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JagDriver
I've been parking in a certain spot in Manchester for the last couple of months. The 'site' had very badly degraded DYL's and was under a railway arch. I assumed all ok as I'd actually seen a CEO walk right past my car, I also assumed incorrectly that this was Network Rail property. Whilst I was recently on leave they repainted the DYL's. When I returned to my car at the end of my first day back it had been towed. Paperwork to follow. When picking up the car the 'bloke' at the pound kept saying that the paperwork he'd seen stated that it had been towed as it was parked in a pedestrian area. I'll try a get some photo's, but there is a 'no cars/no cycles' sign on the 'entrance'. Below is a 'loading only' sign. There is a row of bollards where the road would previously have carried on. The new DYL's now boarder 3 sized of a fairly sizeable area (enough for say 3 or 4 7.5 tonne lorries). Nowhere on the documents I have does it give an explaination other than the 01 'Restricted Street' contravention.

I'm going to post the images into the first post as this makes it easier for folks with slower connections.
Thanks in advance for all help.










Sorry about that the BBS just added them together.
Bogsy
In any appeal I suggest including all the text below.

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.

It appears that the council has made an appalling error in their interpretation of the Road Traffic Regulation Act 1984 by believing that all charges associated with vehicle removal are those charges endorsed under s.101A of the 1984 Act. This section of the 1984 Act is made further to s.101 and therefore only concerns those vehicles that appeared to be abandoned (either prior to removal or sometime following removal), but happen to be claimed prior to their actual 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.

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. This is made further evident by paragraph 1(b) contained in the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007.

http://www.legislation.gov.uk/uksi/2007/3487/schedule/made

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.
JagDriver
That was quick Bogsy. I forgot to mention that I will, of course, be challenging the PCN and lift. Your text makes a great deal of sense now that the whole process has happened to me!
Bogsy
QUOTE (JagDriver @ Wed, 8 Jun 2011 - 19:16) *
That was quick Bogsy. I forgot to mention that I will, of course, be challenging the PCN and lift. Your text makes a great deal of sense now that the whole process has happened to me!


You only have to look at it logically to understand that something somewhere is not right about the current removal process. It's absurd to serve a formal notice (the PCN) that is specifically designed to inform you of your rights only for those rights to be instantly dismissed and denied by the council. You have been denied your right to pay the PCN at anytime within the 28 day period and denied the opportunity to make an informal challenge and the right to receive and respond to a Notice to Owner. If the rights on the PCN are not applicable then the council is in essence suggesting the PCN is a nullity. In which case there can be no lawful removal or penalty charge.

Also it makes a nonsense of the frequent mantra about not being able to pay a PCN and appeal.

If you look at the fourth document uploaded you will note that it says that under the provisions of the TMA 2004 you are required to pay the PCN and release fee before your vehicle will be released. This is an outright lie. The TMA 2004 makes no such provision. This just demonstrates that councils are not infallible and that we should not just accept what they say as being gospel. Of course they will not admit they have got it wrong but let's see how Manchester try to wriggle off the hook.
JagDriver
I should also add that the 'bloke' at the pound told me to use the email address on the PCN, not the postal system as advised by the release receipt (he even underlined it on the PCN). I intend to use the email address, but should I go in all guns blazing with Bogsey's well thought out argument, or just put in words my astonishment that this 'contravention' required a tow, wait for the NOR, then hit'em with it?
Bogsy
We all have our own favoured tactics. Some prefer to start off softly and simply with a few searching jabs while others such as myself prefer a flurry of punches in each round. I suggest going with my text above and appropriately weave any other points into it. My reasoning is that should this go to adjudication then the adjudicator will see that your appeal has been consistent throughout and things have not just been tagged on as an after thought. In addition, there is the prospect that the council will fail to give full and proper consideration to the points raised and this can only serve to strengthen your position.

There is no right and wong method. Listen to the advice given and then weigh up and decide on what method is appropriate for you.
JagDriver
OK, here's the text I'm intending to send to MCC. It's as per Bogsy's first post except I've added the bit about the removal being inappropriate.

Can anybody spot anything on the PCN that needs to be addressed?

Bogsy: I notice on the PCN they quote the removal reg's as being 1986, your text quotes it as 1984 throughout, have MCC got it wrong here also, and if they have is it another point to raise?


I wish to appeal against the penalty and vehicle recovery charges on the basis that the vehicle in no way obstructed pedestrians (indeed the area is marked as one for loading and unloading), it also did not constitute a danger to pedestrians or other vehicles. As such the removal of the vehicle was inappropriate given the guidelines on your web site.

Furthermore I also wish to appeal on the basis that the Council has acted ultra vires and is guilty of procedural impropriety.

It appears that the council has made an appalling error in their interpretation of the Road Traffic Regulation Act 1984 by believing that all charges associated with vehicle removal are those charges endorsed under s.101A of the 1984 Act. This section of the 1984 Act is made further to s.101 and therefore only concerns those vehicles that appeared to be abandoned (either prior to removal or sometime following removal), but happen to be claimed prior to their actual 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.

