Hi -

I hope the community of CAG may be able to help.

I had received a PCN by a CEO.

Here is a timeline of what had happened:

-received a paper PCN (stuck on window) on the 19/2/18 for parking in a suspended bay as there were scheduled tree cutting maintenance going on. I

definitely missed the sign.

Car was towed to adjoining street.

-sent a representation to council, with proof of posting, on 27/2/18.

Below is my representation sent to them

-did not receive a response from the council regarding my representations.

-receive an NtO today (4/5/18) - below is the NtO received.

-I also checked the website for pictures of the alleged contravention online, but NOTHING.

Nor were the pictures sent with the NtO

- usually the last page on the NtO from what I gather,

contains the pictures,

but in my case,

the "page was intentionally blank.

Do I have a good chance of appealing?

Were the council supposed to respond to my informal representations?

Pictures have not been provided despite asking in my reps and checking on website - is this a procedural failure?

Thank you,

Jay

NtO:

****START****

On 19/02/2018, my vehicle **** *** was issued with a Penalty Charge Notice for the reason (code) of 21 – “parked wholly or partly in a suspended bay or space”.

This should be cancelled as there ought to be a grace period of 10 minutes by virtue of Civil Enforcement of Parking (England) General Regulations 2015. As can be seen from the PCN, observation started at 08.05am and PCN given at 08.08am. Under the 2015 regulations, the PCN should have been given at 08.11am at the earliest. This was not the case here.

Also, the photographs that should be available on the website, are not found when clicking on any photograph link. The very last time I tried to check photographs were on the 24/02/2018 just before 10pm. Please see appendix 1 and 2 of exactly what I faced. By law, these photographs should be taken by an approved device and be available to view. Unfortunately, ‘upto 3 days after the contravention’ for pictures to be available stipulated on Newham’s website, is beyond that time frame.

For the reasons above, I look forward to receiving notification that the Penalty Charge Notice has been cancelled within 28 days.

****END****

NtO_SusParkingBay.pdf

They should have replied to the informal representation, but there are all sorts of reasons why the process could fail. (You failed to give your address, you failed to identify the PCN correctly, their reply got lost in the post, etc). It's not fatal to their case, as the NTO is the start of the formal process and you need to take things from here.

That's a terrible appeal letter, by the way, and is bound not to succeed. You will have to come up with a better line of appeal. Your two arguments are that 1. you were not given a 10-minute grace period, and 2. you don't have copies of photos.

Point 1 fails because the grace period applies to staying too long in a pay and display bay - nothing to do with your situation. Point 2 fails because photos are not mandatory. They may not have any.

To be honest, it looks from the above as if you did park wrongly, in a suspended bay. Therefore there is no automatic way to get the PCN cancelled. Unless there is more that we don't know, it doesn't appear you have much of a case. You would have been better off making the informal rep on the basis of an honest mistake and hoping for good will.

You could start by phoning them, asking if they have received your appeal and whether they replied. If not, they may be willing to reinstate the discount, if you ask nicely. You can also ask them if they have photos and if you can have copies, if you think they will be of any use.

Hi,

Thank you for your reply.

This is the reason why I came here to ask help from - what is the law or regulations surrounding suspended parking? As far as I was concerned - it was a permit holder parking space parked night before. No expert in the area, but that is what I assumed. As I’m wrong, is there anything I can argue regarding this suspended bay?

As for point 2 - I asked for pictures because it could have been parked correctly for all I know; ultimately they don’t have proof to show me.

And since I asked them for pictures, they never sent it to me nor I can access them online. They should have responded to my Informal reps before issuing NtO - depriving me of putting my case forward. Can that be argued?

Thanks

Jay

The fact that they did not respond to informal reps is wrong, but it's not a seious enough issue to impact on the validity of the NTO. If they concede that they received your reps, and ignored them, then I would expect them to offer to reinstate the discount period, and still offer you the chance to make your formal rep. However they aren't obliged to.

