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mashkiach
This is my original representation.


Dear Sirs I did not receive all the required papers only those attached.so can only refer to the ones I have. I do not have any documentation when my vehicle was taken in the first place and when come and left the compound.

I ask that you cancel this PCN and return the moneys paid on the following grounds.

A) 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.

B) 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.

C) 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.

D) As to the PCN itself I find that the location given as Manor Road is by far insufficiently particular even if it is given at a later date. As far as I know most of it one is alowed.


E) Both The Representations against Removal of Vehicle form and the Appeals form issued to me on collecting my vehicle from the pound cite the incorrect regulations, this is confusing, misleading, potentially prejudicial and a clear procedural impropriety.

Representations against removals are made by virtue of regulation 11 of, The Civil Enforcement of Parking Contraventions ( England ) Representations and Appeals Regulations SI 2007/3482 and not The Civil Enforcement of Parking Contraventions ( England ) General Regulations SI 2007/3483 as stated on both of the aforementioned documents. The General Regulations do not concern themselves with the removal of vehicles but only with the power to immobilise and the release of immobilised vehicles. My vehicle was quite clearly removed.

F) Further to this The Representations Against Removal of Vehicle form states that, "…the keeper of a vehicle may have the right to make Formal Representations against its removal." The applicable regulations are as stated below:

"The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations SI 2007/348

Right to make representations about a removed vehicle

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.

(2) A person to whom paragraph (1) applies shall immediately upon the happening of an occurrence referred to in paragraph (1) be informed—

(a)of his right to make representations to the enforcement authority in accordance with this regulation; and

(b)of his right to appeal to an adjudicator if his representations are not accepted,

and that information must include a statement of the effect of paragraphs (4) and (5).

(3) The enforcement authority shall give that information, or cause it to be given, in writing.

(4) A person to whom paragraph (1) applies may make representations to the effect—

(a)that one or more of the grounds specified in paragraph (5) apply; or

(b)that, whether or not any of those grounds apply, there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should—

(i)refund some or all of the amount paid to secure the release of the vehicle or deducted from the proceeds of sale; or

(ii)waive its right to recover all or any of the sums due to it on account of the removal or disposal of the vehicle,

and any such representations shall be in such form as may be specified by the enforcement authority."

This raises two issues.

G) Firstly the right to make representations given by virtue of regulation 11(2), is not limited by the regulations to the vehicle keeper but applies to "a person" which could be the owner, the driver, the hirer or the keeper of the vehicle and it is a clear misstatement of law for Hackney to restrict the right to make representations to the vehicle keeper alone.

H) Secondly the right is absolute there is no "may" about it. The only possible situation where the person may not have the right to make representations by virtue of regulation 11(2), is where regulation 11(1) does not apply, in which case the removal was unlawful.

I) The actual signages itself are non-compliant on numerous accounts in the first place. To start the T-bar is missing it is then 80% worn and then the lines go at an angle of more then 5 degrees and then there are further breakages and are therefore void. This is by far not a case of de minimis. See below a clarification of this point.

J) My grounds for making a representation on the basis of taken without consent have further been fettered by you requiring a police crime report or insurance claim.

This is taken straight from the Operational guidance

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

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

The forms given to me further restricts the grounds to theft and so mis-states my legal position and is therefore non-compliant.

H) As there was a time plate adjacent to the street signage (see attachment) this governs the times. This was in the permitted time.

I) I do not believe that the correct observation time was adhered to.

I expect to be remedied for my expenses incurred during this period (theft).

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. I take it as Malfeasance in office (a criminal offence) if this is not done. This may be laid before a magistrates and summonses to the author of the so called notice of rejection. Should you fail to reply specifically to each point and substantiate any reason for rejection then I intend bringing this failure to the attention of the adjudicator.

This is the reply:





This is what I had replied
I have just received a letter from you giving me 28 days for appeal. This is dated for the 13th yet only posted (see attachment) on the 17th! You have thus unfairly deprived me of 4 days. This in itself would count as a procedural impropriety.

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. A PCN would have been more than sufficient to make sure that I did not commit this offence again if committed – 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.

