Towed in <9mins From a Suspended Parking Bay

[Stancer]

I am about to write my appeal and been doing some research and would like to know from the wealth of experience there seems to be here, and if i have "got a leg to stand on".

 

I am a PCO private hire driver and was on an errand to pickup items from stores for a client. I parked in Hans Cresent, knightsbridge in a bay that was seemingly free and bought a pay and display ticket from the meter for 9 mins at 13:43 and displayed it. i went to the store, picked up the item and headed back. could hear a car alarm going when i came out the shop, walked back around the corner and it was my car swinging sideways and going down onto the back of a truck. i was remonstrating with the operator at 13:53 (yeh, 1min over) and shouting to stop, what is he doing, hasn't he seen the ticket! They just hurried along and pointed out that there are suspended parking bays so the time on the ticket is invalid. The PCN was issued at 13:49 and the car was swinging onto the truck at 13:53- this is bloody ridiculous. I needed the car back straight away because it is my livelihood and requests for a lift with them to the pound were in vain. i started taking some photo's, was given a scribbled adress of the pound and they went. i was dumbfounded that it was all so quick. i looked around at the scene, had a look around for the traffic wardens which were nowhere to be seen until another car came and fell into the same trap in the same bay... at which point 2 wardens raced eachother straight around the corner to get a ticket on it. it was like some sting operation where they knew the bay was poorly marked and were milking it. they were straight on the radio and within minutes another truck was on site and swinging into action.

 

I believe the way the suspended bays were signed and marked was misleading and CEO's knew it and were abusing this all day. See photo's.

 

I would also like to know if 5C para 3 applies regarding the legal 30 minutes before towing? according to 8.95 in the operational guidance to local authorities, there is still an index '75' pointing out that it applies.

 

Do i have a legitimate objection under 8.96, that they continued and hurried up the operation when i returned to the vehicle while they were loading?

 

There were no uniformed CEO's on scene while this removal was in process. just the two removal truck operators. there were no removal notices on my car. is this not also against 8.91 in the guidelines?

 

apart from all this, there is also being forced to pay £265 before releasing my vehicle which includes the PCN and the removal fee. Could this definitely could be raised as a "Bogsy" point of law for denial of informal/formal representations before payment ?

 

i'll attach all the paperwork i was given.

 

 

scan0001.pdf

scan0002.pdf

scan0003.pdf

scan0004.pdf

Edited August 2, 2011 by Stancer

[dx100uk]

use:

 

scan the required letters/agreements/sheets

remove all pers info inc barcodes etc but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

[sailor sam]

Had a quick look on street view. Cannot see any p & d at all or a meter. Bays appear to be all resident only although the signage is difficult to make out. I would of thought is there was a p & d bay which was suspended, then the meter would of been disabled or covered up.

Edited August 2, 2011 by sailor sam
spelling error

[warwick north]

It says "Resident permit holders only"

 

mon-fri ?(if it same as just around the corner"pavilion road" its from08.30am)-10pm

 

sat-?(If its same as just round the corner its 08.30am)-6.30pm

 

sun-?(if its same as just round the corner its 1pm)-5pm

Edited August 2, 2011 by warwick north

[Stancer]

This is the Documentation provided :

 

scan0008.pdf

scan0007.pdf

scan0006.pdf

scan0005.pdf

[Stancer]

I was Parked in bay 6. no sign behind bay 6.

 

there are suspension signs behind bay 4 +5. it appears to the observer like those bays are suspended but the sign behind bay 4 is actually referring to another separate suspension on bay 3.

There was no CEO in attendance when my vehicle was being removed.

here is some of the photo's taken.

 

time: 13:57:59

time: 14:00:38

time: 14:02:20

time: 14:20:27

[sailor sam]

In your original post, you stated that you were parked in Hans Cresent when in fact you were parked in Hans Place. It does help if you post the correct info.

 

As I previously stated, when p & d bays are suspended the machines are normally either disabled or covered up. Also, as you point out, the bay you say you were parked in (#6) had no signage applying to that particular bay so I think there is some mileage in appealing the charges.

[TheBogsDollocks]

In any appeal I suggest including the text below.

 

The removal and storage charges levied upon me by the council were set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) contained within Schedule 9 makes it explicitly clear that these set charges apply only where a council is imposing a charge enabled under s.102 of the Road Traffic Regulation Act 1984.

