Towing under the TMA 2004......possible flaws?

[TheBogsDollocks]

I’ve been researching towing legislation and I believe that Councils have made a faux pas by implementing the wrong appeal process where vehicles do not appear abandoned. Obviously most tows are of cars not abandoned but simply parked in contravention.

 

Here is a link to a post where the appeal papers given out can be seen (see post 6).

 

http://forums.pepipoo.com/index.php?showtopic=48724&hl=[/font]

Regulation 11 of the Appeal Regulations 2007 only concerns those persons charged for recovery by virtue of section 101A of the RTRA 1984.

 

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&Year=2007&number=3482&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=3440544&ActiveTextDocId=3440570&filesize=7108

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;

(b) he receives a sum in respect of the vehicle under section 101A(2) of that Act;

© he is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in that provision; or

(d) he is informed that the vehicle was disposed of without there being any proceeds of sale.

 

Section 101A only relates to those vehicles that appear to be abandoned following application of s.101(3) RTRA 1984 and where a person then comes forward to recover the vehicle prior to its actual disposal or within a year after its actual disposal.

 

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=the+road+traffic+regulation+act+1984&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=2223862&ActiveTextDocId=3458201&filesize=4237

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=the+road+traffic+regulation+act+1984&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=2223862&ActiveTextDocId=2224006&VersionNumber=10&filesize=32184

The criteria set down in s.101(3) RTRA 1984 does not apply to a vehicle merely parked in contravention and that is then collected from the pound fairly promptly, as it is evident that such a vehicle does not appear to be abandoned. Therefore, in such cases, the recovery charges are actually paid by virtue of section 102(2A) RTRA 1984 (as indicated by para.1(b) of Schedule 9 TMA 2004).

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.

 

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=the+road+traffic+regulation+act+1984&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=2223862&ActiveTextDocId=2224007&VersionNumber=8&filesize=37051

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=traffic+management+act+2004&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1606563&ActiveTextDocId=1606747&filesize=1294

This means that regulation 11 of the appeal regs 2007 is not applicable to vehicles that are not abandoned, as the recovery charges for them fall under s.102(2A) RTRA 1984 and not s.101A. As such, the Council should not be providing people with appeal documents that only concern section 101A charges as these only relate to vehicles that appear to be abandoned. As these appeal documents are not applicable to vehicles not abandoned then issuing them where a vehicle is not abandoned is a procedural impropriety.

In addition, a CEO serves a regulation 9 PCN before a vehicle is towed. This means that Council’s act ultra vires by insisting that the PCN be paid at the same time as the recovery charges are paid at the pound. The General Regulations 2007 advise that where a regulation 9 PCN is served then a person has 28 days to pay or otherwise appeal before a NtO is served. There is nothing within the TMA 2004 or s.102 RTRA 1984 that allows an authority to override this statutory provision. As such, a council's actions are unlawful if they insist the PCN be paid at the same time as the recovery charges.

I’m hoping to get this argument before an adjudicator. If I’m right, then this means all owners of towed vehicles that did not appear abandoned, have since 31 March 2008, been forced to pay the PCN earlier than need be and have been submitted to an appeal process that is not applicable to the circumstances. The correct procedure I believe, would be to pay the recovery charges only, while at the pound, while the appeal process should be to then follow as directed by the PCN (in other words, follow the same appeal process that applies to any other reg 9 PCN) . If subsequent appeals are lost then the PCN should be paid but if an appeal is won then the council must refund the recovery charges as well as cancel the PCN. This seems to be supported by the DfT Operational Guidance paragraph 11.13 and by reg 5(3)(b) and 7(2)© of the 2007 Appeal Regulations.

 

I’m open to any sensible and reasoned debate.

Edited February 18, 2010 by TheBogsDollocks

[kiptower]

cleaned up a bit for you

 

I’ve been researching towing legislation and I believe that Councils have made a faux pas by implementing the wrong appeal process where vehicles do not appear abandoned. Obviously most tows are of cars not abandoned but simply parked in contravention.

Here is a link to a post where the appeal papers given out can be seen (see post 6).

http://forums.pepipoo.com/index.php?showtopic=48724 &hl=

Regulation 11 of the Appeal Regulations 2007 only concerns those persons charged for recovery by virtue of section 101A of the RTRA 1984.

http://www.statutelaw.gov.uk/content.aspx?LegType=All+ Legislation&Year=2007&num ber=3482&searchEnacted=0& extentMatchOnly=0&confers Power=0&blanketAmendment= 0&sortAlpha=0&TYPE=QS&Pag eNumber=1&NavFrom=0&paren tActiveTextDocId=3440544& ActiveTextDocId=3440570&f ilesize=7108

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;

(b) he receives a sum in respect of the vehicle under section 101A(2) of that Act;

© he is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in that provision; or

(d) he is informed that the vehicle was disposed of without there being any proceeds of sale.

