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SpartanSaver
I work in Bristol's water front once every 6 to 8 weeks. I am contracted by a venue in the water front and the GM of the venue had given me permission to use the car park around the back.

I worked there on Saturday night and when I returned my car was gone (towed away) Apparently 6 weeks ago Bristol City Council had changed the rules of parking on this site : all vehicles need to have parking permits displayed. Unfortunately no one made me aware of this and anyone driving and parking there would fail to see the signs as 1) they are facing the opposite direction from the incoming flow of traffic 2) they are not at driver's eye level 3) they are hard to read (very small print and unlit) 4) they weren't even close to the spot where I parked. Also my car was not obstructing anyone or anything.

I paid £126 on my credit card to get the car released the next day.

My question is, how much of a case do I have here as I have photographic evidence of the signs poor location and visibility ? Has anyone been in a similar situation ? As the signs are virtually undetectable as you park it is unrealistic for a driver to agree to the terms and conditions if he/she hasn't seen them (hence no contract could have been made) ?

Are there any good templates that have been used by members of this forum which helped them in their appeal ?

Any advice would be really appreciated.

PASTMYBEST
Very rare outside London, but the same rules apply. we need to see all of the documents you recieved and all of the council photos, they may be online or you might have to ask for them
SpartanSaver
Thanks PasyMyBest.

The only document I have is my receipt from Hinton Garage stating that I paid £126 to them. Shall I ask the council for any evidence that the car was parked illegally before disputing the incident?

I have a draft appeal but I think it is best to get advice from here before submitting anything.

Photo 1 http://www.mediafire.com/view/6hbxu6ruhz4c...431778816_n.jpg

Photo 2 http://www.mediafire.com/view/k2hwwic56pkj...714837504_n.jpg

Photo 3 http://www.mediafire.com/view/wsaad0x052af...732811264_n.jpg
DancingDad
QUOTE (SpartanSaver @ Thu, 25 Apr 2019 - 19:54) *
Thanks PasyMyBest.

The only document I have is my receipt from Hinton Garage stating that I paid £126 to them. Shall I ask the council for any evidence that the car was parked illegally before disputing the incident?
………...


????
You should have received more then a receipt.
Documents telling you how to challenge for starters ?

And £126 ????
Release fee is £105 plus PCN discount value..... £35 or £25.... so how is the £126 made up ??
PASTMYBEST
read regulation 11 here

www.legislation.gov.uk/uksi/2007/3482/regulation/11/made


you will have to copy & paste into your browser

we need to know if its a council PCN or a police removal. Documents are all
SpartanSaver
QUOTE (DancingDad @ Thu, 25 Apr 2019 - 20:16) *
QUOTE (SpartanSaver @ Thu, 25 Apr 2019 - 19:54) *
Thanks PasyMyBest.

The only document I have is my receipt from Hinton Garage stating that I paid £126 to them. Shall I ask the council for any evidence that the car was parked illegally before disputing the incident?
………...


????
You should have received more then a receipt.
Documents telling you how to challenge for starters ?

And £126 ????
Release fee is £105 plus PCN discount value..... £35 or £25.... so how is the £126 made up ??



Yes - I did get a circular saying how to challenge (email and address) - just a very generic and non specific document.

I don't know how it comes to £126. However that is what I paid.
hcandersen
OP, we must, must see documents please.
cp8759
QUOTE (SpartanSaver @ Fri, 26 Apr 2019 - 10:06) *
I don't know how it comes to £126. However that is what I paid.

You must have a receipt with some sort of breakdown.
SpartanSaver
QUOTE (cp8759 @ Fri, 26 Apr 2019 - 16:47) *
QUOTE (SpartanSaver @ Fri, 26 Apr 2019 - 10:06) *
I don't know how it comes to £126. However that is what I paid.

You must have a receipt with some sort of breakdown.


Hi CP8759

Yes - it is on the release form that I signed. It was £105 for the tow away release and £21 for the fine.

I've uploaded all of the documentation that I have in the following links :

http://www.mediafire.com/view/kfvy6ndpdada...386216448_n.jpg

http://www.mediafire.com/view/6bnr7w67uji5...922012672_n.jpg

They are rather vague. However please let me know what is the best way I can appeal. Any help will be really appreciated.

Thank you
cp8759
Right, so they have removed the vehicle under the powers provided for by The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2012. In the circumstances, a right to make representations arises under regulation 11 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, so in practice we can treat this as a normal towing case.

Have you not got a copy of the PCN?
PASTMYBEST
Docks, so a bye law offence not decriminalized parking. You need to find out under what regulation they make the charges


It may well be that the thread needs moving to the private parking or criminal forum
Mad Mick V
+1

They state it's private land probably owned by the Bristol Dock Company so has the Council any right to tow?