I am further asking for CEO notes as I would like to confirm that the correct procedure took place. I request CEO the notes to be emailed to me for speed sake. On collecting my car from the 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 five minutes 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. If you are not to cancel this ticket I ask that you pass all correspondence to the adjudicators.

I have now recieved the councils evidence pack with the replies below.








I have now replied to the council as follows.

I ask once again that you cancel this ticket. If not please pass on to the Adjudicators.


I agree that I have been helped by xxxxxxxxx and can see nothing wrong with it. The council have unlimited resources and I have none. I appreciate his selfless help for no gain.

The statute asserts two working days after posting when it is deemed served. There is no way that a recipient can prove otherwise unless they have an independent witness just when the post arrives and is opened. This would be very rare. It is therefore imperative that all mail is sent out on the actual day or else it would be procedural impropriety.

The Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to the statutory guidance irrespective what policy one claims to have adopted. This was not adhered to on numerous occasions.

I do not understand how the council can claim to act different to the regulations on the basis that this is standard procedure and further claim that this is supported by the regulations. I had quoted chapter and verse to the contrary.

Manor Road has some places that one may park 24/7 whilst others at various times and others double yellow lines. It is therefore mandatory to put the appropriate place within in the PCN.

Looking at the photos now given one can blatantly see that the lines end without a T-bar.

The guidance notes given quite clearly imply that only the keeper can make representations.

I understand that the lines do not abut a bay and consequently need a T-bar or else is not compliant with the regulations. This is a pre-condition of any TMO.

My grounds for making a representation on the basis of taken without consent have further been fettered by you requiring a police crime report or insurance claim.

This is taken straight from the Operational guidance

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

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

The form given to me further restricts the grounds to theft and so misstates my legal position and is therefore non-compliant.

As there may be a loading exemption on double yellow lines I am surprised that it may be instantly ticketed and removed.

It is further unfair that notes asked for are only given at the adjudication stage.

I have emailed copies of all documentation I had received when picking my vehicle. I still do not see the removal or authorization notice within.

Quite a number of points seem not to have been addressed to this day.

My question now is What do i write to the ajudicators. I can just send a copy of my email but think there are more points.
emanresu
You seem to have constructed a comprehensive appeal - parts of which have been ignored by Hackney. Your emails will be included in the pack that Hackney will have to send to the adjudicator so you could summarise your appeal.

You could also include the PI of dates of letter, refusal to send notes, ignoring of points. IMHO clarity would be better that cut and paste of the legislation.

But as this is poker time, you'll just have to follow through with PATAS. No doubt, Hackney will try to hold onto your cash for a long as possible.
mashkiach
I intend sending a letter to the adjudicators highlighting a few points. My last email has highlighted most that have come to mind but I feel there may be more. However unfair the adjudicators sometimes do what they want when they wish so. They know very well that for £260 nobody would take it further to judicial review. I want to make it that much harder.

Bogsy
I suggest making the adjudicator aware that the absolute crux of the matter (in whether the council has the lawful right to demand immediate payment of the PCN, to deny you the right to make an informal challenge and the right to respond to a Notice to Owner) does rely solely upon whether the removal charges to be paid are those that fall under s.101A or s.102(2A) of the Road Traffic Regulation Act 1984. It is clear from Schedule 9 of the Traffic Management Act 2004 that it is those charges under s.102(2A) that are applicable. As such the council has no lawful right to insist the penalty charge be immediately paid nor do they have the right to retain your vehicle until any applicable charges are paid. Where charges are not forthcoming then the council is required to seek payment through the courts as advised by s.102(3).

The council has wrongly applied the appeal process under regulation 11of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. This regulation only applies where s.101A charges are applicable. S.101A is made further to s.101 and only concerns the recovery of those vehicles that had (either prior to removal or following removal) the appearance of being abandoned only for the owner to appear and claim the vehicle. As your vehicle never appeared abandoned it was not subject to those charges under s.101A.

It should not be forgotten that a regulation 9 PCN has been served and with this follows a statutory process that makes no exception for removed vehicles. If the council propose that the rights conferred by the PCN are not applicable then the council is in essence suggesting the PCN is a nullity. If the PCN is a nullity then there can be no lawful removal and no penalty charge to pay.

