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Collig
First time offender so first time poster but from having read through numerous posts I can see that this is a great website and hopefully you will be able to help me out as you have many others.

I recently came to visit a friend in London and parked in street near a tube station to travel in to the centre. Thinking I was being considerate to other motorists that would be driving down this road I pulled up on the pavement but not so much that pedestians with prams and wheel chair users couldn't get by. I returned to find that my car was gone and learning that having one or more wheels on a foot path is not allowed in London and should not be done elsewhere according to the highway code(an expensive lesson at £250). Having learned to drive in the Netherlands I was blissfully unaware, however I am aware that that is no case for defence.

I would like to appeal but have no idea where to start. When I collected my car from the pound I was given a sheet titled “representations against removal of vehicle” I have attached a copy of the grounds for representation however I do not feel that I can tick any of the boxes as I have been told by Enfield council that I cannot get hold of the photographic evidence until I appeal. Now I realise that I committed the offence so I figure that the only way to get out of it is based on a technicality. I cannot prove that the PCN wasn’t attached to my car as I wasn’t there and cannot obtain the photographic evidence. The other option on the sheet is called a “procedural impropriety on the part of the enforcement authority”.

So my question is what would constitute a procedural impropriety? I have attached pictures of the PCN and the authorisation for removal sheet that was attached to my car when I picked it up. The Authorisation for removal sheet is not fully filled in. It has the incorrect registration number and it does not include the employee number.

The second avenue I thought might be relevant is that the post code of where the car was parked is incorrect on the PCN. It states the name of the road the first half of the post code (two letters & a number) then underneath that two letters & a number.

Is there a minimum time that a car has to be left with the PCN before it can be removed?

My fourth & final thought would be to question the capabilities of the officers who gave me the initial ticket & removed my vehicle. Could I request training records & testing that would prove that they had been fully trained and where qualified/ up to date on the laws of their trade?

Any help would be greatly appreciated!



alloageorge
are there images online?
Collig
Hi Alloageorge,

Thanks for responding. After some more digging I have indeed found the pictures online. The information and website given to me by the pound was incorrect. Anyway the pictures show that the PCN was indeed attached to my vehicle so that closes that avenue.

The pictures do show that the amount of space left on the pavement was in my opinion, enough for anyone using the pavement to get past. I seem to remember reading somewhwere that when they consider allowing parking on the footpath they specified 1.5m of space. I will see if I can find the link and add it:

http://www.havering.gov.uk/index.aspx?articleid=13275
DancingDad
Could you post the rest of the paperwork please....technical issues depend on all the papers and nuggests can be found in the small print.
Collig
Hi DancingDad,

The stuff that I have posted in my 1st post is all I have (other than the reverse of the PCN & release fee reciepts). Can you point in the direction of what you are looking for? Do I need to request additional paperwork from Enfield council? Or do you need to see more info that I have blanked out on the PCN?

Thanks.
Collig
On an other note I found this Link on other post by Schoolrun mum:

You are right about towing being unnecessary where a PCN is enough deterrent, it's against Chief Adjudicator guidance:

http://www.thisislondon.co.uk/news/article...-rights-laws.do

I think the term 'proportionality' applies to my case as I was parked was on a quiet cul-de-sac with very little pedestrian or motoring traffic using the road and as previously stated I don't believe I was inhibiting pedestrians.

DancingDad
QUOTE (Collig @ Mon, 7 Mar 2011 - 22:07) *
Hi DancingDad,

The stuff that I have posted in my 1st post is all I have (other than the reverse of the PCN & release fee reciepts). ........Thanks.

That's what we need
Neil B
QUOTE (DancingDad @ Mon, 7 Mar 2011 - 22:48) *
QUOTE (Collig @ Mon, 7 Mar 2011 - 22:07) *
Hi DancingDad,

The stuff that I have posted in my 1st post is all I have (other than the reverse of the PCN & release fee reciepts). ........Thanks.

That's what we need


Actually - before anyone has to repeat themselves - EVERYTHING!! and that includes the buts of the docs you have chopped off.
Collig
As requested, please see below for the remaining documentation I recieved when picking up my car from the pound.





Neil B
Hmmmm --- sorry, not really seeing much of use.

To answer your questions

No time needed before tow from footway parking.

