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Full Version: HELP! Unfair Tow and PCN in Hackney £260 (code 62)
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Stan134
Hi
I was recently towed for having a front wheel on a low pavement (pavement is level with road) on a side street - bit of rubbish parking on my part I admit. No road markings on the side of the road where I was parked and not obstructing anything. There was no signage saying it was OK to park on the pavement - it was just a mistake on my part. They issued PCN and towed 6 minutes later - they told me this was OK as it was an immediate lift.
Can they really tow me for something so minor, I wasnt obstructing anything at all? And its so much money and I am so skint...
Here is all the documentation I have - no photos were available apparantly they send those to me at a later date
So here is PCN front and back and the appeal form


dave-o
A few things:

-Are there more pages to that appeal info document?

-Post up the receipt - may be useful

-How far were you onto the dropped kerb?

-Question for other members - if he's only on the kerb of a DK, should they have done him for DK rather than footway parking?
Stan134
Thanks loads for your reply great to know that there is some hope - I dont know how far I was onto the kerb as no photos but reckon that I had most of the front wheel on it. Will scan in the receipt and the appeal document tomorrow
Mortimer
Location would be good so we can see if StreetView has anything useful.
Stan134
Hi
Here are the requested receipt and other pages of representation document.
I have noticed a discrepancy in the documentation
PCN number starts with HQ
Receipt starts with HK






Stan134
The location was Hackney
DancingDad
QUOTE (dave-o @ Tue, 25 Jan 2011 - 11:20) *
...........-Question for other members - if he's only on the kerb of a DK, should they have done him for DK rather than footway parking?


Footway will count in London. DK may have been a damaged kerb or private house where OP could have had permission.... no way could they justify an immediate tow for that.
Not sure they can justify an immediate tow anyway for one wheel unless actual (not theoretical) obstruction occurred.

OP...what do you mean they will send the photos later ??
Did you request them or did they offer and anything in writing ?
dave-o
Yeah we really need to see those pics.
Stan134
How do I get the pics?
I asked at the pound and they told me I have to complete the appeal form first and then I would be sent the pictures. Is there any way of getting the photos in advance of completing the form? There is no phone number on the documentation
Thanks
DancingDad
Wish they'd put that in writing.

Email Hackney...re PCN ????
Request for Information
So I may consider the worth or otherwise of any potential challenge please supply copies of all photos and CEO notes that you may rely on.
Time for a challenge is limited so I must press you for a timely reply by email.
Reply address is ????@?????

Add your name and send it.
Stan134
Hi
Thanks I have now got the photos from the Hackney PCN website. Looks like both wheels on the pavement........



Uploaded with ImageShack.us



Uploaded with ImageShack.us

Uploaded with ImageShack.us

Uploaded with ImageShack.us
Stan134
Hi
Any ideas anyone????
Cheers
dave-o
Well you did commit the contravention.

There is nothing to lose in appealing though.

I would make an appeal based on Bogsy's point about being forced to pay before appealing. I would make a very clear demand for CEO notes. It appears you have been lifted immediately after ticketing, so the CEO may have messed something up in his haste - perhaps not authorised it properly. I can see there is a PCN on your screen, but no authorisation sticker.
Stan134
Thanks - and yup those wheels are on the pavement - yup I'm an idiot! but it seems crazy that they can tow for parking on a quiet sidestreet - its not like I was blocking a bus lane in Oxford Street.....so I'm going to make my representation anyway. But I do need some more help!!

There was no notification sticker on the car when I collected it and no sign of it in any of the photos posted for the PCN. Also the PCN envelope isnt filled in.

Couple of questions
1. I have emailed Hackney to ask for CEO notes but if I dont hear back within the 28 day timeframe should I go ahead and make my representation anyway and ask for the CEO notes in my representation

2. I cant find the relevant posting from Bogsy that you mentioned

3. What are my grounds for representation - is it the last box "procedural impropriety" ?
Neil B
There are wording issues on the documents. Both DD and myself found some in the other recent thread.

Laterz for that but some questions first cos you have obscured a lot of relevant info.

Need the PCN number, CEO number and authorising officer number please.

Also. Please answer this question >

What is the last date on which your representations can reach the Council in order to be valid?

-
DancingDad
Agreed Neil


Re notes/photos.
You've asked for them and clearly statd that they are needed urgently.
If you do not get them we add that to your challenge .
Bogsy
QUOTE (Stan134 @ Thu, 3 Feb 2011 - 21:45) *
2. I cant find the relevant posting from Bogsy that you mentioned


Here is my template letter that you can adapt if need be to suit but do keep in any bld, italics, etc.



