PCN in Loading Bay - Barking & Dagenham - Sending correspondances to my old address - refusing to send letters to new ad

[samosa111]

Hi there

 

Barking & Dagenham issued a PCN on 08/06/2010 and attached it to my car. The contravention is:

PARKED IN A LOADING PLACE DURING RESTRICTED HOURS WITH LOADING

 

The PCN was issued at 19.40 and observed from 19:32 to 19:40. 
 

However the signage allows for 30 mins of loading with no return within 2 hrs. 
 

1. I wrote to the council on 16/06/2010 asking them why they had issued a ticket after observing my car for 8 mintues despite the signage allowing for 30 mintues. 

2. I chased them again on 28th June. 

3. I then received an NTO dated 12/10/2010 received on 20/10/2010. I wrote to them on 22/10/2010 advising they had failed to reply to my fax, email & postal letter of 16/06/2010. I requested a reply to my letter of 16/06/2010. Most importantly I advised them that I had moved address and provided my new address.

4. I sent them a chasing fax on 08/11/2010.

5. Today I visit my old address to drop off some keys and was handed a Charge Certificate dated 17/11/2010 showing the PCN had now increased to £150.00!

6. I phoned the Chief Executive's office and was transfered to the PA who acutally wouldnt look at the file further because they had already rejected my correspondance and sent a reply. 
 

The problem I am having is that B&D keep stating they have sent correspondances to my OLD address. I keep reminding them that I no longer live there. However, they refuse to fax or email me correspondances. 
 

Furthermore, they refuse to update their systems with my new address unless they receive a confirmation from DVLA confirming that my car address had changed. Furthermore, they are unwilling to put the matter on hold allowing me to write to DVLA to update with my new address. 
 

They keep asking me to write-in to which they will reply by post to my OLD address; one which I no longer of access to the post. In the meanwhile the clock is ticking and the charges are increasing. So I am being sent round in circles. 
 

What shall I do?
 

Someone please help?!!!!
 
 
 
 

The PCN image can be seen at:

123-wholesale.co.uk/parkingtickets/pcn.jpg

Edited November 25, 2010 by samosa111

[Jamberson]

Believe it or not, the Council are doing things by the book. Here's what you can do:

 

Wait for an Order for Recovery, which will be sent around 21 days after the date of the Charge Certificate. It will of course go to your old address - so you'll have to go and get it.

 

When you have it, fill in the paperwork to file a Statutory Declaration. On that you can tick the box "Made representations but did not receive a reply" and explain why in the box provided - moved house and didn't get correspondence. Provide your new address so they can change their records.

 

When all this is processed they will issue a Notice to Owner to you at your current address, for the original amount on the PCN. Then you can look into contesting the original PCN.

 

Incidentally, the observation times are for when the PCN was issued. Usually the CEO logs the vehicle at some point in time, then later on returns and observes it for a few minutes. It is the overall time from first sighting to second sighting which matters. He/she will not observe for the whole 30 minutes (for practical reasons - they have work to do).

[samosa111]

Jambersom thank you so much for your swift reply.

 

Your comments have been noted and I will do as you suggest.

 

The concur about the point about them logging and viewing the vehicle for a short period of time (after all they cant spend on day on my car). But I read some where that the onus is on the council to prove I was not loading. I made a note of the outcome (sadly I didnt log the url where this was posted) "Parking adjudicators decision in Douglas v Brent (PAS case No. 1960031276) that, since the driver had right to park for the purposes of loading, the burden of proof lies with Transport for London (substitute for your LA) to prove that the driver was not loading . Is that true?

 

When it does eventually go back to the NTO stage (using your suggestion about the Stat Dec.) what are my chances of winning the appeal via the parking adjudicator?

[samosa111]

Believe it or not, the Council are doing things by the book. Here's what you can do:

 

Wait for an Order for Recovery, which will be sent around 21 days after the date of the Charge Certificate. It will of course go to your old address - so you'll have to go and get it.

 

When you have it, fill in the paperwork to file a Statutory Declaration. On that you can tick the box "Made representations but did not receive a reply" and explain why in the box provided - moved house and didn't get correspondence. Provide your new address so they can change their records.

 

When all this is processed they will issue a Notice to Owner to you at your current address, for the original amount on the PCN. Then you can look into contesting the original PCN.

