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carer
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I have just received a CCTV Regulation 10 PCN for "parking on a restricted bus stop/stand - Contravention code 47.
In their CCTV pictures (from a car I presume, though the council offices and library are opposite the church, so may have been from in there) you can see a building behind the bus stop. This is our church. The door is open because there was a function on and I was picking up my disabled mother, who can't walk far, and her friend. I had the blue badge on the dashboard and they were waiting, seated in the bus stop, out of the (possible) rain.
The whole manoeuvre took a couple of minutes and I was gone. Apparently there was a "mobile camera unit Mobile CAM01" taking CCTV photos. My assumption is that they knew the event was happening and were able to make a bit of money that day - only my assumption. I thought I was able to do this with the blue badge, but have read your site and realised that I was probably in error. However, I have also read that bus stops should have the "no parking" sign on them 974/975 with the clearway sign and 'no stopping at any time except buses'.

I went back as I was sure I hadn't seen one. I was right, but here's the complicated part (I think). There are two separate bus stops/shelters followed by a 'road train' stop in a line. 'My' bus stop was in the centre. I have photos of all these at a distance and in close up should you wish to see them. The box on the road has the thick yellow line alongside both bus stops - so both bus stops are within the box. The words 'bus stop' appear twice - alongside each shelter. The shelters are marked with different bus numbers - so obviously 2 different bus stops. The first bus stop has the 'no parking' sign on as does the road train stop. The bus stop where I picked up my mother does not. It has no sign anywhere to say no stopping. But, my question is, does the 'no stopping' sign on the other bus stop within the same box count for both bus stops/shelters, or are the two shelters quite separate entities. I don't want to have to pay the full amount of £70 by challenging something that I cannot 'win'. I have uploaded the form they sent. Thank you for your help.
makara
And the other side of the PCN?
carer
sorry - here goes - side 2 of PCN
SchoolRunMum
Probably the lack of replies so far is because of the obvious fact that the picture shows the car slap bang in the middle of a bus stop. Why oh why? Pretty much anywhere else would have been better!

Anyway here is some info for you to include in your appeal, several points here against CCTV PCN enforcement:

http://notomob.co.uk/discussions/index.php?topic=867.0

The CCTV Enforcement excerpt link shows how you can appeal about the use of CCTV using 3 arguments (CCTV signs ? were they missing; was it an approved device and what consideration was given to the use of CEOs on foot when deciding to enforce parking contraventions there by camera). You should be aware that appealing on that basis is not a 'sure winner' however - as these are 'only' guidelines - but the Council does have to show that they 'paid regard to' the guidelines.

Also have a look at the signs required at a bus stop on the Ticketfighter website; are the right signs and lines there?

And you may as well try an appeal and see what sort of rejection letter they send (which they will). Let us see it in due course as you may not have to throw in the towel. Not sure about your chances though, have to say it would look better without that damning photo...
Enceladus
We will always want to see all sides of all pages. So please post up pages 3 & 4 of your postal PCN.

Thanks,
Cargy
QUOTE (SchoolRunMum @ Fri, 6 Jul 2012 - 22:26) *
Probably the lack of replies so far is because of the obvious fact that the picture shows the car slap bang in the middle of a bus stop. Why oh why? Pretty much anywhere else would have been better!


As an ex bus driver, I too gritted my teeth about the bus stop parking but, being familiar with where the OP got nabbed, there isn't much alternative for picking up a disabled person from that church if they're coming out that entrance.*

I'm no expert, so I don't know how much difference the blue badge would make, but the badge was obviously invisible to the camera when it would have been obvious to a CEO on foot (and I can see no reason why CCTV was used instead of a patrolling CEO at this location).

Get the other pages up pronto, and maybe some of the 'Poo's clever parking boys can't find grounds for cancellation.

Edit: *Looking on GSV, I suspect the entrance in St Marychurch Road is a better bet for picking up disabled visitors.
carer
Thanks for your comments so far.
Will post up page 3 and 4.
Yes, entrance on the other side of church is probably better, but uphill and a bit of a walk through the garden and on a bend.
I don't know if the car was signed up properly - didn't look for it!
But THERE IS NO 'NO STOPPING' SIGN ON THE BUS STOP.

SchoolRunMum
I'm not an expert at all with bus stop signage - hope someone else can help as regards the lack of a 'no stopping sign'. Do you mean there is no yellow traffic sign on the bus stop at all?
Enceladus
Now we have all four pages, it seems to me that mandatory wording and information is missing from the PCN. I would argue that the failure to include mandatory wording and/or information renders the PCN unenforceable. See what others have to say.
Specifically:
The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 require;
QUOTE
Contents of a regulation 10 penalty charge notice
2. A regulation 10 penalty charge notice, in addition to the matters required to be included in it by regulation 3(4) of the Representations and Appeals Regulations, must state—
(h)that the penalty charge notice is being served by post for whichever of the following reasons applies—
(i)that the penalty charge notice is being served by post on the basis of a record produced by an approved device;

