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Tezza
My wife was running race4life and on getting back to the car found a PCN on the windscreen, she had bought a ticket which had not been visible because of it not being sticky therefore being blown off the dash by closure of the door. She informally appealed against this by email(see email below) but this was rejected by Sefton Borough Council (see 2nd email)


I have also attached scans of front and back of the PCN and the ticket.

Have we spoiled any possible case by making an informal appeal?

Do we have a case to appeal this and what are the chances?

Thanks for any help folks can gice
1st email

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Dear Sir

At 9am on Sunday 8th June I used the Splash World car park to park my car, whilst taking part in the Southport Race for Life event.

I paid a fee of £3 to park my car, and did put my ticket on the dashboard, however when I returned to my car, I had a parking ticket and when I opened my car door I found the ticket on the floor of the car - I can only presume this had happened as I closed the car door.

Attached is the section of the PCN which shows the time the penalty was served and a photo of the ticket I purchased showing that I was covered for the time in question.

My car registration is , my address is:




Can you please agree to remove this penalty charge.



Many thanks


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2nd email:

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Dear Ms

Traffic Management Act 2004 (as amended)

Penalty Charge Notice No:

Date issued: 08/06/2014 Vehicle Registration:

Location of Contravention: DUNES LEISURE



I refer to the representation made by you in connection with the issue of the above penalty charge notice.



I have carefully considered your letter of challenge. I note the points you make, however possession or purchase of a pay and display ticket alone is not sufficient. It must be visibly displayed continuously in such a way that the Civil Enforcement Officer can clearly read or ascertain all the details thereon. This is a lawful requirement and failure to do so constitutes a parking contravention. The Council’s decision is that the case will not be cancelled.



However, as your appeal was received within the 14 day discount period those terms will be reinstated today. Payment of the reduced rate of £25.00 will be accepted as full and final settlement providing it is received within fourteen days of the date of this letter i.e. by no later than 10/07/2014.



Cheques/postal orders should be made payable to Sefton MBC and sent to the above address. Credit/debit card payments are accepted on 0845 140 0845 between 08.00 and 18.00 hours Monday – Friday, on 0151 934 4697 twenty four hours a day via the automated call system, or via the Internet at www.sefton.gov.uk



Please be aware that no further correspondence will be responded to at this stage, and if you wish to take this matter further please await the issue of the Notice to Owner that will be issued to the registered keeper of the vehicle. The person named on that document will have the right to lodge a statutory challenge. I would advise however that at that point the reinstated discount payment terms will have expired and the debt will revert to the full standard rate of £50.00.



Yours sincerely
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Incandescent
You have not prejudiced any formal appeal with your informal challenge. Fluttering tickets is the aspect of legislation in real need of amendment, as an adjudicator has to follow the law, and will be highly likely to refuse an appeal. This particular contravention always relies on council common sense and accepting challenges when a ticket is presented as proof of payment. Indeed the Statutory Guidance has something to say related to this.

QUOTE
85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest.


86. Enforcement authorities have a duty not to fetter their discretion, so should
ensure that PCNs, NtOs, leaflets and any other advice they give do not
mislead the public about what they may consider in the way of
representations. They should approach the exercise of discretion objectively
and without regard to any financial interest in the penalty or decisions that
may have been taken at an earlier stage in proceedings. Authorities should
formulate (with advice from their legal department) and then publish their
policies on the exercise of discretion. They should apply these policies flexibly
and judge each case on its merits. An enforcement authority should be ready
to depart from its policies if the particular circumstances of the case warrant it.


All enforcement authorities have a legal duty under S87 of the Traffic Management Act to "have regard to" the guidance. Not having regard to it is a procedural impropriety. However convincing an adjudicator they have not had regard to the guidance is another matter. However, virtually all councils have no records of any kind that they have had regard to the guidance before commencing parking enforcement, so you could appeal on this and see what prestidigitation they employ in their response. The bad news is that you'll have to forego the discount, and wait for the Notice to Owner, appeal that, then go to adjudication.

