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NeedAdvise
Hi there,

I need some advise on how I can appeal with my PCN19Z and car being towed whilst I was away. Camden Council usually sends an email reminder before the permit expires but this time they didn't. The permit had expired on the 8/5/11. I went away on the 13/05/11. First PCN was issued on the 14th and the next one on the 16th and car was towed within 2 hours of the second PCN was issued. I only paid for one PCN and tow fee, total £240. I was not told to pay the first PCN.

I have attached all the documents I have. I was told I had to pay to retrieve the car before I can appeal.

I would like to appeal for this PCN for a full refund. I have read about the s.101a and s 102(2A) of the 1984 act. Also 9PCN. Does that mean that the car has to be on the parking spot for 7 days before they can tow it and I have a right to pay for the PCN within 28 days but was forced to pay without having a chance to appeal before I get to appeal.

Any advise or good wording for my appeal letter would be much appreciated.

Thank you so so much. wink.gif

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Bogsy
The s.101A v s.102 argument concerns what is known as "procedural impropriety". The council are applying those charges under s.101A RTRA 1984 whereas I believe they should be applying those charges under s.102(2A). In addition, due to the incorrect application of s.101A I believe the council are wrong to apply what is known as the reg 11 appeal process. In support of my view I can offer paragraph 1(1)(b) here. I suggest you include the text below in any appeal.

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 but 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 removal 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. Considering this, it is necessary to establish the correct section of the 1984 Act that did confer the council with the power to impose a charge for the removal 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 the charges enabled under s.102(2A) and not those charges 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 the PCN and 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 instructs 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?

It is my firm belief that the council has wrongly applied those charges specified under s.101A of the 1984 Act to my vehicle when the law required them to apply those charges regulated by 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. 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.

I look forward to receiving confirmation that this appeal has been accepted and that a full refund can be expected shortly.
hcandersen
And/or contravention did not occur because the wrong grounds have been given.

As far as I can see, all parking places in the road are permit holders only, not shared use or Res parking places. The fact that res permits are a permitted type of permit in a permit bay does not make it a res bay, it's a permit bay.

IMO should be code 16.

HCA
Bogsy
QUOTE (hcandersen @ Thu, 2 Jun 2011 - 18:03) *
And/or contravention did not occur because the wrong grounds have been given.

As far as I can see, all parking places in the road are permit holders only, not shared use or Res parking places. The fact that res permits are a permitted type of permit in a permit bay does not make it a res bay, it's a permit bay.

IMO should be code 16.

HCA


If that's the case is this helpful?

http://www.patasregistersofappeals.org.uk/...eref=2110048266
NeedAdvise
Thank you so much for both your inputs, Bogsy & HCA.

On the grounds for representations section, which box should I tick between boxes A - G. I have chosen G submitted the appeal form online. I will let you know the outcome when I hear from them.

Thank you wink.gif
NeedAdvise
Hello there,

Sorry for the long long silence but I have finally received the reply for my appeal. It was a success!!! Thank you so much for all your help. The council wrote me a letter stating that they will refund me the removal fee of £200. I am planning to appeal for the £40 PCN. A few days later I had a reminder stating that I had not paid the other £40 fine which is now £80 as 2 weeks have past. Sigh, at the time I paid the fine and removal fee, I was only asked to pay £240 and not £280.

I enclose a copy of my letter and PCN fine, I was not prompted by the guy at the counter to pay £280. I intend to appeal for a full refund of this fine seeing that the council had already apologise for not sending me a reminder of my permit expiry.

Any help/tips would be greatly appreciated.

Thank you very very much.
Bogsy
Take it all the way to adjudication and get your PCN money refunded.
NeedAdvise
Hi

I have appealled and received a notice of rejection with a form to appeal to the Enforcement Authority. Would anyone know what my chances would be as if refused in this round I would have to pay full amount of the PCN rather than half the price within the 14 days.

If anyone has some very convincing words that I could possibly include in my appeal that would be greatly appreciated.