and

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 require;
QUOTE
Regulation 3(4)(e)
(4) A penalty charge notice served under regulation 10 of the General Regulations must, in addition to the matters required to be included in it under paragraph 2 of the Schedule to those Regulations, include the following information—
where the penalty charge notice is served by virtue of regulation 10(1)(a) of the General (e) Regulations (evidence produced by an approved device), the effect of paragraphs (5) and (6).
.
The paragrahs (5) & (6) referenced concern your rights to view the video evidence.
QUOTE
(5) The recipient of a penalty charge notice served by virtue of regulation 10(1)(a) of the General Regulations may, by notice in writing to the enforcement authority, request it—
(a)to make available at one of its offices specified by him, free of charge and at a time during normal office hours so specified, for viewing by him or by his representative, the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or
(b)to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention.
(6) Where the recipient of the penalty charge notice makes a request under paragraph (5), the enforcement authority shall comply with the request within a reasonable time.
carer
thanks for the latest comments. Do you also think that the bus stop should have had its own 'no stopping sign' ? Or does the one box mean that it is one bus stop? There are two separate stands within one box. The other stand has a 'no stopping' sign, but 'mine' doesn't. What do you think? Thanks for your help
Enceladus
QUOTE (carer @ Sun, 8 Jul 2012 - 17:48) *
thanks for the latest comments. Do you also think that the bus stop should have had its own 'no stopping sign' ? Or does the one box mean that it is one bus stop? There are two separate stands within one box. The other stand has a 'no stopping' sign, but 'mine' doesn't. What do you think? Thanks for your help

I don't know. Please wait for more informed comment from those that do.
Your PCN has "Date of this notice and date of posting: 02/07/2012". So it was deemed served on you on Wed the 4th July. That is day one of the 21 day discount window. Day 21 is Tuesday the 24th. And day 28 is Tues the 31st.

So I would get my "representations" delivered to the council on or before the 21st.

It does not say such on your PCN and the website appears not to cover schedule 10 PCNs, however the norm is that the discount will be re-offered where challenged within the discount window. No guarantee of that. However it seems to me that the PCN is defective in any event.

Do you have the envelope? Does it have a postmark?
carer
No, no date on the envelope, just ! Royal Mail Postage paid GB etc. And a redelivery post box if not delivered. In the middle of the top of the envelope also 'advanced mail first class AAAR-XBBS-SGSB.
Thanks.
carer
Hello Enceladus, thanks for your help so far. You say you think the PCN is defective is that due to your first comment:

QUOTE
Contents of a regulation 10 penalty charge notice
2. A regulation 10 penalty charge notice, in addition to the matters required to be included in it by regulation 3(4) of the Representations and Appeals Regulations, must state—
(h)that the penalty charge notice is being served by post for whichever of the following reasons applies—
(i)that the penalty charge notice is being served by post on the basis of a record produced by an approved device;

And is this enough to challenge them on?

Their wording for the contravention is: Parked on a restricted bus stop/stand.

I wasn't parked - the engine wasn't off, just picking up 2 old ladies - is this counted as 'parked'?
There wasn't any restriction on 'my' bust stand (there were 2, the other DID have a 'no stopping' sign. I will upload a couple of photos if this helps.

I don't really understand why you put the other 2 quotes in about my being able to view the evidence - I have the photos on my PCN and wouldn't it just slow things down a bit?

Carer

ps just tried to upload photos - too large - will have to re-size them later
Whilst looking at them, have noticed that the no stopping sign within the bus stop box, clearly labelled 'bus stop' in yellow twice - at each stand - is on a lamp stand next to the first bus stop. So actually, being fussy, neither stand has a no stopping sign on it, there is one sign, visible when stopping at the first bus stop, but not the second (mine) - and it is on a lamp stand, not bus stop. Could they argue this is for the box - therefore the two bus stops? Sorry to keep asking this, but am trying to come from different angles all the time.


carer
google link to bus stop(s)

http://maps.google.com/maps?q=50.473854,-3...=12,122.67,,0,0


Typically, there's a huge red bus at 'my' bus stop so there's no google proof of no signage, but the other sign, stop and box can be seen.

I do have some photos of the stop without the sign, of course.

Thanks.

google link to bus stop(s)

http://maps.google.com/maps?q=50.473854,-3...=12,122.67,,0,0


Typically, there's a huge red bus at 'my' bus stop so there's no google proof of no signage, but the other sign, stop and box can be seen.

I do have some photos of the stop without the sign, of course.

Thanks.
Enceladus
You cannot wait or board/alight at a bus stop.
Whether or not the bus stop is correctly marked and signed is a different matter. I don't know. Wait and see does anyone with the necessary expertise comment.

My points were that there is certain mandatory wording and mandatory information apparently missing from the PCN.

The PCN does not comply with section 2(h)(i) of the Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007.
and
The PCN also does not comply with regulation 3(4)(e) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

2(h)(i) stipulates that a PCN in your circumstances must state "that the penalty charge notice is being served by post on the basis of a record produced by an approved device". That appears to be missing from your PCN.

3(4)(e) mandates inclusion, in your circumstances, of the information specified in 3(5)(a)&(b). This concerns your rights to view video evidence. Such is also apparently missing.
Whether or not you want to view the evidence is not relevant. The point is that the PCN must inform you of your right to do so. And it does not.

