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tel45
Hi Forum
My car was parked on double yellow lines overnight within a new Barratt developement because the underground car park garage door wouldn't open. By the time I got down in the morning my car had been clamped and removed at 7am. When I went to retrieve the car I was told that an earlier ticket had been put on the car at 1.20am that morning, which I don't have and should expect to recieve notification of it. I am now thinking did the second traffic warden remove the first ticket so that he could issue a second ticket, which would enable him to remove the car. If the ticket was issued at 1.30am does this make the second ticket void and therefore the removal of the car alsoI thin k the land may be owned by Barratt and not the council so would that make a difference also?
dave-o
Sounds like it might be a PPC scheme.

Show us your paperwork. Obscure your personal details, but leave the parking company's.
tel45
Hi Dave
I'm trying to get a copy of the earlier ticket. I was given the third degree before she would agree to fax me a copy, however I haven't received it yet. She has told me the parking attendant was entitled to remove the ticket and issue another one, surely that's more or less confirming what I thought.
The ticket I received that they used to remove the car is a contravention code 01 " Parked in a restricted street during prescribed hours" what does that have to do with double yellow lines?
dave-o
01 is pretty much a blanket contravention, and can be used for many things including DYLs.

Sounding more like a council ticket now. Show us all your docs - PCN, receipt, appeals forms. Every side of every page.
tel45
Hi
The more I think about this the more annoyed I get. You will notice that the covering letter they sent with the copy of the ticket I never had says that they have cancelled it. There is something not right about this, I thought they couldn't cancel tickets unless you appealed and they have choosen to cancel the earlier ticket to justify the second ticket which allowed them to uplift the car. There is also the justification for uplifting the car, it was parked well inside a residential area (not main street) and half on half of double yellow lines, not obstructing anything. The only reason for the double yellow lines is for through the day (working hours) to stop people working up in the main street for parking in a residential area and yet if you look at the ticket they lifted the car at 7.27am in the morning, no justification at all. I'm not convinced they don't have targets and are not on bonuses.
Let me know what you think.
















dave-o
OK good - appeal docs are flawed for at least two reasons:

1) "Must make represenations within 28 days...."

2) Taken Without Consent clause is fettered, by limiting it to stolen only.
tel45
I don't understand, can you explain in more detail?
dave-o
1) Your real time to appeal is 28 days including the day you recieved the papers.
"Within" is generally understood as "starting from tomorrow".
Legislation explicitly states that it should say "Not later that the last day of the period of 28 days starting with the day you recieved the papers"
There are plenty of cases to back this up, and we have won plenty of tow appeals on this point alone.

2) If your sister had borrowed your car without asking, then it would have been "Taken without consent" but presumably you would not report her to the police. So it is possible for a car to be TWOC without it being stolen, and without it having a crime reference. Whether this was the case or not is irrelevant. The fact is that the form unfairly fetters your ability to appeal under all possible circumstances.
tel45
What's the next step them?
dave-o
-Give it til monday to see if anyone else has anything to add

-Do a bit of research here about all the points given

-Write up a draft appeal in your own words

-Paste the draft here for people to help you perfect it

-Send amended draft to council and get proof of delivery



After this the most likely course of events is

-Get a squirming letter from them pretending that there is nothing wrong with the paperwork. We have won lots of Edinburgh tows on point 1) and the council knows they will not win, but they are still hoping you give in and don't take it to SPAS.

-Take your appeal to SPAS

-Watch as they give in a few days before your hearing
tel45
Hi

Just so Iv'e got this clear. In my letter should I start with the incorrections with the appeal form and ask for a refund on that basis without going over the details of my sequence of events i.e. The fact that I had two parking tickets and the earlier one was cancelled etc etc?
dave-o
Point 1) should be enough to get this cancelled on its own.

However, like i say, don't send anything off until you've had it checked.
whitewing
If it's a new development you should also check that all the appropriate traffic orders are in place
tel45
Dave O says cases have been won on this technicality before so what makes you think this is a new development and how do I check if a traffic orders in place (if necessary)?

dave-o
Whitewing means that if the road markings or the development are new then it's worth seeing if they made a mess of the traffic order.

