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slimmillipede
We received a PCN while parked outside our son's school for meet the teacher. Very annoying.

Where we parked is normally fine but today they had put a few police no parking cones on the kerb because of a local event. The event was all but over when we parked so we thought they just hadn't picked up the cones yet.

The code on our PCN is 01 Parked in a restricted street during prescribed hours but I think they should have used 21 Parked in a suspended bay/space or part of bay/space.

Does anyone have any experience of this situation?

A follow up question, assuming that the contravention code isn't relevant. How far can you park from a police parking cone? They were pretty sparse and we were parked in a large gap between cones.

I originally asked this question on Money Saving Expert's forum and Coupon-mad suggested posting here.

Front of PCN

Back of PCN
Neil B
01 looks correct. Why did u think otherwise - are there parking bays there?

Why do you think these are Police cones -- if that's not too dumb a question?
Bogsy
Is the location where you parked within a marked parking bay or is it usually unrestricted road?
slimmillipede
The road has no marked parking bays it is normally unrestricted.

There are lots of police around for the event so I think the cones are legitimate, they may have been placed by the council rather than police though, does this make a difference?

I found this on the Reading Council website, I'm not sure if it is true but it is what made me wonder about the contravention code

QUOTE
21 Parked in a suspended bay / space or part of bay/space
This means parking in a space where temporary restrictions are in force, normally denoted by a yellow triangular sign or police cone.

01 Parked in a restricted street during prescribed hours
Parking on a yellow line when at a time when it is in force or where there is a temporary waiting restriction.
Bogsy
A council outside London can only impose a PCN if one of the offences under paragraph 4 of Schedule 7 TMA 2004 has been committed.

http://www.legislation.gov.uk/ukpga/2004/18/schedule/7

Ask the council which one of those offences listed did you commit and if it happens to be a traffic order offence under para 4(2)(b) then require them to name the full title of the traffic order and to make it available to you.

Having looked at the TPT Traffic Regulation Order Library I cannot see that you contravened any provision within the general order. You can see it here. Had you parked in a parking place/bay then you would have contravened article 63 but you didn't and as you note code 21 would be applicable.

Therefore you need to establish whether the council produced a temporary traffic order for the duration of the event that imposed a no waiting restriction on the lengh of highway where you parked. If there is no order then I don't see how Para 4 Schedule 7 TMA 2004 is applicable in which case there are no grounds for the imposition of the PCN.
bama
+1
slimmillipede
QUOTE (Bogsy @ Fri, 21 Oct 2011 - 14:38) *
A council outside London can only impose a PCN if one of the offences under paragraph 4 of Schedule 7 TMA 2004 has been committed.

http://www.legislation.gov.uk/ukpga/2004/18/schedule/7

Ask the council which one of those offences listed did you commit and if it happens to be a traffic order offence under para 4(2)(b) then require them to name the full title of the traffic order and to make it available to you.

Having looked at the TPT Traffic Regulation Order Library I cannot see that you contravened any provision within the general order. You can see it here. Had you parked in a parking place/bay then you would have contravened article 63 but you didn't and as you note code 21 would be applicable.

Therefore you need to establish whether the council produced a temporary traffic order for the duration of the event that imposed a no waiting restriction on the lengh of highway where you parked. If there is no order then I don't see how Para 4 Schedule 7 TMA 2004 is applicable in which case there are no grounds for the imposition of the PCN.


Thanks Bogsy,
I have emailed the council with the first question, I will see how they respond before asking the second question. I don't know how long this will take but I have received an automatic reply which says they will freeze the 14 day period until they have responded.
slimmillipede
The council have sent me a copy of the Temporary Traffic Order which does include where I was parked.

I have asked them where it was published as I was unable to find it online anywhere.

Any advice or should I just pay up?
Bogsy
Post it ALL up.
slimmillipede
OK, this is the first response I got from them;

QUOTE
Dear XXXXXX

Contravention: 01 Waiting Prohibited
Penalty Charge Notice: XXXXXXX
Served on: XXXXXX
Vehicle Registration: XXXXXXX
Location: St. Edwards Drive (Stow on the Wold)

Thank you for your recent letter regarding the above Penalty Charge Notice (PCN), which I received on 24th October 2011.