When you submit your representations also demand copies of the "approval" certificates issued by the Dept. of Transport on behalf of the Secretary of State.
carer
OK, thanks, will do - but what are the
" copies of the "approval" certificates issued by the Dept. of Transport on behalf of the Secretary of State" that I should demand?

and will quoting the things you suggest be enough to officially render my PCN invalid?


thanks again,
Carer
Bagshot
The number of bus shelters, routes and bus stands is, I'm afraid irrelevant. The no stopping sign and the broad yellow line work together to convey the restriction. So we need to find something else.
Bagshot
Any chance of a decent close up of the no stopping sign at the bus stop? There is something a bit odd about the one I can see on GSV.
Enceladus
QUOTE (carer @ Mon, 9 Jul 2012 - 19:12) *
OK, thanks, will do - but what are the
" copies of the "approval" certificates issued by the Dept. of Transport on behalf of the Secretary of State" that I should demand?

and will quoting the things you suggest be enough to officially render my PCN invalid?
Carer

The video cameras and recording equipment have to be "approved" by the Secretary of State for Transport for use in accordance with the Traffic Management Act 2004. This applies to a schedule 10 PCN issued per your circumstances. Since Torbay are not claiming, as they are obliged to, that their Smart car and cameras/recorder etc have been approved, I suggest you ask for proof that they are. Some Councils take a view that the law does not apply to them or that they are above it. Or they are just plain incompetent. As a result they have not sought or have not actually obtained approval for their equipment. I don't know if this applies here, however it won't cost anything to ask.

There are no guarantees in life. And certainly not concerning the vagaries of adjudicators and PCNs, especially on a bad day. However it seems to me that your PCN is invalid and unenforceable. This is not a case of semantics where substantial compliance might be argued, there has been no attempt at all to include the mandatory wording and information.

Torbay Council will likely turn you down but you should prevail at subsequent adjudication. I guess that Torbay have newly acquired the Smart car and hence yours is one of their first CCTV PCNs. Else they would have corrected the wording by now.
carer
I do have a photo but can't upload it - it keeps telling me there's no space!
Bagshot
Host the picture on an external website such as tinypic, them copy the [IMG] code they give you into your reply, and pictures appear like magic in your thread. That is the easiest for everyone here. It just works. You'll like it.
carer


Bus stop sign -
Bagshot
That's what I thought I saw. The blue roundel with a single line through it means no waiting. Often there are exemptions such as picking up and setting down or loading etc. The blue roundel with a full cross through it is no stopping. They can't expect you to read their little essay aimed at whether buses are local or not, that is clearly aimed at bus drivers.

Their sign is wrong.

That said, at adjudication they would be wondering why you didn't know what the fat yellow line meant and what sign you would expect to see with the fat yellow line. Also it is clear that there has been some effort to correct the sign.

Not sure whether this moves you forward very far. Technically though, their sign is wrong.
carer
yes, I see what you mean by the sign, but I think it was a no stopping sign, which faded and they tried to make it better and now it's just got the one line through it. I have another question - when I word the reply is it the norm to post it on here and have it 'vetted' by you all in the know? Or do i have to go ahead on my own and send my reply without help?
Thank you.
Hippocrates
Just to add to the sound advice already given re the PCN and the sign....................

1. Please feel free to post up your draft for comments and suggestions.
2. The council are not legally obliged to re-offer the discount, unfortunately.
3. The 974 pole sign contains the permitted variant "except local buses"; however, the rest of it is highly questionable.
4. You should ask for the name and make of camera used to capture the alleged contravention, the VCA certificate, and their list of assets re cameras. Also, the full notes of the CEO who issued the PCN.

One important issue:- does their evidence show the sign?
carer
what isa VCA certificate please?
and what do you mean " their list of assets re cameras"
and why ask for the full notes?
Sorry to ask all this, but need to know what I'm doing!
No, their evidence does not show the sign as it is on the other bus stop - please see the PCN docs
Thank you for your help.
Hippocrates
QUOTE (carer @ Sat, 14 Jul 2012 - 17:05) *
what isa VCA certificate please?
and what do you mean " their list of assets re cameras"
and why ask for the full notes?
Sorry to ask all this, but need to know what I'm doing!
No, their evidence does not show the sign as it is on the other bus stop - please see the PCN docs
Thank you for your help.


The VCA is the armo of the DfT which issues a letter which certifies the camera and system as an approved device. Sometimes, they are flawed. You ask for all the other evidence to cross-refer the evidence in the hope of finding an error. I would have thought this is all self-explanatory now.
Bagshot
QUOTE (carer @ Fri, 13 Jul 2012 - 18:29) *
yes, I see what you mean by the sign, but I think it was a no stopping sign, which faded and they tried to make it better and now it's just got the one line through it. I have another question - when I word the reply is it the norm to post it on here and have it 'vetted' by you all in the know? Or do i have to go ahead on my own and send my reply without help?
Thank you.