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. This is made further evident by paragraph 1(b) contained in the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007.

http://www.legislation.gov.uk/uksi/2007/3487/schedule/made

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.
Bogsy
QUOTE (JagDriver @ Mon, 13 Jun 2011 - 10:28) *
Bogsy: I notice on the PCN they quote the removal reg's as being 1986, your text quotes it as 1984 throughout, have MCC got it wrong here also, and if they have is it another point to raise?


The 1986 regs are the regulations made under s.99(1) RTRA 1984.

http://www.legislation.gov.uk/ukpga/1984/27/section/99

Basically they regulate who can remove, under what circumstances and the due process for doing so. I've attached a copy to this post.

Over the weekend I condensed my argument into a more simpler form. It is below should you wish to use it rather than the longer version. Often simplicity is best.

I bring to the council's attention the matter of procedural impropriety. The council has incorrectly applied those charges under section 101A of the Road Traffic Regulation Act 1984 to the removal of my vehicle when the correct charges to apply are those under section 102(2A). Paragraph 1(1)(b) within Schedule 9 of the Traffic Management Act 2004 confirms this assertion and is further evident by paragraph 1(b) contained in the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007.

As such the council had no lawful right to insist the penalty charge be paid when I collected my vehicle nor did the council have any right to administer the appeal process specified under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. This regulation only applies where the applicable charges are those under section 101A of the RTRA 1984. Section 101A is made further to section 101 and therefore it only concerns the recovery of those vehicles that had the appearance of being abandoned. Appearing so either at the time of removal or sometime after.

Before my vehicle was removed the council served a regulation 9 PCN. The council has not only denied me the opportunity to pay the PCN within the statutory 28 day period but they have also denied me the opportunity to make an informal challenge. The PCN clearly bestows these rights upon me. If the council are advocating that these rights are not applicable then in essence the council is suggesting the PCN is a nullity. If the PCN is a nullity then there can be no penalty charge and thus no lawful removal. I expect a full refund shortly.
JagDriver
OK As time is getting short this should be the final draft.

Bogsy:Am I OK putting my small gripe at the beginning, will they still have to consider all points?

I wish to appeal against the penalty and vehicle recovery charges on the basis that the vehicle in no way obstructed pedestrians (indeed the area is marked as one for loading and unloading), it also did not constitute a danger to pedestrians or other vehicles. As such the removal of the vehicle was inappropriate given the guidelines on your web site.

I would also like to bring to the council's attention the matter of procedural impropriety. The council has incorrectly applied those charges under section 101A of the Road Traffic Regulation Act 1984 to the removal of my vehicle when the correct charges to apply are those under section 102(2A). Paragraph 1(1)(b) within Schedule 9 of the Traffic Management Act 2004 confirms this assertion and is further evident by paragraph 1(b) contained in the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007.

As such the council had no lawful right to insist the penalty charge be paid when I collected my vehicle nor did the council have any right to administer the appeal process specified under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. This regulation only applies where the applicable charges are those under section 101A of the RTRA 1984. Section 101A is made further to section 101 and therefore it only concerns the recovery of those vehicles that had the appearance of being abandoned. Appearing so either at the time of removal or sometime after.

Before my vehicle was removed the council served a regulation 9 PCN. The council has not only denied me the opportunity to pay the PCN within the statutory 28 day period but they have also denied me the opportunity to make an informal challenge. The PCN clearly bestows these rights upon me. If the council are advocating that these rights are not applicable then in essence the council is suggesting the PCN is a nullity.
If the PCN is a nullity then there can be no penalty charge and thus no lawful removal.

I expect a full refund shortly.
Bogsy
QUOTE (JagDriver @ Tue, 14 Jun 2011 - 12:27) *
Bogsy:Am I OK putting my small gripe at the beginning, will they still have to consider all points?


Yes that's fine and they have a duty to consider your appeal which by implication means all of it. Expect to play the long game though.
JagDriver
OK Reps (informal I guess at this stage) are in. Always expected to go to the wire with this, but as I've nothing to loose I may as well.
JagDriver
Well no response yet from MCC. How long do I expect to have to wait?
hcandersen
QUOTE (JagDriver @ Thu, 16 Jun 2011 - 10:02) *
OK Reps (informal I guess at this stage) are in. Always expected to go to the wire with this, but as I've nothing to loose I may as well.


These are your formal and only reps which may be made to the authority, you don't get two bites at this one. If necessary, the next stage is adjudication.

They have 56 days from the receipt of your reps to serve their response.


