Ohhh, thank you. I had a bad day today

 

I will remove it now. Did you manage to read the council reply?

No the scans were too small to read.

Did you manage to read it?

No...as soon as I saw it was your CV I thought it would be inappropriate to read something personal and private. You should remove it before any one decides they want a copy.

I'm sure you want to remove the word doc!

To win you would have to go to adjudication and convince him/her of the severity of the headache and how it would have been dangerous to continue. It's not too disimilar from case 2110021780 that you can obtain by clicking on search and typing in the case number.

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

Please post up all the rejection letter. Rejection at this stage is routine, it's adjudication that matters.

Did the traffic sign mention anything about not being allowed to stay beyond initial time?

Thanks, I will give this a go. Ill send a copy to the mother in law so she can sign it.

 

Before I do this what are the potential ramifications of sending this letter?

The potential ramifications for your mum in law is that she may get a full refund. The potential ramifications for the council is that they discover they have acted unlawfully for the last 18 years and have to re-examine their methodology behind vehicle removal. What is likely to happen is that the council will reject the appeal and claim they are acting lawfully. The next step is to appeal to the independent adjudicator by submitting another letter (that I will write for you) and then we hope you get an adjudicator who actually has some understanding of the associated laws and gives the appeal proper consideration.

Your mum in law has absolutely nothing to lose and everything to gain. Just make sure the appeal is received by the council within the 28 day period.

I love it - good work TDB.

 

I have a query though - if the vehicle owner has not asked for the car back without pre-payment, and asserted this right, then haven't they volunteered to pay rather than been forced? Couldn't the council defend a case on the basis that the owner was not literally compelled to pay?

As far as I'm aware those at the car pound will refuse to release a vehicle unless the PCN and removal, storage charges are paid in full so the owner is compelled to pay if they want their car back which they will to avoid any further storage charges.

Councils apply s.101A RTRA 1984 in all cases where a vehicle is removed and a person comes to retrieve it but s.101A is only applicable where a council has preceived a vehicle to have the appearance of being abandoned. This is clearly evident if you study Part III of the 1986 Removal Regs.

http://www.legislation.gov.uk/uksi/1986/183/contents/made

Pay particular attention to reg 16. Even though it makes reference to s.101(4) RTRA 1984 this section was the precursor to s.101A. Evidence of this can also be seen under regulation 18 of the Traffic Officer Regs. These regs basically mirror the 1986 regs except they apply to traffic officers.

http://www.legislation.gov.uk/uksi/2008/2367/contents/made

As most removed vehicles do not appear abandoned then councils should not be applying s.101A to them. As such there is no right to demand instant payment of the PCN nor any right to retain until all charges are paid and no right to administer the appeal process provided under regulation 11 of the 2007 Appeal Regulations. There has been 18 years of maladministration all because someone somewhere took the RTA 1991 at face value rather than look closely at what is was really saying.

What should be happening is that the penalty charge should be paid or appealed just as the PCN advises and the process should follow that as prescribed by the TMA 2004. Whereas any applicable removal and storage charges if not paid voluntarily then the council must decide whether to commence court proceedings. It is no coincidence that the right to retain was removed the moment decriminalised parking enforcement commenced and no coincidence that the application of s.102(2A) in no way interferes with what the TMA 2004 says must follow the service of any regulation 9 PCN.

Understandably councils will not willingly concede 18 years of maladministration and even the adjudication service will not like the fact that they've been complicit in this by failing to pick up on it.

You can use the appeal below. All you need do is copy and paste it into a letter or email and make sure you quote the PCN reference number

and sign it at the bottom. Keep all text formatting as displayed below for emphasis. Expect the council to reject but hopefully an adjudicator will see sense and require the council to return all monies paid. You've absolutely nothing to lose. I'm happy to write all letters all you need do is send them off.

Dear Council

I appeal against the penalty and removal charges levied against me on the grounds of procedural impropriety.

The removal and storage charges levied upon me by the council are set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) contained within Schedule 9 makes it explicitly clear that these set charges apply only where a council is imposing a charge enabled under s.102 of the Road Traffic Regulation Act 1984.