It has no bearing on the previous points.
tel45
That's interesting, how do I check the traffic order?
dave-o
You'd need to go to the council offices and request a copy of the relevant order. It can be quite a hassle. Depends how much time/patience you have.
tel45
No Iv'e not got the patience for that. I will go with the error on the paperwork and see how I get on. I'll post it on the forum and see what people think before I send it. I'll need to do some research on how to draft an appeal but I think I get the just of what I'm saying. Any offers to do it for me would be most grateful.
SchoolRunMum
All you have to do really is read other similar threads, that will also help you to understand some of the terms which crop up again and again. Relevant threads are easy to find, just look through a few pages of the forum - starting here and working backwards to older threads:

http://forums.pepipoo.com/index.php?showforum=30

Only read threads that mention a Council tow. You should find people's draft appeals on their threads which will start you off.

Or search the forum generally for a couple of keywords (like 'Council towed') to find threads which contain those words. You may just find old results this way though, I would take the first approach and view the current forum list and look for relevant threads.

Then post up your own draft version, based on what you have been told above by other posters.
tel45
Can anyone give me instructions on how to attach my appeal document?

dave-o
Copy the text and paste it in here.
tel45
I know this sounds thick but when I copy it the paste doesn't highlight so i can paste it, what am I doing wrong?
dave-o
CTRL+A will select all the text in your document. CTRL+C will copy it.
CTRL+V will paste it into a forum post here.
tel45
Brilliant, you learn something new everyday. Have a look and see what you think, I haven't bothered with all the details of the ticket and removal, doesn't seem much point as I'm learning the council are not sympathetic.

Dear Sirs,



Re: PCN Number : Registration:



Please find enclosed copies of the paperwork given to me when I went to retrieve my vehicle from the car pound on 3rd March 2010.



I am appealing against the above PCN and removal fee I paid to retrieve my car based on serious current legislation errors in both your “Penalty Charge Notice” and your “How to Make Representations (Removed Vehicles)” documents.



According to The Road Traffic Act 1991 both documents should state the following accurate information;

Penalty Charge Notice

1. 66 (3) c “that the penalty charge notice must be paid before the end of the period of 28 days beginning with the date of the notice”

2. 66 (3) d “that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion”.

How To Make Representations (Removed Vehicles)

3. 71 (5) “An authority may disregard any representations which are received by them after the end of the period of 28 days beginning with the date on which the person making them is informed, under subsection (1) above, of his right to make representations”.

4. 71 (6) It shall be the duty of an authority to whom representations are duly made under this section, before the end of the period of 56 days beginning with the date on which they receive the representations”.

It is quite clear that the documentation I received does not comply with current legislation and has given me incorrect information which invalidates both the PCN and removal of my car. On this basis please arrange to refund my costs of £150 removal fee and £30 PCN fee.

Yours faithfully





dave-o
That's all wrong. The phrases you quoted are correct according to legislation. The phrase that is wrong is the "within" one.

Also add the bit about fettered TWOC.
tel45
So I should change it around and quote the incorrect statements that they have on the documentation. Can I also use the example you gave me about if it was my sister etc?
dave-o
Here's a great post re the TWOC bit:

Fettered TWOC: (look at Bama’s post #16)
http://forums.pepipoo.com/index.php?showtopic=49556

Bama will probably be happy for you to copy/paste that.

As for the "within" point, all the info and citations you need are here:

“Within:
http://forums.pepipoo.com/index.php?act=at...ost&id=4980

Lay it out something like this:

________________

I am appealing PCN number XXXXX for the following reasons:

1) **Misleading dates**

2) **Fettered TWOC**

If the PCN is not cancelled i will take my appeal to the independant adjudicator

__________________________________
tel45
What about this then?

Re: PCN Number : Registration:




Please find enclosed copies of the paperwork given to me when I went to retrieve my vehicle from the car pound on 3rd March 2010.



I am appealing against the above PCN and removal fee I paid to retrieve my car based on the following reasons;



1. The dates you have used are incorrect and misleading, they state that I must make representations, within 28 days of receiving the notice. “Within” is generally understood as “starting from tomorrow”. Legislation explicitly states “no later than the last day of the period of 28 days beginning with the date on which the penalty notice was served”.

2. The information given regarding the vehicle taken without my consent unfairly fetters my ability to appeal under any possible circumstances. It is possible for my vehicle to be taken without consent other than stolen and without having a crime reference.

If the PCN is not cancelled and I do not receive a full refund of £180 I will take my appeal to the independent adjudicator.



Yours faithfully

dave-o
It's OK.

I would quote the actual case mentioned in that "within" link as well as what the judge said about deadlines having to be very clear.

As for the TWOC, use exactly what Bama has put in that other link.
tel45
Check this out, does it make sense and is it not too long winded?


