PCN in Council Owned Off Street Car Park

[Ellie May]

To those who are watching the 'Detained by police for unpaid PCN' thread, this is the PCN in question!! So if you can help at all in bringing this farce to an end, it would be much appreciated. I will try to keep this brief but the current state of play is as follows:

 

1) Out of Time stat Dec put in re PCN so the whole process began again

2) Ticket appealled

3) Appeal rejected (quelle surprise!! )

4) Appeal sent to NPAS

5) 5 months later (yes really) NPAS reach a decision and dismiss appeal

 

The appeal made by myself was on four grounds (ish) which are as follows:

 

1) I was loading at the time (parking attendant slapped the ticket on after 5 mins)

2) The car park in question is signed NCP and does not state that it is run by the local authority

3) the parking order referred to on the sign is not the TRO which actually governs the car park as this was superceded over 5 years ago and the sign never updated.

4) The sign states its an offence to park there - under decriminalised parking it is of course not an offence at all.

 

So ye olde NPAS reject reason 1) saying there is no exemption in the TRO to allow loading. Whilst this is true, I didn't think you needed a specific exemption? Also there is nothing to say 'no loading' at all. I alos believe this to be very unusual i.e. there generally is a loading exemption in TROs.

 

2) NPAS say they are satisfied that the car park is owned by the local authority and regulated by them. NCP just run it for them. Yep, I never disputed this, but should the motorist not be told that this is not a private car park on the signage?

 

As for points three and four, which are fundamental to my appeal in my view, well NPAS simply ignored them. No comment whatsoever. How odd?

 

Naturally I am going to appeal, as they have not addressed all of the points, so I guess this could be classed as an 'administrative error'? but I have to confess I am struggling with finding the regs that apply to off street parking. I know both RTRA 88 and RTA 91 cover it to some extent, but the issue I have is that once (under RTRA 88) the council has authority to make a TRO csn they just put whatever they like in it? Surely not? The reason I ask is that I found allsorts of useful regs such as the Traffic Order Procedure Regs - but they don' seem to apply to s43 & 44 of RTRA 88 and also the Traffic Sign regs, but again they don't seem to apply to off street parking either. Am I wrong with this and do these actually apply? And if not what regs other than the TRO made by the council in question do?

 

Any help would be really appreciated guys.

[Fair-Parking]

You might like to throw in these very awkward questions on your appeal. If the sign was wrong to state that it is an 'offence' to park, then the sign is misleading and possibly unlawful. Not just the part that refers to an 'offence' but the whole sign and nothing but the sign.

 

And try this. PCN's became legal under RTA 1991, even the enforcement procedure that included using bailiffs was made legal under that Act, BUT seven years later the Data Protection Act 1998 was introduced and that specifically excluded passing on private information to third parties.

 

Councils of course ignored this troublesome bulldozer invading their cozy world but it actually meant that from 1998 they were acting unlawfully by passing your details to third party private bailiffs (Marstons in this case).

 

Logic assumes that a later 1998 Act that overrides concessions allowed under an Act of seven years earlier. If it did not then it would be because the previous (RTA1991) Act would have been granted dispensation in the DPA 1998 Act.

 

Only it wasn't and therefore must be subject to it.

 

Given that the Data Protection Act 1998 was drafted with the pure intention of preventing the passing of private information to other private citizens, the omission of previous council rights within the DPA 1998 over the continued use of third party bailiffs strongly suggests that such procedure is in fact contrary to the 1998 Act itself and is therefore illegal.

 

I don't know of any case law that supports councils' lazy and unlawful procedures over passing your private details to private bailiff companies.

 

Alistair Sim playing the amusing and liberal judge in A.P. Herbert's famous Misleading Cases once told us that 'you cannot ignore a point of law'.

 

Not even in the real world.

[patdavies]

It would fall under a s.29 exemption.

[Fair-Parking]

I beg to differ Pat.

 

S29 is taxation.

 

Decriminalised parking isn't a tax and any monies collected are via punishments following alleged contraventions.

[Ellie May]

Ooooh ooooh I think I've found it!! Section 35B of the RTRA 84 (as inserted by the Parking Act 1989)? Anyone disagree?

Fairparking, thanks for your response. Although I must confess this leaves me more confused than ever. In principle I see what you are saying, however bits of this baffle me. Bear with me on this.

