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jaredm
Friend got a PCN yesterday in Newham for surprise surprise... being parked adjacent to a dropped kerb. That issue with the TMA I am now more than familiar with thanks to some helpful members here so no need for comment on that.

However, notice that the 'Date of service' (above the PCN Number) is entirely obscured and illegible. Does that make it a non-compliant PCN?

Also, my dad was with my friend yesterday (they both parked their cars one in front of the other) and when they pulled up there were 2 CEOs standing nearby so they asked if it was ok to park where they did - the CEOs confirmed parking there was fine. Less than 2 minutes later a PCN is dropped onto my friends car. I know CEOs do this, and I would have told my friend not to trust those thieving liars but he trusted what they said - and was gifted with a PCN as a result. Now, what can I say in reps to get these monkeys to drop the PCN?

Unlike me, my friend is usually happier to pay up at a reduced rate rather than 'risk' having to pay a higher fine. I explained that if I can get a representation in before the NtO is served then his discount period will be extended (says so on the reverse).

Looking for any ideas.

Front side:


Rear side:
Anorak
The TMA issue regarding signage has now been plugged by new legislation that came into effect on 1 June.

http://www.statutelaw.gov.uk/content.aspx?...;filesize=12002

However, I can offer another argument.

We are clearly informed by section 86(7) of the Traffic Management Act 2004 that “footway” has the same meaning as given by section 329(1) of the Highways Act 1980. This advises

“footway” means a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only;

Therefore I suggest you ask the council whether pushchairs, wheelchairs or mobility scooters are permitted a right of way on the “footway” and whether vehicles are permitted to cross over the “footway”. Tell the council that if the answer is yes to any of these then you could not have possibly parked adjacent to a dropped footway as section 329(1) is very specific in its definition of what constitutes a “footway” and that it is a right of way on foot only. The use of the word “only” is a very important point and cannot be easily dismissed.

I know that this is an argument based on semantics but judgements of legality frequently depend upon interpretation of meaning and so it is a reasonable point of appeal. If the legal definitions are not water tight then it is up to the legislators to amend them accordingly.

To further highlight how in this case the definitions have not been thoroughly thought through consider this. We are told in section 86(1)(ii) of the TMA 2004 that it is not acceptable to park adjacent to a dropped footway where its purpose is to assist cyclists yet why would a cyclist require easy access to a footway that is purely by definition a right of way for those on foot? It is simply illogical to have a dropped footway to assist cyclists if we consider the given definition of footway.

So in summary you need to state in your appeal that the contravention never occurred as you were not parked adjacent to a dropped “footway” as defined by section 86(7) of the TMA 2004 because the so called footway is not limited to a right of way on foot only as pushchairs, wheelchairs, mobility scooters and vehicles are able to utilise it.

Ultimately adjudicators will have to decide on each individual case on its own merits but there is a good chance that some will accept this argument. It’s worth a try.
clark_kent
10/10 for effort but you latest offering is full of holes for a start a right of way and permissive use are not the same. Under the Highways act a vehicle does not have a right of way to cross the footway its given permission to do so and can be taken away. Trying to class a pushchair as a vehicle that requires a right of way is just getting too far fetched to even warrant answering. As for your point on cycles you may note the statute also includes cycle tracks and verges there is no mention of cycling on a footway. The only difference between a footway and footpath is that a footway runs adjacent to a road a footpath does not eg an alley or passageway. The Use of Invalid Carriages on Highways Regulations 1988 clearly talks of the use of carriages on the footway and footpath and limits their speed to 4mph if used on a footway which would not be possible if their use on the footway stopped it being a footway.
Anorak
QUOTE (clark_kent @ Mon, 8 Jun 2009 - 23:01) *
As for your point on cycles you may note the statute also includes cycle tracks and verges there is no mention of cycling on a footway. The only difference between a footway and footpath is that a footway runs adjacent to a road a footpath does not eg an alley or passageway. The Use of Invalid Carriages on Highways Regulations 1988 clearly talks of the use of carriages on the footway and footpath and limits their speed to 4mph if used on a footway which would not be possible if their use on the footway stopped it being a footway.


Yes you are right the TMA 2004 does mention cycle tracks and verges but the DfT guide on contravention codes only seems to use code 27 "parked in a SEA adjacent to a dropped footway" I cannot see a contravention code about being parked adjacent to a dropped cycle track or verge yet section 86 TMA 2004 makes it clear these are separate issues.

It is likely that another piece of legislation allows a mobility scooter to use a footway but what matters in relation to the PCN is the primary legislation that governs it and the definitions of "footway" and "footpath" quite clearly say a right of way on foot only and gives no exemption to mobility scooters or any other method of travel.