Bogsy on here has a piece of text related to fluttering tickets and use of their discretion. I think most adjudicators dislike councils that refuse to give way on fluttering ticket contraventions when presented with the ticket, but are bound by the law. As you have probably realised by now, it is a money-grubbing game and has nothing whatever to do with traffic management.

Another thing is that they haven't considered the point you made in your letter that the ticket was valid when the PCN was issued. They don't explain why they are insisting on the PCN being paid despite knowing that they had lost no money at all.
Bogsy
The statutory guidance which a council must have regard to recommends that the PCN contains

8.41 It is recommended that the PCN also gives:
• detailed location of vehicle (full street name);

Unless you've edited the PCN I don't see that the council has had regard to the guidance which is a procedural impropriety.
Tezza
Thanks to you both . We received the NtO and have sent an appeal in on the grounds you sugested.

ie: 1) The PCN doesn't follow the statutory guidance 8.41 etc

and 2) They have not explained why they have not cancelled the PCN when they have lost no money as i have provided evidence of a valid ticket

Is there anything else I need to be doing or do I just wait for the outcome of the formal appeal to the council now?
Incandescent
QUOTE (Tezza @ Wed, 27 Aug 2014 - 20:56) *
Thanks to you both . We received the NtO and have sent an appeal in on the grounds you sugested.

ie: 1) The PCN doesn't follow the statutory guidance 8.41 etc

and 2) They have not explained why they have not cancelled the PCN when they have lost no money as i have provided evidence of a valid ticket

Is there anything else I need to be doing or do I just wait for the outcome of the formal appeal to the council now?

I'm not sure you will succeed on (1). You have to allege they have not had regard to the SG 8.41. If they have regard, and then decide to ignore, as a statutory body established by Parliament, they have a duty to explain why they have not followed the guidance. Point 2 is "failure to consider", a procedural impropriety.

Adjudicators are strangely reluctant to allow appeals based on not having regard to the SG despite it being a legal duty on councils, but one or two have allowed appeals based on this, however they are few.
Tezza
OK. I didn't receive any response to my representations however I did recieve a charge certificate date of posting 14/10/14 telling me I had to pay an increased fine of £75 within 14 days(ie:by the 29/10/14).AS I had not had a reply to my representation I decided to wait a week to see if I got one.

And I must admit this is where I am at fault - I completely forgot to chase it up till this weekend when my wife asked me if I had paid the fine!

I can only assume either they haven't replied to my last representation or it got lost in the post. This is really geting on my nerves now (and I think maybe is their aim?) and I am at the point where I would just rather pay the fine and get it out of the way then go to see my MP to complain about it however I am now in the situation where its too late to pay the fine. I haven't had any response to my representation so can't go to the adjucator and so am basically screwed.


Any advice on how to proceed would be much appreciated. Since I am out of the time scale I assume that Sefton CC will have gone to the county court to get an order ? They are certainly not letting me pay by the automatd online system - I may try ringing them tommorrow to try to pay and also enquire where my response to the last representation I made to them has gone and mention I will be seeing my MP. Is this a good idea

Thanks

Terence
marshyc
I would say firstly don't pay anything. Taking the case to appeal now won't cost you anymore if it is rejected so you've nothing to lose fighting it.

In their first reply they stated that no further correspondence will be responded to and you need to wait for the NTO. AFAIK this is a procedural impropriety as they have a duty to consider all representations put to them even informal ones i.e. prior to NTO being issued. There is a copy of the fluttering ticket challenge somewhere on the forum that I saw the other day. Have a search with the search function. This has been been successful in the past.

Still worth tackling this IMO.

EDIT I've found the thread I saw it on. It's a few posts down.

Fluttering ticket
hcandersen
You cannot appeal, yet.

Pl just answer these questions:

What was the date of the NTO?

How and when did you make your reps?

What is the date of the CC?

If you made reps as required by regulation 4 of the Appeals regs e.g. in time, correctly addressed etc, then you may wait until the authority send their next notice which is called an Order for Recovery. This would allow you to submit a witness statement to the effect that you made reps but did not receive a response. If made in time, this would automatically re-set the enforcement process and leave the authority with one of two options: to cancel or to refer the matter to the adjudicator. The latter would provide you with the opportunity to appeal.

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