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Monz87
Hi guys, I just received a PCN through the post, see below. First of all I have noticed that from the date of contravention to the date of issue is over 2 weeks, I think I heard that they have to issue a PCN within 2 weeks??

Also the aign is very small and not noticable and about 7 car lengths behind where I was parked. (Images from google maps look enlarged.) I pulled up with my family inside and quickly popped in the shop and returned back into the car within about 2-3 minutes.

Do I have any grounds to appeal on?











SchoolRunMum
Doesn't look like the same place...their pics look like you are on a double yellow?

You can use these points in any appeal (read & note all appeal points mentioned):

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

I can't read what the restriciton on the sign says, although I can see there's a pic of a traffic enfrocement camera so that point is covered. Doesn't mean the other points on the link are though.
Monz87
The location is right, I was parked right at the end just before the turning where the double yellow starts, possibly a little on the double yellow aswell.

What could be missing on the PCN that they should have included? Also do they have to issue a PCN within 2 weeks of contravention?
I have sent them an email requesting to see all pictures and videos.

Please see below for the sign.



Monz87
I have just been reading the Code of Practice for Operation of CCTV Enforcement Cameras in the London Borough of Tower Hamlets

Issue of Penalty Charge Notices (PCNs)
2.4.7 The Secretary of State recommends that all PCNs should be issued within 14 days of the
contravention. A PCN should be sent by first class post and must not be sent by second
class post. Any notice served by first class post is deemed to have been served on the
second working day after posting unless the contrary is proved.

2.4.8 Reasons for not serving the PCN within 14 days should be restricted to those that are
outside of the control of the authority, for example where details from the DVLA have not
been received in time.

2.4.9 In any case, PCNs must be served within 28 days of the date of contravention unless
keeper details have not been received from DVLA.


Does this mean that they should have issued it within 14 days? I'm quite confused as then on the third paragraph it states 28 days?
Incandescent
Yet another council ignoring statutory guidance on the use of CCTV to enforce parking regulations. When will this blatant illegality be punished ?

It is clear from your pictures that a CEO could patrol this street, it looks like a perfectly normal urban street, nothing untoward to prevent CEOs from operating. Yet Clause 8.78 of the guidance advises that CCTV should only be used where enforcement by CEOs is difficult or sensitive and CEO enforcement is not practical. Also look particularly at Clause 1.4 which refers to Section 87 of the TMA 2004. This states “that local authorities must have regard to the information contained in that guidance”.

So if a local authority has shown itself as having failed have regard to the guidance when enforcing using CCTV, i.e. ignored it, then an appeal to the adjudicator may well be upheld on this alone. So what the council must prove is that they had regard to the guidance when enforcing via CCTV in the street you were in, and explain why enforcement via CEOs was not practical, anything else is a procedural impropriety, making the PCN invalid.

Of course, we have a supine government, greedy, venal councils, and far too many adjudicators who seem unwilling to ensure that councils follow the law on CCTV enforcement of parking regulations. Essentially, to comply with the law, councils must list all the locations where they use CCTV and the reasons why CCTV is used rather than CEOs, and make this information public. This would demonstrate they have had regard to the guidance, but none do so. CCTV enforcement is cheap, that's why they use it, no more no less.

Monz87
QUOTE (Incandescent @ Sun, 8 Jul 2012 - 20:06) *
Yet another council ignoring statutory guidance on the use of CCTV to enforce parking regulations. When will this blatant illegality be punished ?

It is clear from your pictures that a CEO could patrol this street, it looks like a perfectly normal urban street, nothing untoward to prevent CEOs from operating. Yet Clause 8.78 of the guidance advises that CCTV should only be used where enforcement by CEOs is difficult or sensitive and CEO enforcement is not practical. Also look particularly at Clause 1.4 which refers to Section 87 of the TMA 2004. This states “that local authorities must have regard to the information contained in that guidance”.

So if a local authority has shown itself as having failed have regard to the guidance when enforcing using CCTV, i.e. ignored it, then an appeal to the adjudicator may well be upheld on this alone. So what the council must prove is that they had regard to the guidance when enforcing via CCTV in the street you were in, and explain why enforcement via CEOs was not practical, anything else is a procedural impropriety, making the PCN invalid.

Of course, we have a supine government, greedy, venal councils, and far too many adjudicators who seem unwilling to ensure that councils follow the law on CCTV enforcement of parking regulations. Essentially, to comply with the law, councils must list all the locations where they use CCTV and the reasons why CCTV is used rather than CEOs, and make this information public. This would demonstrate they have had regard to the guidance, but none do so. CCTV enforcement is cheap, that's why they use it, no more no less.