1(1)This Schedule provides for the setting of the levels of-

(a)penalty charges, including any discounts or surcharges,

(b) charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no statutory requirement within a Civil Enforcement Area for a person to pay any charges before the vehicle is returned to them. For clarification the applicable parts of s.102 RTRA 1984 can be seen below.

102(1)The provisions of this section shall have effect where a vehicle—

(a)is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or

(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.

102(2A)If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004

102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.

In summary s.102 is saying that where a vehicle is removed for a parking contravention then the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges in respect of the removal and storage of the vehicle and should these not be paid then the enforcement authority can take the person responsible to court to recover their charges.

What s.102 does not say is that any outstanding penalty charge is to be paid on collection or that the enforcement authority can retain the vehicle until the penalty, removal and storage charges are paid. Of course the council can ask for the removal and storage charges to be paid on collection but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. This process is quite correct for a civil matter. Payment of the penalty charge however must be in accordance with the statutory provisions of the TMA 2004 as is proper where a regulation 9 PCN is served.

In regard to my vehicle the council incorrectly applied those charges specified under s.101A RTRA 1984 and yet this section has no relevance to those charges set by Schedule 9TMA 2004. Even if we were to ignore this fact it is important to note that the charges under s.101A only apply to the owner of a vehicle that was presumed abandoned due to it having the appearance of being so either at the time of removal or sometime later while in storage. By "appearance" it does not necessarily mean the vehicle looks dilapidated. It can mean that the vehicle is pristine and road worthy but for some unknown reason no one had come forward at an earlier stage to take custody. As my vehicle never had the appearance of being abandoned the charges under s.101A RTRA 1984 can never apply and consequently nor can the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and yet this was the appeal process administered.

It is clear not only that the council has committed a procedural impropriety but has also acted beyond their powers. Firstly, by insisting the penalty charge be immediately paid when s.102 does not permit this and when statute explicitly provides for a 28 day payment period. Secondly, by retaining my vehicle until I had paid the penalty, removal and storage charges when no right to retain exists (the right to retain was removed when s.68 RTA 1991 commenced) and thirdly, by administering an appeal process that only concerns the recovery (either prior to disposal or following) of those vehicles that were by appearance presumed to be abandoned.

The council will find that the TMA 2004 makes no provision for only the imposed penalty charge aspect of a regulation 9 PCN to remain valid while the associated statutory rights and processes are null and void and yet this is exactly what the council has done. There is no such entity as a “partial” regulation 9 PCN, it either applies in full or it is a nullity. Had the council correctly applied those charges regulated under s.102(2A) RTRA 1984 then the rights and procedural processes associated with the regulation 9 PCN would not have been interfered with. This is clearly no coincidence but the measured intent and design of Parliament. I trust the council will have the integrity to acknowledge their errors and to act appropriately by returning all monies paid.

Yours respectfully

@Horseman, is your mum in law interested in appealing?

I've extensively researched the laws behind council towing and it seems for the last 18 years (when decriminalised parking enforcement commenced) council's have acted beyond their powers. They have no lawful right to insist the PCN be paid immediately on collection, they have no lawful right to retain a vehicle until the removal and storage charges are paid nor have they any right to apply the appeal process they did (it's the incorrect one).

I can provide an appeal letter if you are interested but you will have to play the long game as council's won't readily admit 18 years of maladministration.

Marked bays are required unless the Secretary of State has given permission for the omission of marked bays. Often councils will set up resident parking zones without obtaining the correct permission. You can FOI the DfT to find out whether the council has permission.

If the PCN does not refer to the "goods vehicle" restriction then you can apply the principle behind case 2110087803. In the link below click on search and type in the case number. You can print it off to send with your appeal. Expect rejection though as council's play the long game.

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

You should wave case number 2110166557 under the council's noses. You can obtain a copy by inputting the number in the link http://www.patasregistersofappeals.org.uk/StatReg/StatRegAdvanced.aspx

If your appeal is rejected then appeal to the adjudicator and include all the text below. Keep in all text formatting for emphasis.

The removal and storage charges levied upon me by the council are set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) contained within Schedule 9 makes it explicitly clear that these set charges apply only where a council is imposing a charge enabled under s.102 of the Road Traffic Regulation Act 1984.

