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JammyT
Hi All

Please see attached notice I received on Boxing Day. Are there any pointers as to problems with this notice?

I thought the narrative "The Civil Enforcement Officer...believes that a penalty charge is payable" was a bit strange. Either it is or isnt a contravention - what the CEO "believes" is irrelevant I'd have thought?

I also attach a photograph of a sign I was parked nearest to. There was a dotted line bay that I parked in but I do not believe that this sign covers my car - a normal family car. I went back to check rest of the dotted bay area - its about 15 to 20 metres long. There was no painted demarcation indicating residents parking. There was a sign at the other end of the bay which indicated permit holders only including public holidays, but I dont know how that corresponds to the sign I have posted. At the very least it is highly confusing. If where I parked was already clearly identified as permit holders only then the sign on my photo is unnecessary as such vehicles would not have residents permits anyway, surely? On the day itself I read the sign in the photo and parked in good faith on the basis it did not apply to me.

Any thoughts appreciated
clark_kent
QUOTE (JammyT @ Tue, 8 Jan 2013 - 09:56) *
Hi All

Please see attached notice I received on Boxing Day. Are there any pointers as to problems with this notice?

I thought the narrative "The Civil Enforcement Officer...believes that a penalty charge is payable" was a bit strange. Either it is or isnt a contravention - what the CEO "believes" is irrelevant I'd have thought?


Is thats the case why don't you just pay it? If the contravention was definite at the PCN stage then the appeals process would be redundant don't you think?
JammyT
QUOTE (clark_kent @ Tue, 8 Jan 2013 - 11:00) *
QUOTE (JammyT @ Tue, 8 Jan 2013 - 09:56) *
Hi All

Please see attached notice I received on Boxing Day. Are there any pointers as to problems with this notice?

I thought the narrative "The Civil Enforcement Officer...believes that a penalty charge is payable" was a bit strange. Either it is or isnt a contravention - what the CEO "believes" is irrelevant I'd have thought?


Is thats the case why don't you just pay it? If the contravention was definite at the PCN stage then the appeals process would be redundant don't you think?


OK good point and fair enough - I just read it that even the CEO isnt certain.

Do you have any thoughts on arguments as to the merits of the sign I parked next to, or the validity of the notice itself.

I have searched this forum for 12W Richmond PCN's but havent found anything that relates directly to my issue.

Thanks in advance for any help.
clark_kent
QUOTE (JammyT @ Tue, 8 Jan 2013 - 10:07) *
QUOTE (clark_kent @ Tue, 8 Jan 2013 - 11:00) *
QUOTE (JammyT @ Tue, 8 Jan 2013 - 09:56) *
Hi All

Please see attached notice I received on Boxing Day. Are there any pointers as to problems with this notice?

I thought the narrative "The Civil Enforcement Officer...believes that a penalty charge is payable" was a bit strange. Either it is or isnt a contravention - what the CEO "believes" is irrelevant I'd have thought?


Is thats the case why don't you just pay it? If the contravention was definite at the PCN stage then the appeals process would be redundant don't you think?


OK good point and fair enough - I just read it that even the CEO isnt certain.

Do you have any thoughts on arguments as to the merits of the sign I parked next to, or the validity of the notice itself.

I have searched this forum for 12W Richmond PCN's but havent found anything that relates directly to my issue.

Thanks in advance for any help.



The 'w' is to indicate that you probably had a permit for eomewhere else that wasn't valid ie wrong zone, although its the wording of the contravention that is what matters in that you parked in a resident or shared bay without a valid permit.
JammyT
QUOTE (clark_kent @ Tue, 8 Jan 2013 - 11:10) *
QUOTE (JammyT @ Tue, 8 Jan 2013 - 10:07) *
QUOTE (clark_kent @ Tue, 8 Jan 2013 - 11:00) *
QUOTE (JammyT @ Tue, 8 Jan 2013 - 09:56) *
Hi All

Please see attached notice I received on Boxing Day. Are there any pointers as to problems with this notice?