Reasons that I would include at the moment are:

I was not notified by Camden Council regarding the expiration of the parking permit and the council has written to me admitting that they did not send me the email although the responsibility to renew is still mine to manage.
I was away on holiday when PCN occured and therefore had no opportunity prevent further PCN and removal of vehicle to take place.

Please help....thank you so much
hcandersen
You've lost me.

Are you talking about 2 separate events?

Would you please compile a post which sets out the issues clearly.

The council still cannot serve Code 12 or 19 PCNs in Canfield, it can only serve 16s: they're neither Residents' nor Shared Use bays.


HCA
mashkiach
Did you get a notice to owner?

Bogsy
In reply to your PM if you intend going to adjudication then include the text below on your appeal form. Keep the text formatting for emphasis.

The removal and storage charges imposed upon me by the council were set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) contained within Schedule 9 makes it explicitly clear that these set charges apply only where a council is imposing a charge enabled under s.102 of the Road Traffic Regulation Act 1984.

1(1)This Schedule provides for the setting of the levels of—
(a)penalty charges, including any discounts or surcharges,
(b) charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions


Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no requirement within a Civil Enforcement Area for a person to pay any charges before the vehicle is returned to them. For clarification the applicable parts of s.102 RTRA 1984 can be seen below.

102(1)The provisions of this section shall have effect where a vehicle—
(a)is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or
(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Ac
t.

102(2A)If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004

102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.

In summary s.102 is saying that where a vehicle is removed for a parking contravention then the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges in respect of the removal and storage of the vehicle and should these not be paid then the enforcement authority can take the person responsible to court to recover their charges.

What s.102 does not say is that any penalty charge payable is to be paid on collection or that the enforcement authority can retain the vehicle until the penalty, removal and storage charges are paid. Of course the council can ask for the removal and storage charges to be paid on collection but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. This process is correct for a civil matter. Payment of the penalty charge must be in accordance with the statutory provisions of the TMA 2004 as is proper where a regulation 9 PCN is served.

In regard to my vehicle the council incorrectly applied those charges specified under s.101A RTRA 1984 and yet this section has no relevance to those charges set by Schedule 9 TMA 2004. Even if we were to ignore this fact it is important to note that the charges under s.101A only apply to the owner of a vehicle that was presumed abandoned due to it having the appearance of being so either at the time of removal or sometime later while in storage. As my vehicle never had the appearance of being abandoned the charges under s.101A RTRA 1984 can never apply and consequently nor can the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and yet this was the appeal process administered.

It is clear not only that the council has committed a procedural impropriety but has also acted beyond their powers by insisting the penalty charge be immediately paid when s.102 does not permit this and statute explicitly provides for a 28 day payment period, by retaining my vehicle until I had paid the penalty, removal and storage charges and by administering an appeal process that only concerns the recovery (either prior to disposal or following) of those vehicles that were by appearance presumed to be abandoned.

The council will find that the TMA 2004 makes no provision for only the penalty charge aspect of a regulation 9 PCN to remain valid while the associated statutory rights and processes are null and void and yet this is exactly what the council has done. There is no such entity as a “partial” regulation 9 PCN, it either applies in full or it is a nullity. Had the council correctly applied those charges regulated under s.102(2A) RTRA 1984 then the rights and procedural processes associated with the regulation 9 PCN would not have been interfered with. This is no coincidence but the clear design of Parliament. I trust the council will have the integrity to acknowledge their errors and to act appropriately by returning all monies paid.
bama
It is clear that the council is guilty of not only procedural impropriety but has also acted beyond their powers


how about

It is clear not only that the council has committed a procedural impropriety but also has acted beyond their powers....
Bogsy
QUOTE (bama @ Wed, 27 Jul 2011 - 21:37) *
It is clear that the council is guilty of not only procedural impropriety but has also acted beyond their powers


how about

It is clear not only that the council has committed a procedural impropriety but also has acted beyond their powers....


