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On Monday 6th Sept 2010, 7.10 pm I parked on a single yellow line in Charlotte Road round the corner from The Tram Shed Theatre, Shoreditch. I went back at 10,30 and my car was gone. Cut a long story short it had been towed away to Hackney pound. £260 release fee. Yes two hundred and sixty pounds! Unbelievable. And so inconsiderate and uncharitable.Pouring with rain, no tubes ( on strike) and I had to go back to Edmonton to collect my photo licence then go all the way back to Hackney again. I eventually got home at 3.00am. Digraceful on all accounts. Excessive release fee, unclear signs and no thought for a person stranded. Disgusting behaviour all round. Shameful.:-x

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If you want to appeal then the letter below seems to encourage councils not to contest when pushed to adjudication.

 

Dear Sirs

 

Prior to the removal of my vehicle a CEO served a regulation 9 PCN. Once a regulation 9 PCN is served then the law gives the recipient the statutory right to submit an informal appeal that must be considered and a statutory 28 day period in which to pay the penalty charge should they not want to appeal informally or formally.

 

When I collected my vehicle, the Council insisted the penalty charge be paid immediately. I do not consider that the regulation 9 penalty charge was “payable” at the time I paid it, since I wanted to informally appeal with the possibility, should my informal appeal fail, of paying it later at the re-offered discounted rate or proceeding to adjudication. Section 101A of the RTRA 1984 requires “any penalty charge payable” to be paid on recovery of a vehicle. If a person has no intention of appealing then a regulation 9 PCN is not immediately “payable” but can be paid at any time no later than 28 days from the date of service. This is a statutory provision. However, where a person does wish to appeal, then a regulation 9 PCN only becomes “payable” by virtue of regulation 4 of “the Civil Enforcement of Parking Contraventions (England) General Regulations 2007” once all appeal stages have been exhausted and an adjudicator has dismissed the appeal having found as fact that the contravention was “committed”. For clarity, below is what regulation 4 advises;

 

4. Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle—

 

(a)a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London);

 

(b)a parking contravention within paragraph 3 of that Schedule (other parking contraventions in Greater London) in a civil enforcement area in Greater London; or

 

© a parking contravention within paragraph 4 of that Schedule (parking contraventions outside Greater London) in a civil enforcement area outside Greater London.

 

One of the "subject provisions" is that a person is given a statutory 28 day period to pay the PCN or otherwise appeal before service of an NtO. The law requires one or the other not both. This principle is commonly emphasised on many council PCN’s that warn the recipient that they must not pay the PCN if they want to challenge it. In other words the PCN is not considered “payable” if you intend to appeal; this is similar to being assumed innocent until proven guilty. Regulation 4 further advises that the penalty charge is "payable......... where there has been committed" a parking contravention. The PCN however only states an allegation of a parking contravention. If a person pays the penalty charge without coercion then this is accepted as admitting that the contravention was "committed" but if a person does not think the allegation is correct then they can appeal until ultimately an adjudicator finds as fact that the contravention was or was not "committed". Therefore I believe the Council acted ultra vires in demanding payment of the regulation 9 PCN immediately on recovery of my vehicle, contrary to what statute provides and contrary to what the PCN advised were my rights.

 

In addition, I was given no opportunity to submit an informal appeal. Being able to submit an informal appeal following receipt of a regulation 9 PCN is also one of the “subject provisions” and therefore a statutory right. The PCN confirms this right and the Secretary of State’s statutory guidance does under paragraph 83 make it clear that the loss of the right to an informal appeal is only applicable to regulation 10 PCN’s. I was served with a regulation 9 PCN.

 

83. The vehicle owner may dispute the issuing of a PCN at three stages:

· Owners may make so-called ‘informal challenges’ or ‘informal

representations’ against the PCN before the authority has served an NtO

(this does not apply when the PCN is issued by post as the PCN then acts as the NtO).

 

Although I was given information on how to appeal this was only in regard to a formal appeal. There was nothing given to me that advised that any right to an informal appeal as advised by the PCN was lost or had been revoked. At the pound, I was given both the PCN and formal appeal documents and these items gave conflicting information as to what my legal rights were. This was and is confusing and prejudicial.

 

It should also be noted that where a regulation 9 PCN is served then statute provides that any formal appeal against the PCN (not the removal costs) should be in response to receiving a Notice to Owner. The formal appeal document given to me was not a Notice to Owner but simply appeared to be a document served by virtue of regulation 11 of “the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007” informing me that I could make representations against removal (not the PCN). This gave me differing and more restrictive grounds for appeal than a Notice to Owner. Although my vehicle was removed it seems irregular and unjust to give me differing and more restrictive grounds for appeal than any other situation where a regulation 9 PCN is served. I believe such unfair restrictions and limitations to be contrary to the general principles of law.

 

The Traffic Management Act 2004 and its associated regulations as well as the RTRA 1984 do not stipulate that the statutory rights, provisions and procedures relating to the service of a regulation 9 PCN are revoked and void where that vehicle is later removed by virtue of s.99 RTRA 1984. Therefore I believe the Council has acted ultra vires and is guilty of procedural improprieties.

 

In addition “The Removal and Disposal of Vehicles Regulations 1986” (S.I. 1986/183) do not prescribe the method of removal used in regard to my vehicle.

 

With the commencement of the Traffic Management Act 2004 and the introduction of Civil Enforcement Officers, S.I. 1986/183 was amended by “The Removal and Disposal of Vehicles (Amendment)(England) Regulations 2007” (S.I. 2007/3484) to include new regulation 5C.

 

However, regulation 6 of S.I. 1986/183 has not been amended to take into consideration the newly inserted 5C regulation. As such there is no prescribed method of removal for vehicles that are removed by arrangement of a Civil Enforcement Officer. Without the methods of removal available to Civil Enforcement Officers being prescribed it cannot be certain that the method used was lawful and therefore the Council needs to establish that the method of removal was lawful.

 

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and substantiate any reason for rejection then I will bring this failure to the attention of the adjudicator.

 

Yours with love, hugs and kisses.

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Really unlucky - the CPZ in in force until midnight, which is unusual.

 

I doubt there's anything much you can do about it now.

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Really unlucky - the CPZ in in force until midnight, which is unusual.

 

I doubt there's anything much you can do about it now.

 

Don't give up so easily J.

 

OP you have nothing to lose by appealing so do so.

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Agreed - my post was written before I saw yours, DB. Definitely worth a try.

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Agreed - my post was written before I saw yours, DB. Definitely worth a try.

 

Thought that may be the case J. I firmly believe my arguments are strong ones. The TMA 2004 was rushed and as a result there is much contradiction. My argument if successful will have serious repercussions nationwide and it seems that councils would rather refund a few tows rather than risk an adjudicator ruling the current process unlawful. Common sense in my view makes it obvious that you cannot have a PCN stating one procedure and then have removal documents stating another.

 

My personal view is that the penalty charge appeal should be separate and independent from the removal appeal until the law is changed so that the two are compatible. I can't quite gather whether the legislators intended the two to be seperate or whether they attempted to unite the two. Whatever their intention they made a right pigs ear of it.

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I totally agree - I think you are right about this. It stands to reason that if you are compelled or coerced into paying a PCN at once then your right to challenge it has been at the very least compromised, and in effect withdrawn. I believe you can appeal retrospectively in tow-away cases, but you shouldn't have to for the PCN element of the charge.

 

Hope this succeeds.

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