Had the council correctly applied those charges under s.102(2A) then the regulatory process in regard to the PCN would not have been intefered with and any appeal process would correctly follow what the PCN advises.
southpaw82
Ouch - they really screwed up the TWOC argument. According to Hackney, TWOC = theft. The fact that it doesn't is the reason TWOC was made an offence in the first place!
mashkiach
As some of my arguments have not been addressed in the notice of rejection are these not deemed as accepted?

mashkiach
My email to the council did not reference to their numbered paragraphs so I intend adding them in my letter to the adjudicator. I have to add southpaw82’s point (TWOC=theft?) and Bogsy’s expounding.


What else?

mashkiach
The council have just sent me this that I hold wrong.

Thank you for your email; however I wish to advise that the case is now with the Parking and Traffic Appeals Service who will be making a decision on the case writting back to you directly. As I am sure you can appreciate we are unable to enter into any further correspondence with you on this matter and would ask you to await their decision. Kind regards
mashkiach
QUOTE (Bogsy @ Sun, 5 Jun 2011 - 12:06) *
I suggest making the adjudicator aware that the absolute crux of the matter (in whether the council has the lawful right to demand immediate payment of the PCN, to deny you the right to make an informal challenge and the right to respond to a Notice to Owner) does rely solely upon whether the removal charges to be paid are those that fall under s.101A or s.102(2A) of the Road Traffic Regulation Act 1984. It is clear from Schedule 9 of the Traffic Management Act 2004 that it is those charges under s.102(2A) that are applicable. As such the council has no lawful right to insist the penalty charge be immediately paid nor do they have the right to retain your vehicle until any applicable charges are paid. Where charges are not forthcoming then the council is required to seek payment through the courts as advised by s.102(3).

The council has wrongly applied the appeal process under regulation 11of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. This regulation only applies where s.101A charges are applicable. S.101A is made further to s.101 and only concerns the recovery of those vehicles that had (either prior to removal or following removal) the appearance of being abandoned only for the owner to appear and claim the vehicle. As your vehicle never appeared abandoned it was not subject to those charges under s.101A.

It should not be forgotten that a regulation 9 PCN has been served and with this follows a statutory process that makes no exception for removed vehicles. If the council propose that the rights conferred by the PCN are not applicable then the council is in essence suggesting the PCN is a nullity. If the PCN is a nullity then there can be no lawful removal and no penalty charge to pay.

Had the council correctly applied those charges under s.102(2A) then the regulatory process in regard to the PCN would not have been intefered with and any appeal process would correctly follow what the PCN advises.

http://www.trafficpenaltytribunal.gov.uk/d.../NPASANNU99.PDF

In page 27 under Clamping and Removing I have seen this. Please enlighten me.


The procedure to challenge this enforcement action is dealt with under Sections 71 and 72 of the Road Traffic Act 1991, rather than Schedule 6 which applies where an Authority has simply issued a Penalty Charge Notice and has followed it up with a Notice to Owner.

The procedure is slightly different insofar as the motorist must pay the release charges together with a Penalty Charge (at the 50% reduced penalty, assuming that the vehicle is released within fourteen days of it being issued with the PCN) before the Local Authority is obliged to release the vehicle.







bama
That is VERY old and no longer applies. (1991 RTA only applies in Scotland for CPE)

its the TMA for you ticket.
Bogsy
The 1991 Act procedures have been replaced since the introduction of the TMA 2004. Instead of s.71 of the 1991 Act it is now reg 11 of the 2007 appeal regs that prescribes the appeal procedure for any appeal in regard to removed vehicles (that had the appearance of being abandoned).

It is my belief that when DPE commenced under the 1991 Act that someone somewhere (probably London Councils) made an awful error in their understanding/interpretation of s.71 RTA 1991 and of s.101 RTRA 1984 and that these errors were not picked up on by adjudicators and so continues today under the TMA 2004.