The authorisation sticker - hmm - does raise the question of who authorised I suppose. Maybe worth asking for CEO notes.

----
the one - debatable - issue i see. Third ground on reps form. There is no power to tow given by that Act - only by a later, 2007 amendment.
Compare it to docs on recent Hackney case.
Very tough one to argue that it creates even potential for prejudice though IMO. Others may think differently.
DancingDad
Agreeing with Neil.
I think it's time for a Bogsy special for this one... be patient, I've PMd him.
Bogsy


Dear Sir/Madam

I wish to appeal against the penalty and vehicle recovery charges on the basis that the Council has acted ultra vires and is guilty of procedural impropriety.

The council incorrectly believes that my vehicle is subject to the charges specified under s.101A of the Road Traffic Regulation Act 1984 (“the 1984 Act”). This section of the 1984 Act is made further to s.101 and concerns charges relating to vehicles that appear to be abandoned and are either claimed before disposal or following their disposal. However, my vehicle at no time appeared to be abandoned and therefore it was not subject to the charges imposed under s.101A of the 1984 Act.

If my vehicle is subject to any charges then it is subject to the charges imposed under s.102(2A) of the 1984 Act. It appears that the council has made an appalling error in their interpretation of the 1984 Act by believing that all charges associated with vehicle recovery are subject to s.101A of the 1984 Act, this however is a gross misconception. Section 101A is not the only section of the 1984 Act that enables removal and storage charges to be levied. Other sections, such as section 102 also make provision for this. This is best demonstrated by the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges) Regulations 2008 where it clearly confirms that it is not only section 101A within the 1984 Act that confers charging powers in regard to vehicle removals. Considering this, it is necessary to establish what section of the 1984 Act conferred the council with the power to impose a charge for the recovery and storage of my vehicle. For the answer it is necessary to turn to the Traffic Management Act 2004.

The level of charges to be paid is set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) of this Schedule makes it clear that it concerns charges imposed by authorities under s.102 of the 1984 Act. I am confident that this is clear evidence that any charge my vehicle was subject to, was a charge made under s.102(2A) and not under s.101A of the 1984 Act.

As such, the council were not lawfully entitled to seek immediate payment of the penalty charge. Section 102(2A)of the 1984 Act only entitled the council to seek charges for the removal and storage of my vehicle. I believe the correct and lawful procedure is to allow me to either pay the PCN within the 28 day statutory period as advised by the PCN or appeal, firstly informally and then if need be, formally following service of a Notice to Owner. If this formal appeal is rejected then I have the option of appealing to an adjudicator whereby, if successful, the adjudicator can then order that the PCN be cancelled and any removal and storage charges be refunded.

It is quite clear that despite the levy of removal and storage charges, s.102(2A) of the 1984 Act does allow the statutory rights conferred by service of a regulation 9 PCN to fully apply and for the statutory regulatory process to run in full accordance with the provisions of the Traffic Management Act 2004 . The same cannot be said where charges are imposed under s.101A of the 1984 Act. The council has wrongly used this section to empower them to seek immediate payment of the penalty charge and as a means to providing documents informing that a person can make formal representations against removal. However, this is at odds with what statute has in mind where a regulation 9 PCN is served. It cannot be lawfully correct that a person is denied their right to make an informal challenge, their right to receive and respond to a Notice to Owner and their right to pay the penalty charge at any time within the 28 day payment period. Neither any guidance nor legislation dictates that any statutory rights conferred by a regulation 9 PCN are void where a vehicle is later removed. This leads to the question, did the legislators uncharacteristically forget to make everyone aware of a loss of rights or could it simply be, that there is no loss of rights since s.102(2A) is applicable rather than s.101A? If the rights conferred by the PCN are considered by the council to be void then the council is in essence proposing that the PCN is a nullity. If the PCN is a nullity then the council had no legal basis for removing my vehicle.

The truth is, that the council has wrongly applied s.101A of the 1984 Act to the recovery of my vehicle when the law required them to apply s.102(2A). Due to this gross error the council then wrongly applied regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 when the correct statutory procedure for any appeal would be that as stated clearly on the PCN.

Yours respectfully
Collig
Wow DD, when you said a Bogsy special I wasn't expecting that!

Thanks Bogsy, I'll get to work signing a copy of that and let you know how I get on.