 

1(1)This Schedule provides for the setting of the levels of—E+W

(a)penalty charges, including any discounts or surcharges,

(b) charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions

 

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no statutory requirement within a Civil Enforcement Area for a person to pay any charges before the vehicle is returned to them. For clarification the applicable parts of s.102 RTRA 1984 can be seen below.

 

102(1)The provisions of this section shall have effect where a vehicle—

(a)is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or

(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.

 

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

 

102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.

 

 

In summary s.102 is saying that where a vehicle is removed for a parking contravention then the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges in respect of the removal and storage of the vehicle and should these not be paid then the enforcement authority can take the person responsible to court to recover their charges.

 

 

What s.102 does not say is that any outstanding penalty charge is to be paid on collection or that the enforcement authority can retain the vehicle until the penalty, removal and storage charges are paid. Of course the council can ask for the removal and storage charges to be paid on collection but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. This process is quite correct for a civil matter. Payment of the penalty charge however must be in accordance with the statutory provisions of the TMA 2004 as is proper where a regulation 9 PCN is served.

 

In regard to my vehicle the council incorrectly applied those charges specified under s.101A RTRA 1984 and yet this section has no relevance to those charges set by Schedule 9 TMA 2004. Even if we were to ignore this fact it is important to note that the charges under s.101A only apply to the owner of a vehicle that was presumed abandoned due to it having the appearance of being so either at the time of removal or sometime later while in storage. By "appearance" it does not necessarily mean the vehicle looks a derelict. It can mean that the vehicle is pristine and road worthy but for some unknown reason no one had come forward earlier to claim ownership. As my vehicle never had the appearance of being abandoned the charges under s.101A RTRA 1984 can never apply and consequently nor can the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and yet this was the appeal process administered.

 

It is clear not only that the council has committed a procedural impropriety but has also acted beyond their powers. Firstly, by insisting the penalty charge be immediately paid when s.102 does not permit this and when statute explicitly provides for a 28 day payment period. Secondly, by retaining my vehicle until I had paid the penalty, removal and storage charges and thirdly, by administering an appeal process that only concerns the recovery (either prior to disposal or following) of those vehicles that were by appearance presumed to be abandoned.

 

The council will find that the TMA 2004 makes no provision for only the penalty charge aspect of a regulation 9 PCN to remain valid while the associated statutory rights and processes are null and void and yet this is exactly what the council has done. There is no such entity as a “partial” regulation 9 PCN, it either applies in full or it is a nullity. Had the council correctly applied those charges regulated under s.102(2A) RTRA 1984 then the rights and procedural processes associated with the regulation 9 PCN would not have been interfered with. This is no coincidence but the clear design of Parliament. I trust the council will have the integrity to acknowledge their errors and to act appropriately by returning all monies paid.

[Stancer]

I am emailing this appeal either today or tomorrow. my 28 days ends on monday.

Many thanks to HCA, Bogs, JSM for using some of their ideas and work.

 

Can any and all please give their advice on any edits / additions / ommisions I should make before sending.

 

Dear Sir/madam,

 

 

I am writing to appeal against PCN no. KE17371001, and the subsequent removal of my car to Lots Road Pound in relation to the referenced PCN.

According to the PCN (number KE17371001) my vehicle, XXXXX, was observed by CEO KC2388 from 13:48 and ticketed at 13:49 on Monday 11th July 2011.

 

 

Circumstances:

 

I am a PCO private hire driver and on 11/7/2011 was on an errand to pickup items from stores for a client. I parked in Hans Place, Knightsbridge in a parking bay that was seemingly available and in part of the valid pay and display zone. I bought a pay and display ticket from the meter for 9 minutes at 13:43 and displayed it. I went to the store, picked up the item and Returned to my car. When walking around Hans place I saw my car in the process of swinging sideways to be put down onto the back of a truck. I was remonstrating with the operator at 13:53 to stop because I have a valid ticket. There was no CEO’s on scene and the operators hurried along and pointed out that there are suspended parking bays so my pay and display ticket is invalid. I was given a scribbled address of the pound and the removal truck left. I started taking some photo's. I looked around and recorded the scene. There are two suspended parking signs fixed to the fencing behind bays 4 and 5 and nothing behind 6. The sign behind bay 4 actually refers to suspended parking on bay 3. This is misleading and unclear because it looks to the observer that there are only 2 suspended bays and I fell into the trap. I spoke to drivers parked nearby. One bystander, who witnessed everything, was willing to give me his name and contact telephone number should it be required. [ XXXXXXXXXXXX]

