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Joe R
Hi all,

This is going to need a fast turn around as the 14 days are up tomorrow (Thursday). Apologies but have only just been able to scan the PCN. Basically a friend overstayed on a P&D....

I'm wondering if he's allowed to use the ol' chestnut 'regulation 3(2)(b) and 3(2)(b)(ii)' on an overstay?

I'm hoping Bogsy is about sometime soon to advise. But in his absence, feel free to add your two penneth





Thanks in advance
Joe
cabbyman
Interesting contravention description: 'See attached.' I can see nothing attached to the ticket so have no idea what the contravention is. Did the 'attached' blow away in the wind?

Should be a strong appeal point. Await other opinions.
dave-o
Well, seeing as the tear-off slip is not part of the PCN, i can't see how an "attached" piece of paper can be.

PCN does not state contravention and therefore is meaningless.
Glacier2
Same old crap from Gravesham. Totally unenforceable.
DancingDad
Yup

No contravention does it... bung your informal in on that.
You can chuck in 3(2)b as PCN fails to inform that challenges can be made up to service of NTO

Also, in case they reject...demand all photos, CEO notes TRO and proof that the CEO was wearing uniform.
May as well make the buggers work.
Joe R
Have recieved an NtO and am putting together a reply of which I'll post up for some advice, later this evening.







DancingDad
Did you put in informals Joe ??
And did Gravesham reject them ??

Only just realised that Gravesham not only use the forbidden Within but state it's from date of service....without any explanation of the service of what. Date of service at your local takeaway ??? Date of Service of the PCN??? ..which is actually stated on the NTO
Joe R
QUOTE (DancingDad @ Sun, 9 Jan 2011 - 21:24) *
Did you put in informals Joe ??
And did Gravesham reject them ??

Only just realised that Gravesham not only use the forbidden Within but state it's from date of service....without any explanation of the service of what. Date of service at your local takeaway ??? Date of Service of the PCN??? ..which is actually stated on the NTO

Hi DD, we emailed an informal using the regulation 3(2)(b) card. It was the only thing we used as we only had a day to appeal.

I'm trying to find out about the rejection letter and will post back asap.
Joe R
Have since found out that my mate didn't recieve a rejection letter!

I've put together a reply to the NtO but not sure how or even if to mention the rejection letter.
DancingDad
Mention it...failure to consider....3(2)b again.. Procedural Impropriety

Post your draft for fine tuning.
dave-o
Does he have proof it was received?
hcandersen
PCN states Time of Issue of PCN.
NTO states Contravention Time.

Both are 14.45 - oh dear.

The time of contravention is absolutely central to this case because it is one that is centred on an allegation where time is the central issue i.e. parked after paid for time.

An adj cannot let this go.

Add to formal reps:
PCN did not include the "Time of Contravention" as required by para. 1 (d) of the Schedule to Regulation 8 of the General Regulations. The PCN is therefore invalid as it fails to comply with the requirements of Regulation 8:

Penalty charge notices

8.—(1) In these Regulations a “penalty charge notice” means a notice which—

(a)was served in accordance with regulation 9 or 10 in relation to a parking contravention; and

(b)complies with the requirements of the Schedule which apply to it as well as those of regulation 3 of the Representations and Appeals Regulations which so apply.

(2) The Schedule has effect with regard to penalty charge notices.



As the PCN states the time of issue, then it is self evident that the contravention could not have occurred at the same time because it takes a finite amount of time to prepare a PCN. Correspondingly, there is no evidence to indicate what the actual time of contravention was.

Therefore, as the CEO's notes are the only source of evidence as regards this contravention and as the NTO DOES state a time of contravention then the council has deliberately included information in its NTO which it knows to be false.

The PCN has a prescribed field of Time of Issue and therefore it is difficult to ascribe fault to the CEO for its non-compliance. However, given that the PCN only states that a NTO "may" be served, its service must involve a detailed and reasoned process within the council. Correspondingly, it is difficult to dismiss the inclusion of false information within the NTO as a simple administrative error, instead it would appear that the council has a disregard for its legal duty as clearly stated in the regulations.

HCA



Joe R
QUOTE (dave-o @ Mon, 10 Jan 2011 - 11:27) *
Does he have proof it was received?


He this email in reply to his appeal.