It will be part of the Bristol permitted parking area because the docks are not specifically excluded:-

http://www.legislation.gov.uk/uksi/2000/699/note/made

Port byelaws:- https://www.bristolport.co.uk/sites/default...ral-byelaws.pdf

Mick
cp8759
They state that the vehicle was removed under the provisions of POFA, POFA did not introduce any new towing powers itself but it did lead to The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2012. However that amendment only gives powers to a police constable, it does not appear to expand the powers available to the council. There's nothing in the bylaws I can see about the removal of vehicles, or the issue of PCNs.

I have a suspicion that the council hasn't got all its ducks in a row on this one, because it is highly unlikely anyone would ever bother challenging them.

In the first instance I'd suggest writing a simple challenge based on the lack of signage, and asking them to specify what legal powers they have used to tow the vehicle and levy the charges, and let's see what they come back with.
DancingDad
QUOTE (cp8759 @ Sun, 28 Apr 2019 - 16:13) *
Right, so they have removed the vehicle under the powers provided for by The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2012. In the circumstances, a right to make representations arises under regulation 11 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, so in practice we can treat this as a normal towing case.

Have you not got a copy of the PCN?


??
Appeal form says that the vehicle was removed under POFA 2012
POFA amended Acts like the Road Traffic Regulation Act and that would likely devolve into The Removal and Disposal of Vehicles regs.
But POFA provides no legal framework for removal whatsoever.


Sorry, duplicated wot CP is already exploring
Mad Mick V
OP---where exactly did you park--can you provide a GSV position?
Any other documentation at all? Did they not provide the PCN or was it attached to the vehicle?
The Port issues should be followed up but there might be a simpler course of action--as in-- did they actually serve a PCN?
Mick
DancingDad
Would be useful if we knew which car park please ?
hcandersen
OP, this is unusual for us and we're outside the normal parking and towing accounts.

With respect to other posters, a council is a multi-headed beast and we do not have sufficient information to know what regulation or bye-law was contravened and upon what powers the council, not the enforcement authority but the council, rely for removal.

It's just as likely to be the Local Authorities (Goods and Services) Act as anything to do with parking regs.

You must find out, to act otherwise would be premature.
cp8759
QUOTE (hcandersen @ Mon, 29 Apr 2019 - 10:04) *
OP, this is unusual for us and we're outside the normal parking and towing accounts.

With respect to other posters, a council is a multi-headed beast and we do not have sufficient information to know what regulation or bye-law was contravened and upon what powers the council, not the enforcement authority but the council, rely for removal.

It's just as likely to be the Local Authorities (Goods and Services) Act as anything to do with parking regs.

You must find out, to act otherwise would be premature.

Regardless of the powers and regulations involved, the first step is to contact the authority with a basic challenge around signage. Any response is bound to reveal which statutory framework they rely on (though they purport it's something to do with POFA, POFA doesn't appear to have expanded the council's towing powers in relation to illegally parked vehicles). Ultimately if they don't have a statutory power to tow, the removal of the vehicle would be not only unlawful but also a criminal offence on the part of the council, the council officials involved, and the towing contractor.

Deep down I think they may well be winging it, the fact that there isn't even a PCN number is deeply suspicious. I suspect the correct course of action would have been for the council to pursue criminal proceedings under the port bylaws, but of course that approach doesn't make them any money as any fine imposed by the courts is payable to HMCTS rather than the council (and criminal prosecutions are expensive for councils to pursue).

Here's a draft representation:

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

Dear Sir or Madam,

I am writing to contest the penalty charge and towing fees levied in relation to my vehicle bearing VRM (insert number plate here); I enclose the receipt showing I had to pay £126 to secure release of the vehicle.

I should explain that I work in Bristol's water front once every 6 to 8 weeks, I am contracted by a venue in the water front and the General Manager of the venue had given me permission to use the car park around the back.

I worked there on the night of Saturday 21 April and when I returned my car was gone (towed away). I have since learnt that 6 weeks prior to this Bristol City Council had changed the rules of parking on this site: I now understand all vehicles need to have parking permits displayed. Unfortunately no one made me aware of this and anyone driving and parking there would fail to see the signs as 1) they are facing the opposite direction from the incoming flow of traffic 2) they are not at driver's eye level 3) they are hard to read (very small print and unlit) 4) they weren't even close to the spot where I parked. I would add that my car was not obstructing anyone or anything so the decision to tow seems a bit over the top.

As your records will show, I paid £126 on my credit card to get the car released the next day.

Given the above, I hope you will agree to refund the charges in full, for this purpose I confirm any refund should be paid to sort code 00-00-00, account number 00000000.

However should you reject these representations, please could you provide photographic evidence of the contravention. Please could you also confirm what statutory powers, if any, entitled Bristol City Council to:

1) Issue a penalty charge notice for £21.
2) Tow the vehicle away and demand a fee for its release.

I note in particular that nothing in the Protection of Freedoms Act 2012 provides the council with any additional powers to impose penalty charge notices, let alone any powers to tow vehicles away. I further note that there are no towing powers provided in the port bylaws I have been able to find. I would appreciate any clarification you are able to provide in this regard.
SpartanSaver
QUOTE (cp8759 @ Sun, 28 Apr 2019 - 16:13) *
Right, so they have removed the vehicle under the powers provided for by The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2012. In the circumstances, a right to make representations arises under regulation 11 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, so in practice we can treat this as a normal towing case.

