Is this a hearing or just a review of paperwork?
I live in Manchester so would not be making a trip down specially
Otherwise, a dual smackdown sounds like fun!
So, amending the above, would this wording cut the mustard so to speak?
Ground 1: The amount demanded exceeds the amount due in the circumstances of the case: The PCN was served out of time:
The Penalty Charge Notice is dated 19 July 2018 and it alleges that a contravention took place on 21 June 2018. As service is deemed to occur two working days after the date of the notice, and 20 July 2018 was a Thursday, service is deemed to have taken place on 23 July 2018, i.e. 33 days after the date of the alleged contravention.
Section 6 of the London Local Authorities and Transport for London Act 2003 provides, is so far as is relevant, that:
"6 Limitation on service of penalty charge notice
(1) Subject to the provisions of this section, no penalty charge notice may be served under this Act after the expiry of the period of 28 days beginning with the date on which the alleged contravention or failure to comply occurred.
The council should have issued a Penalty Charge Notice promptly and in any event no later than Monday 16 July 2018, in order to ensure service no later than Wednesday 18 July 2018, i.e. the last day of the period of 28 days starting with the data of the alleged contravention.
As the Penalty Charge Notice was served outside of the time limit imposed by section 6(1), and subsection 6 is not applicable to the circumstances of the case, the Penalty Charge Notice was served out of time and the amount payable is nil.
Ground 2: The amount demanded exceeds the amount due in the circumstances of the case: The PCN does not state the grounds on which the enforcement authority believe a penalty charge is payable:
Although these proceedings are civil in nature, it is a long established principle of law that anyone accused of wrongdoing must be given unambiguous particulars of the nature of the accusation he faces. The penalty charge served by the enforcement authority does not specify whether the prohibited turn is a left turn, a right turn or a u-turn, it simply states “50 Performing a prohibited turn”
While previous decisions are not binding they can be persuasive and I submit Austin Biesty v London Borough of Brent (case reference 2130412623) as persuasive authority in this instance. In that case the tribunal held that:
“The Penalty Charge Notice ('PCN') in this case describes the alleged traffic contravention as Failing to comply with a sign indicating a prohibited turn. However, the PCN fails to particularise what turn is prohibited, left or right. Also, whilst the Penalty Charge Notice ('PCN') includes superimposed pictures, it is impossible to see in the copy filed any actual traffic sign(s) that the appellant is alleged to have failed to comply with and there is no copy of the sign(s) themselves superimposed on the PCN.
In the circumstances, I find that the PCN is invalid and unenforceable as it fails to comply with the requirements of section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 ('LLA & TFL Act 2003'), which states that the PCN "must (a) state (i) the grounds on which the council...believe that the penalty charge is payable with respect to the vehicle".
In these circumstances, I must allow this appeal.”
In this case, as in Austin Biesty v London Borough of Brent, the PCN fails to particularise what turn is prohibited and the signs which are alleged to have been contravened are not visible on the PCN.
It follows that the PCN in this case also fails to comply with section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 and the appeal must be allowed.
Ground 3: The amount demanded exceeds the amount due in the circumstances of the case: The PCN does not particularise the location of the alleged contravention:
The Ordnance Survey website shows that Mare street extends for approximately 1.1 miles from the junction with Dalston Lane in the north to the junction with Andrews Road in the south, along its length it intersects approximately 30 junctions and the PCN does not specify where on Mare street the contravention is said to have occurred.
I submit Matthew Kelly v London Borough of Harrow (case reference 216029138A) as persuasive authority:
“Mr Kelly has appeared in person with his son, Mr Sean Kelly.
This PCN was issued for the alleged contravention of being in a bus lane in Northolt Road Northbound at 12.49pm on 12 March 2016.
Mr Kelly appeals because he says that the PCN does not sufficiently identify the location of the alleged contravention. His evidence shows that there are 5 camera enforcement locations in Northolt Road.
Although the Council says in its case summary that the location is Northolt Road at the junction with Shaftesbury Avenue, this is not clear from the PCN.
The PCN must state the grounds on which the Council believe that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to know not just the nature of the alleged contravention but exactly where it is said to have occurred. I agree with Mr Kelly that this PCN did not sufficiently identify the location of the alleged contravention and I allow the appeal for this reason.”
I aver that the PCN does not allow the recipient to understand where on Mare Street the allegation is said to have occurred and the appeal must therefore be allowed.
Ground 4: There has been a procedural impropriety on the part of the enforcement authority: the council has failed to consider my representations:
I made representations about the PCN's failure to comply with the statutory time limit, the Notice of Rejection is wholly silent on this matter. While previous tribunal decisions are not binding they can be persuasive and I submit Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) as persuasive authority in this instance:
"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 instance the response required was a simple one, namely words to the effect that the PCN was sent within the statutory timeframe, or that the late service did not affect the council's ability to pursue the charge. As the Notice of Rejection makes no mention of the late service of the PCN, the tribunal cannot therefore be satisfied that the council has given any consideration to this aspect of my representations. This failure to consider is a procedural impropriety which means that the Penalty Charge Notice must be cancelled.