Dear Sirs

Prior to the removal of my vehicle a CEO served a regulation 9 PCN. Once a regulation 9 PCN is served then the law gives the recipient the statutory right to submit an informal appeal that must be considered and a statutory 28 day period in which to pay the penalty charge should they not want to appeal informally or formally.

When I collected my vehicle, the Council insisted the penalty charge be paid immediately. I do not consider that the regulation 9 penalty charge was “payable” at the time I paid it, since I wanted to informally appeal with the possibility, should my informal appeal fail, of paying it later at the re-offered discounted rate or proceeding to adjudication. Section 101A of the RTRA 1984 requires “any penalty charge payable” to be paid on recovery of a vehicle. If a person has no intention of appealing then a regulation 9 PCN is not immediately “payable” but can be paid at any time no later than 28 days from the date of service. This is a statutory provision. However, where a person does wish to appeal, then a regulation 9 PCN only becomes “payable” by virtue of regulation 4 of “the Civil Enforcement of Parking Contraventions (England) General Regulations 2007” once all appeal stages have been exhausted and an adjudicator has dismissed the appeal having found as fact that the contravention was “committed”. For clarity, below is what regulation 4 advises;

4. Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle—

(a)a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London);

(b)a parking contravention within paragraph 3 of that Schedule (other parking contraventions in Greater London) in a civil enforcement area in Greater London; or

© a parking contravention within paragraph 4 of that Schedule (parking contraventions outside Greater London) in a civil enforcement area outside Greater London.


One of the "subject provisions" is that a person is given a statutory 28 day period to pay the PCN or otherwise appeal before service of an NtO. The law requires one or the other not both. This principle is commonly emphasised on many council PCN’s that warn the recipient that they must not pay the PCN if they want to challenge it. In other words the PCN is not considered “payable” if you intend to appeal; this is similar to being assumed innocent until proven guilty. Regulation 4 further advises that the penalty charge is "payable......... where there has been committed" a parking contravention. The PCN however only states an allegation of a parking contravention. If a person pays the penalty charge without coercion then this is accepted as admitting that the contravention was "committed" but if a person does not think the allegation is correct then they can appeal until ultimately an adjudicator finds as fact that the contravention was or was not "committed". Therefore I believe the Council acted ultra vires in demanding payment of the regulation 9 PCN immediately on recovery of my vehicle, contrary to what statute provides and contrary to what the PCN advised were my rights.

In addition, I was given no opportunity to submit an informal appeal. Being able to submit an informal appeal following receipt of a regulation 9 PCN is also one of the “subject provisions” and therefore a statutory right. The PCN confirms this right and the Secretary of State’s statutory guidance does under paragraph 83 make it clear that the loss of the right to an informal appeal is only applicable to regulation 10 PCN’s. I was served with a regulation 9 PCN.

83. The vehicle owner may dispute the issuing of a PCN at three stages:
• Owners may make so-called ‘informal challenges’ or ‘informal
representations’ against the PCN before the authority has served an NtO
(this does not apply when the PCN is issued by post as the PCN then acts as the NtO).


Although I was given information on how to appeal this was only in regard to a formal appeal. There was nothing given to me that advised that any right to an informal appeal as advised by the PCN was lost or had been revoked. At the pound, I was given both the PCN and formal appeal documents and these items gave conflicting information as to what my legal rights were. This was and is confusing and prejudicial.

It should also be noted that where a regulation 9 PCN is served then statute provides that any formal appeal against the PCN (not the removal costs) should be in response to receiving a Notice to Owner. The formal appeal document given to me was not a Notice to Owner but simply appeared to be a document served by virtue of regulation 11 of “the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007” informing me that I could make representations against removal (not the PCN). This gave me differing and more restrictive grounds for appeal than a Notice to Owner. Although my vehicle was removed it seems irregular and unjust to give me differing and more restrictive grounds for appeal than any other situation where a regulation 9 PCN is served. I believe such unfair restrictions and limitations to be contrary to the general principles of law.

The Traffic Management Act 2004 and its associated regulations as well as the RTRA 1984 do not stipulate that the statutory rights, provisions and procedures relating to the service of a regulation 9 PCN are revoked and void where that vehicle is later removed by virtue of s.99 RTRA 1984. Therefore I believe the Council has acted ultra vires and is guilty of procedural improprieties.