HCA
JagDriver
Ah, OK thanks for the clarification. Glad I sent in the all the arguments from above then.
JagDriver
Well the MCC have predictably rejected reps (just within their generous 56 day period). I can see a number of problems, not least of which is the complete failure to address the serious points suggested by bogsey. Also apparently it's the 'by law' that I must pay the removal fee before the vehicle is released, so why make me pay for the pcn as well then?
Also as their own photos show even their 'visually impaired' pedestrian would have trouble identify this area as a pavement ....

They have included the appeal forms.

Here's the docs and photos:














I'll need a little help filling in the forms (or can I do it electronically?)
Bogsy
Well if nothing else you should win on the basis of impromper consideration. The rejection is all about what you should and should'nt do and the implications but nothing about the appeal points you raised. Being cynical I would not be at all surprised if this was on purpose knowing that an adjudicator can rule on the impromper consideration and not have to reach a decision on the legal argument I put forward.

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no requirement for a person to pay any charges before the vehicle is returned to them. Below is the applicable parts of s.102 RTRA 1984.

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 Act.


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

(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.

What s.102 is saying is that where a vehicle is removed for a parking contravention the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) those 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 the PCN is to be paid or that the enforcement authority can retain the vehicle until the charges are paid. Of course the council can ask for the charges to be paid but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. It is worth noting that those local authority's not operating civil enforcement are entitled to retain the vehicle. See s.102(4)

102(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.

Currently councils are applying the charges specified under s.101A RTRA 1984 to all vehicle removals. Yet the TMA 2004 clearly indicates they should be applying those charges under s.102.


SCHEDULE 9 Civil enforcement: setting the level of charges

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 for further clarification for Manchester

SCHEDULE
GUIDELINES FOR THE SETTING BY ENFORCEMENT AUTHORITIES OUTSIDE GREATER LONDON OF CHARGES FOR PARKING CONTRAVENTIONS


Scope of guidelines
1. These guidelines apply to the setting by enforcement authorities outside Greater London—

(a)of penalty charges and charges for release from immobilisation devices to be imposed by such authorities under the General Regulations; and
(b)of charges for removal, storage and disposal to be made by such authorities under section 102 of the Road Traffic Regulation Act 1984 in respect of vehicles found on or after 31st March 2008 in civil enforcement areas for parking contraventions.

It seems crystal clear to me but as this cock up goes back to July 1993 and is very costly and embarassing for councils and the adjudication services we can expect the usual bullsh*t.

Let me know if you intend to go to adjudication as I have a more in depth argument specifically for them.
JagDriver
Thanks bogsy as usual a full and helpful reply. It's odd that the one thing I didn't mention in my reps (i.e. the issuing of the ticket) is the only thing they replied on.
Bogsy
Glad to be of assistance. The letter below is purpose made for an adjudicator to consider (keep the text formatting for emphasis).

Dear Adjudicator

Further to the points raised in my formal representations I make the following submission for your consideration.

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. 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). This is clearly identified under Schedule 9 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. The council 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 or 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 access to 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 access to appeal has been provided for those charges subject to s.101A? I believe the answer is that the 1984 Act purposely does not provide any appeal access since it is already available. The correct appeal access 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.

Due to these failings I politely ask that this appeal be allowed on the grounds of procedural impropriety.

Yours respectfully
JagDriver
I'd also quite like to add that the original tow, from that location was over zealous in the extreme. It did cost me about £20 to get to the pound and retrieve my car. As it happen if it had had just a ticket on it when I returned I would have paid it (despite knowing that Manchester's CPZ is totally out of order).
JagDriver
Can the masssed ranks of pepipoo's have a quick glance over this. and make comments. This is to go to the Adjudicator.



Dear Adjudicator

Further to the points raised in my formal representations I make the following submission for your consideration.

There has been an incomplete consideration of my original representations. I contested that the tow from the location was over zealous, the pictures taken at time clearly show no obstruction to pedestrians. This was the reason given for the tow to the pound.

No consideration was given to my points regarding the payment of the PCN charge at the collection of my vehicle, their response was that payment had to be made 'by law' before the vehicle would be released.

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. 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). This is clearly identified under Schedule 9 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. The council 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 or 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 access to 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 access to appeal has been provided for those charges subject to s.101A? I believe the answer is that the 1984 Act purposely does not provide any appeal access since it is already available. The correct appeal access 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.

Due to these failings I politely ask that this appeal be allowed on the grounds of procedural impropriety.

Yours respectfully

JagDriver
bama
as its a tow I would structure it along these lines

this appeal to the adjudicator relies upon the following (number) points of law
and then enumerate the list up to (number)


makes it harder for the points to be swept away without the decision showing that points have been ignored.
which then opens up the appeal route should the decision be faulty.
watsits
You may also like to take the Taxi firm on as well £20. from Deansgate station to the Pound is extortionate for a no more than 3-4 mile trip. Apart from that I am interested in the outcome of this and really hope the adjudicators find on the pay PCN before release aspect in fact I'm praying they do. icon_thumleft.gif
hcandersen
And you might wish to consider this.