Everyone's input has been greatly appreciated!
Collig
Hi Guys,

I recieved a letter from Enfield Council over the weekend. I nervously opened it hoping to find a big fat cheque to the value of £250 only to be faced with a rejection letter of formal representations.

To be honest I had expected this would happen but the annoying thing is that the clowns at Enfield Council have clearly just printed off a standard copy of rejection relating to parking on a footway and have made no reference to the arguements made.

Either way, my question is do I just need to send a carbon copy of the letter I sent to the council to PATAS along with the appeals form?

Thanks
Bogsy
Yes but also make a point of highlighting the fact that the council failed to give your appeal full and proper consideration as evident by the failure of the rejection letter to address the points raised by you.
Neil B
QUOTE (Collig @ Mon, 28 Mar 2011 - 19:27) *
Hi Guys,

I recieved a letter from Enfield Council over the weekend. I nervously opened it hoping to find a big fat cheque to the value of £250 only to be faced with a rejection letter of formal representations.


With £250 at stake --- have a guess what I'm gonna say?????
Collig
Hi,

So I had my case looked at by PATAS. Unfortunatly I was not able to add it to the sucess stories. Have a look, hopefully it will be useful to someone in the future.

My understanding is that this brings the appeals process to a conclusion, but if there are any other avenues for me to pursue please let me know.

Thanks again for all the help and advice given!

Collig


Bogsy
Hmm......the adjudicator has not tackled the crux of the matter. In fact it seems they misunderstood what was argued as it was never argued that the vehicle was removed due to abandonment. They even quote section 101(4A) RTRA 1984 which has been repealed. Not an action that gives one confidence in the adjudicator. See for yourself.

http://www.legislation.gov.uk/ukpga/1984/27/section/101

I suggest you seek a review of the decision by emailing the text below to PATAS. You've nothing to lose but do it within 14 days of receipt of the decision and ask them to confirm receipt.

patas.team@patas.gov.uk



In the interest of justice I seek a review of the decision made in regard to appeal (quote ref number)


The absolute crux of the matter is whether the applicable charges paid by a person in regard to a removed vehicle are those that fall under s.101A or s.102 of the Road Traffic Regulation Act 1984. This was not addressed by the adjudicator. Only one of these can apply and it is critical that the correct one is applied. Section 101A is not the only section of the 1984 Act that enables removal and storage charges to be levied. Other sections, such as section 102 also make provision for this. This is best demonstrated by the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges) Regulations 2008.

There is a clear similarity between s.101A and s.102 in that they both enable an authority to impose charges. However, it is necessary for me to point out some important distinctions between s.101A and s.102. Section 101A concerns charges to be paid by the "owner" while s.102(2A) concerns charges to be paid by the "person responsible” . Section 101A by implication allows an authority to retain the vehicle until the charges are paid or to keep the proceeds of sale should disposal occur. Whereas S.102(2A) gives neither express nor implied permission for a council operating CPE to retain a vehicle until the charges are paid and this is one of the reasons why s.102(3) enables the charges to be ultimately recoverable through the courts. Another distinction is that s.101A requires any penalty charge payable to be paid on recovery whereas s.102(2A) cannot be used as an authorising power for seeking payment of any outstanding penalty charge.

Sections 101A and s.102(2A) share a similarity in that they allow a council to seek payment of applicable charges but they do have profound differences. This raises a crucial question. For what purpose does the 1984 Act provide two sections that are similar yet essentially different in the powers they confer? The answer I believe is simple. Section 101A concerns those charges to be paid on recovery by the "owner" in relation to vehicles that appeared abandoned (appearing so either at the time of removal or at some time following removal) while s.102(2A) concerns those charges to be paid by the "person responsible" in relation to vehicles that do not appear abandoned or do appear abandoned but no claim of ownership is made.

Where vehicles removed by the council at no time appear to be abandoned, it is wrong of the council to apply those charges under s.101A of the 1984 Act to them. The correct charges to apply are those made possible under s.102(2A) as confirmed by Paragraph 1(1)(b) in Schedule 9 of the TMA 2004 . Therefore the council has no lawful authority to insist the penalty charge be immediately paid. In addition, due to the council’s error in applying those charges permitted under s.101A of the 1984 Act, the council is wrong to apply the appeal process provided by regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.This appeal process does not concern vehicles that did not appear abandoned and were subject to those charges permitted under s.102(2A). The correct appeal process is that as detailed on every PCN.