The suspended bay system is basically a mechanism for the council having the spaces clear for works of whatever sort - they temporarily remove the parking rights. They put signs up in advance, advising of the time and place of suspension. If your car is there when the signs go up, normally they relocate the car and issue a PCN. If you park there after the signs went up, you are at risk of being towed to the pound as well.

If you can show that they didn't put the signs up in advance, you could argue impropriety but then again, if the sign wasn't there when you parked, you have a decent case to get the PCN cancelled anyway. You said initially that you "missed the sign", so I'm guessing it was there when you parked? Do you know when it went up?

You can of course ask for pictures, and I can't see they would object to providing them. There's no burden of proof on the council, so they don't have to take or provide images. But if they have them, they will preumably only confirm what you already know. Why not call them now and ask for copies?

Thank you for the explanation.

I contacted the council but was told to ring back on Tuesday as they are not able to send me the docs I need. Which is fine and it will give me time to think about how to appeal.

So based from the points you've raised, I was reading the regs/law etc...could I challenge on the following basis:

- would my contravention fall within the ambit of TMA 2004, Schedule 7, Part 1 s.2 - so that vehicle which has overstayed the suspension time, the 10 minute grace period applies?

-Is it not likely that the TMO will say that when the bay is suspended no vehicle may be left within it? In which case does not section 49(1) take effect? If a suspended bay is not to be treated as a "designated parking place" for the purpose of section 47, how can there be an offence under section 47 to make a PCN possible? http://www.legislation.gov.uk/ukpga/1984/27/section/47

- Thus, if a permit must be paid for in order to park then the bay will be a designated parking place. Consequently, aren't sections 45 to 56 Road Traffic Regulation Act 1984 are relevant?

- in regards to informal reps - under the operation guidelines for EA's they must consider the reps and make an informed decision within 14 days, which in my case, they have not. Instead sent me an NtO: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695793/operational-guidance.pdf (see 11.10)

- As a result, deprived me of the 14 days discount, which should be reinstated?

Thanks

jay

- would my contravention fall within the ambit of TMA 2004, Schedule 7, Part 1 s.2 - so that vehicle which has overstayed the suspension time, the 10 minute grace period applies?

Not sure. What does it say? I know from experience that there is no grace period in a suspended bay, and I don't understand "overstayed the suspension time". Any time your vehice is in a suspended bay, you are in contravention and can be ticketed.

-Is it not likely that the TMO will say that when the bay is suspended no vehicle may be left within it? In which case does not section 49(1) take effect? If a suspended bay is not to be treated as a "designated parking place" for the purpose of section 47, how can there be an offence under section 47 to make a PCN possible? http://www.legislation.gov.uk/ukpga/1984/27/section/47

When a bay is suspended, the TMO is suspended, and the space is governed by a temporary order, which is what you are subject to.

- Thus, if a permit must be paid for in order to park then the bay will be a designated parking place. Consequently, aren't sections 45 to 56 Road Traffic Regulation Act 1984 are relevant?

You can't park there - there's no requirement for you to have a permit. You just can't use it for parking while the suspension is in force.

- in regards to informal reps - under the operation guidelines for EA's they must consider the reps and make an informed decision within 14 days, which in my case, they have not. Instead sent me an NtO: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695793/operational-guidance.pdf (see 11.10)

 

- As a result, deprived me of the 14 days discount, which should be reinstated?

Yes, so the correct course will be to advise them that you did not get a reply and ask them to reinstate the discount. If they refuse, you could pursue this further, but in any case, your aim at present is not to pay the reduced charge - it's to get the PCN cancelled.

just a question from me thinking out loud - does Newham have to apply to DfT for approval in order to suspend bays? I do not under stand totally...

Thanks,

Jay

My understanding is that they have to seek approval for their signs. Since the signs are not national standard, there is no absolute format, so the individual signs must be approved.

You're getting into quite technical stuff here. It's fair to assume they will usually do what they are supposed to, unless you have a reason to doubt it.