1(1)This Schedule provides for the setting of the levels of—E+W

(a)penalty charges, including any discounts or surcharges,

(b) charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no statutory requirement within a Civil Enforcement Area for a person to pay any charges before the vehicle is returned to them. For clarification the applicable parts of s.102 RTRA 1984 can be seen below.

102(1)The provisions of this section shall have effect where a vehicle—

(a)is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or

(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.

102(2A)If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004

102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.

In summary s.102 is saying that where a vehicle is removed for a parking contravention then the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges in respect of the removal and storage of the vehicle and should these not be paid then the enforcement authority can take the person responsible to court to recover their charges.

What s.102 does not say is that any outstanding penalty charge is to be paid on collection or that the enforcement authority can retain the vehicle until the penalty, removal and storage charges are paid. Of course the council can ask for the removal and storage charges to be paid on collection but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. This process is quite correct for a civil matter. Payment of the penalty charge however must be in accordance with the statutory provisions of the TMA 2004 as is proper where a regulation 9 PCN is served.

In regard to my vehicle the council incorrectly applied those charges specified under s.101A RTRA 1984 and yet this section has no relevance to those charges set by Schedule 9 TMA 2004. Even if we were to ignore this fact it is important to note that the charges under s.101A only apply to the owner of a vehicle that was presumed abandoned due to it having the appearance of being so either at the time of removal or sometime later while in storage.By "appearance" it does not necessarily mean the vehicle looks dilapidated. It can mean that the vehicle is pristine and road worthy but for some unknown reason no one had come forward at an earlier stage to take custody. As my vehicle never had the appearance of being abandoned the charges under s.101A RTRA 1984 can never apply and consequently nor can the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and yet this was the appeal process administered.

It is clear not only that the council has committed a procedural impropriety but has also acted beyond their powers. Firstly, by insisting the penalty charge be immediately paid when s.102 does not permit this and when statute explicitly provides for a 28 day payment period. Secondly, by retaining my vehicle until I had paid the penalty, removal and storage charges when no right to retain exists (the right to retain was removed when s.68 RTA 1991 commenced) and thirdly, by administering an appeal process that only concerns the recovery (either prior to disposal or following) of those vehicles that were by appearance presumed to be abandoned.

The council will find that the TMA 2004 makes no provision for only the penalty charge aspect of a regulation 9 PCN to remain valid while the associated statutory rights and processes are null and void and yet this is exactly what the council has done. There is no such entity as a “partial” regulation 9 PCN, it either applies in full or it is a nullity. Had the council correctly applied those charges regulated under s.102(2A) RTRA 1984 then the rights and procedural processes associated with the regulation 9 PCN would not have been interfered with. This is clearly no coincidence but the measured intent and design of Parliament.

The council may quote the RTRA 1984 but that's no use if the vehicle is further than 50cm from the edge of the carriageway. I don't think signing paperwork alone is an exemption.

http://www.legislation.gov.uk/ukpga/2004/18/section/85

In any appeal I suggest including the text below.

The removal and storage charges levied upon me by the council were set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) contained within Schedule 9 makes it explicitly clear that these set charges apply only where a council is imposing a charge enabled under s.102 of the Road Traffic Regulation Act 1984.

1(1)This Schedule provides for the setting of the levels of—E+W

(a)penalty charges, including any discounts or surcharges,

(b) charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no statutory requirement within a Civil Enforcement Area for a person to pay any charges before the vehicle is returned to them. For clarification the applicable parts of s.102 RTRA 1984 can be seen below.

102(1)The provisions of this section shall have effect where a vehicle—

(a)is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or

(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.

102(2A)If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004

102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.

In summary s.102 is saying that where a vehicle is removed for a parking contravention then the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges in respect of the removal and storage of the vehicle and should these not be paid then the enforcement authority can take the person responsible to court to recover their charges.

What s.102 does not say is that any outstanding penalty charge is to be paid on collection or that the enforcement authority can retain the vehicle until the penalty, removal and storage charges are paid. Of course the council can ask for the removal and storage charges to be paid on collection but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. This process is quite correct for a civil matter. Payment of the penalty charge however must be in accordance with the statutory provisions of the TMA 2004 as is proper where a regulation 9 PCN is served.