I thought the narrative "The Civil Enforcement Officer...believes that a penalty charge is payable" was a bit strange. Either it is or isnt a contravention - what the CEO "believes" is irrelevant I'd have thought?


Is thats the case why don't you just pay it? If the contravention was definite at the PCN stage then the appeals process would be redundant don't you think?


OK good point and fair enough - I just read it that even the CEO isnt certain.

Do you have any thoughts on arguments as to the merits of the sign I parked next to, or the validity of the notice itself.

I have searched this forum for 12W Richmond PCN's but havent found anything that relates directly to my issue.

Thanks in advance for any help.



The 'w' is to indicate that you probably had a permit for eomewhere else that wasn't valid ie wrong zone, although its the wording of the contravention that is what matters in that you parked in a resident or shared bay without a valid permit.


Yes, I have a permit for another zone but I didnt park on the basis that I thought that permit covered where I was.

The sign I parked next to doesnt indicate that it is a resident permit holder restriction - it simply says no waiting for buses and 5T vehicles.

So I parked on the basis that the sign I parked next to didnt restrict me from parking where I did
EDW
Description is too vague to convey allegation.

Incandescent
Looks to me that there must be another notice somewhere for car parking, the one posteds bars buses/coaches, and lorries over 5 tonnes. This needs more pics to show the context. Boxing Day was a Bank Holiday, although whether that makes any difference, I know not.
JammyT
QUOTE (Incandescent @ Tue, 8 Jan 2013 - 15:12) *
Looks to me that there must be another notice somewhere for car parking, the one posteds bars buses/coaches, and lorries over 5 tonnes. This needs more pics to show the context. Boxing Day was a Bank Holiday, although whether that makes any difference, I know not.


Photo attached shows the parking permit restriction at the other end of the bay - about 15 to 20 metres away from the yellow sign.

The other photo shows (if you look under the tree next to the red car) the yellow waiting sign that I parked next to. My car was parked where the red car was when ticketed.
Hippocrates
I would just write a simple letter stating how you came to park there and your interpretation of the signage at the time. Richmond now have a fairer policy with regard to CPE and first-time "offences". Ask them to exercise their discretion on this occasion.

The PCN is perfect and you knew where you parked, so forget that latter angle. If they refuse, then ask for the CEO's notes, all photo evidence and the Traffic Management Order in pdf with all schedules and amendments.
EDW
QUOTE (Hippocrates @ Tue, 8 Jan 2013 - 17:09) *
I would just write a simple letter stating how you came to park there and your interpretation of the signage at the time. Richmond now have a fairer policy with regard to CPE and first-time "offences". Ask them to exercise their discretion on this occasion.

The PCN is perfect and you knew where you parked, so forget that latter angle. If they refuse, then ask for the CEO's notes, all photo evidence and the Traffic Management Order in pdf with all schedules and amendments.



as I said above I don't think contravention is clearly stated.

Hippocrates
Sorry,EDW,but I do not, most of the time, understand your cryptic and concise information. If you mean the multiple choice angle, yes, you may have a point and there is a bogsy special re this; however, if you meant the location, hence my previous advice. BTW, as far as I know, the multiple choice issue has not been tested at PATAS.

http://forums.pepipoo.com/index.php?showto...rt=#entry688805

i.e. just to compare.
EDW
Multiple choice Bogsy is correct.
JammyT
All - many thanks for your assistance. Appeal is in. I will keep you updated.

Hippocrates
I wish you had posted it here first.
JammyT
QUOTE (Hippocrates @ Wed, 9 Jan 2013 - 14:12) *
I wish you had posted it here first.


Yeah, I know - in an ideal world I would have but yesterday was the last time I knew I'd be able to send it before the deadline and I was in a rush to pick up my daughter. For your reference here is what I sent.

-------------------

I refer to the above matter and intimate my appeal to the PCN issued.