Re: PCN Number : Registration:



Please find enclosed copies of the paperwork given to me when I went to retrieve my vehicle from the car pound on 3rd March 2010.



I am appealing against the above PCN and removal fee I paid to retrieve my car based on the following reasons;

1. The dates you have used are incorrect and misleading, they state that I must make representations, within 28 days of receiving the notice. In the case of Macarthur V Bury Metropolitan Borough Council (2005 BC 188), the adjudicator said,

“The phrases “within 28 days” and “within 14 days” convey different information from that specified in Section 66(3). By legal convention, where the “within” formula is deployed, the day upon which the triggering event occurs is excluded from the period.”



It is also quite clear that “within” has the potential to create prejudice. In the Queen on the Application of the London Borough of Barnet Council v The Parking Adjudicator (2006) EWHC 2357 Admin Mr. Justice Jackson stated at paragraph 41 “Prejudice is irrelevant and does not need to be established.”

Each PCN issued in the format described must be considered defective and accordingly unenforceable because they have the potential to mislead, confuse and create the potential for prejudice.



2. The information given in the “How to Make Representations (Removed Vehicles) unfairly fetters my ability to appeal under any possible circumstances. It should state the following;

"That the vehicle had been permitted to remain at rest in the place in question
by a person who was in control of the vehicle without the consent of the owner".

This ground for representations covers stolen vehicles, and vehicles which
were not stolen but which were used without the owner’s consent. It may
apply in limited circumstances where a vehicle was being used by a member
of the owner’s family without the owner’s consent, such as where the family
member has no permission to use the vehicle and has taken the keys without
the owner’s knowledge
.

If the PCN is not cancelled and I do not receive a full refund of £180 I will take my appeal to the independent adjudicator.



Yours faithfully





dave-o
I think it's good.
tel45
That's it going off today then, I'll keep you informed.
tel45
Result.

The council have sent me a letter confirming they are going to refund the £180. I have tried to attach the letter but it doesn't seem to accept the format. They claim the reason for cancelling the ticket is because the double yellow lines don't conform to the traffic order. In response to my first point, the ticket is invalid because of the "within" on the back of the ticket they are quoting the following, "In response to your comments regarding decisions made in England, I would advise that the Council operates in terms of enabling legislation which has not been found by the Scottish Courts to be ultra vires. There are many differences between Scots Law and English Law and, for that reason, decisions in English courts are not binding in Scotland. Without explicit instructions from a Scottish Court, there is no requirement for the Council to take these matters into account".
I find this point quite interesting considering the letter to appeal the ticket is sent to an address in Worthing, England.
In response to my second point, TWOC in the uplift appeal document, they have quoted the following, "Turning to your second concern, I consider that option B; 'the Vehicle had been taken without my consent,' can cover such instances as you describe provided that sufficient evidence is supplied to support the claim. Furthermore, it is considered that the example you have citied could also be described as theft".
I think on this point they are totally missing the point, to suggest someone would report their brother or sister to the police to obtain a crime reference is ludicrous and any appeal to them without one would I think be turned down.
Anyway let me know what you think especially on the idea that Edinburgh Council have different rules to the rest on the country when it comes to the Road Traffic Act 1991.
dave-o
"Load of bollox" in my opinion. They are saying that (and sliming out on a different point) because they don't want to admit that all their past and future PCNs are wrong.

If you really have fire in your belly, force it to adjudication and ask the adjudicator to rule on the dates point. You could also then ask for costs.
tel45
The only problem I see with that is what if the adjudicator rules in their favour (something to do with Scots Law) could it affect my refund?
dave-o
Actually i'll have to retract that. I thought you had made an adjudicator appeal and they had backed out of that.

As it stands you have no method by which to get this in front of an adjudicator.

Well done though.
tel45
Yes, that's ok. It will be interesting to see if anyone can get refunded bases on the "within" dates etc. I'm sure it's only a matter of time before it will be challenged again.
dave-o
It comes up here on a very regular basis, and every one has been successful so far!
southpaw82
They're talking out of their arse. Just because a Scots court has never considered it (apparently) doesn't mean they don't have to consider it - by their logic, if a point has never gone before a court they can ignore it - and hence it would not get before a court. Utter rubbish. Since the RTA 1991 applied across the country, a decision made in England on it is equally valid as one made in Scotland. They know it and are being weasels.
tel45
This could mean they have no intention of changing the PCN's, well if they don't I for one won't be paying another PCN in the future and I will encourage anyone I know to challenge them on the same grounds.
I also want to say thanks to dave-o for all your help.

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