Section 101A only relates to those vehicles that appear to be abandoned following application of s.101(3) RTRA 1984 and where a person then comes forward to recover the vehicle prior to its actual disposal or within a year after its actual disposal.

http://www.statutelaw.gov.uk/content.aspx?LegType=All+ Legislation&title=the+roa d+traffic+regulation+act+ 1984&searchEnacted=0&exte ntMatchOnly=0&confersPowe r=0&blanketAmendment=0&so rtAlpha=0&TYPE=QS&PageNum ber=1&NavFrom=0&parentAct iveTextDocId=2223862&Acti veTextDocId=3458201&files ize=4237

http://www.statutelaw.gov.uk/content.aspx?LegType=All+ Legislation&title=the+roa d+traffic+regulation+act+ 1984&searchEnacted=0&exte ntMatchOnly=0&confersPowe r=0&blanketAmendment=0&so rtAlpha=0&TYPE=QS&PageNum ber=1&NavFrom=0&parentAct iveTextDocId=2223862&Acti veTextDocId=2224006&Versi onNumber=10&filesize=3218 4

The criteria set down in s.101(3) RTRA 1984 does not apply to a vehicle merely parked in contravention and that is then collected from the pound fairly promptly, as it is evident that such a vehicle does not appear to be abandoned. Therefore, in such cases, the recovery charges are actually paid by virtue of section 102(2A) RTRA 1984 (as indicated by para.1(b) of Schedule 9 TMA 2004).

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.

http://www.statutelaw.gov.uk/content.aspx?LegType=All+ Legislation&title=the+roa d+traffic+regulation+act+ 1984&searchEnacted=0&exte ntMatchOnly=0&confersPowe r=0&blanketAmendment=0&so rtAlpha=0&TYPE=QS&PageNum ber=1&NavFrom=0&parentAct iveTextDocId=2223862&Acti veTextDocId=2224007&Versi onNumber=8&filesize=37051

http://www.statutelaw.gov.uk/content.aspx?LegType=All+ Legislation&title=traffic +management+act+2004&sear chEnacted=0&extentMatchOn ly=0&confersPower=0&blank etAmendment=0&sortAlpha=0 &TYPE=QS&PageNumber=1&Nav From=0&parentActiveTextDo cId=1606563&ActiveTextDoc Id=1606747&filesize=1294

This means that regulation 11 of the appeal regs 2007 is not applicable to vehicles that are not abandoned, as the recovery charges for them fall under s.102(2A) RTRA 1984 and not s.101A. As such, the Council should not be providing people with appeal documents that only concern section 101A charges as these only relate to vehicles that appear to be abandoned. As these appeal documents are not applicable to vehicles not abandoned then issuing them where a vehicle is not abandoned is a procedural impropriety.

 

In addition, a CEO serves a regulation 9 pcn before a vehicle is towed. This means that Council’s act ultra vires by insisting that the pcn be paid at the same time as the recovery charges are paid at the pound. The General Regulations 2007 advise that where a regulation 9 pcn is served then a person has 28 days to pay or otherwise appeal before a NtO is served. There is nothing within the TMA 2004 or s.102 RTRA 1984 that allows an authority to override this statutory provision. As such, a council's actions are unlawful if they insist the pcn be paid at the same time as the recovery charges.

I’m hoping to get this argument before an adjudicator. If I’m right, then this means all owners of towed vehicles that did not appear abandoned, have since 31 March 2008, been forced to pay the pcn earlier than need be and have been submitted to an appeal process that is not applicable to the circumstances.

The correct procedure I believe, would be to pay the recovery charges only, while at the pound, while the appeal process should be to then follow as directed by the pcn (in other words, follow the same appeal process that applies to any other reg 9 pcn ) . If subsequent appeals are lost then the pcn should be paid but if an appeal is won then the council must refund the recovery charges as well as cancel the pcn This seems to be supported by the DfT Operational Guidance paragraph 11.13 and by reg 5(3)(b) and 7(2)© of the 2007 Appeal Regulations.

I’m open to any sensible and reasoned debate.

[TheBogsDollocks]

I've spent my lazy Sunday afternoon looking into the removal issue more deeply.

 

I've now got doubt that my initial assertion is going to hold.

 

The RTRA 1984 is not drafted with great clarity on this point, hence my initial assertion. I'm now coming round to thinking that the appeal papers given under regulation 11 of the 2007 Appeal Regs are likely to be considered lawful and applicable in all removal cases and not just where a vehicle appears to be abandoned.

 

I still have doubt about whether the PCN should be paid immediately at the pound contrary to the 28 day period allowed for payment where a reg 9 PCN is served. S.101A of the RTRA 1984 advses;

 

(3) In the case of a vehicle found in an area that is a civil enforcement area for parking contraventions, the relevant charges are— (a) any penalty charge payable in respect of the parking of the vehicle in the place from which it was removed.

 

I suppose this depends on what the law defines "payable" as meaning. Is the penalty charge "payable" at the time of recovery if a person wishes to appeal against it and when statute gives 28 days for it to be paid?

 

Certainly the process behind removals is messy. It seems that a reg 9 PCN can be served and the statutory provisions that accompany service of a reg 9 PCN can be ignored. For instance, no opportunity to informally appeal, no issue of a NtO but instead an appeal procedue that gives less grounds for appeal than an NtO would provide. This hardly seems the consistent enforcement process that the TMA 2004 was meant to bring about.

 

At least the mess gives me something to think about.

[Fair-Parking]

Before anybody is able to digress the TMA 2004, they will need to refer to its update of 28 February 2008 and in particular paragraphs 51 - 58.