The difference between "footway" and "footpath" must be of some relevance to the legislation otherwise why make the distinction between them.

I do not say my above arguments are watertight and I expect a few or perhaps many adjudicators will refute them.That's OK, the point for me is to give a person the opportunity to submit an appeal that will at least make those who consider appeals go off and read up on the legislation they enforce so that they can show that they have properly considered the appeal. There is the chance that a few appeal officers cannot be bothered and will accept the appeal or not contest prior to adjudiaction. Dropped footways and footway parking are very limited in appeal points but the above is at least a reasonable argument that will require at some stage someone to do a bit of work.
clark_kent
QUOTE (Anorak @ Mon, 8 Jun 2009 - 23:46) *
QUOTE (clark_kent @ Mon, 8 Jun 2009 - 23:01) *
As for your point on cycles you may note the statute also includes cycle tracks and verges there is no mention of cycling on a footway. The only difference between a footway and footpath is that a footway runs adjacent to a road a footpath does not eg an alley or passageway. The Use of Invalid Carriages on Highways Regulations 1988 clearly talks of the use of carriages on the footway and footpath and limits their speed to 4mph if used on a footway which would not be possible if their use on the footway stopped it being a footway.


Yes you are right the TMA 2004 does mention cycle tracks and verges but the DfT guide on contravention codes only seems to use code 27 "parked in a SEA adjacent to a dropped footway" I cannot see a contravention code about being parked adjacent to a dropped cycle track or verge yet section 86 TMA 2004 makes it clear these are separate issues.

It is likely that another piece of legislation allows a mobility scooter to use a footway but what matters in relation to the PCN is the primary legislation that governs it and the definitions of "footway" and "footpath" quite clearly say a right of way on foot only and gives no exemption to mobility scooters or any other method of travel.

The difference between "footway" and "footpath" must be of some relevance to the legislation otherwise why make the distinction between them.

I do not say my above arguments are watertight and I expect a few or perhaps many adjudicators will refute them.That's OK, the point for me is to give a person the opportunity to submit an appeal that will at least make those who consider appeals go off and read up on the legislation they enforce so that they can show that they have properly considered the appeal. There is the chance that a few appeal officers cannot be bothered and will accept the appeal or not contest prior to adjudiaction. Dropped footways and footway parking are very limited in appeal points but the above is at least a reasonable argument that will require at some stage someone to do a bit of work.


You have failed to address the issue of 'right of way' a footway is a right of way for pedestrians it does not mean that others cannot use it if permitted. A pedestrian does not need permission to use a footway it is their 'right' however a disabled person can only use it if permitted by statute that governs the use of disabled carriages which goes back to the chronically sick persons act 1970 they do not have a right to use it they are allowed to ride on it subject to strict conditions . The same applies to vehicles that wish to access a property the Highways act lays down the legislation that permits them to cross a footway it does not give them 'right of way' to cross it.
jaredm
Ok, so the TMA thing has been plugged. However, in my view, for this PCN, the Date of service not being legible is as non-conformant as it not being there at all? Also, the wording is defective - it is the same as in Pulp Faction Recycling v Islington.

I feel like being a bit more ballsey... I shall make an informal representation to them. Within it, I shall state:
QUOTE
that there are no differences between the wording on this PCN and the wording that has already been established as non-compliant by the Adjudicator in Pulp Faction Recycling v Islington and that the legislation around the time period to pay has not changed. Therefore, you should only proceed with the process of issuing a Notice to Owner is you believe you are in a position to present a case as to why your PCN is not defective in light of this previous decision.

I inform you now that you also have an obligation to withdraw a PCN at the earliest stage if you can see cause to. I am not prepared to spend my time defending myself against vexatious litigation and that if you abuse my time in this manner, I hereby advise you that I shall charge a fee of £10000 as follows:

You agree to pay a fee of £10000 in the circumstance where: you issue a Notice to Owner; following which I make a formal representation stating no additional facts other than what has been described to you in this letter; and, subsequently you either
1. accept the representation; or,
2. reject the representation and the matter proceeds to Adjudication where you then either withdraw the PCN/NtO or fail to present a case as to why the Adjudicator should go against the decision in Pulp Faction Recycling v Islington.

