urgent replies: rules changed - failed PCN appeal

[foxie_68]

A few weeks back I parked in a place where I had parked on & off for over 10 years. What I hadn't realised is that the parking rules had changed about 6 weeks before.

 

Used to be able to park for 30 mins, now it is resident only. Small ad was in local paper and there is a couple of signs about the new rules but they are far apart.

 

Traffic warden advised me to appeal, said a few folks had & had won as they had changed the rules suddenly without much warning.

 

Got a letter back though to say it stands and no more correspondence would be entered into. I had until 31st march to pay the £35 or I could hold off and appeal again, however if I lost the charge will now be £70.

 

Have a got a leg to stand on? Or should I just pay?

[Bernie_the_Bolt]

Can you give us the exact dates for the PCN and the exact quote on the "no further correspondence" as that gould be unlawful action by the LA that will give you a good ground for the adjudicator.

[foxie_68]

Got the ticket on the 06/03 at 15:33, the traffic warden said the rules changed about 6 weeks before & on the phone the lady at the council said they had changed at the end of January.

 

In the letter they say 'At this stage we will not respond to any futher correspondence regarding this matter. Therefore if you disagree with this decision you should await the issue of a Notice to Owner document. At that stage you have the right to make a statutory challenge. I would advise you however that at Notice to Owner stage the cost to discharge the debt would revert to the original amount of £70.'

 

I had been a bit unlucky in the fact that a week before this I got a ticket in a car park because my vaild ticket had been blown over by the wind. I won that appeal so feel this one has been knocked back because they see me as some bad parker but on both occasions I felt I had parked completely legally. I have raised with the council the fact that the car park should have those tickets that you can stick to your windscrean as they always blow over and sometimes when trying to manage kids out of car to a safe area it is not always easy to keep an eye on these things.

 

Any advice will be gratefully received as I have to make a decsion by tomorrow to pay or wait for the notice to owner.

 

Thank you Berni.

[foxie_68]

Just been reading through the threads and found this posted by someone

 

An interesting issue is emerging within the Decriminalised Parking Enforcement system. This is the part of the Road Traffic Act 1991 which enables local councils to operate thier own parking regime.

 

If you have been issued with a parking ticket and still have the original pcn (the ticket that gets attached to your windscreen), check the following points:

 

1. At the top of the ticket there must be the words "Date Of Issue", simply date or date of offence is not acceptable

 

At the top of mine it says:

 

served on: 06/03/2010

 

further down it has:

 

date of contravention: 06/03/2010

 

Does this make it illegal?

 

Thanks again

[lamma]

1991 Act is dead for parking (unless you are in scotland). 'Served on' is taken date of Issue. "'At this stage we will not respond to any futher correspondence regarding this matter." brings Bernie's point into play. I don't think the TMA makes this restriction.

[foxie_68]

Thanks for replying folks. So today is d-day, not sure what to do for the best really, to pay the £35 or take a chance and risk having to pay £70. Oh what to do.

 

My local council are in the process of changing previous free car parks in the area to pay & display. I've recently found out that the free car park behind the shops that I was visiting has changed to p & d. This explains why they have changed that road to resident only as they would most likely have people parking there instead of using that car park.

[Bernie_the_Bolt]

Got the ticket on the 06/03 at 15:33, the traffic warden said the rules changed about 6 weeks before & on the phone the lady at the council said they had changed at the end of January.

 

In the letter they say 'At this stage we will not respond to any futher correspondence regarding this matter. Therefore if you disagree with this decision you should await the issue of a Notice to Owner document. At that stage you have the right to make a statutory challenge. I would advise you however that at Notice to Owner stage the cost to discharge the debt would revert to the original amount of £70.'

 

 

If I was in your shoes what I would be doing is to wait until the NTO arrives and then respond by ticking the box that the penalty exceeds the applicable amount. I would explain for the following reasons:

 

The LA has acted unlawfully in its handling of this matter prior to the issue of the NTO. The LA's unlawful actions mean that it is not entitled, as matter of natural law and public policy, to enforce the PCN and/or the subsequent NTO and the penalty therefore exceeds the applicable amount.

 

The representations are made on this basis without prejudice to make representations on this or any other grounds to the independent adjudicator should these representations be denied.

 

The unlawful actions of the LA are described below:

 

Under Part 2 S 3 (2) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 a penalty charge notice served under regulation 9 of the General Regulations must state that if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served those representations will be considered.

 

There is no provision within the legislation for a Local Authority to refuse to consider any representations that may be made, after any initial representations have been rejected, prior to an NTO being issued. The response from the LA of 'At this stage we will not respond to any futher correspondence regarding this matter. Therefore if you disagree with this decision you should await the issue of a Notice to Owner document.' is therefore an unlawful refusal to consider representations that it not only has a statutory obligation to consider but also to inform the motorist that it will consider them.