'Thank you for your email regarding the above notice. Could you please forward your full postal address so the notice can be placed on hold and a response will be sent out to you once your case has been considered'.
dave-o
OK good. Proof that the received it and failed to respond.
Joe R
Here goes! My draft.....Look forward to expert input and advice.

With regard to PCN xxxxxxxx. There are a number of grounds for this PCN to be cancelled with immediate effect.

The Contravention did not occur
The PCN showed the contravention as “See Attached” This is not a contravention that I understand nor can be seen as one that can be said to state the grounds on which a civil enforcement office believes that a penalty charge may be payable. It thus fails to comply with Schedule 1 of the General Regulations 2007. I refer Gravesham Council to the judicial decision in R v Barnet relating to attachments to a PCN and especially how they are not part of the PCN.


Procedural Impropriety
The PCN did not include the "Time of Contravention" as required by para. 1 (d) of the Schedule to Regulation 8 of the General Regulations. The PCN is therefore invalid as it fails to comply with the requirements of Regulation 8:

Penalty charge notices

8.—(1) In these Regulations a “penalty charge notice” means a notice which —

(a) was served in accordance with regulation 9 or 10 in relation to a parking contravention; and

(b) complies with the requirements of the Schedule which apply to it as well as those of regulation 3 of the Representations and Appeals Regulations which so apply.

(2) The Schedule has effect with regard to penalty charge notices.


As the PCN states the time of issue, then it is self evident that the contravention could not have occurred at the same time because it takes a finite amount of time to prepare a PCN. Correspondingly, there is no evidence to indicate what the actual time of contravention was.

Therefore, as the CEO's notes are the only source of evidence as regards this contravention and as the NTO DOES state a time of contravention then the council has deliberately included information in its NTO which it knows to be false.

The PCN has a prescribed field of Time of Issue and therefore it is difficult to ascribe fault to the CEO for its non-compliance. However, given that the PCN only states that a NTO "may" be served, its service must involve a detailed and reasoned process within the council. Correspondingly, it is difficult to dismiss the inclusion of false information within the NTO as a simple administrative error, instead it would appear that the council has a disregard for its legal duty as clearly stated in the regulations.


Procedural Impropriety
The PCN and the NTO demonstrate different contraventions. This is totally contrary to both common law and the regulations under TMA2004. Paperwork that flows from a PCN must be consistent. To be otherwise leaves the recipient of any of the designated notices uncertain
of what restriction if any has been contravened. I refer you to the General Regulations 2007 Section 19(2)(e)

Procedural Impropriety
The PCN also fails to comply with regulation 3(2)(b) contained within Statutory Instrument 2007/3482 and it is therefore my belief that the PCN is not lawful.

Although the PCN does say that representations will be considered, it fails to make the recipient aware of the period of time they are lawfully entitled to in which to submit such representations. The lawful period is given by regulation 3(2)(b) and it is given as any time before the NtO is served and as such a PCN must convey this fact to the recipient.

Such failure could prejudice the recipient in that they may only believe they have 28 days to submit an informal representation when the truth is that they have as long as it takes for the authority to serve the NtO. For instance, a person (where the NtO has not yet been served) may only remember about the PCN on the 30th day after service and as the PCN implies you can only challenge within 28 days that person will not appeal. However, that person is lawfully entitled to appeal informally if no NtO has been served.

It should be remembered that the liability and decision to pay or challenge devolves from the person in control of the vehicle when the PCN was issued to the Owner of the vehicle once an NTO is issued. Failing to advise the person who receives the PCN of their rights to appeal and the period within which they can appeal creates real prejudice.

Procedural Impropriety
Gravesham Council failed to respond to my informal representation. This is another failure on the part of the Authority.

Procedural Impropriety
Regulations 3(2)(b) Gravesham Council failed to consider informal representations. By not answering my challenge and failing to explain why it may be wrong you show a clear disregard for the duty of consideration that rests on yourselves and any other enforcement authority. You are required to properly consider challenges you make before the NtO.

Considering these facts I expect you to cancel this penalty charge forthwith. If you do not cancel then I will require you to explain fully why you did not take into account my informal appeal and why you think the PCN complies with regulations 3(2)(b) and Schedule (1)(e) contained within Statutory Instrument 2007/3482 and 2007/3483 respectively.

I will have no hesitation in proceeding to adjudication if it is not cancelled.