You think it was a no stopping sign which the council realised was defective. We don't really know what happened. My view is that it was a no waiting sign and they have attempted to correct it. Neither of us really know what happened. What is clear from the photograph is that the sign is still defective.

It is best that any letters are in your own words, but by all means post up any draft you make for assistance.
Hippocrates
You do not admit that you thought it was a no stopping sign! You simply state that the sign is confusing and has failed to be maintained by the council whose responsibility it is to do so according to legislation.
Bagshot
QUOTE (Hippocrates @ Sat, 14 Jul 2012 - 20:27) *
You do not admit that you thought it was a no stopping sign! You simply state that the sign is confusing and has failed to be maintained by the council whose responsibility it is to do so according to legislation.

Quite so. What you think now, having gone back to photograph the sign after you received a PCN is what it might have been, and what they may have tried to correct it to. Speculation to be honest. What you thought it was at the time is what matters.
carer
The thing is... I didn't even see it at the time, because it was high up on the lamppost near the other bus stop and there is no sign on or around the bus stop that I picked up at... The two bus stops are, however, connected by the yellow lines on the road.

It's all horrible, because I told my mum and her friend not to get taxis as it would cost so much and I gave them lifts to help them out - just to get this. Even though I thought I was doing right with the blue badge - it's a dangerous road anyway, so I told them to stay safe sitting down out of the way and the rain till I got there to get them home. You try to care about people and do the 'big society' thing and get stung.

I still don't know about challenging - although I don't see why they should make me pay money for what they call breaking the law if they are not following the law with the writing on their forms. It's a big step to take to challenge and have to go through the courts etc when all you wanted in the first place was to help people and keep the law - I do anything not to break the law, driving or not and this makes me feel awful.
Bagshot
Making an informal challenge to the council costs you nothing. They may use their discretion to cancel the PCN in your circumstances, though I must admit that they hardly ever do. It may be worth including in this informal challenge that their signage doesn't comply and is misleading, though don't say that you were misled by it if you don't feel that you were.

Since you are requesting discretion, you need to come across as innocent and caring rather than aggressive and indignant. I'm sure you will have no trouble doing that, and anyway we will help you to tune your letter if you want us to.

If the council rejects your challenge, it's double or quits time. ie. you pay at the lower rate or you appeal where you are risking the full rate of the penalty. It isn't court, and it isn't heavy. The adjudicators are generally very gentle and helpful - so nothing to fear. It depends on how strongly you feel. Some of us appeal on principle. just because we feel a PCN is unfair. There is no guarantee that you would win though.

Technically, at bus stops with a thick yellow line, you shouldn't even stop.

So for the time being make an informal challenge and see what happens.
carer
Hello,

I have just taken ages putting an appeal together with all your help and comments hopefully correct. Would somebody PLEASE be kind enough to look through it and tell me if it's ok? Thank you all so much for your help so far.





APPEAL LETTER FOLLOWS:



Regarding PCN No. .............. dated: 27/6/2012 - 15.42
Code 47


The bus stop in question, where vehicle Reg No:................. was photographed, is outside Upton Vale Church on Lymington Road.

My mother was attending a ‘holiday at home’ event in the church (the open door features in your photo) and I was collecting her and a friend. Both are in their 80’s and my mother is disabled, not being able to walk very far. The front door of the church, on St. Marychurch Rd is uphill through the garden, and therefore more difficult for her to reach. The only other place to pick them up is down the steps on Lymington Road.

The stretch of Lymington Road under the church is taken up by bus stops or road train stops and picking up of passengers is difficult. It was also a rainy day so they were sheltering, seated, waiting for me near the bottom of the steps in the bus shelter. I picked them up and was gone. The whole manoeuvre took very little time.

I was shocked to receive the PCN and, on scanning the photo, could not see any ‘no stopping signs’. A subsequent visit to the bus stop proved this to be correct. The bus stop where I picked up my mother has no ‘no stopping sign’ affixed to it. The only signage is affixed to a lamppost adjacent to the bus stop along the road - though this sign does not appear to look like the bus stop signs pictured in the highway code. Some ‘improvements’ have been applied to the sign and it now looks like a no waiting sign - therefore not in order. The sign is confusing and has failed to be maintained properly - I believe it is the responsibility of Torbay council to do so according to legislation.

However, there is no sign on the bus stop appearing in my photo. The bus stop therefore does not comply with the Traffic Signs Regulations and General Directions 2002 which requires a bus stop clearway to be accompanied by a sign to diagram 974.
I believe evidence about signage is particularly important when the contravention relates to a restricted bus stop or stand (i.e. a bus stop clearway or a bus stand clearway), because it is the signage itself, not an underlying TRO, which creates the restriction.

I was also not aware of any warning signs that camera enforcement was taking place and do not have the name of the civil enforcement officer or supervisor who reviewed the film and decided to issue a PCN, could you please let me have this information.

Could you also please explain why it was appropriate to enforce by camera, rather than by civil enforcement officer? It has been observed that a PCN should not be issued by post using video evidence if it could perfectly easily have been issued and served in the usual way under Regulation 9 - ie the civil enforcement officer could have got out of the car and walked over to the car and put the PCN on the windscreen. In doing so, a CEO would have seen the blue badge on my dashboard and been able to ascertain that there was nowhere else safe enough to have picked up my disabled mother.