Have you not got a copy of the PCN?



Thanks - no I wasn't even given a PCN. I would have expected to find something stuck on my car windscreen or some documentation to come through the post at the very least. Nothing of such nature. It feels like the towing company had nothing better to do that night and decided to tow away my vehicle to kill some time.

QUOTE (cp8759 @ Sun, 28 Apr 2019 - 21:42) *
They state that the vehicle was removed under the provisions of POFA, POFA did not introduce any new towing powers itself but it did lead to The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2012. However that amendment only gives powers to a police constable, it does not appear to expand the powers available to the council. There's nothing in the bylaws I can see about the removal of vehicles, or the issue of PCNs.

I have a suspicion that the council hasn't got all its ducks in a row on this one, because it is highly unlikely anyone would ever bother challenging them.

In the first instance I'd suggest writing a simple challenge based on the lack of signage, and asking them to specify what legal powers they have used to tow the vehicle and levy the charges, and let's see what they come back with.


Thanks CP8759 - this is really useful.
hcandersen
Don't challenge, enquire.

We don't know what powers were used, so don't go off half-cock. Just find out.

SpartanSaver
QUOTE (Mad Mick V @ Mon, 29 Apr 2019 - 07:08) *
OP---where exactly did you park--can you provide a GSV position?
Any other documentation at all? Did they not provide the PCN or was it attached to the vehicle?
The Port issues should be followed up but there might be a simpler course of action--as in-- did they actually serve a PCN?
Mick


Hi Mick

No, I have not received a PCN. Nothing on the windscreen or through the post. I have illustrated the exact parking spot on the following photos. Have a look and tell me what you think :

https://www.mediafire.com/view/24ws43b32vvv...0592_n.jpg/file

https://www.mediafire.com/view/871b716k24d3...0928_n.jpg/file

https://www.mediafire.com/view/vgj01gbsr4q6...6528_n.jpg/file

https://www.mediafire.com/view/jqovaddc3fso...2432_n.jpg/file

QUOTE (DancingDad @ Mon, 29 Apr 2019 - 07:42) *
Would be useful if we knew which car park please ?


Its in Millennium Square. The car park is located right behind V Shed and Revolucion De Cuba.

QUOTE (hcandersen @ Mon, 29 Apr 2019 - 10:04) *
OP, this is unusual for us and we're outside the normal parking and towing accounts.

With respect to other posters, a council is a multi-headed beast and we do not have sufficient information to know what regulation or bye-law was contravened and upon what powers the council, not the enforcement authority but the council, rely for removal.

It's just as likely to be the Local Authorities (Goods and Services) Act as anything to do with parking regs.

You must find out, to act otherwise would be premature.



Thanks - that is a good way of describing the council.

QUOTE (cp8759 @ Mon, 29 Apr 2019 - 17:25) *
QUOTE (hcandersen @ Mon, 29 Apr 2019 - 10:04) *
OP, this is unusual for us and we're outside the normal parking and towing accounts.

With respect to other posters, a council is a multi-headed beast and we do not have sufficient information to know what regulation or bye-law was contravened and upon what powers the council, not the enforcement authority but the council, rely for removal.

It's just as likely to be the Local Authorities (Goods and Services) Act as anything to do with parking regs.

You must find out, to act otherwise would be premature.

Regardless of the powers and regulations involved, the first step is to contact the authority with a basic challenge around signage. Any response is bound to reveal which statutory framework they rely on (though they purport it's something to do with POFA, POFA doesn't appear to have expanded the council's towing powers in relation to illegally parked vehicles). Ultimately if they don't have a statutory power to tow, the removal of the vehicle would be not only unlawful but also a criminal offence on the part of the council, the council officials involved, and the towing contractor.

Deep down I think they may well be winging it, the fact that there isn't even a PCN number is deeply suspicious. I suspect the correct course of action would have been for the council to pursue criminal proceedings under the port bylaws, but of course that approach doesn't make them any money as any fine imposed by the courts is payable to HMCTS rather than the council (and criminal prosecutions are expensive for councils to pursue).

Here's a draft representation:

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

Dear Sir or Madam,

I am writing to contest the penalty charge and towing fees levied in relation to my vehicle bearing VRM (insert number plate here); I enclose the receipt showing I had to pay £126 to secure release of the vehicle.

I should explain that I work in Bristol's water front once every 6 to 8 weeks, I am contracted by a venue in the water front and the General Manager of the venue had given me permission to use the car park around the back.

I worked there on the night of Saturday 21 April and when I returned my car was gone (towed away). I have since learnt that 6 weeks prior to this Bristol City Council had changed the rules of parking on this site: I now understand all vehicles need to have parking permits displayed. Unfortunately no one made me aware of this and anyone driving and parking there would fail to see the signs as 1) they are facing the opposite direction from the incoming flow of traffic 2) they are not at driver's eye level 3) they are hard to read (very small print and unlit) 4) they weren't even close to the spot where I parked. I would add that my car was not obstructing anyone or anything so the decision to tow seems a bit over the top.