 

Incidentally, the observation times are for when the PCN was issued. Usually the CEO logs the vehicle at some point in time, then later on returns and observes it for a few minutes. It is the overall time from first sighting to second sighting which matters. He/she will not observe for the whole 30 minutes (for practical reasons - they have work to do).

 

 

 

 

Jamberson thank you so much for your swift reply.

 

Your comments have been noted and I will do as you suggest.

 

I concur about the point about them logging and viewing the vehicle for a short period of time (after all they cant spend on day on my car). But I read some where that the onus is on the council to prove I was not loading. I made a note of the outcome (sadly I didnt log the url where this was posted) "Parking adjudicators decision in Douglas v Brent (PAS case No. 1960031276) that, since the driver had right to park for the purposes of loading, the burden of proof lies with Transport for London (substitute for your LA) to prove that the driver was not loading . Is that true?

 

When it does eventually go back to the NTO stage (using your suggestion about the Stat Dec.) what are my chances of winning the appeal via the parking adjudicator?

[Jamberson]

When it does eventually go back to the NTO stage (using your suggestion about the Stat Dec.) what are my chances of winning the appeal via the parking adjudicator?

 

Just to be clear, your appeal in response to the NTO will be direct to the Council in the form of letter. If they refuse it, then you can refer to the adjudicator, but not before.

 

I can't say how an adjudication hearing would go. I'm not familiar with the case you mention, but there is no principle of legal precedence in these hearings, so your case will stand or fall on whether you convince the person hearing it that you genuinely were loading during those observation minutes. In essence, loading should be continuous unless you can present a persuasive argument as to why it wasn't. Adjudication is relatively informal.

 

In any case, it costs nothing to go to adjudication and the charge will not go up if you do. In other words, if you lose your appeal at the NTO stage, then taking it further cannot cost you (except time and effort).

[samosa111]

It gets worse!!!

 

- As you are aware, I received a charge certificate dated 17/11/2010 (sent to my old address) received a few day later in which the PCN has been increased from £100 to £150.

- I have yesterday received a Notice of Rejection of Formal Representation dated 19/11/2010 (2 days after the charge cert.). Isnt this procedurally incorrect??

 

The Rejection letter states that If I dont pay or appeal within 28 days from 19/11/2010 THEN the charge will be increased. In this case they have increased the charge prior to the rejection. Is this enough to have the PCN thrown out if I appeal to PATA?

 

Any guidance will be much appreciated.

[samosa111]

Jamberson

 

Feel free to correct me but the grounds for appealing the PCN are:

- I was correctly parked in a loading (and have a delivery note to prove that I was making that drop off)

- The council has not followed procedure and issued a rejection notice AFTER the charge certificate.

[Jamberson]

This changes the situation, as their decision to reject your appeal means there is little hope of having the case set back to NTO stage then re-appealing successfully.

 

You are right though, they have failed to follow procedure. This would be easily resolved by them, if they would agree to cancel the Charge Certificate. Do you have in writing their refusal to cancel it? If not, can you get it in writing? It will help if you can.

 

If so, I would say take the whole case to PATAS on the grounds of impropriety, citing their refusal to cancel the charge certificate. With their Notice of Rejection, they should have sent you forms to do this.

 

If you can't get it in writing, the adjudicator may just rule that the CC be revoked, leaving the case 'live' with little hope of an appeal succeeding. That's the worst that can happen though.

[samosa111]

You are right though, they have failed to follow procedure. This would be easily resolved by them, if they would agree to cancel the Charge Certificate. Do you have in writing their refusal to cancel it? If not, can you get it in writing? It will help if you can.

 

If so, I would say take the whole case to PATAS on the grounds of impropriety, citing their refusal to cancel the charge certificate. With their Notice of Rejection, they should have sent you forms to do this.

 

If you can't get it in writing, the adjudicator may just rule that the CC be revoked, leaving the case 'live' with little hope of an appeal succeeding. That's the worst that can happen though.

 

I thought the charge cert. must be issued after the rejection notice. With the Notice of Rejection they have however attached a PATA appeal form though.

 

So... what is my best way forward now... go straight to PATA or first ask them to cancel the charge cert?

[green_and_mean]

By the sound of it you failed to appeal the NTO so the CC was sent, they do not have to respond to any reps received before the NTO as long as they consider them.