Here is what s.71 advised;

(1)The owner or person in charge of a vehicle who—
(a)removes it from the custody of a London authority in accordance with subsection (4A) of section 101 of the Road Traffic Regulation Act 1984 (ultimate disposal of vehicles abandoned and removable under that Act);
(b)receives any sum in respect of the vehicle under subsection (5A) of that section;
©is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in subsection (5A) of that section; or
(d)secures its release from an immobilisation device in accordance with section 69(4) of this Act,
shall thereupon be informed of his right under this section to make representations to the relevant authority and of the effect of section 72 of this Act.


Here is what s.101(4A) advised(s.101(1) is also provided for clarity);

101 Ultimate disposal of vehicles abandoned and removeable under this Act
(1)Subject to subsections (3) to (5A)] below, a competent authority may, in such manner as they think fit, dispose of a vehicle which appears to them to be abandoned and which has been, or could at any time be, removed in pursuance of—
(a)an order to which this section applies, or
(b)regulations under section 99 of this Act.

(4A)If, before a vehicle found in Greater London is disposed of by an authority in pursuance of subsections (1) to (3) above, the vehicle is claimed by a person who satisfies the authority that he is its owner and pays—
(a)any penalty charge payable in respect of the parking of the vehicle in the place from which it was removed; and
(b)such sums in respect of the removal and storage of the vehicle—
(i)as the authority may require; or
(ii)in the case of sums payable to a competent authority which is not a local authority, as may be prescribed,
the authority shall permit him to remove the vehicle from their custody within such period as they may specify or, where paragraph (b)(ii) applies, as may be prescribed

The appeal process given under s.71 RTA 1991 only applies where a person does on recovery pay those charges regulated by s.101(4A). It is my opinion that s.101(4A) was only applicable where a vehicle had the appearance of being abandoned (either at the time of removal or at some point while stored in the pound). In summary s.101 was saying that where a vehicle had the appearance of being abandoned then the council could ultimately dispose of that vehicle but should someone lay claim to the vehicle before disposal then that person can remove the vehicle if they paid any outstanding penalty charges and the fees for removal and storage.

The PCN under the 1991 Act also had a set statutory process and bestowed statutory rights such as 28 days to pay and the right to respond to a Notice to Owner. By applying s.101(4A) on collection a council circumvented the statutory process and rights that followed the service of the PCN. I believe this was wrong and that where removed vehicles did at no time appear abandoned then the correct charges to apply were not those under s.101(4A) but were those given under s.102(2)(d) here RTRA 1984.

Clearly both s.101(4A) and s.102(2)(d) enabled councils to levy charges for removal and storage so it has to be asked what distinguishes the two sections? I believe it has to be that s.101(4A) is only relevant to vehicles that had the appearance of being abandoned but were nonetheless claimed before disposal.

s.101(4A) RTRA 1984 has been repealed and now takes the form of s.101A RTRA 1984.

My argument boils down to what charges are applicable, those under s.101A or those under s.102(2A) RTRA 1984? The TMA 2004 provides the answer

SCHEDULE 9 Civil enforcement: setting the level of charges
T
Part 1 Charges to which this Schedule applies
(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, and
©charges for the release of vehicles from an immobilisation device under regulations under section 79 above.
(2)References in this Schedule to “charges” are to those charges.


As s.102 applies then reg 11 of the 2007 Appeal Regs cannot.

Right to make representations about a removed vehicle

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
mashkiach
QUOTE (Bogsy @ Tue, 21 Jun 2011 - 20:25) *
but were those given under s.102(2)(d) here RTRA 1984.
-----
As s.102 applies then reg 11 of the 2007 Appeal Regs cannot.
----
I did not find it in s.102 (2) (d) but s.102 (1) (b). This allows the tow and than in s.102(2A) that they are entitled to recover removal, storage and disposal fees than in s.102(3) that it becomes a civil debt and to be taken to court than in s.102(4) that they can hold you to ransom and retain the car until payments.
From what you have just explained the only way for appeal is the usual channel i.e. an informal. Than (even if) the council will just reply blah blah and than full stop as no notice to owner need be sent.
Have I made a mistake?
Bogsy
QUOTE (mashkiach @ Wed, 22 Jun 2011 - 15:58) *
QUOTE (Bogsy @ Tue, 21 Jun 2011 - 20:25) *
but were those given under s.102(2)(d) here RTRA 1984.
-----
As s.102 applies then reg 11 of the 2007 Appeal Regs cannot.
----
I did not find it in s.102 (2) (d) but s.102 (1) (b). This allows the tow and than in s.102(2A) that they are entitled to recover removal, storage and disposal fees than in s.102(3) that it becomes a civil debt and to be taken to court than in s.102(4) that they can hold you to ransom and retain the car until payments.
From what you have just explained the only way for appeal is the usual channel i.e. an informal. Than (even if) the council will just reply blah blah and than full stop as no notice to owner need be sent.
Have I made a mistake?