In addition “The Removal and Disposal of Vehicles Regulations 1986” (S.I. 1986/183) do not prescribe the method of removal used in regard to my vehicle.

With the commencement of the Traffic Management Act 2004 and the introduction of Civil Enforcement Officers, S.I. 1986/183 was amended by “The Removal and Disposal of Vehicles (Amendment)(England) Regulations 2007” (S.I. 2007/3484) to include new regulation 5C.
However, regulation 6 of S.I. 1986/183 has not been amended to take into consideration the newly inserted 5C regulation. As such there is no prescribed method of removal for vehicles that are removed by arrangement of a Civil Enforcement Officer. Without the methods of removal available to Civil Enforcement Officers being prescribed it cannot be certain that the method used was lawful and therefore the Council needs to establish that the method of removal was lawful.

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and substantiate any reason for rejection then I will bring this failure to the attention of the adjudicator.

Yours with love, hugs and kisses.

As an aside, has anyone got details on what the agreed charges are for removal & storage in London? I want to see if the sum actually charged follows the sec of state's statutory guidance.

61. Storage charges should apply for each day or part of day, reckoned from
2400 midnight on the day following removal of a vehicle .


To me this implies that no storage charge should apply on the day of removal or the next day. so if a vehicle was stored at 15.00 hours on a Tuesday, by my reckoning no storage charge should apply until after midnight on Wednesday. In other words no charge applies to the part day on Tuesday or the whole day on Wednesday. If a council does not follow this then its a procedural impropriety since s.87 TMA 2004 requires a council to have regard to this statutory guidance.
Stan134
Hi
Here are the extra bits of info

PCN HQ 01266225 or on the receipt it says HK 01266225
CEO: 0556
Authorising Officer: I cant find this anywhere - there is the number of Attending Officer on representation form: 556
Last day to submit representaion is Fri 18th Feb

Re CEO notes and photos I have just rung Hackney and they will only supply CEO notes in reply to my representation and are unable to supply them now. The photos have been made available as they are all posted online as part of the PCN - and there is no notification of removal sticker in any of them.

Thanks for all your help - I am totally bamboozled by all this...



Neil B
QUOTE (Stan134 @ Fri, 4 Feb 2011 - 17:06) *
Authorising Officer: I cant find this anywhere - there is the number of Attending Officer on representation form: 556
Last day to submit representaion is Fri 18th Feb


'Authorised by or something similar IS on one of the documents. You have obliterated it. I have a wierd theory about it.

Deadline - I've just realised is of no use to make my point since we don't know date of PCN or retrieval of vehicle - you obliterated that too??!
Stan134
QUOTE
'Authorised by or something similar IS on one of the documents. You have obliterated it. I have a wierd theory about it.

Deadline - I've just realised is of no use to make my point since we don't know date of PCN or retrieval of vehicle - you obliterated that too??!


Sorry I thought I have to delete everything personal - clearly I have been a bit OTT

I have been through all the documents and there is no authorised by. I have posted everything I have up, can you see it anywhere, or where it should be?? - even if I have deleted it I would have left the wording "authorised by"

Date of PCN: 21/01/2001 Time 1349
Date of Contravention: 21/01/2011
Vehicle was seen in
Morpeth Road
Location Description: NR/7
From at: 1347 to 1349

Date of vehicle release: 22/01/11
Neil B
LOL. I'm kinda just trying to demonstrate something and we keep running into these little hiccups! There is a point to this i promise!

As you have PCN and release on different days - I now need to know which date you worked with to work out the deadline. Then I'll explain all.
Stan134

I am intrigued.....

I have worked out the date from the date that I collected the car and paid for it ie 22/01/11
The representation form says "the last day of the period of 28 days from which you have paid in full and been presented with this form"
Neil B
QUOTE (Stan134 @ Sun, 6 Feb 2011 - 12:13) *
I have worked out the date from the date that I collected the car and paid for it ie 22/01/11
The representation form says "the last day of the period of 28 days from which you have paid in full and been presented with this form"


OK, here we go. You used the correct date and worked out the period correctly.

I think you have an idea where I am going with this.

There is a need for certainty in enforcement and hence the periods concerned are specifically defined in legislation. The correct period actually appears near the top of their page 5
''28 days beginning with the date you are informed in writing of your right ---'' that gives a result of 18/2 like you.