I also think that the PCN must be accurate and in accordance with the Regulations.
Could you please confirm that you agree that mandatory wording and information is missing from the PCN. Failure to include mandatory wording and/or information, I believe, renders the PCN unenforceable.

For example:

Example 1.

Contents of a regulation 10 penalty charge notice
2.  A regulation 10 penalty charge notice, in addition to the matters required to be included in it by regulation 3(4) of the Representations and Appeals Regulations, must state—

(h) that the penalty charge notice is being served by post for whichever of the following reasons applies—

(i) that the penalty charge notice is being served by post on the basis of a record produced by an approved device;

(ii) that it is being so served, because a civil enforcement officer attempted to serve a penalty charge notice by affixing it to the vehicle or giving it to the person in charge of the vehicle but was prevented from doing so by some person; or

(iii) that it is being so served because a civil enforcement officer had begun to prepare a penalty charge notice for service in accordance with regulation 9, but the vehicle was driven away from the place in which it was stationary before the civil enforcement officer had finished preparing the penalty charge notice or had served it in accordance with regulation 9.


I think you would agree that (ii) and (iii) are not applicable, but I do not find the wording of (i) that the penalty charge notice is being served by post on the basis of a record produced by an approved device anywhere on my PCN.


Example 2.

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 require;
QUOTE
Regulation 3(4)(e)
(4) A penalty charge notice served under regulation 10 of the General Regulations must, in addition to the matters required to be included in it under paragraph 2 of the Schedule to those Regulations, include the following information—
where the penalty charge notice is served by virtue of regulation 10(1)(a) of the General (e) Regulations (evidence produced by an approved device), the effect of paragraphs (5) and (6).

The paragraphs (5) & (6) referenced concern my rights to view the video evidence.

QUOTE
(5) The recipient of a penalty charge notice served by virtue of regulation 10(1)(a) of the General Regulations may, by notice in writing to the enforcement authority, request it—
(a)to make available at one of its offices specified by him, free of charge and at a time during normal office hours so specified, for viewing by him or by his representative, the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or
(b)to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention.
Where the recipient of the penalty charge notice makes a request under paragraph (5), the enforcement authority shall comply with the request within a reasonable time.

The wording above, concerning my rights to view the video evidence is apparently missing. The PCN must inform you of your right to be able to do so, but it does not.

Video cameras and recording equipment have to be "approved" by the Secretary of State for Transport for use in accordance with the Traffic Management Act 2004. This applies to a schedule 10 PCN issued in my circumstances. Could you please let me see copies of the "approval" certificates issued by the Dept. of Transport on behalf of the Secretary of State.

Could I also have the name and make of camera used to capture my alleged contravention, the VCA certificate, and your list of assets re. cameras, please. I also request the full notes of the CEO who issued the PCN in question.

I am saddened to have had to pick through the PCN like this, taking time away from other, very important things in my life at this time. The simple act of helping two elderly ladies (one nearly 90) to save some money by not having a taxi and by making sure they got into my car safely has generated this PCN.

I ask you to consider the reasons for my appeal and hope you agree with my reasoning.

Thank you for reading this letter.

PLEASE HELP WITH GIVING MY APPEAL LETTER A LOOK-OVER
THANK YOU
Incandescent
This is just my personal opinion, but if this is an informal letter, it needs to be less heavy on the PCN deficiencies and the various legal requirements. If your appeal is refused then that is the time to get 'heavy'. However, I think you should keep in the bit about using CCTV when a CEO could do the job. You could ask them why they seem to have disregarded Government advice on using CCTV for parking enforcement. (of course we all know it is to save money, but they'll never admit it, of course).

Whilst "Guidance" is that, and not therefore legally enforceable, they must have regard to the guidance. What many people seem not to realise, even the adjudicators, is that the words "have regard to" is a legal term,and by putting 'must' in front of it, you cannot just ignore the guidance, you must be able to demonstrate, if you ignore it, why you have done so - reasons and logical argument leading to a decision. If you don't, and then having ignored the guidance, continue to use CCTV to issue PCNs in locations, a person receiving one has a legitimate expectation that the reason for using CCTV to issue the PCN can be given. If not then it seems to me a procedural impropriety has taken place.

This is what the Charity Commission has said on their own Guidance to charities ( my bold marking of text): -

Charity trustees are not legally required to follow this guidance but they must have regard to it when it is relevant for their charity.

That means they should be able to show that:
- they are aware of the guidance;
- in making a decision where the guidance is relevant, they have taken it into account; and
- if they have decided to depart from the guidance, they have good reasons for doing so.
carer
Thank you, taken on board and will update letter tomorrow, before I send it off - recorded/registered, whatever they call it today...