As your records will show, I paid £126 on my credit card to get the car released the next day.

Given the above, I hope you will agree to refund the charges in full, for this purpose I confirm any refund should be paid to sort code 00-00-00, account number 00000000.

However should you reject these representations, please could you provide photographic evidence of the contravention. Please could you also confirm what statutory powers, if any, entitled Bristol City Council to:

1) Issue a penalty charge notice for £21.
2) Tow the vehicle away and demand a fee for its release.

I note in particular that nothing in the Protection of Freedoms Act 2012 provides the council with any additional powers to impose penalty charge notices, let alone any powers to tow vehicles away. I further note that there are no towing powers provided in the port bylaws I have been able to find. I would appreciate any clarification you are able to provide in this regard.


You are a star - this is exactly what I need. I'll be using this to draft my response - Thank You so much. Really appreciated.

I agree, the lack of PCN has got me thinking there is something that isn't quite right with this one. Is there a time limit in which a council can issue you with a PCN before the infraction becomes non enforceable ? (speeding tickets have 14 days )There wasn't even residue of something stuck on the windscreen so unlikely that someone removed it if one was issued.
SpartanSaver
QUOTE (hcandersen @ Mon, 29 Apr 2019 - 21:39) *
Don't challenge, enquire.

We don't know what powers were used, so don't go off half-cock. Just find out.


Thanks - I'm working the email in the nicest way so it is an enquiry.
Mad Mick V
Lots of private property and Dock signs in that area:-

https://www.google.com/maps/@51.4494966,-2....3312!8i6656
https://www.google.com/maps/@51.4494966,-2....3312!8i6656
No way to get to the spot the OP parked without going through the gate onto private property.

Mick
cp8759
Post a final draft here before sending it. hcandersen and I obviously have a difference of opinion on whether it should be a challenge or an enquiry, so you'll have to decide which approach you want to take.
SpartanSaver
Hi guys,

Apologies - I saw the last couple of posts after I sent my appeal. This is what I wrote :

Dear Sir or Madam,

I am writing to appeal the penalty charge and towing fees levied in relation to my vehicle bearing the license plate number : XXXXXX. I enclose the receipt showing I had to pay £126 to secure release of the vehicle.

I should explain that I work in Bristol's water front once every 6 to 8 weeks, I am contracted by XXXXXXXX in the water front and the General Manager of the venue had given me permission to use the car park around the back.

I worked there on the night of Saturday 21st of April and when I returned my car was gone (towed away). I have since learnt that 6 weeks prior to this Bristol City Council had changed the rules of parking on this site: I now understand all vehicles need to have parking permits displayed. Unfortunately no one made me aware of this and anyone driving and parking there would fail to see the signs as 1) they are facing the opposite direction from the incoming flow of traffic 2) they are not at driver's eye level 3) they are hard to read (very small print and unlit) 4) they weren't even close to the spot where I parked. I would add that my car was not obstructing anyone or anything so the decision to tow it seems disproportionate.

As your records will show, I paid £126 on my credit card to get the car released the next day from Hinton in Whitchurch. I also had to pay £26.50 to get home with a taxi as I live in a rural community.

Given the above information as well as the attached photographic evidence that proves the signs are not prominent enough to make a motorist aware of the recent changes in the way that the car park is managed, I hope you will agree to refund the charges in full, for this purpose I confirm any refund should be paid to the following account :

xxxx

However should you reject these representations, please could you provide photographic evidence of the contravention. Please could you also confirm what statutory powers, if any, entitled Bristol City Council to:

1) Issue a penalty charge notice
2) Tow the vehicle away and demand a fee for its release.

I note in particular that nothing in the Protection of Freedoms Act 2012 provides the council with any additional powers to impose penalty charge notices, let alone any powers to tow vehicles away. I further note that there are no towing powers provided in the port bylaws. I would appreciate any clarification you are able to provide with regards to this.

Many thanks for your time and I look forward to your response.

Kind Regards,


This was their reply ..........


Dear Mr Complainer

Thank you for your email dated 29th April appealing against the removal of your vehicle on 21st April from South Building Service Yard. I must firstly inform you that this area is private and is under the control of the Bristol Harbour Authority and is governed by the City Docks Bye laws. No business premises have rights to park in this area and are therefore not able to grant permission.

After careful consideration we are completely satisfied that the removal of your vehicle was necessary and done so legally. This investigation has included close examination of all the photographs taken at the time of recovery, your photographs and a recent visit to the location in question. We have also considered the points you raised but feel the some of the content is incorrect.

Section 56 of the Harbour Docks and Piers Act 1847, gives the Harbour Master the power to remove any obstruction to the harbour, dock, or pier, or the approaches to the same, but also provides that the expense of removing such an obstruction shall be repaid by the owner (either alone or taken together with section 111 of the Local Government Act 1972) gives Bristol City Council lawful authority to remove vehicles from the Docks Estate and charge for their release. We are therefore not governed by the PCN procedure and before commencing this action instructed legal counsel in London to ensure we were permitted to do so.