I have two primary grounds 1. The PCN served by the council is not adequate to comply with paragraph 1 (e) contained within the Schedule to the 2007 General Regulations, and 2. The sign that covered the area I parked in does not cover any of the potential contraventions detailed.



1. A penalty charge notice served under regulation 9 must, in addition to the matters required to be included in it by regulation 3(2) of the Representations and Appeals Regulations, state:



1(e) the grounds on which the civil enforcement officer serving the notice believes that a penalty charge is payable



The Regulations require a PCN to state the grounds why the CEO believes a penalty is payable. In other words the PCN needs to inform a person of what they did wrong. In my view the PCN does not do this but rather lists a series of potential contraventions which are vague and ambiguous as to what the offence actually was. This lack of clarity makes it impossible to work out the precise breach, and therefore prejudices me in the appeal process I am entitled to undertake.



How can I properly appeal a contravention if it is not clear what the contravention I am appealing is? I refer you in particular to the case between Metrick v Camden (Case no 207034396A) which covers this point.

In addition to breaching the Regulations this is a breach of natural justice.



The PCN issued is therefore withdrawn and should be rescinded.



2. Without prejudice to my primary argument - that the PCN is invalid - I attach the sign my car was parked closest to on the day in question, with a second photo which shows the context. My car was parked around about where the red car is shown in the photograph. You can just see the location of the yellow "no waiting" sign under the tree.



My parking did not contravene the content of this sign. In addition, whatever permutation of contraventions which form part of the PCN issued are not relevant to this sign.


Taking these points into account I require that this PCN is rejected immediately.

Hippocrates
Well, I did advise a letter asking them to exercise discretion, as I have had direct dealings with the top in the recent past. I just hope that will not get their backs up.
JammyT
OK, so I got the below reply.

The main issue I see is they completely ignored one of my grounds for appeal - that I was not in contravention of the sign I parked next to.

So do I just wait for NTO or do I point out that part of my submission has been ignored? It does so no other correspondence will be considered.

Ta in advance......

********************************

Our Ref.: ???????????
Date : 16/01/2013

[/size]

Dear *********,



Traffic Management Act 2004
Re: Penalty Charge Notice (PCN) *************** issued to vehicle ********** on 26/12/2012 at 14:31 in KEW GREEN KEW (CPZ KC) for the contravention of: 12W - Parked in a residents' or shared use parking place or zone without either clearly displaying a valid permit or voucher or pay and display ticket issued for that place, or without payment of the parking charge (wrong parking zone)

Result of Investigation for Penalty Charge ***********


Thank you for your recent communication regarding the above-mentioned PCN.



After looking into the circumstances relating to the issue of the notice and taking into account your comments, I have to inform you that the PCN will not be cancelled for the following reasons:



The Civil Enforcement Officer (CEO) issued the PCN detailed above as the vehicle was parked in a resident parking place without clearly displaying a valid resident parking permit ticket issued for that place. The CEO has also confirmed that no mobile phone payment has been made.



According to our Legal Services Department, our PCN complies with the requirement set for a regulation 9 PCN in that Secretary of State merely offers 'guidance' in terms of what was required to be provided and NOT a directive in respect of the actual wording. The message our document delivers the requisite information to customers in an approved, simple English format.

Consequently, I am satisfied that the contravention occurred

I have completed my investigation and I am satisfied that the contravention occurred, that the PCN was issued correctly and that there are insufficient grounds for me to authorise its cancellation.



You may now choose one of the following two options, either



  • Pay the discounted amount of £55.00 by 30/01/2013 after which the full current charge of £110.00 will become payable.


If you choose to pay the case will be closed. No further correspondence will be considered and the following option will not apply.



Or



  • Wait for the issue of a Notice to Owner (NtO). This will be sent to the DVLA registered keeper (owner) and will be for the full penalty charge. The NtO may be used to submit further representations, which must include any supporting or additional evidence against the issue of the notice. Representations may only be made by the registered keeper of the vehicle or their authorised representative and must be received within the period stated on the NtO.