This is a private fee that shall become due within 28 days of either of the 2 circumstances above arising. The fee shall be reduced by 50% to £5000 if paid within 14 days of either of the 2 circumstances above arising. If the fee is not paid within 28 days then a late-payment fee of £1000 will be added and a debt may be registered with a debt collection agency. The fee structure outlined is not a fine nor does it bear any relation to costs; it is a private fee arrangement which is designed to protect me from devoting unnecessary time to unreasonable litigation. The fee structure is designed to allow you to proceed with cases where you will have a genuine case to make to the Adjudicator so in this regard it is fair and does not impede the legal process. You can avoid this fee by either withdrawing this PCN now or if you present a case as to why the Adjudicator should go against the decision in Pulp Faction Recycling v Islington. If you proceed to issue a Notice to Owner then you accept the fee structure outlined above and a contract shall be formed.

In the interests of clarity I have attached a copy of the Pulp Faction Recycling v Islington decision.



Have I totally lost the plot? In my view, it is a fair and reasonable contract - and more honest than half the ones private parking companies send out!
dave-o
Yeah go for it. But make the charge £120 (£60 if paid within 14 days starting with the day on which the notice is served). £10000 is clearly ridiculous an would not be looked upon kindly by an adjudicator IMO.
bama
he can set his own fees ! its reads as part of the negotiation (or unilateral) but I suppose it should be conditional acceptance rather than negotiation.

I don't know if you have to say something alomg the lines of 'thank for your Notice, this is my Notice noticing your Notice' and use such words as 'Conditional acceptance upon proof of claim, the following fee schedule applies....' to get your claim on top of their claim. Then if they dishonour your notice have a go at following it up

I am not a solicitor (by a long chalk as the eagles will tell you) but what they send is a called a 'Notice' for a reason.
I believe that it is a 'Notice of Claim' just like any other and can be treated as such.
All law is contract and only contracts make the law.


okay, shoot me down (gently...) maybe it is worth kicking this around ?
jaredm
I don't believe, £10000 is any more ridiculous than PCNs that authorities issue knowing that they are defective.

I am trying to make a contract out of this; I just need some help in making it water tight: contracts have to be fair, there has to be some form of consent (implied consent is more tricky to enforce but not impossible) and any charges need to be stated clearly.

If we could come up with a template then we should all start using it. The only thought I had is I may make the 'fee' £5000 (the limit for Small Claims) which will make it easier to seek court assistance if they refuse to pay.
Neil B
You wouldn't by any chance be thinking of a case of a £20000 win against Newham would you?? Cos that was not quite true!
jaredm
QUOTE (Neil B @ Tue, 9 Jun 2009 - 14:31) *
You wouldn't by any chance be thinking of a case of a £20000 win against Newham would you?? Cos that was not quite true!

Not sure what you're on about but no, I am serious about this. However, I can see that the 'contract' as I've written it is not up to scratch so would appreciate pointers on how to make it more solid.
Neil B
I'm not knocking you for considering. Most here would like to see it. I wouldn't have the first idea how to get it right but you've fallen over before getting out of the starting gate so what chance do you think you'd have?

It isn't vexatious litigation. It isn't litigation at all. It is an enforcement process.

'register a debt with a DCA' has no meaning whatsover.



Also, since you clearly indicated your mate will fold before discount expires, it isn't going to go anywhere anyway on this occasion.

(Newham do not state they will preserve the discount if you make a challenge before the NtO is issued).



jaredm
QUOTE (Neil B @ Tue, 9 Jun 2009 - 16:32) *
I'm not knocking you for considering. Most here would like to see it. I wouldn't have the first idea how to get it right but you've fallen over before getting out of the starting gate so what chance do you think you'd have?

It isn't vexatious litigation. It isn't litigation at all. It is an enforcement process.

'register a debt with a DCA' has no meaning whatsover.



Also, since you clearly indicated your mate will fold before discount expires, it isn't going to go anywhere anyway on this occasion.

(Newham do not state they will preserve the discount if you make a challenge before the NtO is issued).



I've told him I'll pay the stupid fine and placated him that way. Newham do state that the reduced rate will be allowed for 14 days after any notice of rejection received before NtO (see reverse, near the bottom).

I thought it was litigation but you're right; it isn't. I shall reword to something more suitable such as 'pursing enforcement action where you have been made aware that there is no reasonable cause for the enforcement action to proceed. If you believe that you have reasonable cause to continue this enforcement action then you may proceed to continue the action. Reasonable cause will only be deemed to be present if the matter proceeds to Adjudication and you put forward arguments which are both reasonable and have not previously been addressed at Adjudication.'.
Neil B
QUOTE (jaredm @ Tue, 9 Jun 2009 - 17:15) *
 Newham do state that the reduced rate will be allowed for 14 days after any notice of rejection received before NtO (see reverse, near the bottom).


I know what it says thanks! LOL. That's not what you originally indicated you understood - so I was saving you from late challenge!
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