In regard to my vehicle the council incorrectly applied those charges specified under s.101A RTRA 1984 and yet this section has no relevance to those charges set by Schedule 9 TMA 2004. Even if we were to ignore this fact it is important to note that the charges under s.101A only apply to the owner of a vehicle that was presumed abandoned due to it having the appearance of being so either at the time of removal or sometime later while in storage. By "appearance" it does not necessarily mean the vehicle looks a derelict. It can mean that the vehicle is pristine and road worthy but for some unknown reason no one had come forward earlier to claim ownership. As my vehicle never had the appearance of being abandoned the charges under s.101A RTRA 1984 can never apply and consequently nor can the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and yet this was the appeal process administered.

It is clear not only that the council has committed a procedural impropriety but has also acted beyond their powers. Firstly, by insisting the penalty charge be immediately paid when s.102 does not permit this and when statute explicitly provides for a 28 day payment period. Secondly, by retaining my vehicle until I had paid the penalty, removal and storage charges and thirdly, by administering an appeal process that only concerns the recovery (either prior to disposal or following) of those vehicles that were by appearance presumed to be abandoned.

The council will find that the TMA 2004 makes no provision for only the penalty charge aspect of a regulation 9 PCN to remain valid while the associated statutory rights and processes are null and void and yet this is exactly what the council has done. There is no such entity as a “partial” regulation 9 PCN, it either applies in full or it is a nullity. Had the council correctly applied those charges regulated under s.102(2A) RTRA 1984 then the rights and procedural processes associated with the regulation 9 PCN would not have been interfered with. This is no coincidence but the clear design of Parliament. I trust the council will have the integrity to acknowledge their errors and to act appropriately by returning all monies paid.

That 101a only applies to abandoned vehicles

That's not what I said. I said s.101A is made further to s.101 and as such it concerns the recovery (by the owner) of those vehicles that had the "appearance" of being abandoned. Appearing abandoned and actually being abandoned are not quite the same thing. If the owner comes forward and reclaims the vehicle then clearly it has not been abandoned. A vehicle may initially have been removed for a parking contravention and it is only while it is stored at the pound that the council may believe it to have the appearance of being abandoned (due to no one making any immediate claim for example).

The appeal regs (regulation 11 of the 2007 Appeal Regs) only applies where the charge on recovery of a vehicle falls under s.101A RTRA 1984.

11.—(1) This regulation applies to a person where, as respects a vehicle which has been found in a civil enforcement area for parking contraventions and removed under regulations made under section 99 of the 1984 Act—

(a)he is required to pay an amount on recovery of the vehicle under section 101A of that Act;

My argument is that the removal charges for a vehicle that never had the appearance of being abandoned is not those under s.101A but those under s.102 RTRA 1984.

Schedule 9 TMA 2004 adds credence to this claim.

(1)This Schedule provides for the setting of the levels of-

(a)penalty charges, including any discounts or surcharges,

(b)charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions

I don't expect to win you over G&M as I never ever have in any of our disagreements but hopefully one or two others may think I may be onto something. There's no denying that under the TMA 2004 there is a statutory procedure that is supposed to ensue once a reg 9 PCN is served and no where under the TMA 2004 does it say this procedure does not apply once a vehicle is removed. Had the charges under s.102 been applied then there would be no interference with the statutory process of a reg 9 PCN. I don't believe this to be a coincidence.

If the car is towed you can still appeal even after payment.

Which makes a mockery of the council mantra that you cannot pay & appeal due to paying being deemed as admitting liability. Seems councils want it both ways! Paying is either admitting liability or it is'nt. A council can't pick and choose when to apply the principle.

A person is still denied the opportunity to make an informal challenge despite the fact that the PCN bestows this right. A person is also denied the right to pay the PCN anytime within 28 days which is another right the PCN says a person has. Statute gives clear instruction what process must ensue following the service of a reg 9 PCN and yet all this is dismissed where removals are concerned. In other words councils treat the PCN as having no lawful relevance except of course for the bit that imposes the charge. I can't see anywhere under the TMA 2004 where only the charging aspect of the PCN is applicable while the rest of what it says can be disregarded.