Under the Traffic Management Act 2004 (as amended), your letter has been treated as informal representations against this Penalty Charge Notice and careful consideration has been given to your representations, including all the circumstances relating to the issue of this Charge.

During the Stow Horse Fair which takes place twice a year a Temporary Traffic Order is put in place on the surrounding street to where the event takes place. This temporary restrictions is indicated by the No waiting Cones which were put in place along the effected streets, this means no parking at any time.

We are satisfied that this Charge was served correctly and your representations are rejected for the reasons outlined above.

You may now pay the discounted amount of £35.00 within 14 days from the date of this letter, after which the PCN reverts to the full charge of £70.00. If payment is not received, a Notice to Owner will be sent to the registered owner of the vehicle. This will advise of the process and grounds on which formal representations can be made. The Council is obliged to consider representations to the Notice to Owner, even if your informal representations have been rejected. You should be aware that the discounted amount will not be applicable once a Notice to Owner has been served.

If the formal representations to the Notice to Owner are rejected, the registered owner of the vehicle has the right to appeal to an independent Parking Adjudicator. This cannot be done until after formal representations have been made to the Council following the issue of the Notice to Owner and subsequently rejected.

Yours sincerely,


Then I replied;
QUOTE
Thank you for your prompt reply.
Is there somewhere that I can see a copy of the Temporary Traffic Order? I haven't found it online but that may just be because I am not looking in the right place.


Their response was;

QUOTE
Please find attached a copy of the Temporary Traffic Order. This order should be on Gloucestershire County Council Web site.


With the attached PDF file

I have responded with;
QUOTE
Thank you very much for the TTO, I still can't find it on the GCC website, even knowing the reference number. In fact I can't find any Temporary Traffic Orders. Can you point me at it? Or was it publicised elsewhere too?
Bogsy
That's not an order its notice that an order has been made. You'll have to go back to them.
slimmillipede
I am about to send them a reply;

QUOTE
This appears to be a notice saying that an order has been made, not the actual order itself.
Can you please send me a copy of the actual order, or point me to where I can find it.


Is this what I should be saying?
marvin28
Yes, although I would omit the "or point me to where I can find it"

Is the road in question listed on that notice?
slimmillipede
I sent the email as originally stated, didn't get your reply until too late I'm afraid. They have been fairly prompt so I will probably get a reply tomorrow.

Yes the road is listed on the notice.

Thanks for your help, it is very good of you to take the time.
slimmillipede
Yes; I should have left out the "point me to where I can find it" bit.
This is their reply

QUOTE
Contravention: 01 Waiting Prohibited
Penalty Charge Notice: XXXXXXX
Served on: 20/10/2011
Issued on: 20/10/2011
Vehicle Registration: XXXXX
Location: St. Edwards Drive (Stow on the Wold)


Dear xXXXX

Thank you for your recent correspondence with regards to the above Penalty Charge Notice (PCN).

I can confirm that the copy sent was the information passed to this office from Gloucestershire County Council who are responsible for issuing all Temporary Traffic Order's. The person responsible for the order is XXXXXX, his email address is XXXX or his contact number is XXXX as he will be able to answer your questions as to where you can find the information you requested.

Yours sincerely,

XXXXXX
Parking Servcies


My thought is that they should be providing this information not asking me to chase it.
slimmillipede
I now have a reply from GCC.

QUOTE
I attach a copy of the Order which will have been advised locally but not widely advertised as there is no legal requirement for such with a Temporary Order. Cotswold District Council are responsible for the enforcement and management of this, and similar Orders and should have been able to provide you with a copy on request, I will take this matter up with their officers.



The only County Council web site carrying details would have been the Highways site under their Traffic Bulletin section. It is not however normal to advertise Temp Orders as such other than with notices in the locality and to ensure that the temp restriction is adequately and correctly marked out and indicated on the road.