No further correspondence will be considered prior to the issue of the Notice to Owner.



If full payment is not made or further representations are not received within the stated period, recovery procedures will continue and the charge due may increase.



Yours sincerely,



[size="3"]


************
Appeals Officer
Hippocrates
No further correspondence will be considered prior to the issue of the Notice to Owner.

Rubbish. http://forums.pepipoo.com/index.php?showto...rt=#entry689339

Edited advice re surcharges - sorry, I misread.
JammyT
QUOTE (Hippocrates @ Wed, 16 Jan 2013 - 18:10) *
No further correspondence will be considered prior to the issue of the Notice to Owner.

Rubbish. http://forums.pepipoo.com/index.php?showto...rt=#entry689339

Edited advice re surcharges - sorry, I misread.


Great thanks.

I have gone back to where I parked the car and the yellow sign that I reference as being applicable to where I parked clearly refers to the bay I was in. Its location on the pavement is at a position within where the bay dotted line starts where I was parked.

So I propose the following reply narrative:

I refer to your email of [**].

In the first instance your email notes that "
No further correspondence will be considered prior to the issue of the Notice to Owner."

This appears to contradict the [to be filled in once draft is finalised] which makes references to informal challenges (i.e. plural) being made before the issue of the NTO. Can you please clarify the position on this for me.

Not only is this issue important procedurally, but it is particularly important in my case as in your rejection of my appeal you have made no reference whatsoever to the ground of my appeal relating the yellow "no waiting" sign which I submitted applied to where my car was parked, and in respect of which the parking contravention on the PCN did not refer.

This sign is located within the environs of the parking bay where I parked. It remains unclear to me why this sign is not the applicable sign to where my car is parked. When parking the car on the day in question I expressly looked at the yellow sign and recognised on reading it that it applied to where I was parked and did not restrict me from parking there. In addition the PCN does not include a parking contravention which relates to it.

Finally in order to properly consider and prepare the merits of my case should it proceed to the more formal NTO and PATAS stages I will require additional information including the CEO's notes of the alleged contravention and the relevant Traffic Order for the location in question. I require that these are provided to me.

JammyT
Just a bump before I send proposed email for any advice

I appreciate this is a dull one, I'm bored of it myself, but any comment is appreciated
Hippocrates
Also add: I understand that, since a new regime has been introduced at your parking services in the interests of fairness and reasonableness, you usually let off a first-time "offence", exercising discretion and I ask, therefore, this has not been applied in my case.
hcandersen
Would you please post a GSV link pl.
AIUI, the "Goods vehicle" sign requires a traffic order and is incompatible with a parking place, normally it's limited to a SYL. So we must see the site, your description is far from clear.
HCA

JammyT
QUOTE (hcandersen @ Thu, 24 Jan 2013 - 19:12) *
Would you please post a GSV link pl.
AIUI, the "Goods vehicle" sign requires a traffic order and is incompatible with a parking place, normally it's limited to a SYL. So we must see the site, your description is far from clear.
HCA


I'm sorry mate - what is a GSV link?

SYL - single yellow line I presume?

http://maps.google.co.uk/maps?hl=en&q=...sa=N&tab=wl

Aah ok - presume it is some sort of Google map link. See above

Right this photo is out of date!

The yellow waiting sign is not there AND the "residents only" painting demarcations along the dotted bay line have been scrubbed. They do not exist any more.

The no waiting sign is now located just at the end of the hedge/bushes before the greenery clears to the Rose & Crown pub. My car was parked just around where the BMW is, maybe slightly further forward.

http://maps.google.co.uk/maps?hl=en&q=...sa=N&tab=wl

The above looks more recent but the green van is blocking where the sign is, although you can see probably that the "residents parking" painting demarcation is not there now.

http://maps.google.co.uk/maps?hl=en&q=...sa=N&tab=wl

Then if you look at the above, and to the BMW estate right on the right hand side you will see a sign tucked in the greenery. That sign is the sign I posted at the top of this thread.
hcandersen
How about a pic? Sorry, but I can't follow your explanation, even less can I envisage the location and types of road markings and traffic signs.