My reference to s.102(2)(d) was in relation to removal enforcement under the RTA 1991. Most of my above post detailed the 1991 Act as that was the Act relevant to your earlier link. I was illustrating how in my opinion councils have been wrongly administering the charges and appeal process in regard to PCN's and removal since civil enforcement commenced in July 1993 and that this maladministration has continued under the TMA 2004.

I will illustrate below what I believe is now the applicable legislation in regard to the removal of a vehicle from a road which at no time appears to be abandoned. First up is s.99(1)(a) RTRA 1984. This authorises a council to remove any vehicle parked on a road in contravention.

99 Removal of vehicles illegally, obstructively or dangerously parked, or abandoned or broken down.
(1)The Secretary of State may by regulations make provision for the removal of vehicles which have been permitted to remain at rest—
(a)on a road in contravention of any statutory prohibition or restriction,


The regulations alluded to in s.99(1)(a) are known as the Removal and Disposal of Vehicles Regulations 1986. When the TMA 2004 was introduced these regulations were amended to include a new paragraph (5C) seen here. This permits CEO's to remove a contravening vehicle but only following service of a regulation 9 PCN. Paragraph 5C gives no authority for any vehicle to be retained. It only allows removal, nothing else.

Once a non abandoned vehicle is removed I believe the various provisions of s.102 RTRA 1984 kick in.

s.102(1)(b) informs us that s.102 applies where a vehicle is removed from a road by virtue of the powers of s.99 RTRA1984.

102 Charges for removal, storage and disposal of vehicles.
(1)The provisions of this section shall have effect where a vehicle—
(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.


s.102(2A) then informs us that if the vehicle is removed from within a civil enforcement area then the council is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges for the removal, storage or disposal of the vehicle (note that no authority is given for the council to retain the vehicle until these charges are paid).

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

As a council operating CPE has no power of authority to retain a non abandoned vehicle until the charges are paid then where the charges are not willingly paid the council must seek payment through the courts as detailed by s.102(3) RTRA 1984.

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.

So in summary a contravening vehicle can be removed once a regulation 9 PCN has been served. Only a CEO can undertake removal or someone acting under authority of a CEO. A council can ask the person responsible for the vehicle to pay the removal and storage charges. If the person responsible does not pay then a council will need to take the person responsible to court for payment. At no time is a council authorised to retain the vehicle so if the person responsible arrives at the pound the council must return their vehicle even if they refuse to pay. At no time can the council insist the PCN is paid as the council only has the right under s.102 to request the removal and storage charges.

s.102 clearly differs from s.101A. So ask yourself what is it that distinguishes the two sections? In my view it is that s.101A concerns the charges that must be paid by the "owner" when they arrive at the pound to claim a vehicle where disposal has either occured or is pending due to the vehicle having the appearance of being abandoned. Whereas s.102 concerns those charges to be paid by the person responsible in regard to vehicles that don't appear abandoned or where they did appear abandoned but no one came forward to claim the vehicle under s.101A.

Another difference is that if s.102 is applied then it does not in anyway interfere with the rights and statutory process that follows the service of a regulation 9 PCN. The right to pay within 28 days, the right to make an informal challenge and the right to receive and respond to a NtO can all continue to apply. s.102 works in harmony with a regulation 9 PCN whereas applying s.101A basically nullifies it.
mashkiach
QUOTE (Bogsy @ Wed, 22 Jun 2011 - 17:47) *
As a council operating CPE has no power of authority to retain a non abandoned vehicle until the charges are paid then where the charges are not willingly paid the council must seek payment through the courts as detailed by s.102(3) RTRA 1984.