What's not actually true?

In any appeal I suggest including all the text below.

I bring to the council's attention the matter of procedural impropriety. The council has incorrectly applied those charges specified under section 101A of the Road Traffic Regulation Act 1984 in regard to the collection of my vehicle when the correct charges to apply are those under section 102(2A). Paragraph 1(1)(b) within Schedule 9 of the Traffic Management Act 2004 confirms this assertion and further indication is evident under paragraph 1(b) contained in the Schedule to the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007.

As such the council had no lawful right to insist the penalty charge be paid when I collected my vehicle nor did the council have any right to administer the appeal process specified under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. This regulation only applies where the applicable charges are those under section 101A of the RTRA 1984. Section 101A is made further to section 101 and therefore it only concerns the recovery of those vehicles that had the appearance of being abandoned. Appearing so either at the time of removal or sometime after.

Before my vehicle was removed the council served a regulation 9 PCN. The council has not only denied me the opportunity to pay the PCN within the statutory 28 day period but they have also denied me the opportunity to make an informal challenge and the right to receive and respond to an NtO. The PCN clearly bestows these rights upon me. If the council are advocating that these rights are not applicable then in essence the council is suggesting the PCN is a nullity. If the PCN is a nullity then there can be no penalty charge and thus no lawful removal. I expect a full refund shortly.

You can argue that having parked in that location for a significant period without penalty and seen other vehicles over a signiicant time parked without penalty that you had a "legitimate expectation" that it was lawful to park in such a manner. This is often acceptable mitigation at adjudication but don't expect a council to be reasonable.

Type in case 2110055104. The time establishing expectation may be much more but the principle is the same.

http://www.patasregistersofappeals.org.uk/StatReg/StatRegAdvanced.aspx

If the PCN makes no reference or provides pictures of the goods vehicle restriction then you can go ahead and include this point in your appeal as the law requires the PCN to convey the grounds for the PCN. Just make sure you submit your appeal with a copy of the adjudication decision. I also suggest stating that the council has provided no evidence that the restriction is signed in accodance with the TSRGD 2002. This will then put the onus on the council having to prove that it does. Often they are too lazy to do so or to do so satisfactorily. For an example of this type in case 2110097261

http://www.patasregistersofappeals.org.uk/StatReg/StatRegAdvanced.aspx

I've just read that case and i'm not sure how it is relevant to this TBD. The appeal seems to have been allowed because the LA failed to include their reasons behind the 'offence' on the PCN and that the photo evidence didn't show the signage. Dosn't mention the description or class of vehicle involved.

The appeal was allowed because in the adjudicators view the PCN ought to have made reference to the class of vehicle (i.e. goods vehicles) when stating the grounds for the service of the PCN. Unless a person is told what type or types of vehicle are permitted then a person will not know if the alleged contravention is correct. The person who received the postal PCN may not have been the driver so will not necssarily know what the restriction was. The adjudicator explains;

In this case the grounds were that the Appellant's vehicle was not a goods vehicle, not being the class or type of vehicle that could park in this parking space that was a loading bay. However, the description used did not mention the class or type i.e. goods vehicle and the still photographs in the Notice did not show the sign relating to goods vehicle (diagram 660.4).

Thus, on receiving that Penalty Charge Notice through the post after the event, the owner would not know whether the vehicle was in fact the permitted type or class as it is not described. The owner would not have the essential facts so that they would know what case needed to be answered; it should be noted that the owner might well not have been the driver. In my judgment it should refer to the Goods vehicle restriction.

I've not seen the postal PCNbut if it does not clearly show the sign or make reference to "goods vehicles" then in any further appeal I would argue that the PCN does not correctly state the grounds for the PCN and submit a copy of the adjudication decision with the appeal.

thanks mr B, but i cant seen to open that case link, comes up with the PATAS website giving a message due to high demand server not available or similar, funnily enough i can open other cases on their site. will keep trying

In that case go to the seach option on their site and look up case 2110087803

In that case when you appeal make reference to the PATAS decision I linked to and send a copy with your appeal.