[Jamberson]

I thought the charge cert. must be issued after the rejection notice. With the Notice of Rejection they have however attached a PATA appeal form though.

 

It goes like this:

 

PCN issued

- you send informal rep

- they send letter of rejection

 

- If you don't pay:

 

NTO issued and posted to you

- you send formal rep

- they send notice of rejection with PATAS forms enclosed

 

- you now pay or refer to PATAS - if you do neither:

 

They send Charge Certificate

 

- you must pay or:

 

They send Order for Recovery

- you can make stat dec if you have grounds, to go back to NTO stage.

 

G&M is right though - according to the dates (I hadn't noticed this), you only made an informal rep. They are still tripping over themselves though because they issued a charge Certificate followed by a rejection letter with conflicting instruction and a different debt owing. And if they enclosed PATAS forms, I think that they think that it was a formal rep anyway - so if you can, I say take it to PATAS.

[samosa111]

Thanks for reply guys.

 

Jamberson... I concur with you in that I think PATA will be the best way now.

 

Just to summarise what has happened so far:

1. Received PCN on car

2. Wrote with my representation a few days later (I suppose you call this an "informal" representation). Council did not reply to this.

3. I received NTO, and I immediately replied referring back to my original representation (I suppose you would consider this a "formal" representation).

4. I received a Charge Certificate demanding increased charge of £150 (up from £100).

5. I received a Notice of Rejection dated 2 days AFTER the Charge Certificate. Enclosed with the NoR was the PATA appeal form.

 

Based on the incorrect order in issuing the documents listed in numbers 4 & 5 and above, I think they have shown procedural errors and hopefully that alone should be enough to have this thrown out/PCN cancelled when I go to PATA. That is my theory/opinion anyway.

 

I welcome your comments gentlemen.

[green_and_mean]

Telling them you made an informal representation is not the same as making formal reps, what did there rejection actually say?

[samosa111]

In that case when I appeal to PATA I will explain to them that I had made my representation two times (once upon receiving the PCN and the second time when I received the NTO).

 

The NoR says:

 

"... I have noticed your comments unfortunately the vehicle was parked in a loading bay, the serving officer observed your vehicle for 8 minutes and the serving officer did not observe any loading taking place.

 

We have considered your representation, supporting evidence (if applicable) and the circumstances of the case but we do not accept your representations for cancelling the Penalty Charge Notice. This letter is issued as a formal Notice of Rejection of your representations.

 

The nature of the contravention was: parked in a loading place during restricted hours without loading

.  This is a specific bay, bound by white markings and signed to permit loading and loading goods.  Parking is not permitted within these bays unless such actively is taking place.  The civil Enforcement Officer took all necessary details of the vehicle which satisfies close inspection.  Please note that responsibility lies with the driver of a vehicle to ensure his/her vehicle is not left parked in contravention.
 

You must, before the end of the period of 38 days beginning with the date that this Notice of Rejection is served on you, either pay the full penalty charge of £100 or appeal against our decision to the adjudicator. ....

....If you want to appeal against our decision to reject your representations, your appeal must be made to an adjudicator before the end of the period of 28 days of this Notice of Rejection being served on you .....".  It goes on about award of costs and the fact that the discounted amount no longer applies.  
 

The important part comes later in the letter... "If after the last day of the period of 28 days, beginning with the date on which this Notice of Rejection is served, yo have not paid the penalty charge in full or you have not appealed to the adjudicator against the penalty charge, we may serve a Charge Certificate on you and may increase the penalty charge by 50% to £150."   
 

The whole crux of my procedural proprietary argument is that they have issued the £150 CC already and prior to this letter.
 

Hope that helps.

[Bernie_the_Bolt]

I wouldn't be surprised if in the next few days you find out that the CC has been cancelled.

[Jamberson]

Only claim that you made a formal representation if you did so. As G&M says, telling them you made an informal rep, after they sent you an NTO, does not constitute a formal rep.

 

They should, in response to your letter, cancel the NTO, give you an option to pay at that stage and then issue an NTO with an option for you to make a full formal rep if you wish. They fudged the whole thing in my view, and you would be advised to emphasise this rather than help them by agreeing you made a formal rep, if you did not.