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.

So in summary a contravening vehicle can be removed once a regulation 9 PCN has been served. Only a CEO can undertake removal or someone acting under authority of a CEO. A council can ask the person responsible for the vehicle to pay the removal and storage charges. If the person responsible does not pay then a council will need to take the person responsible to court for payment. At no time is a council authorised to retain the vehicle so if the person responsible arrives at the pound the council must return their vehicle even if they refuse to pay. At no time can the council insist the PCN is paid as the council only has the right under s.102 to request the removal and storage charges.

s.102 clearly differs from s.101A. So ask yourself what is it that distinguishes the two sections? In my view it is that s.101A concerns the charges that must be paid by the "owner" when they arrive at the pound to claim a vehicle where disposal has either occured or is pending due to the vehicle having the appearance of being abandoned. Whereas s.102 concerns those charges to be paid by the person responsible in regard to vehicles that don't appear abandoned or where they did appear abandoned but no one came forward to claim the vehicle under s.101A.

Another difference is that if s.102 is applied then it does not in anyway interfere with the rights and statutory process that follows the service of a regulation 9 PCN. The right to pay within 28 days, the right to make an informal challenge and the right to receive and respond to a NtO can all continue to apply. s.102 works in harmony with a regulation 9 PCN whereas applying s.101A basically nullifies it.
I would have loved to agree but the next paragraph (with my underlining) then goes on to say that the council can hold us to ransom and retain it for its removal etc (but not the PCN itself) charges.
(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.

(4)Without prejudice to subsection (3) above, where by virtue of paragraph (a) or (b) of subsection (2) above any sum is recoverable in respect of a vehicle by the chief officer of a police force or a local authority in whose custody the vehicle is, the chief officer or local authority shall be entitled to retain custody of it until that sum has been paid.



bama
there is no recoverable sum (for the PCN) at that stage.
A PCN is just a Notice of a claim.
mashkiach
So what form of appeal is there for the clamping/removal/tow fee?

hcandersen
Who cares?

With respect, I think you're straying from the subject which is not how to rationalise the labyrinthine complexity of the regs, TMA and RTA but to recover the relevant charges you were required to pay. In this respect, and with due deference to Bogsy whose argument is very well made, isn't there another issue here which is not being addressed?

You've posted what I understand to be your formal reps (but it is preferable to post the doc itself) and the council's NOR. IMO, you then erred bv carrying on the debate and complicating matters further. But putting this to one side, you then posted what appear to be selective extracts from the council's Evidence Summary. I want to focus on this "summary".

The Evidence Summary does what the NOR was obliged to do i.e. consider all of your points and respond. The extra detail into which the ES goes highlights the superficial nature of the NOR and IMO you should attack here. It is a gross PI to not give the fullest response to formal reps in a NOR, but here we appear to have an authority that has considered fully all your formal points, it just didn't see fit to advise you in its NOR. It appears to have "saved" itself for your appeal and has included its reasoning now. Adjs don't like this. The fullest explanation must be given in NORs in order to avoid the possibility of unnecessary appeals.

HCA
Bogsy
QUOTE (mashkiach @ Thu, 23 Jun 2011 - 06:16) *
I would have loved to agree but the next paragraph (with my underlining) then goes on to say that the council can hold us to ransom and retain it for its removal etc (but not the PCN itself) charges.
(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.

(4)Without prejudice to subsection (3) above, where by virtue of paragraph (a) or (b) of subsection (2) above any sum is recoverable in respect of a vehicle by the chief officer of a police force or a local authority in whose custody the vehicle is, the chief officer or local authority shall be entitled to retain custody of it until that sum has been paid.



I think you'll find that subsection 2(a) and (b) does not concern vehicles removed from within a civil enforcement area (CEA). It is clear that vehicles removed by councils that do not operate civil enforcement then those councils can retain the vehicle until the charges are paid. The same permission is not given though to councils that do operate civil enforcement.

QUOTE (hcandersen @ Thu, 23 Jun 2011 - 16:20) *
Who cares?