If you can't manage a pic, perhaps you could draw a diagram. If so, you must include the road signs as they're crucial.

Your argument relies on the "Goods Veh" waiting prohibition having confused you whereas my thoughts are whether it should lawfully have been where it was and whether having seen this you had any duty under the principle of a driver's diligence to look for other signs.

HCA
clark_kent
A yellow sign as far as I can recall never applies to a permitted parking bay, they are always white.
hcandersen
Exactly.

So if, as the OP seems to be suggesting, it was in the parking place (not necessarily his bay), then he could argue that he'd discharged the motorist's duty to look for traffic signs indicating the restrictions which apply. This and any other sign in the same parking place is unlawful.

But unfortunately we still don't know for certain.

HCA
JammyT
Guys

Cant you all see the links I posted on Friday which shows the exact site layout on google maps?

Also I have photo's of the signs and location in my first post.

It sounds as if you have the knowledge to help and I thought I had posted what you need. I'll do a sketch also.
JammyT
Sketch attached.

Looks as if my GSV's didnt work. Do you need googlemail or something??

The post code is TW9 3AH.
hcandersen
Contravention did not occur.
You parked within a parking place and, as required, looked for a sign which regulated its use. You saw the No Waiting sign and noticed that yours was not a class of vehicle which fell within its scope. You therefore had a legitimate expectation that you could park where you did without contravening any restriction.
Since being served with a PCN you have carried out research which shows that this sign, referred to as diagram 640.2 in the Traffic Signs Manual, relates to commercial vehicles only may not be placed within a parking place as the council have done here.
HCA
JammyT
QUOTE (hcandersen @ Mon, 28 Jan 2013 - 15:06) *
Contravention did not occur.
You parked within a parking place and, as required, looked for a sign which regulated its use. You saw the No Waiting sign and noticed that yours was not a class of vehicle which fell within its scope. You therefore had a legitimate expectation that you could park where you did without contravening any restriction.
Since being served with a PCN you have carried out research which shows that this sign, referred to as diagram 640.2 in the Traffic Signs Manual, relates to commercial vehicles only may not be placed within a parking place as the council have done here.
HCA



Brilliant thanks - I will revise my draft email back to them and post it here before I send

Cheers
JammyT
OK, will fill in the Regs bit but I think I've got all comments in. Any dissentions please shout before 4pm today as I will send this email before I leave work....

I refer to your email of [**].

In the first instance your email notes that "
No further correspondence will be considered prior to the issue of the Notice to Owner."

This appears to contradict the [to be filled in once draft is finalised] which makes references to informal challenges (i.e. plural) being made before the issue of the NTO.

Not only is this issue important procedurally, but it is particularly important in my case as in your rejection of my appeal you have made no reference whatsoever to the ground of my appeal relating the yellow "NO WAITING" sign which I submitted applied to where my car was parked, and in respect of which the parking contravention on the PCN did not refer.

Can you please clarify the position on additional challenges for me.

The NO WAITING sign referred to is located immediately adjacent to the area of the parking bay where I parked. It remains unclear to me why this sign is not the applicable sign to where my car is parked.

When parking the car on the day in question I expressly looked for the relevant sign which regulated the parking space use (as required). I saw the yellow "NO WAITING" sign, and it is clear from its proximity to where I parked that that is the sign which regulates the parking areas use. I recognised on reading the sign that my vehicle was not a class of vehicle which fell within the sign's scope. I therefore had a legitimate expectation that I could park where I did without contravening any restriction. A contravention did not, therefore, occur.

Since being served with a PCN I have carried out research which shows that this NO WAITING sign, referred to as diagram 640.2 in the Traffic Signs Manual, relates to commercial vehicles only may not be placed within a parking place as the council have done here.