Any advice? Or is this the end of the road?
slimmillipede
Just in case it is relevent, I didn't see any notices about the parking and the cones were pretty sparse.






Bogsy
If you continue to appeal ar formal stage then I suggest including the text below. With this being enforced via an agency agreement then there is also a strong possibility that the NtO and Notice of Rejection (if they do reject) will include failings in their form that will only strengthen your appeal.

The alleged contravention did not occur. The traffic regulation order fails to define what a “restricted street” is and it does not prescribe that it is a contravention to park in a restricted street during prescribed hours.

Contravention code 01 was originally devised by the London Councils and reflected the fact that London council’s traffic orders made specific reference as to what is to be considered “restricted street”. This can be seen in the example below (for reference, Schedule 1 concerned No Waiting restrictions);

“restricted street” means any street within the London Borough of Lewisham specified in Schedule 1 (hereinafter referred to as a “scheduled street”) and includes, except where the context otherwise requires, so much of every other street within that London borough which is not a scheduled street or a street specified in Schedule 4 and which joins any scheduled street as lies between the kerb line of the scheduled street and a point 18.29 metres distant therefrom and any reference in this order to any restricted street shall be construed accordingly, provided that the expression “restricted street” shall not for the purposes of this order include–

(a) any area on a highway or any place within the London Borough of Lewisham for the time being designated or described as a parking place by any order made or having effect as if made under section 6 or section 45 of the Road Traffic Regulation Act 1984;

(b) in its application to a street specified in column (2) of Schedule 5, that length of street which extends 18.29 metres measured in the direction specified in column (3) of that schedule from the kerb line of the scheduled street specified in column (4) of that schedule, and in this definition the expression “kerb line” in relation to a scheduled street shall mean that imaginary line which is the projection of the line formed by the edge of the main carriageway of the scheduled street adjacent to its junction with the side in question of any other street;

[c ] any length of street designated as red route;


The London boroughs would not go to the trouble of taking great care to specifically define what is a “restricted street” if it served no purpose and was unnecessary. Without a traffic order defining “restricted street” then it is reasonable to apply common language. The commonplace definition of “restricted” is thus; “place limits on, confine, restrain”. Therefore, in essence, the PCN informed me that I parked in a street during hours that the street is subject to parking restraints. It does not however inform me of how the vehicle contravened a particular parking restraint or even what parking restraint was contravened. It is highly important to note that not all parking restrictions prohibit parking (eg: parking place restrictions) and so parking in a restricted street during prescribed hours is not a contravention by default since it can be lawful. It is only a contravention if the traffic order is drafted correctly in the manner exampled above. Quite simply, the ground stated on the PCN is not fit for purpose since it does not distinguish between a vehicle that is lawfully parked in a restricted street during prescribed hours and one that is not.

The council may be using the standard contravention codes but it should be remembered that these contravention codes have no statutory authority and cannot be relied upon as a defence as made clear in the key adjudication case between Metrick v Camden (Case no 207034396A).

I find the ground of “parked in a restricted street during prescribed hours” to be unsupported as a parking contravention prescribed by the traffic order. The order may prohibit waiting in certain lengths of road at certain times but the order does not define and correlate waiting restrictions with being "restricted street" nor does it define and correlate what is considered "prescribed hours". It is critical to remember that the purpose of a PCN is to encourage people to park lawfully, so it stands to reason that a person needs to know precisely what they did wrong in order to avoid doing so again. The ground given on the PCN is ineffective in conveying what I allegedly did wrong and as such it does not satisfy paragraph 1(e) contained within the Schedule to “The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and the penalty charge should be cancelled forthwith rather than drag this matter to adjudication.
slimmillipede
Thanks very much for this.

Should I include all of it in my challenge? Or should I just summarise it and wait for the NtO before giving them the whole lot?

clark_kent
QUOTE (slimmillipede @ Fri, 28 Oct 2011 - 12:29) *
Thanks very much for this.

Should I include all of it in my challenge? Or should I just summarise it and wait for the NtO before giving them the whole lot?