Thanks b.
NeedAdvise
Hi HCA,

In short it is now two separate appeals, I was only ask to pay £240 when I was supposed to pay for £280 at the impound.

Appeal 1: was for £240 where I had the £200 tow fee refunded to me with a letter of apology from the council. The council is still investigating the £40 PCN (ending..87) which they thought I was not appealing for. I rang them a couple of days ago to check the status and they have now continue the investigation on the PCN, perhaps I should do it in writing as it was over the phone.

Appeal 2: is for the PCN ending..01, is the one I am seeking advise for as they have come back to me with a notice of rejection and an appeal form to the adjudicator. I have uploaded the front page of the form and the rejection letter in this post.

Hi Bogsy,

Thank you for your wise words, I am under the impression you understand this whole case so I will take the whole format and include bama's words and include:

Council's apology letter
Boarding passes
Email reminders from council stating other renewals but not for that one time that they missed out on emailing me

Have I missed out on anything?

Muchos gracias all.
bama
perhaps I should do it in writing as it was over the phone.

PERHAPS !!!

toeffingright you should do it in writing -

The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.

hcandersen
This is why we say one issue, one thread. It gets unnecessarily complicated otherwise.

Your car was served with 2 Reg 9 PCNs and removed. You were required to pay monies to recover your vehicle. You paid monies and made formal representations to the council. We have not seen these reps - you must post them. they're vital. Your release receipt doesn't indicate which PCN is being paid.

On receipt of your reps the council is under a duty to consider them and to reply to you within a period of 56 days that it accepts or does not accept those reps. It has not done this. (your post "Success" rather misled us in this matter)

The letter you posted is not titled Notice of Acceptance of Representations, neither are these words in the body of the text. In fact, it doesn't even mention your reps at all!. That's why a copy of your reps is important. That letter is not a notice of acceptance or rejection of your reps which are therefore still in play.

You then posted a NOR in respect of reps (which reps, the same as above, different?).

I can't unravel this until I've seen your reps (maybe in the plural?) because I need to match council responses with your inputs.


HCA


NeedAdvise
Sorry I have created another thread as I was not familiar with how this site works. At the pound only the PCN ending ...87 was paid and not the one ending...01.

I have also attached the council's replies to my reps.

By reps, you mean my representations and replies to the council so here they are:

Penalty charge noticeCU30130787 Received by the council on05/06/2011

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 but 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 removal 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. Considering this, it is necessary to establish the correct section of the 1984 Act that did confer the council with the power to impose a charge for the removal 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 the charges enabled under s.102(2A) and not those charges 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 the PCN and 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. Continue on the next page...
Neither any guidance nor legislation instructs 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?

It is my firm belief that the council has wrongly applied those charges specified under s.101A of the 1984 Act to my vehicle when the law required them to apply those charges regulated by 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. 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.

Furthermore, the contravention did not occur because the wrong grounds have been given. This is because all parking places in the road are permit holders only, not shared use or Residents parking places. The fact that residents permits are a permitted type of permit in a permit bay does not make it a residents bay, it is a permit bay. There is a specific contravention of being parked in any other type of permit bay without a valid permit. This is code 16, although again it is the wording not that code number itself that is material.

Therefore with all these grounds stated, I look forward to receiving confirmation that this appeal has been accepted and that a full refund can be expected shortly.


Penalty charge noticeCU30131101 Received by the council on29/06/2011

Dear Sir/Madam,

First of all, thank you for the refund of removal fee of £200 in your letter dated 10/06/2011.
While you do state that the onus is on a permit holder to make sure their residents' permit is valid, your letter confirmed the renewal reminder was not sent to me and therefore the council have decided to refund the removal fee.
I would like to state that I was away in Marrakech when the PCN was served to me. If I had not been away, I would immediately have noticed the PCN issued on the 13th May 2011. To proof that I was travelling, I have enclosed my boarding passes for the period I was away from the 13th to the 16th May 2011.
Further, when I went to collect my vehicle on the 17th May 2011, I was not informed that there was an extra PCN to pay for. All I was requested to pay was the £240 and not £280. The system would have displayed the two PCNs to pay rather than just one PCN.
I have also enclosed a removal refund letter from the council.
Therefore, I would like to contest this PCN and I would expect this PCN to be revoked and that I should not be penalised for being away when the PCN occured.
NeedAdvise
Hi All,

This came in the post today on my PCN ending...87 appeal. wacko.gif
Bogsy
I think I should comment about their reference to submitting informal appeals and how where a vehicle is removed then the appeal process is that provided under regulation 11 of the appeal regs 2007.