You are appreciated.
Incandescent
Further to my last post, I have investigated a bit further. This is what the Better Regulation Executive, (a UK Governemnt QUANGO) say on 'must have regard to' in relation to another Guidance issued by the Government.: -

• Any departure from the Code must be:
- properly reasoned and
- based on material (relevant) evidence
• Any factor influencing a departure must be relevant, accurate and up to date.
• The reasoning that informs a decision to depart from any provision of the Code is like to be flawed if it ignores the following logical or rational principles:

• The principles that govern this reasoning process are that a body under a duty to have regard to the Code:
- (1) must not take into account irrelevant factors/consideration, and
- (2) must not refuse or fail to take into account factors which the law requires it to consider
- Recording decisions: factors influencing the decisions on application of the Code should be recorded.
- Given the need for express/explicit consideration, the need to record/document decisions is self evident.
- Ex post facto rationalisation is bad practice/unlawful
• Exemptions
- The duties to have regard to the Code and the 5 Principles are overridden by:
 other legal requirements affecting the exercise of the regulatory functions
- These “other legal requirements” are:
 a regulator’s primary statute/legislation
 EC law obligations


It seems to me, therefore, that councils are under an obligation to record deviations from the DfT Guidance on CCTV, and to explain why they have deviated. It's about time the adjudicators started to get heavy with councils that have just ignored the guidance. ANybody know of any council where one can go onto their parking pages and read why CCTV is in use in their streets, and the reasons why enforcement is "difficult or sensitive". No thought not !

Hippocrates
I wholly agree with the advice re guidance; however, I feel strongly that all valid arguments should be submitted to test their reaction and response - or lack of. PATAS's attitude to the Guidance is generally negative, unlike TPT's; however, there is this case to quote further down the line if necessary: case number 211001669A.

Although it is an "informal challenge", nevertheless, it is a formal letter whose sole objective is to get the PCN cancelled at this stage.
carer
OK, thanks, I'm going to leave everything in, but add the info about the guidance - and send it off today. I presume the answer will be negative... do I then upload it for perusal or is it sensitive?

Thank you
Hippocrates
Just come back and post up for further advice, less personal details.
carer
OK

I've updated the letter and am sending it off today - 19th July. They say they will reply within 56 days - so sit and wait now, I suppose.


Thanks for your help, I will upload amended letter at a later date.
Enceladus
The PCN is dated the 2nd July not the 27th of June. So please correct that.
The PCN was deemed served on Wed the 4th July. So the deadline to make representations and still be within the 21 day discount window is Tues the 24th July. The absolute deadline to make representations is Tues the 31st July.

Nowhere is it explicitly stated, concerning a regulation 10 PCN, that they will re-offer the discount if the PCN is challenged within the discount window. However it is explicit for a regulation 9 PCN. So I suggest that you get your reps submitted by the discount deadline.

So make sure you get your reps delivered to the Council on or before the 24th. If you go to the Postoffice, use first class and request a free of charge proof of posting. Keep it safe. However you need to do so in good time not later than tomorrow Friday. Or go online here but make sure you get an email receipt or acknowledgement and keep it safe.

Remember that you are writing to the lowest common denominator. And that the Council is supposed to know the legislation. You are not and nor is it your role to educate them, even if you happen to be Rumpole. So your letter is too complicated. Keep it simple. So:
QUOTE
Procedural Impropriety:
The PCN is invalid and unenforceable as it does not comply with section 2(h)(i) of the Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007.
and
Furthermore the PCN does not comply with regulation 3(4)(e) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

2(h)(i) stipulates that a Schedule 10 Penalty Charge Notice, in these circumstances, must state "that the penalty charge notice is being served by post on the basis of a record produced by an approved device". The Penalty Charge Notice, as issued, does not include any such wording. The required wording is not optional, it is compulsory.

3(4)(e) mandates the inclusion, in these circumstances, of the information specified in regulation 3(5)(a)&(b). This concerns rights to view video evidence. The Penalty Charge Notice, as issued, does not include any such information. The required information is not optional, it is compulsory.


Whether or not you want to view the evidence is not relevant. The point is that the PCN must inform you of your right to do so. And it does not.

I would also ask the Council to justify why they had to issue this PCN by post? What was so difficult, sensitive or impractical about the location that their Civil Enforcement Officer could not get out of the Smart Car and hand the PCN to you or put it on your windscreen. The guidelines issued to Local authorities by the Secretary of State say The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical. I don't see how that can be construed to include pure laziness?

And ask for copies of the approval certificates for all of the "approved device(s)" involved?
carer
Thanks for noting the misleading date - the date I quoted was the date of the photo, not the date they sent the PCN.

However, I had already sent the letter off, so I have sent a fax (as they suggest on their letter) with the amended details and also your abbreviated notes. I'm currently trying to make sure they affix the 2 together - but it's Friday and no-one is answering the phone...

I've checked the PO tracking system and the letter has been delivered.
carer
Emailed them and they acknowledge receipt of letter and fax and that they are both awaiting consideration...

Just have to wait now...
Hippocrates
The PCN is seriously defective as it does not contain mandatory information re viewing the evidence as per this decision at PATAS this week:- 2120293222

http://www.patasregistersofappeals.org.uk/
carer
thank you for the info - more ammo should I need it when they reply.
Bagshot
Excellent. About time someone won on that point. They like to keep it difficult to view video, don't tell you that you can, and make you jump through hoops if you ask.
Bagshot
Had to stop earlier today, and found a bus stop with wide yellow line through it. No plate saying no stopping, so thought I would chance it. As I walked round the vehicle I found a sign which requested people to take their litter home with them, so the council is inviting buses and picnickers to stop there. Seen loads where there is no sign to accompany the broad yellow line.