We are also satisfied that all signs;

Are correctly displayed
Have been erected for more than 6 months
Clearly show that permits are required
Clearly warn of the Tow Away scheme and subsequent charges
Clearly visible as you enter the service yard


Parking on the Docks estate remains extremely limited and is intended to allow Harbour users access to their businesses and vessels. For this reason, for many years it has been necessary to restrict parking to permit holders only. These permits are issued with the Harbour Master discretion on the understanding that they must be displayed correctly and used only to enable loading and unloading for a maximum. The sites spaces are not intended for extended periods of vehicle parking and are constantly being reviewed by the Harbour Master.

These measures have been necessary as for many years vehicles have illegally parked on the Docks estate to access the city making it unmanageable for the Harbour Authority. For this reason in 2018 the Harbour Master instructed for all vehicles to be removed should they;

Not have a valid permit displayed
Be parked otherwise in accordance with the permit conditions
Have no insurance
Have no MOT

Please also be aware that any decision made to refund charges results in it being met by the Harbour Authority, we therefore need to be certain that this is appropriate and fair. We are also aware that free parking has never been offered to Businesses at South Building Service Yard other than by way of an official permit.

If you remain unsatisfied with this decision we suggest that you contact an Independent Parking Adjudicator (found online). We will be happy to engage with any of these companies and provide any evidence they require to assist with their enquiry.


They haven't provided any evidence , which I will be asking for in my reply. I do beleive I have a (slim) case against the poor signage in the specific area where I parked. Is there anything else you think I should mention in my reply ?

Perhaps you can recommend a good Independent Parking Adjudicator Any help or advice will be really appreciated.
Mad Mick V
They appear able to tow under this Article:-

http://www.legislation.gov.uk/ukpga/2012/9...tion/55/enacted

Since it is an extension of the RTRA 1984 I presume that access to an adjudicator is possible.

Mick
hcandersen
I don't think they know what they're saying.

I'd get back to them for clarification:

Is the location under the control of the Harbour Authority or the council? The reply is confusing in that on the one hand it refers to the Harbour Master 'instructed for (sic) all vehicles to be removed should they;

Not have a valid permit displayed
Be parked otherwise in accordance with the permit conditions
Have no insurance
Have no MOT'


but fails to identify the role of the council in this matter e.g. does the Harbour Master have powers to instruct the council in this matter and require them to remove vehicles, or are the council acting as agent of or contractor to the Harbour Authority, or are the council subject to a duty, contractual or legal, to remove vehicles and charge for their release etc.

The council's response is unclear on this matter in that on the one hand the documents relate to the removal of vehicles 'from specified docks estate land' accompanied by the crest of Bristol City Council and on the other to the land being within the jurisdiction of the Harbour Master.

Please clarify.


As a separate strand, I suggest you phone/email the Harbour Authority and ask what their role is in his matter.

But let's get off signs please, the law needs to be established first.
cp8759
hcandersen from a quick search it looks like Bristol City Council is the Harbour Authority, though I agree the matter should be clarified.

Mick the PoFA doesn't give them any powers at all and it's not strictly relevant. All PoFA says is that it's an offence to tow unless there is some statutory power, the council claim the statutory power is derived from this: https://www.legislation.gov.uk/ukpga/Vict/1...1/27/section/56

The harbour master may remove any wreck or other obstruction to the harbour, dock, or pier, or the approaches to the same, and also any floating timber which impedes the navigation thereof, and the expence of removing any such wreck, obstruction, or floating timber shall be repaid by the owner of the same; and the harbour master may detain such wreck or floating timber for securing the expences, and on nonpayment of such expences, on demand, may sell such wreck or floating timber, and out of the proceeds of such sale pay such expences, rendering the overplus, if any, to the owner on demand.

Obviously your car is not a wreck or timber, so the council would rely on the car being an obstruction. This would require a very wide, purposive interpretation of the word obstruction, but it is not inconceivable that a court might accept this, though you might as well put them to proof.

The issues that bother me are more that:

1) Section 56 above allows the harbour master to recover the costs of removing the obstruction, as there are not statutory towing fees set in law, it follows that it is for the council to prove what these expenses are. Expenses in this context are the actual out-of-pocket costs, i.e. the marginal cost of the towing. So they can charge petrol and, if the towing operator had to be paid overtime, maybe an hour's wages.

2) The figure of £105 seems plucked out of thin air, you might as well put the council to proof that it cost them £105 to remove the vehicle: they cannot make any profit because, unlike the Traffic Management Act, this statute does not allow the council to retain any surplus at all and on the contrary requires that if the "obstruction" is sold, anything over and above the expenses of removal and sale must be paid to the owner on demand.