Although I raised it in my formal representation the council did not address the very relevant issue of the regulation 9 PCN. No one should not lose sight of the fact that before any vehicle is removed a regulation 9 PCN is served. This PCN gives a person a statutory right to pay the PCN at any time within the 28 day period. In addition the PCN gives the person the right to make an informal challenge and the right to make representations against the receipt of a Notice to Owner. Nowhere does any legislation instruct that these statutory rights are removed when a vehicle is removed. The reason no legislation says this is because these rights are not removed, they remain applicable at all times. It is only the incorrect application of s.101A that denies a person these statutory rights. Had the council correctly applied s.102(2A) then these statutory rights would not be interfered with. If Parliament had intended the rights conferred by a PCN to be void once a vehicle is removed then Parliament would have made provision for this. The fact that Parliament made no such provision suggests that Parliament wanted the rights conferred by the PCN to remain applicable even following a vehicle’s removal. It is not by chance that s.102(2A) does not require a person to pay the penalty charge in addition to the removal and storage charges. The absence of such a requirement is indication that Parliament was well aware that such a requirement would be contrary to the 28 day statutory payment period bestowed by a PCN. If the rights conferred by a PCN are considered by the council to be void then the council is in essence proposing that the PCN is a nullity. If the PCN is a nullity then the council has no legal basis for removing a vehicle nor for seeking payment of the penalty.

One should also not forget how councils have always claimed that payment of a penalty charge is admitting liability and thus you cannot pay and appeal. This claim is clearly nonsense when you consider the actions of the council in regard to removed vehicles. Payment of a penalty charge is either admitting liability or it isn’t. The council cannot pick and choose when to apply such a principle of law, the principle either applies at all times or it does not apply at all. I suspect this is another reason why Parliament did not include payment of the penalty charge in those charges to be paid under s.102(2A).

It is also important to note that the 1984 Act does not provide any specific provision for an appeal process in regard to those removal and storage charges enabled under s.102(2A). Such an absence must surely provoke the question, why such an absence when an appeal process has been provided for those charges subject to s.101A? I believe the answer is that the 1984 Act purposely does not provide an appeal process since one is already available. The correct appeal process is that process that it is clearly promoted on every regulation 9 PCN that is served upon a vehicle.

There is another relevant complication that arises where the only appeal process employed by councils for vehicle removals is that as imposed by virtue of regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

Here is what regulation 11 advises;

11.—(1) This regulation applies to a person where, as respects a vehicle which has been found in a civil enforcement area for parking contraventions and removed under regulations made under section 99 of the 1984 Act—
(a)he is required to pay an amount on recovery of the vehicle under section 101A of that Act;
(b)he receives a sum in respect of the vehicle under section 101A(2) of that Act;
©he is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in that provision; or
(d)he is informed that the vehicle was disposed of without there being any proceeds of sale.


Section 99 of the 1984 Act only applies to vehicles removed from “road” except for one instance. This instance is where a vehicle is considered abandoned on land in the open air.

Therefore the appeal process provided under regulation 11 is not applicable to vehicles that are parked off road unless a vehicle happens to be abandoned. This means that a council cannot lawfully apply the appeal process under regulation 11 to those vehicles not considered abandoned but are parked in contravention in a council off street car park.

Most off street parking places orders do utilise the power under s.35 of the 1984 Act to remove contravening vehicles. However, it is clear that the regulation 11 appeal process does not apply to such vehicles. This raises another important question. If regulation 11 is not applicable, then what appeal process is applicable to the removal of non abandoned vehicles parked in contravention within a civil enforcement area and in a car park regulated by order under s.35 of the 1984 Act? It cannot be correct that the law would not provide any appeal process for such vehicles, so surely the only logical and correct answer is that the applicable appeal process is the one that is detailed on any PCN served. It cannot be coincidence that this appeal process fits perfectly without any conflict, unlike regulation 11. This complication illustrates further how the appeal process under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 fails to be compatible with anything other than appeals that relate to vehicles that appear abandoned but are subsequently claimed by the owner.