The council's NOR states, unequivocally, that:

QUOTE
On this occasion your vehicle was removed because it was parked on the pavement.


This is absolutely incorrect - go for Procedural Impropriety in that the council has self evidently failed to give full and proper consideration to your formal reps. How could you have been on the pavement when the DYL are behind you and this marking is required to be placed at the edge of the carriageway? IMO, by virtue of your location you were on the carriageway not the "pavement".

A pedestrian zone doesn't alter the definitions of elements of the highway, it just creates restrictions as regards the highway's use.


HCA
JagDriver
Thanks for those, will recompile later today.
watsits - I had to get home first and find the number for the pound, then taxi from there (Stockport), which I got a quote for before going. If I were from out of town god knows what i would have done.

Is it possible to submit the PATAS form via the internet?
Can I tick more than one box for the grounds of the appeal?
Bogsy
Rather than using my text given in post 20 above you might prefer to use the text given in post 3 here.

It contains the same arguments but this time it thrusts the actual legislation under the adjudicators nose so that the arguments cannot be easily ignored or dismissed although I expect the procedural impropriety spotted by HCA will give the adjudicator a get out of jail free card.
JagDriver
OK how's this:


Further to the points raised in my formal representations I make the following further submission for your consideration.

1. The council failed to consider my representations. I asserted that my vehicle was in no way obstructing pedestrians or traffic and as such the tow was over zealous, this point was not addressed at all.

2. In their reply the council have committed a Procedural Impropriety. They maintain that my vehicle was parked on the pavement, and this was the reason they towed. However their photographs clearly show my vehicle on the carriageway.

3. The council also failed to consider the representaions made concerning the immediate payment of all charges. To clarify the removal and storage charges levied 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

Further evidence of this can be found under paragraph 1(b) contained in the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007.

1. These guidelines apply to the setting by enforcement authorities outside Greater London—
(a) of penalty charges and charges for release from immobilisation devices to be imposed by
such authorities under the General Regulations; and
(b) of charges for removal, storage and disposal to be made by such authorities under section
102 of the Road Traffic Regulation Act 1984,
in respect of vehicles found on or after 31st March 2008 in civil enforcement areas for parking
contraventions.

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no statutory 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 Act.

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 outstanding penalty charge 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 quite correct for a civil matter. Payment of the penalty charge however 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. 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. 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. Firstly, by insisting the penalty charge be immediately paid when s.102 does not permit this and when statute explicitly provides for a 28 day payment period. Secondly, by retaining my vehicle until I had paid the penalty, removal and storage charges and thirdly, 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.


JagDriver
I'm going to fill in the form tonight. Do I ask for a personal hearing?
Bogsy
Personal is best so long as you are confident you understand the arguments.
JagDriver
I do in layman's terms, are they going to expect me to be as eloquent as yourself (assuming they go that far)?
Bogsy
QUOTE (JagDriver @ Mon, 8 Aug 2011 - 14:20) *
I do in layman's terms, are they going to expect me to be as eloquent as yourself (assuming they go that far)?


No not at all. I expect they will be aware that the argument is taken from the "internet" but you should inform them that yours is not simply a copy and paste job but the result of correspondence with the author. This should avoid them asking you to many difficult questions.

If they look like they are hesitant to agree with the argument then you need to ask them to explicitly explain why the charges under s.102(2A) are not applicable when schedule 9 of the TMA 2004 clearly indicates they are. Also ask them to explicitly explain why the statutory procedures and rights (such as the 28 days to pay) that follow the service of a regulation 9 PCN can be completely disregarded when a vehicle is removed despite the fact that statute provides no indication that a regulation 9 PCN in such circumstances can be treated differently and should be considered null & void apart from the imposing penalty charge aspect. Why would the legislators allow a PCN to be served if what it advocates is for the most part irrelevant? Look at it like this.

You have the right to make an informal challenge........"Really? So where does the law say this right is withdrawn once a vehicle is removed?"

You have the right to receive an NtO....... "Really? So where does the law say this right is withdrawn once a vehicle is removed?"

You have the right to make formal representations on the statutory grounds given on the NtO.... "Really? So why was I given grounds that deviated from those statute prescribes for an NtO?"

You have the right to pay the penalty charge in 28 days.
.... "Really? So where does the law say this right is withdrawn once a vehicle is removed?"