3) Regardless, the council is implicitly admitting it has no powers to impose a £21 PCN, penalties of whatever description are only permitted where Parliament has explicitly legislated to allow this, so on the fact of it the £21 PCN fee is completely unlawful.

As you are not within the scope of the Traffic Management Act 2004, the appropriate recourse is through the courts. The first step is to send a pre-action letter but ultimately if they don't cough up, you'll need to sue the council in the small claims court to get your money back. The upside is that as this appears to be a simple civil claim rather than a tribunal procedure, the statute of limitations is 6 years rather than 28 days so no rush.

I can draft a pre-action letter for you if you want. Also work out what the distance from where you parked to the pound is, ultimately I think they're likely entitled to the reasonable towing costs. Get a quote from a local towing company for what it would cost for a non-emergency tow over that distance, they should quote something like £1 a mile with a minimum of £30.
Mad Mick V
@cp8759
Read the PFA Art 55 again--it gives them the power to tow and also the tow documents were headed "Protection of Freedoms Act 2012".

They can tow for a variety of reasons--- "removal of vehicles illegally, obstructively or dangerously parked, or abandoned or broken down".

As hca, the Council appear to be making it up as they go along especially if they quote Port Byelaws but have tow documents referring to another Act.

The Council need to be asked two simple questions IMO " what recourse do I have in appealing my vehicle being towed and the subsequent release fees?" and "how can I access impartial adjudication for this case?"

Mick
cp8759
Sorry Mick but the POFA doesn't give any towing powers to anyone at all. It gives the SoS a power to amend The Removal and Disposal of Vehicles Regulations 1986 and the only amendment made in 2012 was The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2012 which extended the powers of the police to tow vehicles from land other than a road, see http://www.legislation.gov.uk/uksi/2012/2277/contents/made

The council quote PoFA because, absent a statutory power, it would be a criminal offence to tow a vehicle. The council are arguing that because they have a statutory power under the Harbour Docks and Piers Act 1847, they have lawful authority to tow within the meaning of PoFA section 54, and they are therefore not guilty of a crime. This is likely their stance because the most common challenge they are likely to get is that, under PoFA, towing is illegal.

On reflection, I don't think the council's argument stands up to scrutiny. If a car is parked in such a manner as to be an obstruction, the fact that it does or doesn't have a permit on display doesn't alter that one iota. If you car is causing an obstruction, you don't stop causing an obstruction just cos you pop a permit on the dash. In light of that, I think their reliance on section 56 of the Harbours, Docks and Piers Clauses Act 1847 is misconceived and wide open to challenge. An arguable case can be pleaded that the entire fee should be refunded as the towing was in fact unlawful.

The council seems to be suggesting that the proper recourse is via POPLA, that is clearly inappropriate as the council claims to be enforcing under a statutory power rather than under contract. The appropriate recourse is thus via the County Court, a private parking adjudicator is simply going to be unable to grasp the issues.
Mad Mick V
@cp8759
We'll have to disagree on the POFA especially the heading "Extension of powers to remove vehicles from land". However it seems only a constable may do it:-

https://www.legislation.gov.uk/uksi/2012/2277/note/made

Let's not dwell on this, we need to give the OP some ammunition to go back to the Council.

You have raised the prospect of County Court, which is an option, but I would still like to put the Council on the spot and have it detail the appropriate recourse procedures.

Mick
cp8759
QUOTE (Mad Mick V @ Fri, 17 May 2019 - 09:15) *
@cp8759
We'll have to disagree on the POFA especially the heading "Extension of powers to remove vehicles from land". However it seems only a constable may do it:-

I don't think we do disagree, my point was that PoFA itself doesn't create any new towing powers, it's the new regulations made under PoFA that do that and we seem to agree those powers only apply to the police. I am sure the council's reference to PoFA is designed to preempt the "PoFA outlawed towing from private property" representations more than anything else.

QUOTE (Mad Mick V @ Fri, 17 May 2019 - 09:15) *
You have raised the prospect of County Court, which is an option, but I would still like to put the Council on the spot and have it detail the appropriate recourse procedures.


That's what you put in a pre-action letter under the heading "Alternative dispute resolution" smile.gif
SpartanSaver
QUOTE (cp8759 @ Wed, 15 May 2019 - 22:20) *
hcandersen from a quick search it looks like Bristol City Council is the Harbour Authority, though I agree the matter should be clarified.

Mick the PoFA doesn't give them any powers at all and it's not strictly relevant. All PoFA says is that it's an offence to tow unless there is some statutory power, the council claim the statutory power is derived from this: https://www.legislation.gov.uk/ukpga/Vict/1...1/27/section/56

The harbour master may remove any wreck or other obstruction to the harbour, dock, or pier, or the approaches to the same, and also any floating timber which impedes the navigation thereof, and the expence of removing any such wreck, obstruction, or floating timber shall be repaid by the owner of the same; and the harbour master may detain such wreck or floating timber for securing the expences, and on nonpayment of such expences, on demand, may sell such wreck or floating timber, and out of the proceeds of such sale pay such expences, rendering the overplus, if any, to the owner on demand.