With respect, I think you're straying from the subject which is not how to rationalise the labyrinthine complexity of the regs, TMA and RTA but to recover the relevant charges you were required to pay. In this respect, and with due deference to Bogsy whose argument is very well made, isn't there another issue here which is not being addressed?

You've posted what I understand to be your formal reps (but it is preferable to post the doc itself) and the council's NOR. IMO, you then erred bv carrying on the debate and complicating matters further. But putting this to one side, you then posted what appear to be selective extracts from the council's Evidence Summary. I want to focus on this "summary".

The Evidence Summary does what the NOR was obliged to do i.e. consider all of your points and respond. The extra detail into which the ES goes highlights the superficial nature of the NOR and IMO you should attack here. It is a gross PI to not give the fullest response to formal reps in a NOR, but here we appear to have an authority that has considered fully all your formal points, it just didn't see fit to advise you in its NOR. It appears to have "saved" itself for your appeal and has included its reasoning now. Adjs don't like this. The fullest explanation must be given in NORs in order to avoid the possibility of unnecessary appeals.

HCA


HCA is correct, this should be the thrust of your appeal as adjudicators like something that allows them to avoid considering points that have far reaching repercussions.
mashkiach
I thank and agree with both of you.

This is now my standared template.
The adjudicator has decided in Case No. 2110185970 that there has been a procedural impropriety on the part of the enforcement authority.

“I find that the failure to consider the representations of the Appellant to be a procedural impropriety.”

An Appellant is entitled to have the points he/she raises properly considered by the enforcement authority pursuant to its duty under regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. It is too late to do this in the case summary after an appeal has been lodged


(my emphasis)



mashkiach
QUOTE (Bogsy @ Thu, 23 Jun 2011 - 16:42) *
QUOTE (mashkiach @ Thu, 23 Jun 2011 - 06:16) *
I would have loved to agree but the next paragraph (with my underlining) then goes on to say that the council can hold us to ransom and retain it for its removal etc (but not the PCN itself) charges.
(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.

(4)Without prejudice to subsection (3) above, where by virtue of paragraph (a) or (b) of subsection (2) above any sum is recoverable in respect of a vehicle by the chief officer of a police force or a local authority in whose custody the vehicle is, the chief officer or local authority shall be entitled to retain custody of it until that sum has been paid.



I think you'll find that subsection 2(a) and (b) does not concern vehicles removed from within a civil enforcement area (CEA). It is clear that vehicles removed by councils that do not operate civil enforcement then those councils can retain the vehicle until the charges are paid. The same permission is not given though to councils that do operate civil enforcement.

QUOTE (hcandersen @ Thu, 23 Jun 2011 - 16:20) *
Who cares?

With respect, I think you're straying from the subject which is not how to rationalise the labyrinthine complexity of the regs, TMA and RTA but to recover the relevant charges you were required to pay. In this respect, and with due deference to Bogsy whose argument is very well made, isn't there another issue here which is not being addressed?

You've posted what I understand to be your formal reps (but it is preferable to post the doc itself) and the council's NOR. IMO, you then erred bv carrying on the debate and complicating matters further. But putting this to one side, you then posted what appear to be selective extracts from the council's Evidence Summary. I want to focus on this "summary".

The Evidence Summary does what the NOR was obliged to do i.e. consider all of your points and respond. The extra detail into which the ES goes highlights the superficial nature of the NOR and IMO you should attack here. It is a gross PI to not give the fullest response to formal reps in a NOR, but here we appear to have an authority that has considered fully all your formal points, it just didn't see fit to advise you in its NOR. It appears to have "saved" itself for your appeal and has included its reasoning now. Adjs don't like this. The fullest explanation must be given in NORs in order to avoid the possibility of unnecessary appeals.

HCA


HCA is correct, this should be the thrust of your appeal as adjudicators like something that allows them to avoid considering points that have far reaching repercussions.
As no notice to owner was ever given no notice of rejection can ever be made. This being the case, adjudicators have no authority whatsoever. Is the right venue at the small claims court?

hcandersen
Small Claims court? I give up. I've no idea what tangential line you're on now.