Councils tend to point at s.101A RTRA 1984 as being the law that says this but this does not cover all the angles such as the denial of the informal challenge. Councils apply the charges under s.101A in every removal circumstance and yet no council has taken the trouble to understand the purpose of s.102 RTRA 1984. Its there for a reason and that reason is so that councils can charge the "person responsible" for the removal and storage of vehicles that at no time appear to be abandoned and for those vehicles that do appear abandoned but no owner has come forward and claimed ownership under s.101A.
JagDriver
Thanks for that, I will inwardly digest if it comes to an actual hearing.
JagDriver
Case is set to be heard in September, if MCC don't back down.
JagDriver
Just got confirmation that MCC have sent a bundle. Should get mine within 3 days ...
I'm still expecting them to withdraw at the last moment.
Bogsy
Lets see the case summary form in full please when it arrives.
JagDriver
Will do. Did you see the last posting here?

http://forums.pepipoo.com/index.php?showto...80&start=80
Bogsy
I'm always tweaking my argument. Below is the text I'm working on for a review. I'm trying to shove the legislation under their noses so that they cannot easily ignore it. It may help you to understand all the angles. You may want to print it off (keep all text formatting for emphasis) and take it with you for the adjudicator to read. Perhaps if you inform them that it raises a matter of "procedural impropriety" that is occurring daily on a national scale to such an extent that it is clearly in the interest of the public that the matter is considered by TPT.

Dear Adjudicator

It is an irrefutable fact that the charges I was made to pay are set by virtue of Schedule 9 TMA 2004. This Schedule under paragraph 1(1)(b) makes it explicitly clear that these set charges only apply where the charges under s.102 RTRA 1984 are applicable.

(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.


The council however incorrectly applied the “relevant charges” regulated under s.101A RTRA 1984. Section 101A RTRA 1984 makes it possible for the owner of a vehicle that has been perceived to have the appearance of being abandoned to prevent its ultimate disposal by paying the “relevant charges” and removing it from the council’s custody. Therefore s.101A is only relevant where vehicles are perceived (either at the time of removal or later while in custody) to have the appearance of being abandoned. It does not concern vehicles such as mine that never had the appearance of being abandoned. The correct charges to apply to vehicles such as mine are those charges regulated under s.102 RTRA 1984 just as paragraph 1(1)(b) above indicates.

This next point is of critical legal importance. A council operating civil enforcement has no lawful right to retain a removed vehicle until all charges are paid. This right only exists for those councils still operating a criminalised parking enforcement regime. This is made abundantly clear under s.102 RTRA 1984.

Councils operating civil parking enforcement have a lawful right to remove a vehicle, a duty of care, a right to dispose and a right to recover their removal, storage and disposal charges. The right to retain a vehicle until all charges are paid was removed where decriminalised parking commenced and s.68 RTA 1991 came into effect. This is clearly evident when s.102(4) RTRA 1984 is seen in its form following the commencement of the RTA 1991.

(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.

The provision of subsection 2 was as follows;

(2)In any such case—
(a)the appropriate authority shall be entitled to recover from any person responsible such charges as may be prescribed in respect of the removal of the vehicle;
(b)the chief officer of a police force or a local authority [F1other than a London authority] in whose custody any such vehicle is during any period shall be entitled to recover from any person responsible charges ascertained by reference to a prescribed scale in respect of that period; F2. . .
©the chief officer of a police force or a local authority [F1other than a London authority] who dispose of any such vehicle in pursuance of section 101 of this Act shall be entitled to recover from any person responsible charges determined in the prescribed manner in respect of its disposal.[F3and
(d)a London authority shall be entitled to recover from any person responsible, such charges in respect of the removal, storage and disposal of a vehicle removed from a parking place designated under section 6, 9 or 45 of this Act or otherwise provided or controlled by that authority as they may require.]


The evidence is clear that s.102(4) did not include paragraph (d) of subsection 2 and so no right to retain a removed vehicle until all charges have been paid has ever existed where decriminalised parking enforcement is undertaken. For clarification s.101A provides no right for a council to retain a vehicle until all charges are paid. This section concerns making it possible for the owner of a vehicle that has been perceived to have the appearance of being abandoned to prevent its ultimate disposal by paying the “relevant charges” and removing it from the council’s custody. Where this right is not acted upon then a council can proceed with disposal. A parallel can be drawn here with the almost identical provision under s.4(5) of the Refuse Disposal (Amenity) Act 1978. This Act specifically concerns vehicles that have the appearance of being abandoned.

4(5)If before a vehicle is disposed of by a local authority in pursuance of this section the vehicle is claimed by a person who satisfies the authority that he is its owner and pays to the authority such sums in respect of its removal and storage as may be prescribed, the local authority shall permit him to remove the vehicle from their custody during such period as may be prescribed.

For clarification I set out below the relevant sections of the RTRA 1984 that concern vehicle removal.

s.99 - Enables a council to remove a vehicle from a road.
s.100 - Imposes a duty on a council to keep a removed vehicle safe.
s.101 - Enables a council to dispose of a vehicle that has the appearance of being abandoned.
s.101A - Enables the owner of a vehicle that the council had presumed to be abandoned to recover it prior to its actual disposal or to recover the proceeds following its disposal.
s.101B - Provides for the owner of a vehicle that had the appearance of being abandoned to appeal against the charges.
s.102 – Enables a council to recover from the “person responsible” their charges in respect of removal, storage and disposal and if necessary they can pursue the person responsible for payment via the courts.