In relation to point 1, there is authority to which I can rely on where Camden took to Review:-

2170123723

I heard from Mr Pedro, the partner of the appellant at a hearing today.

The appellant makes several points about the validity of the suspension of this bay.

In the first place it is said that Ms MacDougall and Mr Pedro both parked the car together for the last time before the Christmas festivities on Christmas Eve in this bay immediately outside the lowrise flats where they live. It remained there until 6 January when the Penalty Charge Notice was issued.

They are adamant that there was no suspension warning sign there on that day nor on any of the days upon which they walked past the bay over the Christmas period. The first that they were aware that there had been a suspension was when they discovered that the car had been removed, and they noticed the yellow suspension sign on the post some 3 or 4 vehicle lengths away. I found Mr Pedro an honest witness and gave weight to his evidence that there was no yellow suspension sign erected up to 14 days before the date of the suspension itself, as claimed by the Authority.

I have considered the officer's record as to the suspension, on which the council relies for the assertion that the suspension sign was indeed erected 14 days prior to 6 January. I note that the wording of the record is not in terms conclusive of the fact that a sign had been erected – it merely seems to confirm that an order for suspension had been made. To that extent therefore and taken together with the persuasive evidence of Mr Pedro I conclude that there is some confusion about when the suspension sign was in fact erected.

I also take into account Mr Pedro's evidence that during this period there were multiple suspensions erected over a period of time in this street and for short periods. It is in those circumstances well within the bounds of likelihood that the keeping track of the suspensions and necessary signage had become difficult.

There is force in the argument that the officer should have allowed a 10 minute period of grace before issuing the Penalty Charge Notice, in line with Section 2 of the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015. This is the provision which applies where a vehicle is stationary in a designated parking place and been left beyond the permitted parking period.

The crucial element is that the initial parking must have been lawful. In this case a course it was, at the time the vehicle was left the suspension was not actually in force, even if there is debate about when the warning sign was erected. The suspension came into force at 8 AM on the morning of 6 January and the PCN was issued at 8:02 AM. In the circumstances I conclude that the issue of this PCN was not compliant with the requirements of the "10 minute grace period" regulations and that the appeal could be allowed on that basis.

A final point is on the wording of the sign itself. The appellant points out that it was imprecise, referring to the suspended spaces in relation to the numbers of properties on the opposite side of the street. This can be contrasted with a sign relating to a later suspension (one of the series) in the same bay, a photograph of which was produced by Mr Pedro and which refers to property numbers on the side of the street on which the bay is situated.

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

And the review:

This is an application for review by the Enforcement Authority on the basis that the original Adjudicator has erred in law.

In effect, Enforcement Authority ground is that the original Adjudicator should not have held that Regulation 4(3) of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, as inserted by Regulation 2 of the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015, that no penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes, does apply.

The Enforcement Authority submit that when a bay is suspended, as was the position in this present case, the prevision cannot apply.

In many cases it will not and certainly will not if the vehicle is parked after the suspension comes into force.

In this case the suspension came into force at 08:00 and the Penalty Charge Notice was issued at 08:02.

The vehicle was in a resdent parking bay for which it was assigned a resident parking permit. The owner had paid to park their vehicle in the bay by purchasing the permit. It is irrelevant whether it is a physical or virtual permit. Regulation 4(4)(b) of the 2007 Regulations, as amended therefore applies because a period of parking that had been paid for as authorised by or under any order made relating to the designated parking place and that period ended at 08:00.

Considering the submission before me carefully I find no ground for review of the original Adjudicator’s decision, which therefore stands.

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

Hopefully it will be of use to other on here.

Jay

Thanks for posting. The situation is not the same as yours, of course. In this case, there were no signs, and the adjudicator was not convinced the suspension had been enacted. Therefore, the bay is treated as usual - and as usual, there's a grace period.

In your case, the bay was suspended, so no grace period.