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JaffaJim
I have just received an NtO from Islington claiming an alleged offence of parking/part parking in a suspended residents permit bay. I am resident in Islington, and have the correct permit for the place my car was parked.

I never received the original PCN, but since I don't use my car much (once week at weekends tops) some low-life must have removed it during the week. I'd appreciate some help/opinions from forum members on two points i) whether the sign suspending the bay is legal and ii) whether the NtO received is flawed and unenforceable.

Here are the photos the CEO took of the suspension signs (date and time removed but they do agree with the time/date of the alleged contravention).




The suspension sign doesn't look right to me - the symbol is obscured and after reading the TSR 2002 the layout of the text may possibly not be one of the Permitted Combinations allowed on signs. Do these points make the sign, and thus the suspension, invalid?

There was only one sign at one end of the bay the Council was trying to suspend - my car was at the other, 20 metres away! Is it the case that, as with any restriction, all entry points to a restriction have to be sign-posted? If this is the case, can the suspension actually have been legal?

The other problem I have is with the NtO. I cannot scan and attach it until tomorrow evening, but have these general questions:

The Notice has a Date, and has the statement "The Penalty Charge must be paid within the period of 28 days beginning with the date of service of this Notice". However, nowhere in the Notice does it actually state the date of service, or any assumptions made about the delivery of the Notice by first class post (2 days I think is usual) - i.e. the Council have not allowed time for the delivery of the notice. Does this prejudice me in any way?

In the How to Challenge section, the NtO also has the statement "Islington Council may disregard any representations received outside the period of 28 days beginning with the date of service of the PCN" (my emphasis). However, it is an NtO that has been sent, not a PCN!!! And also there is the issue of the date of service as noted above.

There may be other flaws in the NtO. I realise that without seeing the actual NtO forum members might not be able to make a totally accurate call, but in any case, do the two issues with the NtO noted make it invalid? And if it is invalid, can the Council collect a fine by simply re-issuing a corrected version?

All help and comments gratefully received!!

Teufel
re: the sign - distance form suspended section may be an issue otherwise it
is probably sufficient

date of service is a matter of fact - there is a rebuttable presumption from date of posting

the "pcn" mention is probably fatal to validity - lets see all of it front and back - remove personal details

council would have to prove service of pcn - later removal by vandals is not a claim
JaffaJim
Thanks Teufel.

Quick question - could you elaborate on what you mean by "date of service is a matter of fact - there is a rebuttable presumption from date of posting" - sorry, I don't understand it.

I will get the NtO scanned and uploaded tomorrow night. But re service of the PCN - the NtO does have a photo of a PCN attached to the windscreen of the car.
Neil B
You expected a DoS but of course they cannot know it. Only you know when you receive it.

There is a Reg and your two days are correct but the reg exists only to guide them on progressing the enforcement process. There is no requirement to explain the Reg but some do, i.e. B'ham and Leicester.

No validity to your point but as Teufel says - yes on the 'PCN' for NtO. Hackney used to do that and corrected it.

JaffaJim
OK folks, I haven't managed to scan my NtO, but while browsing this forums I found the following scan of an NtO issued by Islington:

http://forums.pepipoo.com/index.php?showto...rt=#entry353129

I have gone through my own NtO very very carefully, and the wording, style and layout is *exactly* the same as in the link above, save for the personal details, and the dates (my Date of Service of PCN 7/5/2009, my Date of NtO 5/5/2009), and the section I noted in my original post, paragraph two of How to Challenge ("Islington Council may disregard any representations received outside the period of 28 days beginning with the date of service of the PCN" (my emphasis).

I've also looked at the contravention code which is stated on my NtO - 21S, Parked in a suspended bay or space or part of a bay or space. S is the Islington suffix for a shared-use bay. However, if you look at the first photo in my original post, you'll see that the bay is Residents only, not shared use.

Teufel, your comments re the sign noted. However, I found that the The Road Traffic (Temporary Restrictions) Procedure Regulations 1992 states in the Schedule, section 7(c )

"in a case where the instrument contains provisions suspending statutory provisions to which section 14(7) of the 1984 Act applies, such removal, replacement or covering up of existing traffic signs as the authority may consider requisite for the purpose of avoiding confusion to the users of the road." (my emphasis)
(link to instrument: http://www.statutelaw.gov.uk/content.aspx?...p;filesize=244)

And Islington state on their Parking website:

"Advance warning notices will go up before a suspension starts indicating when, where, and for what reason bays will be suspended. Time plates will be covered by yellow hoods (or the area coned off) on the first day of the suspension, and will be removed when the suspension is over." (my emphasis).

Clearly, going by the photos the CEO took, this wasn't done!


So, the signs are dubious at best, the contravention code on my PCN/NtO is incorrect and the NtO is flawed by referring to service of the PCN in How to Challenge (the NtO).

Hopefully, this should be a slam-dunk. Opinions folks?
Anorak
I will paste below a template reply I give to those seeking assistance against the suspension contravention. I think my argument is a good one but Clark Kent may offer you his argument that differs and you can then choose how you wish to proceed.

On top of my argument below there is the point (although not strictly helpful to this PCN) that the sign in the photo is not a compliant residents parking sign as it contains words that are not a permitted variant and the sign is divided into 2 panels when only one is permitted. This may give you further leverage.