 

The further statement that 'I would advise you however that at Notice to Owner stage the cost to discharge the debt would revert to the original amount of £70.' Is also an unlawful misrepresentation of the legal position.

 

The legal position is that a NTO cannot be served before the end of the period of 28 days beginning with the date on which the penalty charge notice was served. However under law if the penalty charge is paid not later than the last day of the period of 14 days beginning with the date on which the PCN the penalty has to be reduced the amount of any applicable discount. This period may be extended by the LA under its discretion but the LA cannot by law issue, in this case, a NTO until after 02 April.

 

The LA has exercised its discretion following informal representations to permit payment of the reduced rate until 31 March 2010 but has then made the contradictory and prejudicial statement that the discount will not be lost until the NTO is served which cannot, by law be until a later date.

 

There have been many decisions of the parking adjudicators where prejudicial actions by local authorities have been found to render PCNs and NTOs unenforceable and I believe they serve to act as precedents in this case. I further believe that any resistance to an appeal to the adjudicator against an appeal on this basis should be regarded as vexatious and thus qualify for an award of costs.

 

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

 

Can be found here

 

But extract below:

 

PART 2

 

 

 

REPRESENTATIONS AND APPEALS IN RELATION TO NOTICES TO OWNER

 

Scope of Part 2 and duty to notify rights to make representations and to appeal

3.—(1) Regulations 4 to 7 have effect where a penalty charge which has become payable under the General Regulations has not been paid and either—

 

(a) a penalty charge notice has been served by a civil enforcement officer under regulation 9 of the General Regulations, and a notice to owner served by the enforcement authority under regulation 19 of those Regulations; or .

(b) a penalty charge notice has been served under regulation 10 of the General Regulations. .

(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a) that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and .

(b) that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served— .

(i) those representations will be considered; .

(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.

Edited March 31, 2010 by Bernie_the_Bolt

[lamma]

Nice one Bernie. small point - "vexatios"

[foxie_68]

I've got an email address for one of the manange's at the council, do you think I should email him today or wait for the NTO. I emailed him when my appeal was knocked back and he forwarded it on to someone but I never heard back.

 

Also wondering if if though they have given me to today to pay they may not issue the NTO until after the bank holiday weekend, could this then alter my case as it would be after the 2nd of April.

 

Thanks again.

 

Foxie.

[Bernie_the_Bolt]

Nice one Bernie. small point - "vexatios"

 

Ah, the "sticky keyboard fairy" has been at it again!

[Bernie_the_Bolt]

I've got an email address for one of the manange's at the council, do you think I should email him today or wait for the NTO. I emailed him when my appeal was knocked back and he forwarded it on to someone but I never heard back.

 

Also wondering if if though they have given me to today to pay they may not issue the NTO until after the bank holiday weekend, could this then alter my case as it would be after the 2nd of April.

 

Thanks again.

 

Foxie.

 

I would wait. The longer it takes for them to issue the NTO the more it makes your point.

 

I would just caution you, this way you lose the discount and if your arguments do not prevail (there are no guarantees) you will have to cough up the full £70.

 

What LA btw?

[foxie_68]

Think I best just pay it, can't afford the £35 never mind £70.

 

Berni - I've pm'd you with the LA details.

 

Thanks again.

[foxie_68]

The other thing is I work for the same council as the PCN is for. I work term time for a school so if the next stage involves going to court then I wouldn't be able to go unless it happened to fall in the school holidays.

 

Off to take the kids to the pictures now so will have to make the decision as soon as I come back as I've got till 6pm to pay it.

 

Once again, thank you to all those of you who have offered advice, sorry to be such a flapper. Just feel sick still about the fact that I got two tickets within a week for parking the same as I have always done, ie. what I considered to be legal.

pcn_ltr0001.PDF

[Bernie_the_Bolt]

The fact that you work for the same council is of no consequence.

 

Appealing does not involve going to court. It can be done by post and loads here will help you with it but it is your decision.

 

I cannot see how they can wriggle out of that letter.

[foxie_68]

Sorry Berni, being a bit thick here (well thicker than normal) - is the fact that they wrote in my letter (see previous attachment) that no correspondance would be written in to a good enough reason for me to prehaps win my appeal next time.

 

A 1,000 thanks

 

Helen

[Bernie_the_Bolt]

Sorry Berni, being a bit thick here (well thicker than normal) - is the fact that they wrote in my letter (see previous attachment) that no correspondance would be written in to a good enough reason for me to prehaps win my appeal next time.

 

A 1,000 thanks

 

Helen

 

In my view, yes!