Firstly, who is the 'Data Controller' here, the DVLA who the council got my details in the first place? Then do the council also become a data controller once they have my info? Also I note you refer to 'private individuals' but is this the case with local authorities? Aren't they goverment agencies and as such are they exempt? Also what happens when you get to charge certificate stage with TEC, does this change things i.e. does the data controller now have a right to pass your details on to the 'court bailiff'. Sorry twenty questions I know but although I understand the principles of DPA 98 I don't really understand how this works in this scenario.

As ever, your input is greatly appreciated.

[Ellie May]

PS Pat are you referring to paras 4 & 5 of s29?

[patdavies]

PS Pat are you referring to paras 4 & 5 of s29?

 

 

No, sub-section 4 authorises an exemption from disclosure via a S.7 request (SAR)

 

I was referring to sub-section 1 (my bold). I am not saying that this is right, but it is the exemption that a Council will rely on and if you consider the revenue stream involved, I doubt that the ICO with rule otherwise.

 

S.29

 

29 Crime and taxation

 

(1) Personal data processed for any of the following purposes—

(a) the prevention or detection of crime,

(b) the apprehension or prosecution of offenders, or

© the assessment or collection of any tax or duty or of any imposition of a similar nature,

are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection.

(2) Personal data which—

(a) are processed for the purpose of discharging statutory functions, and

(b) consist of information obtained for such a purpose from a person who had it in his possession for any of the purposes mentioned in subsection (1),

are exempt from the subject information provisions to the same extent as personal data processed for any of the purposes mentioned in that subsection.

(3) Personal data are exempt from the non-disclosure provisions in any case in which—

(a) the disclosure is for any of the purposes mentioned in subsection (1), and

(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection.

(4) Personal data in respect of which the data controller is a relevant authority and which—

(a) consist of a classification applied to the data subject as part of a system of risk assessment which is operated by that authority for either of the following purposes—

(i) the assessment or collection of any tax or duty or any imposition of a similar nature, or

(ii) the prevention or detection of crime, or apprehension or prosecution of offenders, where the offence concerned involves any unlawful claim for any payment out of, or any unlawful application of, public funds, and

(b) are processed for either of those purposes,

are exempt from section 7 to the extent to which the exemption is required in the interests of the operation of the system.

(5) In subsection (4)—

 

• “public funds” includes funds provided by any Community institution;
  
• “relevant authority” means—
  (a)
  a government department,
   
  (b)
  a local authority, or
   
  ©
  any other authority administering housing benefit or council tax benefit.
   
   
   
  

[lamma]

I agree with pat. However it may need to be tested in a Court of Record. "c) the assessment or collection of any tax or duty or of any imposition of a similar nature," Taxes and duty payable to HMG and are not civil in nature so it could be argued that decriminalised PCNs are not of a "similar nature".

Why else was that nice Section put into CPR.

[Ellie May]

Right, got it. Don't you just love the web? I found this on the fightback forums

 

NPAS seminar Leeds July 2003

 

This answers pretty much all of my questions and I am sending a copy of it to the Traffic Penalty Tribunal to see if they will find against their own dear leader!! Surely they have to concede now?

[Fair-Parking]

Ellie May, now that you have read the Leeds Seminar article I can perhaps limit my advice. First, don't lose sight of just why you are appealing and who you are appealing against. Concentrate on the LA and it's flawed enforcement procedures. In that respect it is the LA which has passed your private details onto a private company in disregard to the Data Protection Act 1998.

 

Local authorities are not exempt from the Act. On the contrary local authorities very often appear to use the excuse of 'restrictions' put on to them by the same Data Protection Act when they chose not to divulge information.

 

The Leeds Seminar makes it clear that the High Court has long ago ruled that the former RTR Act of 1984 (and thus it's successors) is NOT a revenue raising mechanism and that any order made with such intent is ultra vires (beyond their powers) and void.

 

That clears up the issue of taxation under s29 of the Data Protection Act 1998 and issues of a similar nature. The High Court has already set a precedent that the two are entirely seperate. If anybody feels that remains in doubt, there is certainly no case law to support the notion that taxation and parking fees are connected.

 

Yes that does appear to rule out any use of private third party bailiffs in relation to alleged parking contraventions imposed by local authorities.

[lamma]

someone should tell Westminster council.....

[Fair-Parking]

They ALL know Lamma.

 

Just as Westminster Council are fully aware of the wrongdoings of that fraudulent firm JBW who represents them.

 

Honesty and integrity - now there's two words they have never heard of

[lamma]

I know. doesn't hurt to post it for the new visitors. someone with a live case has to take this through the ICO to get a decision.