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Zwypl
A FREIND has recieved this pcn in Broadway Mews N16which ha sdouble yelloe line, they needed it for loading into their shop, but that is no defence.

Wrote to Hackney on Description of challenge:

The location is incorrect! The alleged contravention ocuured on Broadway Mews this can be verified by the images of your files. The PCN states Clapton Common, this is incorrect and the PCN is defective beyond repair.

Their response and PCN NTO are all attached, I wonder what you guys can come up with???
I am Weasel
Well the location on the PCN is clearly CORRECT "Broadway Mews" so that avenue is out the windows. The "NJ Clapton Common" narrow it down to near the junction of Clapton Common
Bogsy
Why do you think that loading is not a defence?
hcandersen
I think there are two procedural improprieties here, both concerned with timings.

Response to the challenge
The Council states that if the penalty charge is not paid before the end of the period of 28 days beginning on.... we will issue a NTO.

This fetters their discretion and as such is unlawful both under general administrative law as it applies to public authorities and the Secretary of State's Guidance.

The NTO states something similar - that representations must be made before the end of the period of 28 days....
Again, this is not consistent with the Appeals regs which state that:
3) A notice to owner served under regulation 19 of the General Regulations must, in addition to the matters required to be included in it under that regulation, include the following information—

(a)that representations on the basis specified in regulation 4 against payment of the penalty charge may be made to the enforcement authority, but that any representations made outside the period of 28 days beginning with the date on which the notice is served (“the payment period”) may be disregarded;

The NTO is non-compliant. Before the end of is not, IMO, the same as "outside the period may be disregarded".

HCA

Zwypl
QUOTE (Bogsy @ Thu, 30 Jun 2011 - 18:03) *
Why do you think that loading is not a defence?

Because it is on a double yellow line.

I also questioon the words: "during prescribed hours" as a double yellow line is always prohibited, so the words.. hours do not have the meaning of " at any time". But that would mean fighting the entire system, which I dont have the time..
mashkiach
QUOTE (Zwypl @ Fri, 1 Jul 2011 - 11:32) *
QUOTE (Bogsy @ Thu, 30 Jun 2011 - 18:03) *
Why do you think that loading is not a defence?

Because it is on a double yellow line.
And therefore is a defence!
Zwypl
QUOTE (mashkiach @ Fri, 1 Jul 2011 - 12:11) *
QUOTE (Zwypl @ Fri, 1 Jul 2011 - 11:32) *
QUOTE (Bogsy @ Thu, 30 Jun 2011 - 18:03) *
Why do you think that loading is not a defence?

Because it is on a double yellow line.
And therefore is a defence!

why? is loading a defence on a double yellow line?
mashkiach
One may load and unload on regular DYL but not if there are blips on the kerb.
Zwypl
QUOTE (mashkiach @ Fri, 1 Jul 2011 - 13:41) *
One may load and unload on regular DYL but not if there are blips on the kerb.


If so, the CEO would need to observe the Viehcle for 5 minutes to ensure that there is no loading taking place, according to the code of practice quoted below:-

Code of Practice
OBSERVATION TIMES


46) Some contraventions are ‘instant’ and a PCN can be issued immediately. These include ‘absolute’ contraventions, such as parking on the footway where this is prohibited) and locations where there are either no or extremely few but obvious exceptions to a general rule (such as stopping where parking, loading and unloading are prohibited).


47) In other cases there may be sufficient exemptions to a general rule as to cause some doubt as to whether a contravention has occurred at the time of the initial appearance of the parking attendant. A good example is where loading and unloading on a yellow line or in a loading box / bay is allowed. In these circumstances a period of observation can help to establish whether or not an exemption applies. Five minutes is the generally accepted period of observation, although consideration could be given to extending this period for commercial vehicles, where it is more likely that loading / unloading is taking place. While a PCN may be issued before the end of the observation period, the authority will need to have much stronger evidence to rebut an assertion that the vehicle was exempt, for example, because it was loading, than if an observation period was included.


Is it ok to say that in the formal rep [post NtO] that I was loading and proide proof, or they can say why didnt I say that in the informal rep?
bama
challenge to the PCN, reps to the NTO and appeal to the adjudicator can all be different.
Zwypl
Following advice above- I have made formal reps [online] as follows:-

Grounds:The contravention did not occur & There has been a procedural impropriety on the part of the enforcement authority

I ask that the PCN be cancelled for the following reasons:-

1. I was loading from my vehicle into the “**** Company” I stopped for no more than four minutes. Please see proof from the **** Company enclosed. I also enclose image of the **** company where you can see that it is situated right there on the yellow lines. For avoidance of doubt there are no blips on the kerb that prohibit loading and unloading.

2. The Notice to Owner is defective that it states:-
Representations must be made before the end of the period of 28 days beginning with the date on which this notice to owner is served. This is not compliant with the Appeals regulations that state:

3) A notice to owner served under regulation 19 of the General Regulations must, in addition to the matters required to be included in it under that regulation, include the following information—

(a)that representations on the basis specified in regulation 4 against payment of the penalty charge may be made to the enforcement authority, but that any representations made outside the period of 28 days beginning with the date on which the notice is served (“the payment period”) may be disregarded;


I attached a letter from that shop that confirmed that that vehicle was laoding!

Here is what Hackney responded in their NoR:_





As you can gather, they have not bothered to respond to the points raised and tehy have ignored the letter by saying "insufficent evidence"!
interlog
No response to your second point of representation could be seen as Council not fully considering all of the reps you made.

Not the strongest of points but I have seen Adjudicators agreeing.
bama
they got a letter from an officer/managerr at xxx company on company headed paper attesting to the loading and they say its not evidence ? ?
if so then WTF ? ?

press on to adjudication and expect them to drop out at the last minute.
hcandersen
NOR is b******s. You will win at adj if for no other reason than the courts have determined what constitutes loading and it isn't the standard which the council has stated and you can assume it has applied to your reps.

The NOR states:

"...provided it is observed by the CEO.." Tosh, b******s, nonsense, garbage (I've not got my thesaurus to hand otherwise I'd add a few more).

Register you appeal on contravention did not occur and PI.

No problem.


HCA
Zwypl
Very good outcome.

Hackney did not contest the appeal. The letter is fascinating as if the CEO's notes just came out of the woodwork.



Thanks.
bama
predictable.
chancers or what ?

and your case certainly did suggest the NTO was defective - selective blindness from a council that is after your money,
who would have thought that could happen smile.gif
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