In addition to the merits of my case as outlined above which establish that the PCN ought to be withdrawn, I also understand that a new regime has been introduced at your parking services in the interests of fairness and reasonableness. In this respect you usually let off a first-time "offence", exercising discretion. This does not appear to have been applied in my case and I ask that you reconsider.

Finally, in the event you continue to reject my position, in order to properly consider and prepare the merits of my case should it proceed to the more formal NTO and PATAS stages I will require additional information including the CEO's notes of the alleged contravention and the relevant Traffic Order for the location in question. I require that these are provided to me.
Hippocrates
Also, ask them to direct you to their full published policies with regard to Civil Parking Enforcement.
hcandersen
I'd start with the contravention i.e. the sign. And be more bold.

Words to this effect: the *** sign was located in the parking place where I was parked (you say adjacent to, but be more positive) and as far as I am concerned this is the applicable restriction in the circumstances of my case. As my car is not a class of vehicle which falls within the scope of the sign's restriction, no contravention was committed.


HCA
JammyT
OK all an update

So with reference to my post #31 I sent that email (with a small change) on 6 February 2013.

The next day I received the attached NTO dated 6 February 2013.

On the 13 February I received the attached Rejection of Representations letter. Please note in particular the 3rd para of page two of this letter. This para essentially says that they have treated my email of 6 February as my formal representation in response to the NTO and that their letter is a rejection of that formal representation and my next step is PATAS.

Ignoring the merits position which I still do not accept, surely they have screwed up big time here procedurally. They have treated an email that was sent before I received the NTO as my response to the NTO. They have also therefore closed off the opportunity of me replying to the NTO before it goes to PATAS.

Any thoughts on this?

My view is I have two options:

1. raise this point and have them reconsider and allow a representation in response to the NTO
2. sit quiet and do nothing until the time period passes and they pursue me again, at which point I advise of the procedural error and demand that they cancel the ticket.

Comments appreciated.....

EDIT I will have to rePDF the attachments to one page at a time as the full letters are too big to upload. I'll be back later, but any comments meantime appreciated.
hcandersen
Representations against notice to owner

4.—(1) The recipient may make representations against a notice to owner to the enforcement authority which served the notice on him.


Duty of enforcement authority to which representations are made

5.—

(2) Where representations are made to an enforcement authority by virtue of regulation 4(1) and in accordance with regulation 4(2), it shall subject to paragraph (1) be the duty of the enforcement authority—

(a)to consider the representations and any supporting evidence which the person making them provides; and
(b)within the period of 56 days beginning with the date on which the representations were served on it, to serve on that person notice of its decision as to whether or not it accepts that—


According to you, the NTO had not been served on the date your challenge was received by them and you did not submit any reps subsequent to the NTO being served. Consequently, the authority had no power to serve on you a notice of its decision (the duty is also a power).

As you say, this is a PI of significant proportions. Paradoxically, your route now is to register your appeal and appeal on the basis of PI in respect of a notice of rejection which doesn't exist! But don't concern yourself with the absurdity of this position.

I know you're probably busy, but you received a "NOR" on 13th Feb. and so nearly half of the period available to you to register an appeal has already gone. The enforcement process won't wait.

You've probably still got time and so I suggest you email the council to the effect that you've received a Notice of Rejection from them dated *** which was deemed served on ****. However, their records will show that what the authority have considered as formal representations were in reality a communication in respect of the PCN which was sent in the form of an email dated (and therefore deemed received by the authority on) **** which pre-dates the date of service of the NTO by *** days. Consequently, the council had no power under the Appeals regs to consider these as formal representations or to serve a so-called Notice of Rejection. The authority will be aware that the statutory grounds of appeal of Procedural Impropriety is relevant in this case and therefore unless the council confirm to you by Friday 1 March 2013 that it has cancelled the penalty charge notice you will be forced to register an appeal with PATAS. At this stage you would have no option but to request that the adjudicator award costs in your favour on the grounds of the council's unreasonable behaviour.