Hi Incandescent, which guidance are you referring to? I don't seem to have come accross that one.
SchoolRunMum
QUOTE (Monz87 @ Mon, 9 Jul 2012 - 10:47) *
Hi Incandescent, which guidance are you referring to? I don't seem to have come accross that one.



*Cough*

You would have come across it if you had followed the link I gave you in post #2...
Monz87
QUOTE (SchoolRunMum @ Mon, 9 Jul 2012 - 18:34) *
QUOTE (Monz87 @ Mon, 9 Jul 2012 - 10:47) *
Hi Incandescent, which guidance are you referring to? I don't seem to have come accross that one.



*Cough*

You would have come across it if you had followed the link I gave you in post #2...


Sorry I did look but I still didn't seem to find those references in that link.
I did however find the references in the Operational Guidance to Local Authorities - Parking Policy and Enforcement document.

I will draught a letter of appeal and hope you can go through it and see if it is ok and if there is anything to add/remove.

I hope this can be dealt with asap as I will not be around from 13th Aug-29th Aug and hope that I don't miss any deadlines etc after I submit an appeal.
Neil B
QUOTE (Incandescent @ Sun, 8 Jul 2012 - 20:06) *
It is clear from your pictures that a CEO could patrol this street, it looks like a perfectly normal urban street, nothing untoward to prevent CEOs from operating. Yet Clause 8.78 of the guidance advises that CCTV should only be used where enforcement by CEOs is difficult or sensitive and CEO enforcement is not practical. Also look particularly at Clause 1.4 which refers to Section 87 of the TMA 2004. This states “that local authorities must have regard to the information contained in that guidance”.

So if a local authority has shown itself as having failed have regard to the guidance when enforcing using CCTV, i.e. ignored it, then an appeal to the adjudicator may well be upheld on this alone. So what the council must prove is that they had regard to the guidance when enforcing via CCTV in the street you were in, and explain why enforcement via CEOs was not practical, anything else is a procedural impropriety, making the PCN invalid.


Nearly but not quite true. It's a very difficult argument to get right.
Where you have references to a failure to follow Guidance - being unlawful, that is simply untrue, they can.

The only requirement is to have regard to the Guidance and hence it follows our only question can be to query what form that took. Their actual reasons for then choosing not to follow the Guidance are irrelevant. (I'm not saying the situation is right!!).

I can actually think of a perfectly good reason they have chosen or reasoned not to use CEOs on that street but I won't give them ideas.
Incandescent
I derfer to Neil B, who has long experience in these matters, However, key words are: -

QUOTE
local authorities must have regard to the information contained in that guidance”.


To me, "having regard to" means that you either follow the guidance, no special action needed, OR if ignoring some or all of it, be prepared to explain why you have not followed it, (or some of it). If you cannot explain why you have ignored the guidance, you have surely not had regard to it, and as it is a legal requirement to so have regard, you have acted illegally ?

Of course, I am not a lawyer, so maybe I read it wrongly, however, it seems to me the words "have regard to" have been chosen carefully. Here is a reference to a Powerpoint presentation by the Better Regulation Executive in which the meaning of "have regard to" is explored

www.bis.gov.uk/files/file45343.ppt

Look particularly at Slides 27-29.





Monz87
Well now i'm slightly put off by appealing, I wrote this letter, what do you guys think;

PCN No. TT10392858

I am writing in regards to the above PCN which was issued to me. This PCN is not valid and should be cancelled immediately for the following reasons;

In the Operational Guidance to Local Authorities: Parking Policy and Enforcement

It clearly states that;

1.4 Wording in this document is part of the Secretary of State for Transport’s Guidance (often referred to as the Statutory Guidance) which is published under section 87 of the Traffic Management Act 2004. section 87 of the TMA stipulates that local authorities must have regard to the information contained in that Guidance

8.78 The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical.

It is perfectly practical for CEO’s to issue PCN’s on this street and not difficult at all.

8.85 It is recommended that the PCN also gives:

• vehicle make and colour
• observation start and finish times


The PCN did not cover the above two points.



In the Traffic Management Act 2004

It clearly states that;

Section 87

Guidance to local authorities

(1) The appropriate national authority may publish guidance to local authorities about any matter relating to their functions in connection with the civil enforcement of traffic contraventions.

(2) In exercising those functions a local authority must have regard to any such guidance.

It is stated in the TMA 2004 that the local authority must have regard to any such guidance and it is clear that this has not been adhered to.


Also in


THE JOINT REPORT OF THE PARKING ADJUDICATORS FOR ENGLAND AND WALES 2009/10



It states under Camera enforcement of Parking Contraventions and

Parking Penalty Charge Notices sent by Post

Appropriate enforcement and evidence:



That there must be an explanation of why it was appropriate to enforce by camera rather than by civil enforcement officer.



- This has not been specified.