HCA
mashkiach
QUOTE (Bogsy @ Wed, 22 Jun 2011 - 17:47) *
As a council operating CPE has no power of authority to retain a non abandoned vehicle until the charges are paid then where the charges are not willingly paid the council must seek payment through the courts as detailed by s.102(3) RTRA 1984.

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.

So in summary a contravening vehicle can be removed once a regulation 9 PCN has been served. Only a CEO can undertake removal or someone acting under authority of a CEO. A council can ask the person responsible for the vehicle to pay the removal and storage charges. If the person responsible does not pay then a council will need to take the person responsible to court for payment. At no time is a council authorised to retain the vehicle so if the person responsible arrives at the pound the council must return their vehicle even if they refuse to pay. At no time can the council insist the PCN is paid as the council only has the right under s.102 to request the removal and storage charges.



A reg9 PCN is slapped onto the car

The car is towed

£260 is demanded before the release of the car

The owner/driver/keeper wishes to appeal and has sent it in

Bogsy has explained that at this stage nothing is due and the pound has no right to hold onto the car. The council has a duty to consider this informal and may issue an NtO if it is not cancelled. For the tow fee it may take it to a civil court like any other debt.

mashkiach
QUOTE (Bogsy @ Sun, 5 Jun 2011 - 12:06) *
I suggest making the adjudicator aware that the absolute crux of the matter (in whether the council has the lawful right to demand immediate payment of the PCN, to deny you the right to make an informal challenge and the right to respond to a Notice to Owner) does rely solely upon whether the removal charges to be paid are those that fall under s.101A or s.102(2A) of the Road Traffic Regulation Act 1984. It is clear from Schedule 9 of the Traffic Management Act 2004 that it is those charges under s.102(2A) that are applicable. As such the council has no lawful right to insist the penalty charge be immediately paid nor do they have the right to retain your vehicle until any applicable charges are paid. Where charges are not forthcoming then the council is required to seek payment through the courts as advised by s.102(3).

The council has wrongly applied the appeal process under regulation 11of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. This regulation only applies where s.101A charges are applicable. S.101A is made further to s.101 and only concerns the recovery of those vehicles that had (either prior to removal or following removal) the appearance of being abandoned only for the owner to appear and claim the vehicle. As your vehicle never appeared abandoned it was not subject to those charges under s.101A.

It should not be forgotten that a regulation 9 PCN has been served and with this follows a statutory process that makes no exception for removed vehicles. If the council propose that the rights conferred by the PCN are not applicable then the council is in essence suggesting the PCN is a nullity. If the PCN is a nullity then there can be no lawful removal and no penalty charge to pay.

Had the council correctly applied those charges under s.102(2A) then the regulatory process in regard to the PCN would not have been intefered with and any appeal process would correctly follow what the PCN advises.
I have done so and asked for review this is the reply.

Bogsy
and yet ANOTHER adjudicator that will not explain why the charges under s.101A RTRA 1984 are applicable rather than those under s.102 despite the fact that schedule 9 TMA 2004 clearly indicates that it is s.102 that applies.......OR explain where the TMA 2004 allows the statutory procedures and rights bestowed by a regulation 9 PCN to be completely disregarded where a vehicle is removed.

Miss Hamilton has under points 1 and 5 crafted her response carefully. My comments in reply

(1) The decision disclosed no error of law because no proper consideration was given to the legal issues raised.

(5) It may well be that a contravention did actually occur and so there has been no injustice in that concern. However the injustice is that the council acted ultra vires and denied a person their lawful rights.

The lid on this can of worms will not be easy to keep on indefinitely but no doubt forces are working in the background on a fix. If my arguments were misguided and wrong then I have no doubt that an adjudicator would have by now laid this matter to rest by defeating the arguments with sound reason and reference to law. The continued avoidance to do so is most encouraging!
mashkiach
I have written back to PATAS but do not expect joy. At this stage one can either take it to small claims court and be at the mercy of the so called judge. There is the slight chance that someone with sense and guts will preside. The other venue is to have a judicial review. If this person is on benefits this should cost nothing. The problem is if costs be awarded against him. The other problem is how to go about it, as the person himself may not cope with all the legalese.

mashkiach
this is what i sent to them.
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