Now. the one you quote is interesting - you got the right result but you actually misread it and misinterpreted it!!! That was on P4 and actually says ''28 days from the day from which -----''
Now - do you see a difference?
Taking the dictionary definition of 'from', which they use twice, it can be interpreted in either way >>

A person from London is definately starting at London ------ BUT

In timescale terms - 'a week from today (Sunday) is next Sunday in common usage = 8 days.

My point is that this phraseology creates uncertainty where certainty is needed. Hence it creates the potential to prejudice you - or, more importantly any recipient - which makes the document invalid. A similarly poor description of the period is also given on P 1.
They only have to C&P the legislation to get it right - and they fail. Three different sentences so far with potentially two different interpretations.

-- but it gets better!

DD made the point about yet another version which they choose to add to the PCN (when not required incidentally)

That says ''within 28 days after -------'' Clearly gives a result of 19/2 and there are well known Adjudications to support this.

--------------------
So 4 different descriptions - erm -- somewhat confusing and prejudicial methinks!

-

If anyone can explain it more clearly -- please do!!!
DancingDad
No question in my mind
28 days from day 1 is day 29...... 28 days is the difference and has exactly the same effect as within..adds a day

In simple terms day 2 is 1 day from day 1
But one day beginning with day 1 is day 1.
alloageorge
if you could show you were delivering/unloading
i.e. shopping, then in theory you could claim
you had to park on the kerb as there are vehicles
on the other side of the road and you didn't want
to block fire engines,ambulances etc.
if you were delivering then you need a sworn
statement from someone that ,that was exactly
what you were doing.
Neil B
QUOTE (alloageorge @ Sun, 6 Feb 2011 - 17:04) *
if you could show you were delivering/unloading
i.e. shopping, then in theory you could claim
you had to park on the kerb as there are vehicles
on the other side of the road and you didn't want
to block fire engines,ambulances etc.
if you were delivering then you need a sworn
statement from someone that ,that was exactly
what you were doing.



If?
What brought that up? Was loading mentioned anywhere by the OP? If not - then that renders the appellant and the person who swore the statement liable to criminal conviction and up to £5K fine.
Neil B
Stan.

Are you understanding so far? The dates issues and resultant prejudice, etc.

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

Got another one. Incidental but worth throwing in. Reps form makes ref to Regs - but only the General Regs. The Represenation and Appeals Regs are far more relevant in the circumstances and again IMO they prejudice you by omitting reference to those (they probably do on the PCN but surely the reps form is the place) Otherwise you have no way of checking that the info they've given you is correct -- and as we've shown it isn't! - in relation to timescales at least.

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

Still a question outstanding I asked earlier. You couldn't find one of these so gave none. Authorising officer - sorry I meant 'Attending Officer' and it was on their page 1.

QUOTE (Neil B @ Thu, 3 Feb 2011 - 23:12) *
Need the PCN number, CEO number and authorising officer number please.


Can I have all three please.
Stan134
Yup I have got my head round the 28 days... 2 different definitions on page 4 and page 5 and then the PCN is all about the date "PCN served" which is the day before I paid so thats very very confusing and prejudicial!

Regarding Page 1 Attending Officer (ID number) : 556 - NB this is the same ID number as for the person who served the PCN

Also I have had a reply from Hackney saying they will respond by post (with CEO notes) in due course - I doubt that this will be within the deadlines though

Now I just need to get my head around the General Regs you have mentioned.................
Neil B
QUOTE (Stan134 @ Mon, 7 Feb 2011 - 19:04) *
Yup I have got my head round the 28 days... 2 different definitions on page 4 and page 5 and then the PCN is all about the date "PCN served" which is the day before I paid so thats very very confusing and prejudicial!

Regarding Page 1 Attending Officer (ID number) : 556 - NB this is the same ID number as for the person who served the PCN

Also I have had a reply from Hackney saying they will respond by post (with CEO notes) in due course - I doubt that this will be within the deadlines though

Now I just need to get my head around the General Regs you have mentioned.................


no, on the PCN, the bit DD spotted is with particular reference to removal of vehicles. On the back, in bold and says 'within 28 days after'

Clearly wrong and backed up by several cases.

-------
Don't wait for reponses of CEO notes. We use that against them later. start drafting up an appeal and post it here for input from all.
-----

Ok 556 eh. Not the point I was looking for. In another recent case i noticed the attending was the same three digits as the last three on PCN - so I kinda suspected they were making it up - cos a CEO HAS to be present to authorise the tow.