As the correct charges to apply were those regulated under s.102(2A) RTRA 1984 the council had no lawful right to insist the penalty charge be immediately paid, nor had they any right to retain my vehicle until all charges were paid, nor had they any right to apply the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 as this only applies where s.101A is applicable.

Where any regulation 9 PCN is served statute explicitly provides the recipient with 28 days to pay and the right to make an informal challenge. In addition, the owner has the right to receive and respond to a Notice to Owner. These rights are enshrined in statute and fully declared on the PCN that was served. There is no provision under the TMA 2004 or the RTRA 1984 that states that the statutory rights and processes associated with a regulation 9 PCN can be disregarded once a vehicle is removed. The reason there is no such provision is because all these statutory rights and processes remain applicable throughout. 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 clearly is no coincidence but the measured intent and design of Parliament.

I trust the independent adjudication service will uphold the law by acknowledging the clear indication given under paragraph 1(1)(b) of Schedule 9 TMA 2004 and by recognising that the right to retain is no longer applicable and that statute requires a specific statutory process to follow the service of any regulation 9 PCN.


Yours respectfully
JagDriver
OK evidence pack has arrived. Here are the salient pages from it:








Note that they now agree that the car was parked on carriage way, not pedestrian area as stated in their NOR (and this was the reason for a tow).

Also note that they have misinterpreted their own sign and state that loading/unloading can only take place between 6pm and 8am.

They still think that they can request all of the cash before releasing the car.

Network rail will also be glad to know that they can actually park their vehicles there when doing maintenance (as stated in the TRO), as they currently get tickets if they park there and it's a fair walk to next nearest legit parking place.

They also seem to have some amended version of the TRO parking rules (page 41).

Do I now write to the adjudicator with these additional points (and bogsy's 'clarification'), when they will then set a date?
Bogsy
It's good that the council confirm they are applying the charges under s.101A RTRA 1984.

You can print off this and take it with you to show the adjudicator. Inform the adjudicator that this 2007 order (by virtue of s.77 TMA 2004) is what regulates the level of all charges applicable in any civil enforcement area outside London. It is clear under paragraph 1(b) that the council were only entitled to apply those charges made under s.102 RTRA 1984. Therefore the council were wrong to apply those charges under s.101A as these have not been set by this 2007 order.
hcandersen
IMO, the reasons why an authority may remove a vehicle are not the issue, despite them labouring this point in their submission. Your appeal in this regard is simple: they claim that they towed your vehicle because it was on the pavement. Despite them setting out this point simply, the rest of their submission avoids addressing it. Instead they recite their policy in respect of towing.

They claim your car was towed because it was on the pavement;
It wasn't on the pavement;
The council's NOR deliberately misinformed you of the reasons for the tow which you had challenged in your reps and therefore on the face of it failed to give proper consideration to your reps, and therefore committed a Procedural Impropriety and/or its tow was unlawful as it did not satisfy the required condition that it was parked on the pavement.

As it appears you were still parked in a restricted street the thrust of your appeal is against the tow, isn't it?

HCA
Bogsy
Agree with HCA that is the most promising and simplest appeal point and will allow the adjudicator to dodge the more complex issue.
bama
put both in, it may encourage them to find on HCA's point...
JagDriver
Indeed, it's all pokers in the fire as far as I'm concerned. I'm interested to know how many people have been forced to pay the full Monty, but if I can get a refund without too much effort I will.
Do I write to TPT to get a date or will they arrange it automatically?
Do I need to email them with Bogsy's 'clarification' and anything else I can think of?
Bogsy
Yes you can email them with my text above in post 36 (keep all formatting for emphasis). Simply advise that you have researched the matter further and require the adjudicator to consider your findings as the matter is not only important to you but does raise a matter of "procedural impropriety" on a national scale and it is in the public interest that the matter is not ignored.

Your case is strong without my contribution but it would be nice for me to see what TPT make of it as they have yet to consider it. This is my agenda though and you must put your own agenda first which is to get your money back.
JagDriver
Bogsy: Just read in another thread (in August) you were putting pressure on PATAS by writing to the Chief Adjudicator(s) about this issue. Also you are interested in getting some kind of JR for the issue. As it happens I'm also interested in getting this looked at properly because my wife pointed pointed out if I had been a visitor and a lone female, without access to cash then things could have been a lot worse. I would like to see the authorities consider the idea of issuing a penalty notice for the tow so that victims can retrieve their vehicle and fight the charge in good time.
Bogsy
QUOTE (JagDriver @ Tue, 6 Sep 2011 - 09:41) *
Bogsy: Just read in another thread (in August) you were putting pressure on PATAS by writing to the Chief Adjudicator(s) about this issue. Also you are interested in getting some kind of JR for the issue. As it happens I'm also interested in getting this looked at properly because my wife pointed pointed out if I had been a visitor and a lone female, without access to cash then things could have been a lot worse. I would like to see the authorities consider the idea of issuing a penalty notice for the tow so that victims can retrieve their vehicle and fight the charge in good time.