Aside from all points raised above, the signs where not clearly visible and not an adequate distance from the location parked to be related to the alleged contravention.

The vehicle was parked for a period of less than 5 minutes in a location where I feel that the sign does not cover. As per guidance’s mentioned above, it is not reasonable to issue PCNs in this specific location via a CCTV device.

I would be grateful if you could cancel this PCN as clearly it is invalid. I am prepared to appeal to an independent adjudicator if you do not cancel this PCN and will include specific references to the TMA 2004 and Operational Guidance to Local Authorities which invalidate this PCN. Also if you do not cancel this PCN, please provide me with the make and model of the camera which caught that alleged contravention and show proof that this is an approved device to be used for such purposes.



Kind regards

Incandescent
Yes, you have got the main points well, and the NPAS Joint Report extract is good, although your PCN comes under PATAS (London), not NPAS, but the principle is the same. The report reference is to the evidence the council must supply to the adjudicator if you take it to them.

That there must be an explanation of why it was appropriate to enforce by camera rather than by civil enforcement officer.


By using CCTV, and then issuing a PCN over two weeks later, they are prejudicing you, because if you had received the PCN at the time, you would have been in a position to record any evidence that could refute the PCN. Of course the councils love CCTV enforcement because it's so cheap to operate. AFAIK, no council has formally taken regard of the Guidance, in terms of recording and publishing why they are ignoring parts of it, namely that guidance relevant to CCTV enforcement of parking.

Many councils are blatantly ignoring it, the situation is a scandal, but there we are, only a Judicial Review hearing will clear the air, and nobody can afford that, and the councils know it, and carry on illegally using CCTV. Maybe there needs to be a club formed to take this sort of thing to JR
Neil B
QUOTE (Incandescent @ Tue, 10 Jul 2012 - 20:44) *
I derfer to Neil B, who has long experience in these matters, However, key words are: -

QUOTE
local authorities must have regard to the information contained in that guidance”.


To me, "having regard to" means that you either follow the guidance, no special action needed, OR if ignoring some or all of it, be prepared to explain why you have not followed it, (or some of it). If you cannot explain why you have ignored the guidance, you have surely not had regard to it, and as it is a legal requirement to so have regard, you have acted illegally ?

Of course, I am not a lawyer, so maybe I read it wrongly,


I'm not particularly disagreeing with you; I would have thought so too. Rather, I'm considering the only successful case I know of where such arguments were used, i.e. solely on a failure to confirm 'regard' rather than explain 'regard'.

QUOTE (Incandescent @ Wed, 11 Jul 2012 - 09:38) *
the NPAS Joint Report extract is good, although your PCN comes under PATAS (London), not NPAS, but the principle is the same. The report reference is to the evidence the council must supply to the adjudicator if you take it to them.

That there must be an explanation of why it was appropriate to enforce by camera rather than by civil enforcement officer.


I've never got around to reading it but that would carry more weight IMO than references to Guidance, although linking both would make sense too.

However, couching in it the long-winded terms the OP has I can't see working. Just my opinion but it just isn't reading with any particular impact or, more specifically, a direct question to put the ball in their court.

-
- and, I'm sorry but criticism of signing both the restriction and use of CCTV in such close proximity is likely to just cause hilarity in the TH office.
Monz87
I'm quite happy to submit that letter, do you think I should add anything?

Also, if it is rejected, will I have to pay the full amount or half?
If I then appeal to the adjudicator and get rejected, will I have to pay full or half?

I'm going away from the 13th Auguest - 29th August and don't want to miss any replies etc.

Do you think it would be better for me to send this letter several days before the 21 days so they freeze it on the reduced rate? And so they take a while to respond any by that time i may be back?
Incandescent
It is always the full PCN amount at adjudicator if you lose, but no costs.

As CCTV enforcement is so lucrative, (costs low, revenue high), I cannot see them giving way. What you are sending is an informal appeal, so they normally hold the discount when they send the reject letter to "jolly you along" to pay, rather than go to adjudication. And lets behonest, most people pay up, that's how they get away with so much. Adjudicators appeals represent less than 1% of PCNs issued.
Monz87
QUOTE (Incandescent @ Wed, 11 Jul 2012 - 13:04) *
It is always the full PCN amount at adjudicator if you lose, but no costs.

As CCTV enforcement is so lucrative, (costs low, revenue high), I cannot see them giving way. What you are sending is an informal appeal, so they normally hold the discount when they send the reject letter to "jolly you along" to pay, rather than go to adjudication. And lets behonest, most people pay up, that's how they get away with so much. Adjudicators appeals represent less than 1% of PCNs issued.


Hmm thanks for that I guess I will have think about it and let you know what I do. Thanks to all of who have advised me. I'll keep you guys posted!
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