 

I then walked around the square and had a look around for the traffic wardens which were nowhere to be seen until another car came and fell into the same trap in the same bay. At which point 2 Borough of Kensington and Chelsea CEO’s raced each other straight around the corner to ticket the vehicle. I believe that the conduct of these CEO’s was improper such that they knew the bay was poorly marked and were abusing this. They were straight on the radio and within minutes another truck was on site. I spoke to this removal truck operator to get a confirmation of the address of the Council’s pound and was given a red handout. This is all recorded on photographic evidence with digital timestamps to show the timeline.

 

Without my own transport I was forced to take a taxi to the pound at a personal cost of £10. At the pound the staff insisted that I pay the full amount of £265 before the release of my vehicle. Upon payment and access to my vehicle I was then able to see the PCN on my vehicles windscreen. It was issued at 13:49 and the car swinging onto the truck at 13:53 is clear evidence that the removal of the vehicle was wholly unlawful under 5C of The Removal and Disposal of Vehicles Regulations 2007 in that the appropriate period of 30 minutes had not elapsed between serving a PCN and removal of the vehicle.

 

 

 

I wish to appeal against the penalty and vehicle recovery charges on the basis that the Council has acted ultra vires and is guilty of procedural impropriety.

 

Representations:

 

1)

The Department for Transport’s guidance in “Operation Guidance to Local Authorities: Parking Policy and Enforcement, TMA 2004” Rev. November 2010 states:

 

8.96 “If a driver returns to the vehicle whilst immobilisation or removal is taking place, then, unless they are a persistent evader, it is recommended that the operation is halted, unless the clamp is secured or the vehicle has all its wheels aboard the tow truck. If immobilisation or removal is halted, the PCN should still be enforced.”

 

When I returned to Hans Place my vehicle was in the process of being loaded. Whilst raising my objections, discovering the reasons why my vehicle was being towed, the operator continued and completed the loading and securing of my vehicle. The operation was in no way halted when I was on scene and identified as the driver, rather the contrary, they acted with more haste. I am rarely in the Borough of Kensington and Chelsea but for that day when I was on business so I am clearly not a persistent evader. There was no uniformed CEO on scene supervising the removal whom I could speak to regarding this case. If the Borough of Kensington and Chelsea, as the enforcement authority, is acting with the intention to remove a vehicle causing an obstruction, then while the driver is present and willing to remove their vehicle themselves, pursuit of the vehicles removal by the council is an unreasonable and unnecessary course of action. The failure to halt and the haste at which loading was continued in the presence of the driver might otherwise give party’s grounds to suspect that the removal of the vehicle as an obstruction was not the intent, but rather the removal was sought and continued for the financial gain of securing a release fee.

 

I therefore submit that failure to halt loading of my vehicle at the time I returned to my vehicle to be in breach of the Secretary of States guidance and therefore the £200 release fee is in excess of what should have been applicable in this case.

 

 

2)

“That the penalty or other charge paid to secure the release of the vehicle exceeded the amount applicable in the circumstances”;

The Department for Transport’s guidance in “Operation Guidance to Local Authorities: Parking Policy and Enforcement, TMA 2004” Rev. November 2010 states:

 

8.88 “Very few authorities now use immobilisation. The Secretary of State is of the view that it should only be used in limited circumstances such as where the same vehicle repeatedly breaks parking restrictions and it has not been possible to collect payment for penalties, primarily because the keeper is not registered, or is not properly registered, with the DVLA. Where a vehicle is causing a hazard or obstruction the enforcement authority should remove rather than immobilise. Immobilisation/removal activity should only take place where it gives clear traffic management benefits.”

 

I am of the opinion that the removal of my car from Hans Place, parked in a pay and display bay, suspended or otherwise, with a displayed ticket showing an intended parking time of 9 minutes was a disproportionate response to the alleged contravention, that did NOT give clear traffic management benefits, was not hazardous to the public and there was no complaint of obstruction.