Ultimately an adjudicator needs to clarify when it is appropriate for a council to charge under s.101A RTRA 1984 and when it is appropriate to charge under s.102.

In the early stages of my research I thought perhaps s.102 only applied once a vehicle had been disposed of due to no owner coming forward under s.101A. However, I soon realised this cannot be as s.102 includes provision for some authorities (eg Police) to retain a vehicle until all charges are paid. Obvously you cannot retain something if you've disposed of it. I also noticed that s.102 does not enable a council to pursue a person through the courts for payment of any outstanding penalty charge, it only allows a council to use the courts to recover their removal, storage and disposal costs. This made me think. Clearly a council would not just wipe off outstanding penalty charges so how does a council get a person to pay them if it can't be done via s.102? The only logical answer is that s.102 did not include penalty charges because where a penalty charge is served then there is already a statutory process to enable non payment to go through the courts. Currently its the TMA 2004 but it only works if the full statutory process has been followed. e.g. serving an NtO and Charge Certificate but councils do not do this where a vehicle is removed.

I then looked more closely at s.101 and s.101A and paid more attention to the reference to "appears to be abandoned" s.101A is about an owner being able to prevent disposal by paying the relevant charges and taking custody of the vehicle. It is not as councils would have us believe about allowing them to retain until all charges are paid. My research discovered this right had been revoked the moment decriminalised parking enforcement commenced in 1993. Surely this was no coincidence?

I then looked at how the TMA fits in with s.101A and s.102 and discovered that where s.102 is applied then there would be no interference with what statute prescribes following the service of a PCN whereas the application of s.101A did interfere. Is it coincidence that the application of s.102 does not interfere and would allow a person all the rights the PCN says they have?

When the adjudicators finally come to clarify things they should pay particular attention to the headings under regulation 14 & 16 of the Removal & Disposal of Vehicles Regulations 1986. Is it another coincidence that these regulations fall under Part III of the 1986 regulations that happens to be titled "Disposal of Abandoned Vehicles"?


14. Period during which owner may remove vehicle before it can be disposed of

16. Period during which owner may remove vehicle before it is disposed of

In summary regulation 16 cannot apply until a vehicle "can be" disposed of. It can only be disposed of where a notice has been served (and expired) on the supposed owner giving them 7 days to take custody otherwise disposal is intended. A notice can only be served if the council consider the vehicle to appear to be abandoned. Now put this in context of what s.101A says;

101ARight of owner to recover vehicle or proceeds of sale
(1)If before a vehicle is disposed of by an authority under section 101 above it is claimed by a person who—
(a)satisfies the authority that he is its owner, and
(b)pays the relevant charges,
the authority shall permit him to remove the vehicle from their custody within such period as they may specify or, in the case of an authority other than a local authority, as may be prescribed

Adjudicators should also take note of regulation 18 here as it will help them to grasp the purpose of s.101A.

If there were someone able to take this to JR then I think it likely they would win and recover their costs. Hopefully the independent adjudication services will take their blinkers off and give proper consideration. They can begin by readng paragraph 1(1)(b) in Schedule 9 TMA 2004.

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.
JagDriver
Any comments before this goes to TPT?


Dear Adjudicator

Having received the evidence pack regarding this issue, I have some additional comments to make.
Firstly, the council in their rejection of my original representations stated clearly that my vehicle was towed because it was parked on the pavement. They did not address the issue further, dispite my submission that my car was not causing an obstruction.
In their latest response they have admitted that my Vehicle was on the carriageway. This shows that it is a clear procedural Impropriety in that they did not give proper considerations to my repsentaions, or that the tow was unlawful as it did not satify the condition that it was parked on the pavement.

I would also submit that they have misinterpreted the law.
It is an irrefutable fact that the charges I was made to pay are set by virtue of Schedule 9 TMA 2004. This Schedule under paragraph 1(1)(b) makes it explicitly clear that these set charges only apply where the charges under s.102 RTRA 1984 are applicable.

(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.

The council however incorrectly applied the “relevant charges” regulated under s.101A RTRA 1984. Section 101A RTRA 1984 makes it possible for the owner of a vehicle that has been perceived to have the appearance of being abandoned to prevent its ultimate disposal by paying the “relevant charges” and removing it from the council’s custody. Therefore s.101A is only relevant where vehicles are perceived (either at the time of removal or later while in custody) to have the appearance of being abandoned. It does not concern vehicles such as mine that never had the appearance of being abandoned. The correct charges to apply to vehicles such as mine are those charges regulated under s.102 RTRA 1984 just as paragraph 1(1)(b) above indicates.

This next point is of critical legal importance. A council operating civil enforcement has no lawful right to retain a removed vehicle until all charges are paid. This right only exists for those councils still operating a criminalised parking enforcement regime. This is made abundantly clear under s.102 RTRA 1984.