If it is common practice to use the line without the sign to make the bus stops more visible but not to prevent stopping by other vehicles, it makes it all the more important that the sign must be there where they do want to prohibit stopping.

Happy to start photographing them as I find them if anyone thinks that there is any mileage in this line of argument.
carer
Hi Bagshot - thanks for your dedication! I don't want to make you stop at bus stops to photograph them, in case you too get 'nabbed'! But I find it really interesting that so many 'rules' are not adhered to when 'they' want, but if we don't stick to the rules, it's wrong. This is what is pushing me on to challenge this PCN. I'm not a pushy person usually but rules can't be expected to be followed if signs don't exist or, even worse, we shouldn't be able to be accused of breaking the law by anyone who breaks the law with their accusation... if you know what I mean. Anyhow, I'm pressing on with it and they have got my appeal now - will just have to wait and see what they say.

Hippocrates
Post up what you wrote, please.
carer
THIS IS THE APPEAL RETURNED TO THE COUNCIL, ATTACHED TO THE FORM THEY SENT TO ME WITH THE PCN





LETTER:

Regarding PCN No. xxxxxx dated: 27/6/2012 - 15.42hrs
Name: xxxxxxxx Code 47


The bus stop in question, where vehicle Reg No: xxxxxx was photographed, is outside Upton Vale Church on Lymington Road.

My mother was attending a ‘holiday at home’ event in the church (the open door features in your photo) and I was collecting her and a friend. Both are in their 80’s and my mother is disabled, not being able to walk very far. The front door of the church, on St. Marychurch Rd is uphill through the garden, and therefore more difficult for her to reach. The only reasonable place to pick them up that day was at the bottom of the steps on Lymington Road.

The stretch of Lymington Road under the church is taken up by bus stops or road train stops and the picking up of passengers is difficult. It was also a rainy day so they were sheltering, seated, waiting for me near the bottom of the steps in the bus shelter. I picked them up and was gone. The whole manoeuvre took very little time.

I was shocked to receive the PCN and, on scanning the photo, could not see any ‘no stopping signs’. A subsequent visit to the bus stop proved this to be correct. I have photographs, should you be interested. The bus stop where I picked up my mother has no ‘no stopping sign’ affixed to it. The only signage is affixed to a lamppost adjacent to the bus stop along the road - though this sign does not appear to look like the bus stop signs pictured in the highway code. Some ‘improvements’ have been applied to the sign and it now looks like a no waiting sign - therefore not in order. The sign is confusing and has failed to be maintained properly - I believe it is the responsibility of Torbay council to do so according to legislation.

However, there is no sign on the bus stop appearing in my photo. The bus stop therefore does not comply with the Traffic Signs Regulations and General Directions 2002 which requires a bus stop clearway to be accompanied by a sign to diagram 974.
I believe evidence about signage is particularly important when the contravention relates to a restricted bus stop or stand (i.e. a bus stop clearway or a bus stand clearway), because it is the signage itself, not an underlying TRO, which creates the restriction.

I was also not aware of any warning signs that camera enforcement was taking place and do not have the name of the civil enforcement officer or supervisor who reviewed the film and decided to issue a PCN, could you please let me have this information.

Could you also please explain why it was appropriate to enforce by camera, rather than by civil enforcement officer? It has been observed that a PCN should not be issued by post using video evidence if it could perfectly easily have been issued and served in the usual way under Regulation 9 - i.e. the civil enforcement officer could have got out of the car and walked over to the car and put the PCN on the windscreen or given it to me by hand. In doing so, a CEO would have seen the blue badge on my dashboard and would have been able to ascertain for himself, or in conversation with me, that there was nowhere else safe enough to have picked up my disabled mother.

I also think that the PCN must be accurate and in accordance with the Regulations.
Could you please confirm that you agree that mandatory wording and information is missing from the PCN. Failure to include mandatory wording and/or information, I believe, renders the PCN unenforceable.

For example:

Example 1.

Contents of a regulation 10 penalty charge notice
2.  A regulation 10 penalty charge notice, in addition to the matters required to be included in it by regulation 3(4) of the Representations and Appeals Regulations, must state—

(h) that the penalty charge notice is being served by post for whichever of the following reasons applies—

(i) that the penalty charge notice is being served by post on the basis of a record produced by an approved device;

(ii) that it is being so served, because a civil enforcement officer attempted to serve a penalty charge notice by affixing it to the vehicle or giving it to the person in charge of the vehicle but was prevented from doing so by some person; or

(iii) that it is being so served because a civil enforcement officer had begun to prepare a penalty charge notice for service in accordance with regulation 9, but the vehicle was driven away from the place in which it was stationary before the civil enforcement officer had finished preparing the penalty charge notice or had served it in accordance with regulation 9.