And if they don't cancel by the date given, register your appeal.
disgrunt
Actually I think submitting a formal appeal to the NTO in time is the way to go. If the council don't respond within 56 days you've won regardless of the PI angle.
JammyT
QUOTE (disgrunt @ Fri, 22 Feb 2013 - 13:50) *
Actually I think submitting a formal appeal to the NTO in time is the way to go. If the council don't respond within 56 days you've won regardless of the PI angle.


This is my concern.

Can the authority "right" a procedural wrong.

So if I send this email and the council say ok lets just re-review it, reject the claim again and issue another notice of rejection have they not cured the PI?
hcandersen
No. What's done is done.

And you cannot appeal the NTO, you've already done so in the council's eyes!

IMO, do not go the 56 days route, why wait for up to 56 days to resolve something that could be dealt with within a week? And furthermore, if they don't respond, it could be because they don't consider that they have to, and you wouldn't get a NOR, but in order to claim PI at adjudication you'd need to get to PATAS, but you need an in-date NOR with which to do so, and you won't have one, the 28 days on your NOR expires long before the 56-day period, so you'd have to request that the adj accept an OOT appeal. What a mess and IMO you lose the initiative.
JammyT
OK HCAndersen - I'm with you.

I'll put the below out by email over lunch unless any changes proposed:

I refer to the above matter.



Since my email to your organisation on 6 February 2013 (with deemed service the same day, 6 February 2013 – a copy is attached), I have received two items of correspondence from you.



1. Notice To Owner (NTO) dated 6 February 2013, with deemed service of 8 February 2013

2. Notice of Rejection of Representations (NRR) dated 13 February 2013, with deemed service of 15 February 2013



Your records will show that:



(i) My email of 6 February was in response to the PCN correspondence not the NTO

(ii) Deemed service of the NTO was two days after the date, and your receipt, of my email

(iii) The NRR advises (on the second page) that

a. my email has been considered to be a formal representation which the NRR is a response to

b. That my only ground of appeal is to PATAS

c. That the investigation is completed



Accordingly what the authority have considered as formal representation was in reality a communication in respect of the PCN which was sent in the form of an email which pre-dates the date of service of the NTO by two days. Consequently, the authority have no power under the Appeals regulations to consider my email as a formal representation or to serve the so-called Notice of Rejection. The authority will be aware that the statutory grounds of appeal of Procedural Impropriety is relevant in this case and therefore unless you confirm to me by Friday 1 March 2013 that it has cancelled the PCN I will be forced to register an appeal with PATAS. At this stage I would have no option but to request that the adjudicator award costs in my favour on the grounds of the council's unreasonable behaviour.

Hippocrates
Edited.
JammyT
OK, so I didnt get a reply to the email I sent as above.

My PATAS application is due by 13 March.

I presume I have to now go through that process?

In doing so I state my 1. procedural impropriety argument, and 2. my argument on the merits.

Any tricks of the trade I need to know?

Many thanks
JT
Hippocrates
What is the actual date of the NOR? Have you the PATAS form? We really need to see all of it.
JammyT
See attached NOR.

Yes they enclosed what looks like a very standard PATAS form - it is a 4 page "glossy". 2 pages of notes, 2 pages of blanks for me to fill in.
Hippocrates
Idiots. They have allowed you an extra day. You should win on this. Melnikova v Enfield and Barnet cases. Deemed service date is 15th February. 28 days deadline is 14th not 15th.

2100433329 http://www.patasregistersofappeals.org.uk/

http://www.bailii.org/ew/cases/EWHC/Admin/2006/2357.html

The effect of the extra day.

Apart from that, this case is a right mess as far as they contributed to it.
hcandersen
Unbeleivable.

The regs provide the following:
QUOTE
Rejection of representations against notice to owner

6.—(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a)state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—
(i)the penalty charge is paid; or
(ii)the person on whom the notice is served appeals to an adjudicator against the penalty charge;
(b)indicate the nature of an adjudicator’s power to award costs; and
©describe in general terms the form and manner in which an appeal to an adjudicator must be made.
(2) A notice of rejection served in accordance with paragraph (1) may contain such other information as the enforcement authority considers appropriate.