This is where there has been a fundamental misunderstanding by all councils and adjudicators. This may seem a very arrogant claim but I will attempt to justify it.

Regulation 11 of the Appeal Regs 2007 is the appeal process that section 101B RTRA 1984 is enabling. This is confirmed if you look at the introductory text from the Appeal Regs 2007 here.

As is made clear by both regulation 11 and s.101B this appeal process is only relevant where a person pays a charge regulated under section 101A RTRA 1984..

Now it is clear that both s.101A and s.102 RTRA 1984 enable councils to levy charges towards removed vehicles. This is best demonstrated by the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges) Regulations 2008. So the question that must be asked is when is it appropriate to charge under s.101A and when is it appropriate to charge under s.102 RTRA 1984?

Section 101A charges only concern those vehicles that the council had presumed to have the appearance of being abandoned. By "appearance" it does not necessarily mean the vehicle looks a derelict. It can mean that the vehicle is pristine and road worthy but for some unknown reason no one has yet come forward to claim ownership. S.101A is made further to s.101 RTRA 1984 and is basically therefore an extension of s.101. In summary what these two sections are saying is that where a vehicle has the appearance of being abandoned then a council can lawfully dispose of that vehicle but should the owner come forward to claim the vehicle before disposal then so long as the owner pays the relevant charges the owner may take custody of the vehicle. This is made clearer if you look at s.101A in its form before the TMA 2004 came into effect. It was previously s.101(4A) seen here and if you read it in context with the rest of s.101 the intention is clear.

So what about the charges under s.102? As the charges under s.101A concern the recovery by the owner of those vehicles that were presumed to be abandoned then s.102 concerns all other vehicles. This means those vehicles that never had the appearance of being abandoned and those vehicles that did have the appearance of being abandoned but the owner never came forward to claim ownership. Had the council applied the charges under s.102 then there would be no interference with the regulation 9 PCN statutory procedure because s.102 does not require the PCN to be paid. The 28 statutory days to pay advocated by the PCN would still apply and should you want to appeal then you can do so. Firstly informally and if need be formally following the service of an NtO. As for the removal and storage charges under s.102 then where these are not voluntarily paid the council will have to commence court proceedings as made explicitly clear under s.102(3) seen here..

As things currently stand councils apply the charges under s.101A to all removal cases and no use of s.102 is ever made. S.102 exists for a reason, the legislators would not include a whole section if it was redundant and surplus to requirement. The truth is councils and adjudicators made a mistake in assuming s.101A applies in all removal cases. It would be nice and refreshing if they simply held their hands up and admitted it but of course that would be costly and embarrassing. Denial is cheaper, less embarassing and offers hope that the matter will eventually fade away and they live happily ever after.
hcandersen
So they just made it - 56 days to respond and they took 29 plus however many days there were in June. (they say they received on 6 June, but this doesn't accord with your post on 5 June when you stated that you had already submitted your challenge online). Just to be precise, on what date did you submit your reps? If this was 5 June, then the council took 55 days. Also, as their NOR didn't arrive until 29 but was dated 26th what class of post and date of posting were on the envelope?

In any event, I strongly recommend the "contravention did not occur" ground as posted earlier not only because IMO it's valid, but it'll give the adj a chance to dodge the Bogsy point.


HCA
NeedAdvise
I sent the rep on 5 June 2011 22:59. As far as I could recall there was no date on the envelope but I will have to check.
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