Obviously your car is not a wreck or timber, so the council would rely on the car being an obstruction. This would require a very wide, purposive interpretation of the word obstruction, but it is not inconceivable that a court might accept this, though you might as well put them to proof.

The issues that bother me are more that:

1) Section 56 above allows the harbour master to recover the costs of removing the obstruction, as there are not statutory towing fees set in law, it follows that it is for the council to prove what these expenses are. Expenses in this context are the actual out-of-pocket costs, i.e. the marginal cost of the towing. So they can charge petrol and, if the towing operator had to be paid overtime, maybe an hour's wages.

2) The figure of £105 seems plucked out of thin air, you might as well put the council to proof that it cost them £105 to remove the vehicle: they cannot make any profit because, unlike the Traffic Management Act, this statute does not allow the council to retain any surplus at all and on the contrary requires that if the "obstruction" is sold, anything over and above the expenses of removal and sale must be paid to the owner on demand.

3) Regardless, the council is implicitly admitting it has no powers to impose a £21 PCN, penalties of whatever description are only permitted where Parliament has explicitly legislated to allow this, so on the fact of it the £21 PCN fee is completely unlawful.

As you are not within the scope of the Traffic Management Act 2004, the appropriate recourse is through the courts. The first step is to send a pre-action letter but ultimately if they don't cough up, you'll need to sue the council in the small claims court to get your money back. The upside is that as this appears to be a simple civil claim rather than a tribunal procedure, the statute of limitations is 6 years rather than 28 days so no rush.

I can draft a pre-action letter for you if you want. Also work out what the distance from where you parked to the pound is, ultimately I think they're likely entitled to the reasonable towing costs. Get a quote from a local towing company for what it would cost for a non-emergency tow over that distance, they should quote something like £1 a mile with a minimum of £30.



This is really helpful. Thank you CP8759 - If you are able to draft and if you have the time to draft a pre-action letter that would be amazing. Thank you
hcandersen
Their approach is b******s:

Picking up on the reference cp found:

Obviously your car is not a wreck or timber, so the council would rely on the car being an obstruction. This would require a very wide, purposive interpretation of the word obstruction, but it is not inconceivable that a court might accept this, though you might as well put them to proof.

When the location has permit parking!!!

They're making it up as they go along.

I'm convinced this should be in the PPC section as IMO this is a purely private parking matter. It is no different to a local council as Housing Authority removing vehicles from areas other than public roads on a housing estate.
cp8759
QUOTE (hcandersen @ Tue, 21 May 2019 - 11:01) *
I'm convinced this should be in the PPC section as IMO this is a purely private parking matter. It is no different to a local council as Housing Authority removing vehicles from areas other than public roads on a housing estate.

I disagree, they clearly claim to be exercising a statutory power, this is not a contractual matter.
cp8759
We can't work off a transcript. Post up their reply in full, redacting personal details only, and I'll put something together.
SpartanSaver
Apologies for the late reply CP8759. I've been away and now I'm just getting around to doing all my admin bits. I thought I had posted this before, but here it goes again just incase. This was their full reply :


Dear Mr X

Thank you for your email dated 29th April appealing against the removal of your vehicle on 21st April from South Building Service Yard. I must firstly inform you that this area is private and is under the control of the Bristol Harbour Authority and is governed by the City Docks Bye laws. No business premises have rights to park in this area and are therefore not able to grant permission.

After careful consideration we are completely satisfied that the removal of your vehicle was necessary and done so legally. This investigation has included close examination of all the photographs taken at the time of recovery, your photographs and a recent visit to the location in question. We have also considered the points you raised but feel the some of the content is incorrect.

Section 56 of the Harbour Docks and Piers Act 1847, gives the Harbour Master the power to remove any obstruction to the harbour, dock, or pier, or the approaches to the same, but also provides that the expense of removing such an obstruction shall be repaid by the owner (either alone or taken together with section 111 of the Local Government Act 1972) gives Bristol City Council lawful authority to remove vehicles from the Docks Estate and charge for their release. We are therefore not governed by the PCN procedure and before commencing this action instructed legal counsel in London to ensure we were permitted to do so.

We are also satisfied that all signs;

Are correctly displayed
Have been erected for more than 6 months
Clearly show that permits are required
Clearly warn of the Tow Away scheme and subsequent charges
Clearly visible as you enter the service yard


Parking on the Docks estate remains extremely limited and is intended to allow Harbour users access to their businesses and vessels. For this reason, for many years it has been necessary to restrict parking to permit holders only. These permits are issued with the Harbour Master discretion on the understanding that they must be displayed correctly and used only to enable loading and unloading for a maximum. The sites spaces are not intended for extended periods of vehicle parking and are constantly being reviewed by the Harbour Master.