You may as well wait for the NTO informal technical reps are usually just rejected so its a waste of a stamp.
slimmillipede
QUOTE (clark_kent @ Fri, 28 Oct 2011 - 12:32) *
You may as well wait for the NTO informal technical reps are usually just rejected so its a waste of a stamp.


I'm not sure I understand the procedure here. Don't I need to challenge it to keep the option of paying the discounted penalty? i would rather pay the £35 now than have to pay £70 later if my challenge fails.
The stamp isn't an issue all communication so far has been by email.
clark_kent
QUOTE (slimmillipede @ Fri, 28 Oct 2011 - 13:57) *
QUOTE (clark_kent @ Fri, 28 Oct 2011 - 12:32) *
You may as well wait for the NTO informal technical reps are usually just rejected so its a waste of a stamp.


I'm not sure I understand the procedure here. Don't I need to challenge it to keep the option of paying the discounted penalty? i would rather pay the £35 now than have to pay £70 later if my challenge fails.
The stamp isn't an issue all communication so far has been by email.



Bogsy seems to think his argument is correct so there is no reason for it to fail, the Council won't agree anyway so you may as well pay now if you don't want to lose discount and go to the adjudicator.
SchoolRunMum
QUOTE (clark_kent @ Fri, 28 Oct 2011 - 16:05) *
QUOTE (slimmillipede @ Fri, 28 Oct 2011 - 13:57) *
QUOTE (clark_kent @ Fri, 28 Oct 2011 - 12:32) *
You may as well wait for the NTO informal technical reps are usually just rejected so its a waste of a stamp.


I'm not sure I understand the procedure here. Don't I need to challenge it to keep the option of paying the discounted penalty? i would rather pay the £35 now than have to pay £70 later if my challenge fails.
The stamp isn't an issue all communication so far has been by email.



Bogsy seems to think his argument is correct so there is no reason for it to fail, the Council won't agree anyway so you may as well pay now if you don't want to lose discount and go to the adjudicator.




Say what?!
slimmillipede
I sent the following question to the council
QUOTE
I wish to challenge this PCN but I don't want to pay £70 if my challenge fails. Can I pay the £35 now and get it back if the challenge is decided in my favour (I suspect it will have to go to appeal)?
What is the procedure for doing this?

Their reply is
QUOTE
Thank you for your recent letter regarding the above Penalty Charge Notice (PCN), which I received on 31st October 2011.

If you wish to pay the above PCN it will close the case and you will be unable to take this matter further. You have the opportunity to pay the discounted amount within 14 days from the date of issue after this point it reverts to the full amount of £70.

You may make a representation once a Notice to Owner has been issued ands this will be sent at the end of November. As explained in our previous letter, the Notice to Owner will advise of the process and grounds on which formal representations can be made. The Council is obliged to consider representations to the Notice to Owner even if your informal representations have been rejected.

If the formal representations to the Notice to Owner are rejected, the registered owner of the vehicle has the right to appeal to an independent Parking Adjudicator. This cannot be done until after formal representations have been made to the Council following the issue of the Notice to Owner and subsequently rejected.


Which seems to mean that I have to bet £35 on my appeal being accepted. What are my chances of success? Is it worth risking £70 or should I just pay the £35 now ? (which is what they want of course)
slimmillipede
Hmm, no responses.

I've decided to be brave and try to fight it.
rscott
QUOTE (slimmillipede @ Mon, 31 Oct 2011 - 14:00) *
I sent the following question to the council
QUOTE
I wish to challenge this PCN but I don't want to pay £70 if my challenge fails. Can I pay the £35 now and get it back if the challenge is decided in my favour (I suspect it will have to go to appeal)?
What is the procedure for doing this?

Their reply is
QUOTE
Thank you for your recent letter regarding the above Penalty Charge Notice (PCN), which I received on 31st October 2011.

If you wish to pay the above PCN it will close the case and you will be unable to take this matter further. You have the opportunity to pay the discounted amount within 14 days from the date of issue after this point it reverts to the full amount of £70.