The temporary suspension of restrictions is controlled by section 14 of the RTRA 1984 (sections 15 and 16 also can, but they’re not relevant here). A TMO/TRO has no enabling power to control suspension procedures. If you ever look at the opening preamble of a TMO/TRO it will not list section 14 as an enabling power. The Traffic Order Procedures 1996 advise as to what sections of the RTRA 1984 are enabling.

http://www.statutelaw.gov.uk/content.aspx?...mp;filesize=974

However, there is nothing to stop a TMO/TRO from advising of the authority’s suspension procedure but if it differs from what is legally required then they are going to look silly.

Section 14 of the RTRA 1984 provides two ways to impose a temporary restriction. By order or by notice. Section 14(2) advises when the simpler method of a notice can be used.

http://www.statutelaw.gov.uk/content.aspx?...;filesize=21491

However, either method must follow the Temporary Restrictions Procedure Regs1992.

http://www.statutelaw.gov.uk/legResults.as...amp;SortAlpha=0

Regulation 10 advises what the notice issued under reg14(2) of the RTRA 1984 must contain. Regulation 10(4) and 10(5) make it quite clear that a notice and traffic sign are separate entities. This could be a major appeal point as authorities commonly use an amalgam of a notice giving dates etc with the No Waiting roundel traffic sign. However, the TSRGD 2002 prescribed sign for a temporary restriction is to diagram 636 (or 640.1 if it’s a suspended parking meter).

http://www.opsi.gov.uk/si/si2002/02311345.gif

You will note that it is not a permitted variant of the sign to include such data as dates or times. It is limited to either the name of the authority or police and a directional arrow. Nothing else and this view is supported by section 6.26 of the TSM Chapter 3. If the sign used is an amalgam then it is reasonable to argue that the sign is non compliant with the TSRGD 2002 and therefore the restriction cannot be legally enforced.

If the authority failed to follow the correct procedures in the 1992 Regulations, particularly with regard to signage and notices then you are in a very strong position if you present your case well. The average back office staff member will not have a clue about what the correct procedures are and so they will just say you are wrong they are right simply because that's the way it has always been done but don’t be fooled.

Demand evidence that the suspension has been correctly authorised by a Notice under section 14(2) of the RTRA 1984 and that it contains all the details as required by regulation 10(2) of the Temporary Restrictions Procedure Regulations 1992. Ask further, for evidence that regulation 10(3) has been fully complied with regarding notifying statutory bodies such as the Chief of Police. Require evidence that Notices were erected in accordance with the regulations Schedule part 2 and that part 3 of the Schedule was also complied with in regard to the placing and removal of traffic signs.

Firmly advise the authority that you need all these details to prepare your defence at adjudication and if they fail to provide these you will be asking the adjudicator to ask them why they failed and that you will seek the further ground of procedural impropriety to be considered as reason for cancellation.

If the authority advertises their suspension procedure online, read it as it may assist you favourably.
Neil B
QUOTE (JaffaJim @ Mon, 8 Jun 2009 - 19:28) *
 the NtO is flawed by referring to service of the PCN in How to Challenge (the NtO).


I'm not seeing where?
JaffaJim
QUOTE (Neil B @ Mon, 8 Jun 2009 - 21:36) *
QUOTE (JaffaJim @ Mon, 8 Jun 2009 - 19:28) *
the NtO is flawed by referring to service of the PCN in How to Challenge (the NtO).


I'm not seeing where?


Surely my NtO SHOULD say, in the "How to Challenge" section, as it does in the example I linked to, "Islington Council may disregard any representations received outside the period of 28 days beginning with the date of service of the Notice to Owner"...

...whereas mine actually says "Islington Council may disregard any representations received outside the period of 28 days beginning with the date of service of the PCN".

28 days after the service of the PCN is 4 June. The NtO is dated 5 June - so doesn't that mean they've mixed something up? Like I said, it's an NtO that arrived, not a PCN. It's basically what I thought was being said in yours and Teufel's first replies.
Neil B
Doh! I didn't realise that you were saying it was different. I thought you said it was identical. Now I understand.

If it says that then yeah - rubbish but I wonder why they've made such a stooooopid change?

-

JaffaJim
QUOTE (Neil B @ Mon, 8 Jun 2009 - 23:45) *
I wonder why they've made such a stooooopid change?


Are NtOs gnerated automatically? I wonder if they have just messed up in my case? I've never received a moving traffic offence PCN from Islington, but their template for the second page may well be the same, except for substituting the words "PCN" for "Notice to Owner".

If that's the case, maybe "computer says no", or has got a bit confused somewhere else!

Anyway, thanks for all the help folks. I'll let you know what happens.....
JaffaJim
OK, an update - I appealed against the NtO on the basis that (i) The suspension signs were unenforcable due to them not being a permitted variant (ii) the time plates were not covered as required by the TSSR 1992 regs on temporary signs (iii) the PCN was invalid as the contravention code indicated the bay was shared use when it was actually residents only and (iv) the NtO was invalid because of the the subsitution of 'Notice to Owner' with 'PCN' as detailed above.

The point about the signs not being proper variants was ignored, but the reply stated that they didn't have to cover the timeplates as the bay was only part suspended, and that the PCN contravention suffix was not a legal requirement and would therefore not render a PCN invalid.

However, "on this occasion" they have cancelled the PCN because of an "administrative error" - I wonder what that was?? biggrin.gif Anyway, result!

Massive thanks to Anorak, Neil B and Teufel for the help!

dave-o
QUOTE (JaffaJim @ Thu, 23 Jul 2009 - 14:27) *
However, "on this occasion" they have cancelled the PCN because of an "administrative error" - I wonder what that was?? biggrin.gif Anyway, result!



Administrative error. Tossers. angry5.gif

Oh well, it's a result.
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