Yours faithfully


Scaramouche
QUOTE (Joe R @ Mon, 10 Jan 2011 - 20:16) *
Here goes! My draft.....Look forward to expert input and advice.

With regard to PCN xxxxxxxx. There are a number of grounds for this PCN to be cancelled with immediate effect.

The Contravention did not occur
The PCN showed the contravention as “See Attached” This is not a contravention that I understand nor can be seen as one that can be said to state the grounds on which a Civil Enforcement Officer believes that a penalty charge may be payable. It thus fails to comply with Schedule 1 of the General Regulations 2007. I refer Gravesham Council to the judicial decision in R v Barnet relating to attachments to a PCN and especially how they are not part of the PCN.


Procedural Impropriety
The PCN did not include the "Time of Contravention" as required by para. 1 (d) of the Schedule to Regulation 8 of the General Regulations. The PCN is therefore invalid as it fails to comply with the requirements of Regulation 8:

Penalty charge notices

8.—(1) In these Regulations a “penalty charge notice” means a notice which —

(a) was served in accordance with regulation 9 or 10 in relation to a parking contravention; and

(b) complies with the requirements of the Schedule which apply to it as well as those of regulation 3 of the Representations and Appeals Regulations which so apply.

(2) The Schedule has effect with regard to penalty charge notices.


As the PCN states the time of issue, then it is self evident that the contravention could not have occurred at the same time because it takes a finite amount of time to prepare a PCN. Correspondingly, there is no evidence to indicate what the actual time of contravention was.

Therefore, as the CEO's notes are the only source of evidence as regards this contravention and as the NTO DOES state a time of contravention then the council has deliberately included information in its NTO which is highly questionable.

The PCN has a prescribed field of Time of Issue and therefore it is difficult to ascribe fault to the CEO for its non-compliance. However, given that the PCN only states that a NTO "may" be served, its service must involve a detailed and reasoned process within the council. Correspondingly, it is difficult to dismiss the inclusion of false information within the NTO as a simple administrative error, instead it would appear that the council has a disregard for its legal duty as clearly stated in the regulations.


Procedural Impropriety
The PCN and the NTO demonstrate different contraventions. This is totally contrary to both common law and the regulations under TMA2004. Paperwork that flows from a PCN must be consistent. To be otherwise leaves the recipient of any of the designated notices uncertain
of what restriction if any has been contravened. I refer you to the General Regulations 2007 Section 19(2)(e)

Procedural Impropriety
The PCN also fails to comply with regulation 3(2)(b) contained within Statutory Instrument 2007/3482 and it is therefore my belief that the PCN is not lawful.

Although the PCN does say that representations will be considered, it fails to make the recipient aware of the period of time they are lawfully entitled to in which to submit such representations. The lawful period is given by regulation 3(2)(b) and it is given as any time before the NtO is served and as such a PCN must convey this fact to the recipient.

Such failure could prejudice the recipient in that they may only believe they have 28 days to submit an informal representation when the truth is that they have as long as it takes for the authority to serve the NtO. For instance, a person (where the NtO has not yet been served) may only remember about the PCN on the 30th day after service and as the PCN implies you can only challenge within 28 days that person will not appeal. However, that person is lawfully entitled to appeal informally if no NtO has been served.

It should be remembered that the liability and decision to pay or challenge devolves from the person in control of the vehicle when the PCN was issued to the Owner of the vehicle once an NTO is issued. Failing to advise the person who receives the PCN of their rights to appeal and the period within which they can appeal creates real prejudice.

Procedural Impropriety
Gravesham Council failed to respond to my informal representation. This is another failure on the part of the Authority.

Procedural Impropriety
Regulations 3(2)(b) Gravesham Council failed to consider informal representations. By not answering my challenge and failing to explain why it may be wrong you show a clear disregard for the duty of consideration that rests on yourselves and any other enforcement authority. You are required to properly consider challenges you make before the NtO.

Considering these facts I expect you to cancel this penalty charge forthwith. If you do not cancel then I will require you to explain fully why you did not take into account my informal appeal and why you think the PCN complies with regulations 3(2)(b) and Schedule (1)(e) contained within Statutory Instrument 2007/3482 and 2007/3483 respectively.

I will have no hesitation in proceeding to adjudication if it is not cancelled and shall be claiming costs.

Yours faithfully
Joe R
Thanks for all your help, its much appreciated. The NtO will be on its way (hand delivered) today.
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