Not so for you then but there is something in guidance from DfT about needing a different CEO to authorise. maybe someone can enlarge.
---------

On my mention of the Regs. I was just pointing out they choose to refer to the Gen Regs but most of the detail of your right of appeal (all of the grounds etc.0 is in the Appeals Regs??

-----
Stan134
Here goes with my first draft....

1.There is confusing wording used in the documents supplied to me, which make it unclear and difficult for me to make a representation – it is prejudicial and I believe deliberately confusing. The PCN and the Representation Against a Removed Vehicle form have different definitions for the period of time to make a representation and I do not understand which of these is the certain time period:-
PCN states : Representations against clamping or removal will only be considered if received within 28 days after the release of the vehicle
Release of vehicle 22 Jan – 28 days after release means 19 Feb

Representation Against A Removed Vehicle form states : Page 5 …disregard your representation by reason of it being received after the end of the period of 28 days beginning with the date you were informed in writing of your right to make a representation
Informed in writing 22 Jan – period of 28 days beginning with that date means representations to be received by 18 Feb – this is VERY confusing

Page 1 and Page 4: …by the last day of the period of 28 days from the day from which you have paid in full and been presented with this form
Paid in full 22 Jan – so 28 days from 22 Jan is 19 Feb

2. I believe that the decision to tow my vehicle was disproportionate to the infringement caused. My vehicle was not causing a hazard or obstruction. It was not parked on a bus route. My car was parked in a quiet side street, on a side of the road with no houses, only garages and garden doors – as such the fact that my wheels were partly on the kerb and pavement was not causing an obstruction to any traffic.

The Department for Transport’s guidance in “Operation Guidance to Local Authorities: Parking Policy and Enforcement, TMA 2004” section 8.88 states:
 “The Secretary of State is of the view that towing should only be used in limited circumstances such as where the same vehicle repeatedly breaks parking restrictions and it has not been possible to collect payment for penalties, primarily because the keeper is not registered, or is not properly registered, with the DVLA…. removal activity should only take place where it gives clear traffic management benefits.” None of the criteria for towing applied in my case.

3.On collecting my car the following day pound I was not presented with the relevant removal authorisation form nor was it affixed to my vehicle (which I believe is procedurally incorrect.). I have contacted Hackney Council requesting CEO notes to be emailed to be and been told that they will be posted to me in due course – and they have not arrived in time for this challenge. Given the 6 minutes time taken to remove the vehicle from time of issue of PCN I have my doubts as to whether the correct procedure took place and I would be grateful if you could let me have the CEO notes relating to the towing so that I can verify whether or not a ‘procedural impropriety’ had occurred.
Neil B
We could go to the lengths of quoting all the legislation but at this stage, with another chance to follow, I pretty much like it as it is. Others may think differently. I don't have the time to help with that at mo anyway.

Just a couple of things.

IMO swop 1 and 2 around. 2 is more real life which shows a gebnuine, human reason for appeal. 1 is technical and of course you are only using that because you have to. Make sense?

On mention of a 'removal authorisation'. Seems often espoused on here but I, for the life of me can't ever understand what members are talking about. There is no such document required by any Regs as far as I know. There is a need for the removal to be authorised and, sure, obviously that would need to be recorded - but no requirement for anything to be supplied to you at the time, that I know of.

On the matter of the same CEO issuing PCN as attending the lift - you haven't included and i will try to find the DfT Guidance on it.
Stan134
Hi and thanks for your comments - here is my second draft

Any more comments anyone?

1. I believe that the decision to tow my vehicle was disproportionate to the infringement caused. My vehicle was not causing a hazard or obstruction. It was not parked on a bus route. My car was parked in a quiet side street, on a side of the road with no houses, only garages and garden doors – as such the fact that my wheels were partly on the kerb and pavement was not causing an obstruction to any traffic or any passers by. The reason my wheels were on the kerb was that the road is very narrow and I wanted to ensure that I did not cause an obstruction for the refuse collection trucks that pass by. A PCN would have been more than sufficient to make sure that I did not commit this offence again – there was absolutely no need to tow away my car.

The Department for Transport’s guidance in “Operation Guidance to Local Authorities: Parking Policy and Enforcement, TMA 2004” section 8.88 states:
 “The Secretary of State is of the view that towing should only be used in limited circumstances such as where the same vehicle repeatedly breaks parking restrictions and it has not been possible to collect payment for penalties, primarily because the keeper is not registered, or is not properly registered, with the DVLA…. removal activity should only take place where it gives clear traffic management benefits.” None of the criteria for towing applied in my case.