It's not a lot, is it?

It does not lie with the council to make the law. The regs are clear, the period is 28 days beginning with the date of service. IMO, although this wording is included, the council's statement that you have until 15 March in which to submit an appeal is grossly wrong and cannot but mislead. You lose your statutory right after 14 March.

It's surprising how many councils don't understand their limited obligations under reg 6.
1. They're required by virtue of 6(1)(a) to inform the recipient of the council's powers with regard to serving a CC;
2. By virtue of 6(1)©, to describe in general the form and manner in which an appeal must be made.

They're not the same. 1 is clear: the council may serve a CC if an appeal has not been made before the end of the 28-day period. This has nothing to do with the period permitted by the adj for making an appeal - chalk and cheese. But councils insist on mixing these, and making a pig's ear in the process.

2, which most ignore completely, is the opportunity to describe the period which is that an adj must register an appeal made within the 28-day period and may register an appeal submitted outside that period. PATAS make it clear that they will register appeals made up to 35 days from the date of a NOR.

So you have an additional strong ground of appeal which is Procedural Impropriety - the council have failed to comply with reg 6(1) of the Appeals regs in that they have mis-stated the period during which you have a statutory right to register an appeal by adding an extra day, in effect usurping the adj's power in his regard.

And the way they casually accept that they have unlawfully placed a traffic sign in a parking place and then blame you for acting upon it is breathtaking.
JammyT
OK guys brilliant.

I actually believed that in them saying "two working days for service" they were complying with the legislation so i didnt even check.

So I have

1. Procedural Impropriety in respect of the formal rejection of my position founded upon my informal email
2. Procedural Impropriety based on wrong dates for appeal
3. Position on the merits i.e. the waiting sign which influenced my decision on parking (which it factually did)

I presume I need to get this in by the 14th to be on the safe side, or do I put it in on the 15th to make the point.

The one question I have is do I need to be actually prejudiced by this date confusion - or does that not matter?
Hippocrates
Read the Barnet case - prejudice is irrelevant and does not need to be proved. I would register your appeal on the 14th or earlier, contravention did not occur, procedural impropriety and add under 5: full details to follow as and when advised..

Barnet:-

41. Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.

21200433329:-

The fact that this Appellant may or may not have been prejudiced by this is not a 'cure' to the substantive defect. The defect renders the penalty unenforceable. In the well-known decision of R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin), relating to a Penalty Charge Notice issued under the Road Traffic Act 1991, the importance of complying with the requirements of the legislation was emphasised. Mr. Justice Jackson said in that case:

"Prejudice is irrelevant and does not have to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."

I am satisfied that the judgment in the Barnet case is applicable to the Road Traffic Management Act 2004 as it was to the Road Traffic Act 1991.

All the legislation pertaining to decriminalised traffic enforcement is based around a sequence of actions. Each action must be completed within a specified time limit otherwise there are consequences. Any variation to one of these time limits has a knock-on effect on the subsequent actions and it effectively destroys the overall framework of the legislation. For reasons of coherence and consistency individual local authorities cannot be permitted to vary time limits
interlog
No, Prejudice does not need to estabished as per the Judgement that Hippocrates posted above:

QUOTE
Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise


But having said that, I have seen Adjudicators ignore that by saying that this Judgement was not for a TMA2004 contravention. But then again, Adjudicators refer to the Herron -v- The Parking Adjudicator case about substantial compliance with regards line/signs even to yellow box junctions when the Herron case centred around TMA2004 (and specifically within a CPZ) when moving traffic contraventions are non TMA2004. Talk about using High Court Judgements for your own agenda!
Hippocrates
Don't get me started! wink.gif
JammyT
Ok, I'll get this drafted up and post it tomorrow before I send it in.
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