You may make a representation once a Notice to Owner has been issued ands this will be sent at the end of November. As explained in our previous letter, the Notice to Owner will advise of the process and grounds on which formal representations can be made. The Council is obliged to consider representations to the Notice to Owner even if your informal representations have been rejected.

If the formal representations to the Notice to Owner are rejected, the registered owner of the vehicle has the right to appeal to an independent Parking Adjudicator. This cannot be done until after formal representations have been made to the Council following the issue of the Notice to Owner and subsequently rejected.


Which seems to mean that I have to bet £35 on my appeal being accepted. What are my chances of success? Is it worth risking £70 or should I just pay the £35 now ? (which is what they want of course)



Isn't this completely wrong - surely it should mention the informal appeal?
SchoolRunMum
Yes, unless an informal appeal has already been sent and considered (they do refer to 'our previous letter').
slimmillipede
Well the NtO arrived this morning. I have included it below.

My plan is to follow Bogsy's advice. Tick the first box "The alleged contravention did not occur" and as my representation say
QUOTE
The alleged contravention did not occur. The traffic regulation order fails to define what a “restricted street” is and it does not prescribe that it is a contravention to park in a restricted street during prescribed hours.

Assuming that they will reject the representation anyway and save the full text for the appeal.

Or should I include the full text of Bogsy's post?
QUOTE
The alleged contravention did not occur. The traffic regulation order fails to define what a “restricted street” is and it does not prescribe that it is a contravention to park in a restricted street during prescribed hours.

Contravention code 01 was originally devised by the London Councils and reflected the fact that London council’s traffic orders made specific reference as to what is to be considered “restricted street”. This can be seen in the example below (for reference, Schedule 1 concerned No Waiting restrictions);

“restricted street” means any street within the London Borough of Lewisham specified in Schedule 1 (hereinafter referred to as a “scheduled street”) and includes, except where the context otherwise requires, so much of every other street within that London borough which is not a scheduled street or a street specified in Schedule 4 and which joins any scheduled street as lies between the kerb line of the scheduled street and a point 18.29 metres distant therefrom and any reference in this order to any restricted street shall be construed accordingly, provided that the expression “restricted street” shall not for the purposes of this order include–

(a) any area on a highway or any place within the London Borough of Lewisham for the time being designated or described as a parking place by any order made or having effect as if made under section 6 or section 45 of the Road Traffic Regulation Act 1984;

(b) in its application to a street specified in column (2) of Schedule 5, that length of street which extends 18.29 metres measured in the direction specified in column (3) of that schedule from the kerb line of the scheduled street specified in column (4) of that schedule, and in this definition the expression “kerb line” in relation to a scheduled street shall mean that imaginary line which is the projection of the line formed by the edge of the main carriageway of the scheduled street adjacent to its junction with the side in question of any other street;

[c ] any length of street designated as red route;

The London boroughs would not go to the trouble of taking great care to specifically define what is a “restricted street” if it served no purpose and was unnecessary. Without a traffic order defining “restricted street” then it is reasonable to apply common language. The commonplace definition of “restricted” is thus; “place limits on, confine, restrain”. Therefore, in essence, the PCN informed me that I parked in a street during hours that the street is subject to parking restraints. It does not however inform me of how the vehicle contravened a particular parking restraint or even what parking restraint was contravened. It is highly important to note that not all parking restrictions prohibit parking (eg: parking place restrictions) and so parking in a restricted street during prescribed hours is not a contravention by default since it can be lawful. It is only a contravention if the traffic order is drafted correctly in the manner exampled above. Quite simply, the ground stated on the PCN is not fit for purpose since it does not distinguish between a vehicle that is lawfully parked in a restricted street during prescribed hours and one that is not.

The council may be using the standard contravention codes but it should be remembered that these contravention codes have no statutory authority and cannot be relied upon as a defence as made clear in the key adjudication case between Metrick v Camden (Case no 207034396A).