2. There is confusing wording used in the documents supplied to me, which make it unclear and difficult for me to make a representation – it is prejudicial and I believe deliberately confusing. The PCN and the Representation Against a Removed Vehicle form have different definitions for the period of time to make a representation and I do not understand which of these is the certain time period:-
PCN states : Representations against clamping or removal will only be considered if received within 28 days after the release of the vehicle
Release of vehicle 22 Jan – 28 days after release means 19 Feb
Representation Against A Removed Vehicle form states : Page 5 …disregard your representation by reason of it being received after the end of the period of 28 days beginning with the date you were informed in writing of your right to make a representation
Informed in writing 22 Jan – period of 28 days beginning with that date means representations to be received by 18 Feb – this is VERY confusing
Page 1 and Page 4: …by the last day of the period of 28 days from the day from which you have paid in full and been presented with this form
Paid in full 22 Jan – so 28 days from 22 Jan is 19 Feb



3.I have contacted Hackney Council to ask for CEO notes as I would like to confirm that the correct procedure took place. I have contacted Hackney Council requesting CEO notes to be emailed to be and been told that they will be posted to me in due course – and they have not arrived in time for this challenge. On collecting my car the following day pound I was not presented with a removal authorisation form nor was it affixed to my vehicle and as such I do not know the time of the tow. Given that I was away from my car for less than half an hour there must have been considerable haste taken to remove the vehicle (even though it wasnt causing any obstruction) and I would very much like to check whether the correct procedure took place – and I would be grateful if you could let me have the CEO notes relating to the towing so that I can verify whether or not a ‘procedural impropriety’ had occurred.
dave-o
QUOTE (Neil B @ Mon, 7 Feb 2011 - 22:19) *
On mention of a 'removal authorisation'. Seems often espoused on here but I, for the life of me can't ever understand what members are talking about. There is no such document required by any Regs as far as I know. There is a need for the removal to be authorised and, sure, obviously that would need to be recorded - but no requirement for anything to be supplied to you at the time, that I know of.


My take on it is that the lack of a RA is not neccesarily a point in itself, but the absence of one, alongside the absence of CEO notes pertaining to authorisation, creates a good grounding for a claim that the vehicle was not propely authorised.
Stan134
I forgot about the BOGSY appealing the PCN. Should I leave the appeal as it is? or should I add in the BOGSY appeal also?
What do you think? I still have a couple of days
Thanks
Neil B
QUOTE (Stan134 @ Mon, 14 Feb 2011 - 09:17) *
I forgot about the BOGSY appealing the PCN. Should I leave the appeal as it is? or should I add in the BOGSY appeal also?
What do you think? I still have a couple of days
Thanks


No harm in including anything when they have ya money!!

With respect to Bogsy, I don't know if anything has ever come of that point but at the very least it has fazed a few Coucils into submission maybe.

If you are going to include it then it would have to be now cos I can't imagine justification of adding it to PATAS appeal if not submitted to Council (although technically you can use anything or omit anything at any stage).

-
DancingDad
Add it now..... It has scared a few councils into submission but not sure it's ever faced an adjudicator or been ruled on.
Bogsy
QUOTE (Neil B @ Mon, 14 Feb 2011 - 10:49) *
With respect to Bogsy, I don't know if anything has ever come of that point but at the very least it has fazed a few Coucils into submission maybe.


The argument has been around now for well over a year and in most cases it is either ignored or brushed off with a single sentence of "the council is acting lawfully" and yet in most cases councils drop out when adjudication looms. A couple of appeals reached adjudication but on each occasion the adjudicator has allowed the appeal on another appeal point and so concluded that there is no need to consider the argument I offer.

Obviously I'm biased but I'm left with the impression that no one in authority wants to open this can of worms and it is easier and cheaper to ignore it. Perhaps one day it wil be looked at by an adjudicator but can you imagine the financial fall out if the argument is accepted? I suspect the same argument could be applied to removals under the 1991 Act as well.

Personally I think the denial of an informal challenge may be a stronger point than the pay the PCN now point. Both are valid arguments in my opinion, as at the end of the day a reg 9 PCN was served and with this comes certain statutory rights that are clearly stated on the PCN. I don't see how a council or an adjudicator can turn around and say "oh just ignore the PCN, the information on it does not apply to you as your vehicle was towed". That would be claiming the PCN is a nullity and if it is then there is no penalty charge or reason for the removal.
Stan134
Thanks everyone - I have included Bogsy PCN challenge
Also just noticed further date inconsistency as on page 1 and page 4 of the form - it has to be "POSTED BY the end of the 28 day period" - this is inconsistent with time period on PCN and in the form itself which states RECEIVED BY - so I have added this in
Will be posting it in a couple of days so any last comments will be gratefully recieved
Draft no 3....