Councils operating civil parking enforcement have a lawful right to remove a vehicle, a duty of care, a right to dispose and a right to recover their removal, storage and disposal charges. The right to retain a vehicle until all charges are paid was removed where decriminalised parking commenced and s.68 RTA 1991 came into effect. This is clearly evident when s.102(4) RTRA 1984 is seen in its form following the commencement of the RTA 1991.

(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.

The provision of subsection 2 was as follows;

(2)In any such case—
(a)the appropriate authority shall be entitled to recover from any person responsible such charges as may be prescribed in respect of the removal of the vehicle;
(b)the chief officer of a police force or a local authority [F1other than a London authority] in whose custody any such vehicle is during any period shall be entitled to recover from any person responsible charges ascertained by reference to a prescribed scale in respect of that period; F2. . .
©the chief officer of a police force or a local authority [F1other than a London authority] who dispose of any such vehicle in pursuance of section 101 of this Act shall be entitled to recover from any person responsible charges determined in the prescribed manner in respect of its disposal.[F3and
(d)a London authority shall be entitled to recover from any person responsible, such charges in respect of the removal, storage and disposal of a vehicle removed from a parking place designated under section 6, 9 or 45 of this Act or otherwise provided or controlled by that authority as they may require.]

The evidence is clear that s.102(4) did not include paragraph (d) of subsection 2 and so no right to retain a removed vehicle until all charges have been paid has ever existed where decriminalised parking enforcement is undertaken. For clarification s.101A provides no right for a council to retain a vehicle until all charges are paid. This section concerns making it possible for the owner of a vehicle that has been perceived to have the appearance of being abandoned to prevent its ultimate disposal by paying the “relevant charges” and removing it from the council’s custody. Where this right is not acted upon then a council can proceed with disposal. A parallel can be drawn here with the almost identical provision under s.4(5) of the Refuse Disposal (Amenity) Act 1978. This Act specifically concerns vehicles that have the appearance of being abandoned.

4(5)If before a vehicle is disposed of by a local authority in pursuance of this section the vehicle is claimed by a person who satisfies the authority that he is its owner and pays to the authority such sums in respect of its removal and storage as may be prescribed, the local authority shall permit him to remove the vehicle from their custody during such period as may be prescribed.

For clarification I set out below the relevant sections of the RTRA 1984 that concern vehicle removal.

s.99 - Enables a council to remove a vehicle from a road.
s.100 - Imposes a duty on a council to keep a removed vehicle safe.
s.101 - Enables a council to dispose of a vehicle that has the appearance of being abandoned.
s.101A - Enables the owner of a vehicle that the council had presumed to be abandoned to recover it prior to its actual disposal or to recover the proceeds following its disposal.
s.101B - Provides for the owner of a vehicle that had the appearance of being abandoned to appeal against the charges.
s.102 – Enables a council to recover from the “person responsible” their charges in respect of removal, storage and disposal and if necessary they can pursue the person responsible for payment via the courts.


As the correct charges to apply were those regulated under s.102(2A) RTRA 1984 the council had no lawful right to insist the penalty charge be immediately paid, nor had they any right to retain my vehicle until all charges were paid, nor had they any right to apply the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 as this only applies where s.101A is applicable.

Where any regulation 9 PCN is served statute explicitly provides the recipient with 28 days to pay and the right to make an informal challenge. In addition, the owner has the right to receive and respond to a Notice to Owner. These rights are enshrined in statute and fully declared on the PCN that was served. There is no provision under the TMA 2004 or the RTRA 1984 that states that the statutory rights and processes associated with a regulation 9 PCN can be disregarded once a vehicle is removed. The reason there is no such provision is because all these statutory rights and processes remain applicable throughout. 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 clearly is no coincidence but the measured intent and design of Parliament.

I trust the independent adjudication service will uphold the law by acknowledging the clear indication given under paragraph 1(1)(b) of Schedule 9 TMA 2004 and by recognising that the right to retain is no longer applicable and that statute requires a specific statutory process to follow the service of any regulation 9 PCN.


Yours respectfully


JagDriver
Quick bump. This goes out tonight unless anyone can see any flaws.
Bogsy
I've updated the text so you may want to use it. It contains reference to legislation that is very supportive and cannot be easily dismissed. It's here in post 72. I think all you need do is copy and paste it other than the first 2 paragraphs.
JagDriver
Just a quick question. TPT have asked if I want a telephone hearing. I think the normal advice is 'no' so just checking if that's still the case.
Bogsy
QUOTE (JagDriver @ Thu, 22 Sep 2011 - 08:04) *
Just a quick question. TPT have asked if I want a telephone hearing. I think the normal advice is 'no' so just checking if that's still the case.


Do you mean instead of a personal hearing? The advice on the forum is where possible and where confident in your ability to understand the arguments and to speak competently about them, then opt for a personal or at least a telephone hearing. Impressions count.
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