 

In fact, they had no business issuing you a Notice of Rejection in response to what was an informal rep, and especially, no business issuing you a charge certificate.

 

Bernie may be right, and they may well cancel the CC now. However, my advice is to take the case forward to PATAS regardless - they will see their own mess-up and may well just cancel the whole thing rather than contest it.

[samosa111]

Bernie may be right, and they may well cancel the CC now. However, my advice is to take the case forward to PATAS regardless - they will see their own mess-up and may well just cancel the whole thing rather than contest it.

 

 

I am going to appeal to PATA. The following is the proposed wording for the appeal. Is it acceptable or would you suggest any amendments:

 

"With reference to the aforementioned PCN, in summary, the two grounds for appeal are:

1. The contravention did not occur: I was making a delivery (unloading) at the time. Enclosed find:

a. Invoice from 101wholesale for an internet order as evidence that goods were being delivered to a company. At the bottom of the invoice, you can clearly see the instructions stated by the buyer asking us to delivery on 08/06/2010.

b. Letter from the customer (Heathway Cash and Carry) proving that we delivered to them on the date and time in question.

2. Procedural impropriety on part of the Enforcement Authority: The council have not followed protocol during the enforcement process. They have failed to reply to my numerous representations. They have then gone on to issue an NTO followed by a Charge Certificate. The Notice of Rejection of Formal Representation was only issued (2 days) AFTER the issuing of the Charge Certificate. The Charge certificate and the Notice of rejection state conflicting instructions and a different debt owing. This is procedurally incorrect. The Charge Certificate cannot be issued until 28 days after the Notice of Rejection. The Rejection letter states that if I don’t pay or appeal within 28 days from 19/11/2010 THEN the charge will be increased. In this case they have increased the charge prior to the rejection.

A more concise detail of events and the facts are as follows:

1. The local authority claims that my vehicle had been observed from 19:32 to 19:40 and a PCN was issued at 19.40. They claim that I was parked in a loading bay without loading being observed. However they have failed to provide any evidence that my vehicle had been watched for 8 continuous minutes. The signage allows for 30 minutes of loading with no return within 2 hrs. In any case, I had made the delivery and returned to my vehicle in a fraction of this time allotment. I have also provided evidence that I was unloading by way of enclosed documents.
   
2. I made a number of written representations to the local Authority (on 16/06/2010, 28/06/2010, 22/10/2010, 08/11/2010). NO REPLY or Notice of Rejection was received. The council has definitely received all my correspondences because I sent them via post, fax & email and I have acknowledgment confirmations from Barking & Dagenham.
   
3. The council issued a NTO dated 12/10/2010 (but I did not receive this till 20/10/2010).
   
4. Following the NTO, I made another representation 2 days later on 22/10/2010. I sent a chasing fax on 08/11/2010. However, still NO REPLY or Notice of Rejection was received.
   
5. I received a Charge Certificate dated 17/11/2010 (received a few days later).
   
6. On 01/12/2010 I received a Notice of Rejection of Formal Representation dated 19/11/2010. Note: this is dated 2 days after the charge cert. The Rejection letter allows for 28 days from 19/11/2010 to appeal or make payment. Failing either, THEN the charge will be increased. In this case, they have issued the Charge Certi. prior to the rejection notice. This is procedurally incorrect.
   

The Notice of Rejection from Barking & Dagenham should have been issued upon my first representation to the council and prior to the issuing of the NTO. The council did not do so. They then had a second opportunity to issue the Notice of Rejection when I made another representation after the NTO. However, the council did not do so. They then issued a Charge Certificate. After this they then issued a Notice of Rejection. They have failed in following procedure, and, this compounded with the evidence proving that I was in fact unloading/delivering at the time means the PCN should be cancelled. "

 

 

Thanks in advance for all your help!

[Jamberson]

I think that's OK. In my view it is the impropriety side of the case which should win it for you. The loading issue is arguable. But I think an adjudicator would see how entangled the local authority have made things, and they clearly have not followed due process.

 

Keep us posted.

[samosa111]

I think that's OK. In my view it is the impropriety side of the case which should win it for you. The loading issue is arguable. But I think an adjudicator would see how entangled the local authority have made things, and they clearly have not followed due process.

 

Keep us posted.

 

 

Will keep you posted.