1. I believe that the decision to tow my vehicle was disproportionate to the infringement caused. My vehicle was not causing a hazard or obstruction. It was not parked on a bus route. My car was parked in a quiet side street, on a side of the road with no houses, only garages (not obstructed) and back gardens – as such the fact that my wheels were partly on the dropped kerb was not causing an obstruction to any traffic or any passers by. The reason I had parked like this is that the road is very narrow and I wanted to ensure that I did not cause an obstruction for the refuse collection trucks that pass by. A PCN would have been more than sufficient to make sure that I did not commit this offence again – there was absolutely no need to tow away my car.

The Department for Transport’s guidance in “Operation Guidance to Local Authorities: Parking Policy and Enforcement, TMA 2004” section 8.88 states:
 “The Secretary of State is of the view that towing should only be used in limited circumstances such as where the same vehicle repeatedly breaks parking restrictions and it has not been possible to collect payment for penalties, primarily because the keeper is not registered, or is not properly registered, with the DVLA…. removal activity should only take place where it gives clear traffic management benefits.” None of the criteria for towing applied in my case.

2. There is confusing wording used in the documents supplied to me, which make it unclear and difficult for me to make a representation – it is prejudicial and I believe deliberately confusing. The PCN and the Representation Against a Removed Vehicle form have different definitions for the period of time to make a representation and I do not understand which of these is the certain time period:-
PCN states : Representations against clamping or removal will only be considered if received within 28 days after the release of the vehicle
Release of vehicle 22 Jan – 28 days after release means 19 Feb
Representation Against A Removed Vehicle form states : Page 5 …disregard your representation by reason of it being received after the end of the period of 28 days beginning with the date you were informed in writing of your right to make a representation
Informed in writing 22 Jan – period of 28 days beginning with that date means representations to be received by 18 Feb – this is VERY confusing
Page 1 and Page 4: …by the last day of the period of 28 days from the day from which you have paid in full and been presented with this form
Paid in full 22 Jan – so 28 days from 22 Jan is 19 Feb
Page 1 and Page 4: …POSTED by the last day of the period of 28 days from the day from which you have paid in full and been presented with this form
So if I post it on 19 Feb it wont be received until 20/21 Feb

3.I have contacted Hackney Council to ask for CEO notes as I would like to confirm that the correct procedure took place. I have requested CEO notes to be emailed to be and been told that they will be posted to me in due course – and they have not arrived in time for this challenge. On collecting my car the following day pound I was not presented with the relevant removal authorisation form nor was it affixed to my vehicle (which I believe is procedurally incorrect.). Given that I was away from my car for less than half an hour there must have been considerable haste taken to remove the vehicle and I would very much like to check whether the correct procedure took place – and I would be grateful if you could let me have the CEO notes relating to the towing so that I can verify whether or not a ‘procedural impropriety’ had occurred.

4. Prior to the removal of my vehicle a CEO served a regulation 9 PCN. Once a regulation 9 PCN is served then the law gives the recipient the statutory right to submit an informal appeal that must be considered and a statutory 28 day period in which to pay the penalty charge should they not want to appeal informally or formally.

When I collected my vehicle, the Council insisted the penalty charge be paid immediately. I do not consider that the regulation 9 penalty charge was “payable” at the time I paid it, since I wanted to informally appeal with the possibility, should my informal appeal fail, of paying it later at the re-offered discounted rate or proceeding to adjudication. Section 101A of the RTRA 1984 requires “any penalty charge payable” to be paid on recovery of a vehicle. If a person has no intention of appealing then a regulation 9 PCN is not immediately “payable” but can be paid at any time no later than 28 days from the date of service. This is a statutory provision. However, where a person does wish to appeal, then a regulation 9 PCN only becomes “payable” by virtue of regulation 4 of “the Civil Enforcement of Parking Contraventions (England) General Regulations 2007” once all appeal stages have been exhausted and an adjudicator has dismissed the appeal having found as fact that the contravention was “committed”. For clarity, below is what regulation 4 advises;

4. Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle—

(a)a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London);

(b)a parking contravention within paragraph 3 of that Schedule (other parking contraventions in Greater London) in a civil enforcement area in Greater London; or

© a parking contravention within paragraph 4 of that Schedule (parking contraventions outside Greater London) in a civil enforcement area outside Greater London.