I think you would agree that (ii) and (iii) are not applicable, but I do not find the wording of (i) that the penalty charge notice is being served by post on the basis of a record produced by an approved device anywhere on my PCN.


Example 2.

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 require;
QUOTE
Regulation 3(4)(e)
(4) A penalty charge notice served under regulation 10 of the General Regulations must, in addition to the matters required to be included in it under paragraph 2 of the Schedule to those Regulations, include the following information—
where the penalty charge notice is served by virtue of regulation 10(1)(a) of the General (e) Regulations (evidence produced by an approved device), the effect of paragraphs (5) and (6).

The paragraphs (5) & (6) referenced concern my rights to view the video evidence.

QUOTE
(5) The recipient of a penalty charge notice served by virtue of regulation 10(1)(a) of the General Regulations may, by notice in writing to the enforcement authority, request it—
(a)to make available at one of its offices specified by him, free of charge and at a time during normal office hours so specified, for viewing by him or by his representative, the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or
(b)to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention.
Where the recipient of the penalty charge notice makes a request under paragraph (5), the enforcement authority shall comply with the request within a reasonable time.

The wording above, concerning my rights to view the video evidence is apparently missing. The PCN must inform me of my right to be able to do so, but it does not.

Video cameras and recording equipment have to be "approved" by the Secretary of State for Transport for use in accordance with the Traffic Management Act 2004. This applies to a schedule 10 PCN issued in my circumstances. Could you please let me see copies of the "approval" certificates issued by the Dept. of Transport on behalf of the Secretary of State.

Could I also have the name and make of camera used to capture my alleged contravention, the VCA certificate, and your list of assets re. cameras, please. I also request the full notes of the CEO who issued the PCN in question.

I am also wondering why you seem to have disregarded Government advice on using CCTV for parking enforcement and would be interested to hear your comments.

I am under the impression that a council must have regard to the guidance. "Have regard to" is a legal term so a person receiving a PCN has a legitimate expectation that the reason for using CCTV to issue the PCN can be given. If not then it seems to me a procedural impropriety has taken place. If you have decided to depart from the guidance, you must have good reasons for doing so.

It seems to me, therefore, that councils are under an obligation to record deviations from the DfT Guidance on CCTV, and to explain why they have deviated. Thank you for looking into this.

However, I am saddened to have had to pick through the PCN like this, taking time away from other, very important things in my life at this time. The simple act of helping two elderly ladies (one nearly 90) to save some money by not having a taxi and by making sure they got into my car safely has generated this PCN.

I ask you to consider the reasons for my appeal and I hope you agree with my reasoning and cancel my PCN. Thanking you in anticipation,


Yours sincerely,
xxxxxxxx xxxxxxxxxx (Mrs)






THEN I READ THE NEXT MESSAGE ON THE FORUM ADVISING ME TO CHANGE THE DATE ON MY APPEAL AS IT WAS MISLEADING - I MEANT, OF COURSE, THE DATE OF THE ALLEGED OFFENCE, BUT IT LOOKS AS THOUGH IT IS THE DATE ON THE PCN - HOWEVER I HAD SENT THE APPEAL OFF, SO QUICKLY SENT THE FAX BELOW...

I HAVE AN EMAIL FROM THEM CONFIRMING THEY RECEIVED BOTH LETTER AND FAX ON FRIDAY 20TH JULY, 2012 AND THAT THEY HAVE FILED THEM TOGETHER.








FAX:


PARKING SERVICES
(address)

20th JULY, 2012


DEAR SIRS,

REFERENCE: xxxxxxx / MRS xxxxxxxxx
VEHICLE REG NO: xxxxxxxxx


PLEASE NOTE THAT THE PCN ITSELF IS DATED 2ND JULY 2012.

THE DATE I HAVE INCLUDED IN THE HEADING OF MY REPRESENTATION, ALONG WITH THE TIME, COULD BE MISLEADING - IT IS THE DATE THE CCTV PICTURE WAS TAKEN OF MY VEHICLE.

PLEASE ATTACH THIS ADDENDUM TO MY REPRESENTATION, WHICH YOU RECEIVED AND SIGNED FOR ON THE DATE OF FRIDAY 11th JULY, 2012 - WITHIN THE PERIOD OF 21 DAYS STIPULATED.

THANK YOU.

HERE FOLLOWS A SIMPLIFIED REMINDER OF MY REPRESENTATION:

Procedural Impropriety:
The PCN is invalid and unenforceable as it does not comply with section 2(h)(i) of the Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007.
and
Furthermore the PCN does not comply with regulation 3(4)(e) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

2(h)(i) stipulates that a Schedule 10 Penalty Charge Notice, in these circumstances, must state "that the penalty charge notice is being served by post on the basis of a record produced by an approved device". The Penalty Charge Notice, as issued, does not include any such wording. The required wording is not optional, it is compulsory.

3(4)(e) mandates the inclusion, in these circumstances, of the information specified in regulation 3(5)(a)&(b). This concerns rights to view video evidence. The Penalty Charge Notice, as issued, does not include any such information. The required information is not optional, it is compulsory.



END OF FAX




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