These measures have been necessary as for many years vehicles have illegally parked on the Docks estate to access the city making it unmanageable for the Harbour Authority. For this reason in 2018 the Harbour Master instructed for all vehicles to be removed should they;

Not have a valid permit displayed
Be parked otherwise in accordance with the permit conditions
Have no insurance
Have no MOT

Please also be aware that any decision made to refund charges results in it being met by the Harbour Authority, we therefore need to be certain that this is appropriate and fair. We are also aware that free parking has never been offered to Businesses at South Building Service Yard other than by way of an official permit.

If you remain unsatisfied with this decision we suggest that you contact an Independent Parking Adjudicator (found online). We will be happy to engage with any of these companies and provide any evidence they require to assist with their enquiry.



If you are able to draft a response with some basic things to challenge (please don't spend too much time on it though ) that will be really appreciated.
hcandersen
Clearly not a statutory power under the TMA but a contractual arrangement, even if an internal SLA or similar, and not something which falls under the Enforcement Authority's powers but possibly the Council's powers. The BHA might be an arm's length part of the council for all I or we know.

Do not mistake the Council's powers with the EA's: the latter fall wholly within the former but not vice versa, they are not synonymical.
PASTMYBEST
Seems strange to me that they exercise a statutory power, but say if you are not happy we have done this. go find an adjudicator. Who ?
cp8759
QUOTE (hcandersen @ Sun, 9 Jun 2019 - 17:38) *
Clearly not a statutory power under the TMA but a contractual arrangement...

How is "Section 56 of the Harbour Docks and Piers Act 1847" a contractual arrangement? They obviously purport to be acting under a statutory power.

QUOTE (SpartanSaver @ Sun, 9 Jun 2019 - 16:28) *
If you are able to draft a response with some basic things to challenge (please don't spend too much time on it though ) that will be really appreciated.

I'm more than happy to draft a pre-action letter for you, but as I've said we don't work off transcripts. Post up a copy of the actual letter, redacting your name and address only, make sure to include all sides of all pages. If you have a look on other threads in this part of the forum, you'll see this is standard practice.
Mad Mick V
I would not forget about the LA Ombudsman. The key document given to the OP states that "a vehicle was removed from private land that exists solely for the operation of Bristol City Council City Docks Service"

Various legislation exists for Councils to undertake enterprises for profit and the amount of bars, bistros and places of entertainment in that area suggests that the Council--- 1) allows public access and 2) takes a cut.

We have a vibrant dockside area and the Council has tried to "retrofit" Harbour Authority rules on vehicular access.

Like hca I had misgivings about the private/public dimension of this case but the Council's inability to direct the OP to the proper adjudicator is unforgiveable. I would therefore report it to the Ombudsman given that the land in question is operated for and on behalf of the Council as per the statement above.

Mick
cp8759
I would go via the pre-action letter because, if nothing else, it will prompt the council (possibly via their legal department) to spell out their legal grounds in full.
SpartanSaver
My apologies CP8759.

No worries , that will be really appreciated. I'll do that. Their reply was not in a letter. It's an email. Will it work if I screenshot it and upload it ?
cp8759
QUOTE (SpartanSaver @ Thu, 13 Jun 2019 - 11:07) *
My apologies CP8759.

No worries , that will be really appreciated. I'll do that. Their reply was not in a letter. It's an email. Will it work if I screenshot it and upload it ?

Yes that works.
SpartanSaver
Hi CP8759

Below are the screen shots of the email that was sent to me by Bristol's Parking Docks

Part 1


Part 2


If you need anything else don't hesitate to let me know.

Many thanks for all of your help with this.
cp8759
I've got everything I need, this will take a few days but luckily the limitation period with one of these is six years, so there's no rush, and I want to make sure I get it right and cover everything.
SpartanSaver
You are an absolute star. Thank you for this. Whenever you get an opportunity will be really appreciated.
cp8759
Sorry for the delay, but as I said the limitation period is 6 years so there's no rush.

Draft letter: http://bit.ly/2RZ8Qyx

Check that you're happy with the contents, replace the bits in red with the relevant details (name, address, date and so on).

Send by 1st class post to Bristol City Council Legal Services, City Hall, PO Box 3176, Bristol BS3 9FS. Don't use recorded delivery, just send from a post officer counter and get proof of postage. I would also email a pdf copy to legal.support@bristol.gov.uk
SpartanSaver
QUOTE (cp8759 @ Fri, 5 Jul 2019 - 13:23) *
Sorry for the delay, but as I said the limitation period is 6 years so there's no rush.

Draft letter: http://bit.ly/2RZ8Qyx

Check that you're happy with the contents, replace the bits in red with the relevant details (name, address, date and so on).

Send by 1st class post to Bristol City Council Legal Services, City Hall, PO Box 3176, Bristol BS3 9FS. Don't use recorded delivery, just send from a post officer counter and get proof of postage. I would also email a pdf copy to legal.support@bristol.gov.uk



WOW - this is pretty amazing. Thank you so much. Yes, I'll take your advice and post it instead of emailing it. You have no idea how much I appreciate you taking the time and the effort to draft this for me. You are an amazing person and I'll definitely keep you posted.
Mad Mick V
Superb letter CP.
Mick
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