It is my firm belief that the council has wrongly applied those charges under s.101A of the 1984 Act to the recovery of my vehicle when the law required them to apply those charges regulated by s.102(2A). Due to this unfortunate error the council then wrongly applied regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 when the correct statutory procedure for any appeal would be that as stated clearly on the PCN. When a vehicle is removed the only formal statutory notice served is the regulation 9 PCN and nowhere does any legislation advise that the rights conferred by the PCN are void where a vehicle is removed. If the council are claiming the rights bestowed by the PCN are not applicable then the council is in essence proposing that the PCN is a nullity. If the PCN is a nullity then there can be no lawful removal and no penalty to pay.

Considering the above, I politely ask that my appeal be allowed on the grounds of procedural impropriety.

Yours respectfully
bama
Nice !

Some headaches due at the tribunal.

Collig
Nice indeed!

I emailed as suggested but it came back with an out of office so I have sent a copy by post.

I'll keep you updated.... fingers crossed.
Bogsy
Who was the adjudicator by the way?
Collig
Michael Lawrence. Do you have any other prior experience of him?
Bogsy
I'm familiar with his name but I've not had any personal involvement with him. His complete failure to address the s.101A v s.102(2A) primary appeal point is so amateurish that part of me wonders if it was purposely intended in order to avoid admitting a monumental cock up that has gone undetected for years. My research suggests since July 1993. Of course I could be wrong but no council has yet defeated the argument with any counter I've found convincing. I'm not usually swayed by conspiracy theories but my trust of adjudicators has dwindled. More so with TPT adjudicators than PATAS though. I think the fact that he quoted repealed legislation is a sign that he did not fully grasp the argument and so gave the matter no real thought or investigation.

When confronted with the arguments various London Authorities approached London Councils for their legal opinion. I've attached their response below. You will note that they also made the same error as Lawrence in that they seem to think my argument concerns only the removal of abandoned vehicles. It does not. I am saying the charges under s.101A only concerns the recovery of those vehicles that had the "appearance" of being abandoned (appearing so either at the time of removal or sometime later while stored at the pound) but despite this "appearance" the owner does come forward and make a claim of recovery. Therefore as most removed parking contravention vehicles do not appear abandoned it is wrong to apply those charges under s.101A. The correct charges to apply are those allowed under s.102(2A). This only allows the charges for removal and storage to be sought. It does not enable an authority to insist the penalty charge is paid at the time of collection. It is also worth noting that this section does not authorise an authority to retain a removed vehicle until the removal and storage charges are paid. S.102(3) makes it clear that if these are not forthcoming then an authority needs to chase the debt through the courts. In other words the same as they currently have to do for any unpaid penalty charge.

Also note that London Councils make no effort to confront the matter of the regulation 9 PCN and the statutory rights that it bestows upon a recipient. I believe it has them stumped. Read London Councils summise and then read again what I detailed here and in my earlier posts and see which arguments seem more credible. If you find London Councils is more credible then I won't object so long as it comes with a reasoned judgement.
Collig
Just a quick update, I have recieved a letter informing me that the letter I sent will be referred to the adjudicator from which I will get a full response.
Collig
I have recieved a letter back saying that it is not appropriate for there to be a review of the decision as the application was recieved outside the 14 day time period and therefore the application for a review is rejected.

Again, thanks for all the help you guys have offered.
Bogsy
Not a surprise, PATAS once again avoiding the issue! You would think that as the matter concerns large scale injustice and councils acting beyond their powers on a national scale that the "independent" adjudicator would agree to a review despite the application for a review being marginally late. They've had knowledge of this gross maladministration for months now and still they prevaricate. Why would that be?
interlog
If it was send outwith the 14 days, did you comply with this:

QUOTE
if you are writing outside the 14 days, explain why. The Adjudicator will not accept an application out of time unless there is good reason for the delay


Link: http://patas.gov.uk/TMAYourQuestions.htm#q12
Collig
Yes Bogsy, it is most annoying and you would think that an independant institition would be more interested in justice and make a ruling if a law is being incorrectly applied. Even if I didn't get my cash back from Enfield Council at least it might help other members of the public from having to face the inconvenience and cost that i have incurred.

Interlog, unfortunatly not. I didn't realise that I could appeal the first adudication so I left it a little late but I thought I would chance it anyway as I had nothing to lose in trying. I just wanted to bring closure to the thread and thank every one for their assistance.

Cheers
Collig
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