it's possible that as in practical terms nothing delivered on the last day of the period would be dealt with until tomorrow, you could get them to extend the period. But certainly not beyond tomorrow.

I read the adj's decision that they're not enamoured with the time this has already taken and the visits to courts, as they call them, and their stand on a review would be unlikely to be in your favour at present.

I'm not even certain of your point because you say:

The email that I sent was simply to ask the lady who handled the case (admin wise) if she had or had not seen the second email that I sent with the TRO evidence contained in it. She did not reply either way - I simply received that letter the next day saying that it would be reviewed - the problem is that I cannot definitely declare that I believe there has been an administration error as it could be the case that the adjudicator did receive the evidence and simply did not consider/comment upon it.


Others will comment.

I keep swinging from view to view on this one.

As they sent that they would ask an adjudicator for a decision/view on a review I do not think time limits would be strict on actually applying for a formal review once they get back to you. Assuming they say there may be cause and ask for the formal request.

The problem being that they may come back and say they've looked at it and no cause for a review.

Yes, my initial email was to find out if I had grounds to make an appeal, for example if the admin had responded and said "I missed that email" then I would have made a formal request but instead he responce that I received was that it was being reviewed - in my eyes as a layman it is reasonable for me to be under the impression that the admin had checked, realised the evidence had not been considered and therefore put the case forward for a review without the need for me to make a formal request.

As for the time taken, believe me, if the adj is unimpressed by it he can join my club - the council are solely responsible for the amount of time this has taken to resolve - it's been like talking to a wall for be past 6 months.