 

Given further consideration, the act of removing my car from that location in this instance was not in the public interest and to be in breach of the Secretary of States guidance and therefore the £200 release fee at least, is in excess of what should have been applicable in this case.

 

 

3)

 

The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2007

 

Removal of vehicles from roads in England by civil enforcement officer

 

4. The following regulation shall be inserted after regulation 5B—

“Power of civil enforcement officers to remove vehicles in a civil enforcement area for parking contraventions in England

5C.—(1) Paragraph (2) applies where—

(a)a vehicle has been permitted to remain at rest on a road in a civil enforcement area for parking contraventions in England; and.

(b)a civil enforcement officer has, in accordance with regulation 9 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007(1), fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle..

(2) Where this paragraph applies, a civil enforcement officer or a person acting under his direction may subject to paragraph (3) remove the vehicle concerned—

(a)to another position on the road where it is found;.

(b)to another road; or.

©to a place which is not on a road..

(3) The power conferred by paragraph (2) is not exercisable where the vehicle concerned is in a parking place and a penalty charge notice has been served as mentioned in paragraph (1)(b) in respect of a contravention consisting of, or arising out of, a failure—

(a)to pay a parking charge with respect to the vehicle;.

(b)properly to display a ticket or parking device; or.

©to remove the vehicle from the parking place by the end of the period for which the appropriate charge was paid,.

until the appropriate period has elapsed since the giving of that penalty charge notice in respect of the contravention.

(4) In this regulation—

“the appropriate period” means—

(a)in the case of a vehicle as respects which there are 3 or more penalty charges outstanding, 15 minutes;

(b)in any other case 30 minutes;

 

 

A PCN was served on my vehicle at 13:49 on Monday 11th July 2011. I had returned to the location where my vehicle had been parked at 13:53 on the same day just 4 minutes after the observed contravention time stated on the PCN. I have photographic evidence personally taken at the location which is time stamped beginning 13:57, just 8 minutes after the observed contravention time. I have a bystander witness. The above regulation clearly states that an appropriate period of 30 minutes must elapse from the time a PCN is served to the vehicle or handed to the person, before a vehicle may lawfully be removed. My presence at the scene, the photographs taken, and the 3rd party witness are all providing clear evidence that the appropriate period had not elapsed and Royal Borough of Kensington and Chelsea did remove my vehicle unlawfully.

 

I apply that the release fee is cancelled and a full refund issued as well as remuneration of £10 expenses incurred for the inconvenience put upon me for a Taxi fare to the Lots Road pound.

 

 

4)

 

The Department for Transport’s guidance in “Operation Guidance to Local Authorities: Parking Policy and Enforcement, TMA 2004” Rev. November 2010 states:

 

8.91 “The decision on whether to immobilise or to remove a vehicle requires an exercise of judgment and must only be taken following specific authorisation by an appropriately trained CEO. The immobilisation/ removal operatives should not take the decision. Vehicles should not be immobilised or removed by contractors unless a suitably trained CEO is present to confirm that the contravention falls within the guidelines.”

 

When I returned to find my vehicle swinging sideways, over and onto the removal truck, there was no uniformed CEO present. There were no authorized for removal stickers or papers on my vehicle. It is stated that a CEO must be present to confirm the removal for a valid contravention, to authorize the removal, and be present to direct the removal, written under both the SoS's Stat Guidance and section 5C (2) of the Removal and Disposal of Vehicles Regs 1986:

 

“Power of civil enforcement officers to remove vehicles in a civil enforcement area for parking contraventions in England

5C.—(1) Paragraph (2) applies where—

(a)a vehicle has been permitted to remain at rest on a road in a civil enforcement area for parking contraventions in England; and

(b)a civil enforcement officer has, in accordance with regulation 9 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007(3), fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle.

(2) Where this paragraph applies, a civil enforcement officer or a person acting under his direction may subject to paragraph (3) remove the vehicle concerned—

(a)to another position on the road where it is found;

(b)to another road; or

©to a place which is not on a road.