I find the ground of “parked in a restricted street during prescribed hours” to be unsupported as a parking contravention prescribed by the traffic order. The order may prohibit waiting in certain lengths of road at certain times but the order does not define and correlate waiting restrictions with being "restricted street" nor does it define and correlate what is considered "prescribed hours". It is critical to remember that the purpose of a PCN is to encourage people to park lawfully, so it stands to reason that a person needs to know precisely what they did wrong in order to avoid doing so again. The ground given on the PCN is ineffective in conveying what I allegedly did wrong and as such it does not satisfy paragraph 1(e) contained within the Schedule to “The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and the penalty charge should be cancelled forthwith rather than drag this matter to adjudication.





slimmillipede
I've sent my representation by email. I included the full text of Bogsy's post.
We'll see what happens.
Southener
Should the NTO not be sent by GCC as the enforcement authority?
Bogsy
QUOTE (Southener @ Fri, 25 Nov 2011 - 23:14) *
Should the NTO not be sent by GCC as the enforcement authority?


Indeed and yet it clearly implies it is being served by Cotswold.
slimmillipede
QUOTE (Bogsy @ Sat, 26 Nov 2011 - 00:03) *
QUOTE (Southener @ Fri, 25 Nov 2011 - 23:14) *
Should the NTO not be sent by GCC as the enforcement authority?


Indeed and yet it clearly implies it is being served by Cotswold.


Could this be useful when we get to appeal then?
Southener
QUOTE (slimmillipede @ Sat, 26 Nov 2011 - 10:30) *
QUOTE (Bogsy @ Sat, 26 Nov 2011 - 00:03) *
QUOTE (Southener @ Fri, 25 Nov 2011 - 23:14) *
Should the NTO not be sent by GCC as the enforcement authority?


Indeed and yet it clearly implies it is being served by Cotswold.


Could this be useful when we get to appeal then?

It could.
I would suggest you make representations as instructed in the NTO.
If you get a NOR from Cotswold, the you appeal to the adjudicator that your reps were not considered by the EA.
slimmillipede
They are pretty prompt at CDC, I have had the rejection notice already.
I have included it below.
Any further advice before trying the appeal? (and thank you for all the support so far).





Southener
I think that your appeal would be that CDC has no authority to enforce this PCN.
That your reps were not considered by the enforcement authority.
Then add all the other points.
slimmillipede
I just tried to submit my appeal online at www.trafficpenaltytribunal.gov.uk but their website timed out when I submitted the appeal.

Now I can't resubmit the appeal because it is already on their system and I can't view it because I don't have the "webcode" or "case reference" which I presume should have been sent to me by email as part of my successful submission.

I have emailed their contact address to find out what I should do next.

Perhaps I should offer to rewrite their website for them, it is pretty awful.
SchoolRunMum
Can you post it snail mail? You don't want time to go by and then find you have missed the deadline due to Christmas.
slimmillipede
I have had an acknowledgement email from them now so they have obviously received the submission, perhaps it was just the acknowledgement email that timed out.
zamzara
Going back to basics a bit, I would also throw in the point that you parked in a large gap between the cones, so it was reaonable to believe that the gap was an unrestricted area.
slimmillipede
biggrin.gif SUCCESS biggrin.gif

I just received an email from the adjudicator

QUOTE
Appeal allowed on the ground that the Council does not contest the
appeal.
Reasons
The PCN was issued on XX October 2011 at 00:00 to vehicle XXXXXXX in XX
XXXXXXX XXXX.
The council has decided not to contest this appeal. The adjudicator has therefore
directed that the appeal is allowed without consideration of any evidence or the
merits of the case.
The appellant is not liable to pay the outstanding penalty charge.


Thank you very much to everyone who contributed it is very much appreciated.

I find it a bit bizarre that the council can reject my representation and then not contest the appeal. The only difference was that the appeal included the argument that CDC wasn't the enforcement authority. It would be nice to know what tipped the balance.

Anyway. Thanks again everyone.
zamzara
Well it would seem that they must have decided to chance their arm that you would pay up, apparently knowing full well that they had no case. This is unreasonable behaviour and you should ask for costs.
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