One of the "subject provisions" is that a person is given a statutory 28 day period to pay the PCN or otherwise appeal before service of an NtO. The law requires one or the other not both. This principle is commonly emphasised on many council PCN’s that warn the recipient that they must not pay the PCN if they want to challenge it. In other words the PCN is not considered “payable” if you intend to appeal; this is similar to being assumed innocent until proven guilty. Regulation 4 further advises that the penalty charge is "payable......... where there has been committed" a parking contravention. The PCN however only states an allegation of a parking contravention. If a person pays the penalty charge without coercion then this is accepted as admitting that the contravention was "committed" but if a person does not think the allegation is correct then they can appeal until ultimately an adjudicator finds as fact that the contravention was or was not "committed". Therefore I believe the Council acted ultra vires in demanding payment of the regulation 9 PCN immediately on recovery of my vehicle, contrary to what statute provides and contrary to what the PCN advised were my rights.

In addition, I was given no opportunity to submit an informal appeal. Being able to submit an informal appeal following receipt of a regulation 9 PCN is also one of the “subject provisions” and therefore a statutory right. The PCN confirms this right and the Secretary of State’s statutory guidance does under paragraph 83 make it clear that the loss of the right to an informal appeal is only applicable to regulation 10 PCN’s. I was served with a regulation 9 PCN.

83. The vehicle owner may dispute the issuing of a PCN at three stages:
• Owners may make so-called ‘informal challenges’ or ‘informal
representations’ against the PCN before the authority has served an NtO
(this does not apply when the PCN is issued by post as the PCN then acts as the NtO).

Although I was given information on how to appeal this was only in regard to a formal appeal. There was nothing given to me that advised that any right to an informal appeal as advised by the PCN was lost or had been revoked. At the pound, I was given both the PCN and formal appeal documents and these items gave conflicting information as to what my legal rights were. This was and is confusing and prejudicial.

It should also be noted that where a regulation 9 PCN is served then statute provides that any formal appeal against the PCN (not the removal costs) should be in response to receiving a Notice to Owner. The formal appeal document given to me was not a Notice to Owner but simply appeared to be a document served by virtue of regulation 11 of “the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007” informing me that I could make representations against removal (not the PCN). This gave me differing and more restrictive grounds for appeal than a Notice to Owner. Although my vehicle was removed it seems irregular and unjust to give me differing and more restrictive grounds for appeal than any other situation where a regulation 9 PCN is served. I believe such unfair restrictions and limitations to be contrary to the general principles of law.

The Traffic Management Act 2004 and its associated regulations as well as the RTRA 1984 do not stipulate that the statutory rights, provisions and procedures relating to the service of a regulation 9 PCN are revoked and void where that vehicle is later removed by virtue of s.99 RTRA 1984. Therefore I believe the Council has acted ultra vires and is guilty of procedural improprieties.

In addition “The Removal and Disposal of Vehicles Regulations 1986” (S.I. 1986/183) do not prescribe the method of removal used in regard to my vehicle.

With the commencement of the Traffic Management Act 2004 and the introduction of Civil Enforcement Officers, S.I. 1986/183 was amended by “The Removal and Disposal of Vehicles (Amendment)(England) Regulations 2007” (S.I. 2007/3484) to include new regulation 5C.
However, regulation 6 of S.I. 1986/183 has not been amended to take into consideration the newly inserted 5C regulation. As such there is no prescribed method of removal for vehicles that are removed by arrangement of a Civil Enforcement Officer. Without the methods of removal available to Civil Enforcement Officers being prescribed it cannot be certain that the method used was lawful and therefore the Council needs to establish that the method of removal was lawful.

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and substantiate any reason for rejection then I will bring this failure to the attention of the adjudicator.
Stan134
RESULT!!!!! I am getting my money back !!!! This is the best news I have had all year!!!

The adjudicator has decided that "there has been a procedural impropriety on the part of the enforcement authority" in that they made an "insufficient response to my appeal". They did not "consider the representations and any supporting evidence by the person making them."

I want to say thank you so much Neil B, Bogsy, Dave-o, DancingDad you are bloody brilliant

All the best Fiona and Stan xx
Neil B
wink.gif

well done for seeing it through.
bama
Good win.

And the adjudicator dodged all the 'big stuff' - who could have guessed that would happen.


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