 

A person acting under direction means that a CEO is in attendance i.e. not a person authorised by (which implies working unilaterally) but "under direction" - you can't direct unless unless there is a CEO there. Therefore I submit that by the absence of a CEO during the removal of my vehicle, Royal Borough of Kensington and Chelsea is guilty of procedural impropriety in that there is a clear failure to have regard to the SoS's Stat Guidance and section 5C (2) of the Removal and Disposal of Vehicles Regulations 1986. I request that my penalty charges and release fee are cancelled and a full refund issued as well as remuneration of £10 expenses incurred for the inconvenience put upon me for a Taxi fare to the Lots Road pound.

 

 

 

5)

 

The removal and storage charges levied upon me by the council were set by virtue of Schedule 9 of the Traffic Management Act 2004. Paragraph 1(1)(b) contained within Schedule 9 makes it explicitly clear that these set charges apply only where a council is imposing a charge enabled under s.102 of the Road Traffic Regulation Act 1984.

 

1(1)This Schedule provides for the setting of the levels of—

(a)penalty charges, including any discounts or surcharges,

(b) charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions

 

Where the applicable charges for removal and storage fall under s.102 RTRA 1984 then there is no statutory requirement within a Civil Enforcement Area for a person to pay any charges before the vehicle is returned to them. For clarification the applicable parts of s.102 RTRA 1984 can be seen below.

 

102(1)The provisions of this section shall have effect where a vehicle—

(a)is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or

(b)is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.

 

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

 

102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.

 

In summary s.102 is saying that where a vehicle is removed for a parking contravention then the enforcement authority is entitled to recover from the "person responsible" (note it is not limited to the owner) their charges in respect of the removal and storage of the vehicle and should these not be paid then the enforcement authority can take the person responsible to court to recover their charges.

 

What s.102 does not say is that any outstanding penalty charge is to be paid on collection or that the enforcement authority can retain the vehicle until the penalty, removal and storage charges are paid. Of course the council can ask for the removal and storage charges to be paid on collection but if a person is not willing to pay then the council must return their vehicle and commence court proceedings. This process is correct for a civil matter. Payment of the penalty charge must be in accordance with the statutory provisions of the TMA 2004 as is proper where a regulation 9 PCN is served.

 

In regard to my vehicle the council incorrectly applied those charges specified under s.101A RTRA 1984 and yet this section has no relevance to those charges set by Schedule 9 TMA 2004. Even if we were to ignore this fact it is important to note that the charges under s.101A only apply to the owner of a vehicle that was presumed abandoned due to it having the appearance of being so either at the time of removal or sometime later while in storage. As my vehicle never had the appearance of being abandoned the charges under s.101A RTRA 1984 can never apply and consequently nor can the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and yet this was the appeal process administered.

 

It is clear not only that the council has committed a procedural impropriety but has also acted beyond their powers by insisting the penalty charge be immediately paid when s.102 does not permit this and statute explicitly provides for a 28 day payment period, by retaining my vehicle until I had paid the penalty, removal and storage charges and by administering an appeal process that only concerns the recovery (either prior to disposal or following) of those vehicles that were by appearance presumed to be abandoned.

 

The council will find that the TMA 2004 makes no provision for only the penalty charge aspect of a regulation 9 PCN to remain valid while the associated statutory rights and processes are null and void and yet this is exactly what the council has done. There is no such entity as a “partial” regulation 9 PCN, it either applies in full or is a nullity. Had the council correctly applied those charges regulated under s.102(2A) RTRA 1984 then the rights and procedural processes associated with the regulation 9 PCN would not have been interfered with. This is no coincidence but the clear design of Parliament. I trust the council will have the integrity to acknowledge their errors and to act appropriately by returning all monies paid as well as remuneration of £10 expenses incurred for the inconvenience put upon me for a Taxi fare to the Lots Road pound.

 

 

 

If this appeal is to be rejected, then I shall be taking this matter forward to the independent adjudicator, in which case I will require from the Council the following:

 

1. A copy of the vehicle removal authorisation

2. A copy of the CEO notes

3. A copy of the tow truck activity log

4. A copy of the TMO, covering the location Hans Place on 11/7/2011

5. A copy of the statutory Instrument 1986/183 “Removal and Disposal of Vehicles Regulations 1986

6. A copy of the Road Traffic Regulation Act 1984

 

I would also like to point out that preparations for adjudication are likely to incur extra costs, and I will seek to recover these costs from Royal Borough of Kensington and Chelsea.

 

I look forward to hearing that my application is successful and that a refund is forthcoming.