[Jamberson]

They won't "wriggle out" of the arguments put forward - if you use them as the basis of a formal representation, they will correctly refute them all. There is no real substance to this line of appeal, and I suspect it is to late now to settle at the reduced rate. In an nutshell:

 

The penalty does not exceed the applicable amount. The applicable amount relates to the nature of the alleged contravention, not the outcome of a subsequent challenge to it, which is a circular argument in any case.

 

The requirement to state that representations will be considered on the PCN does not imply that correspondence subsequent to those representations has to be considered nor replied to.

 

And lastly, the statement 'I would advise you however that at Notice to Owner stage the cost to discharge the debt would revert to the original amount of £70' is true, and it is erroneous to assert that the Council has stated "the discount will not be lost until the NTO is served". They have not said that.

[lamma]

I agree with Bernie, Its a very strong argument. They have stated in back and white they are operating outwith the regulations. I read the council's letter as a confession by them of their sins.

Edited March 31, 2010 by lamma

[foxie_68]

I can pay online still so I guess I best do that before midnight.

[Bernie_the_Bolt]

Jamberson,

 

I respect your entitlement to a view but I just cannot see where you are coming from on this:

 

They won't "wriggle out" of the arguments put forward - if you use them as the basis of a formal representation, they will correctly refute them all. There is no real substance to this line of appeal, and I suspect it is to late now to settle at the reduced rate. In an nutshell:

 

The penalty does not exceed the applicable amount. The applicable amount relates to the nature of the alleged contravention, not the outcome of a subsequent challenge to it, which is a circular argument in any case.

 

If you study adjudicators decisions you will see that "The penalty exceeds the applicable amount" is often used where LAs act outside the legislation.

 

The requirement to state that representations will be considered on the PCN does not imply that correspondence subsequent to those representations has to be considered nor replied to.

 

What the legislation says is that representations made before the NTO is issued will be considered. It does not say, what this LA are trying to do, that there is "only one shot" at making informal representations.

 

And lastly, the statement 'I would advise you however that at Notice to Owner stage the cost to discharge the debt would revert to the original amount of £70' is true, and it is erroneous to assert that the Council has stated "the discount will not be lost until the NTO is served". They have not said that.

 

What does "revert" mean to you?

It is a verb that essentially means "to go back to a former condition". Had the LA said "I would advise you however that at Notice to Owner stage the cost to discharge the debt will be the original amount of £70" then your point would be fair but they did not. There is a clear and fair interpretation that they are saying that the discount will apply until the NTO is at least issued if not served.

 

Sorry, on this I think you have called it wrong!

[foxie_68]

My partner's gut feeling is that I should pay so I guess that's what I'll do as if I don't win the appeal I'll never hear the end of it. Thanks for all your advice.

[Bernie_the_Bolt]

My partner's gut feeling is that I should pay so I guess that's what I'll do as if I don't win the appeal I'll never hear the end of it. Thanks for all your advice.

 

Have a read of this, the section on fairness in particular.

 

http://www.parkingandtrafficappeals.gov.uk/documents/ParkingAdjudicatorsAnnualReport2002-2003.pdf

 

If you do decide to pay, come back and we'll help if you've lost the discount!

[Jamberson]

If you study adjudicators decisions you will see that "The penalty exceeds the applicable amount" is often used where LAs act outside the legislation.

 

Can you quote one so I can look? As far as I understand, this is a provision for if the documentation states the wrong amount due, eg £60 when £50 is owing.

 

Of course, if the council asserts that any amount is owed, then you challenge the PCN, you are basically asserting that there should be no charge at all - as opposed to asserting that you should be charged £0.

 

It makes no sense to challenge the PCN on the basis that the relevent amount is wrong:

 

- The PCN should be cancelled because the charge exceeds the applicable amount

- the charge exceeds the applicable amount because the PCN should be cancelled

- the PCN should be cancelled because the charge exceeds the applicable amount

- the charge exceeds the applicable amount because the PCN should be cancelled

 

... and so on. If you know of a case which clears the issue up, that would be great. Cheers.

[lamma]

if you are claiming that the PCN is invalid or that for any other reason your case should upheld i.e. in any appeal at all apart from a hopeful based on solely 'discretion' then the amount claimed always exceeds the amount payable.

[foxie_68]

Hi folks, I bottled it and paid up at around 11:30 last night, decided that if I lost I'd never hear the end of it from OH and it wasn't worth the risk.

 

My appeal would have been based on the fact that they have changed the rules for parking on a busy road by the shops where lots of people park on an occasional basis and have not put up any warning signs to let folks know. The two new signs that are there to say it is resident parking are very far apart on what is a very long road.

 

Anyway, it's all over with now but I do want to say that I am very grateful for all of your advice and offer of future support if I went on with the appeal.

 

Thank you