What can we do to counter the council's parking fines/car removals/etc? ** Resolved **

[TheBogsDollocks]

@Horseman, is your mum in law interested in appealing?

 

I've extensively researched the laws behind council towing and it seems for the last 18 years (when decriminalised parking enforcement commenced) council's have acted beyond their powers. They have no lawful right to insist the PCN be paid immediately on collection, they have no lawful right to retain a vehicle until the removal and storage charges are paid nor have they any right to apply the appeal process they did (it's the incorrect one).

 

I can provide an appeal letter if you are interested but you will have to play the long game as council's won't readily admit 18 years of maladministration.

[TheBogsDollocks]

You can use the appeal below. All you need do is copy and paste it into a letter or email and make sure you quote the PCN reference number

and sign it at the bottom. Keep all text formatting as displayed below for emphasis. Expect the council to reject but hopefully an adjudicator will see sense and require the council to return all monies paid. You've absolutely nothing to lose. I'm happy to write all letters all you need do is send them off.

 

Dear Council

 

I appeal against the penalty and removal charges levied against me on the grounds of procedural impropriety.

 

The removal and storage charges levied upon me by the council are 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 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 9TMA 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 dilapidated. It can mean that the vehicle is pristine and road worthy but for some unknown reason no one had come forward at an earlier stage to take custody. 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 when no right to retain exists (the right to retain was removed when s.68 RTA 1991 commenced) 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 imposed 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 clearly no coincidence but the measured intent and design of Parliament. I trust the council will have the integrity to acknowledge their errors and to act appropriately by returning all monies paid.

 

Yours respectfully

Edited September 10, 2011 by TheBogsDollocks

[TheBogsDollocks]

I love it - good work TDB.

 

I have a query though - if the vehicle owner has not asked for the car back without pre-payment, and asserted this right, then haven't they volunteered to pay rather than been forced? Couldn't the council defend a case on the basis that the owner was not literally compelled to pay?

 

As far as I'm aware those at the car pound will refuse to release a vehicle unless the PCN and removal, storage charges are paid in full so the owner is compelled to pay if they want their car back which they will to avoid any further storage charges.

 

Councils apply s.101A RTRA 1984 in all cases where a vehicle is removed and a person comes to retrieve it but s.101A is only applicable where a council has preceived a vehicle to have the appearance of being abandoned. This is clearly evident if you study Part III of the 1986 Removal Regs.

 

http://www.legislation.gov.uk/uksi/1986/183/contents/made

 

Pay particular attention to reg 16. Even though it makes reference to s.101(4) RTRA 1984 this section was the precursor to s.101A. Evidence of this can also be seen under regulation 18 of the Traffic Officer Regs. These regs basically mirror the 1986 regs except they apply to traffic officers.

 

http://www.legislation.gov.uk/uksi/2008/2367/contents/made

 

As most removed vehicles do not appear abandoned then councils should not be applying s.101A to them. As such there is no right to demand instant payment of the PCN nor any right to retain until all charges are paid and no right to administer the appeal process provided under regulation 11 of the 2007 Appeal Regulations. There has been 18 years of maladministration all because someone somewhere took the RTA 1991 at face value rather than look closely at what is was really saying.

 

What should be happening is that the penalty charge should be paid or appealed just as the PCN advises and the process should follow that as prescribed by the TMA 2004. Whereas any applicable removal and storage charges if not paid voluntarily then the council must decide whether to commence court proceedings. It is no coincidence that the right to retain was removed the moment decriminalised parking enforcement commenced and no coincidence that the application of s.102(2A) in no way interferes with what the TMA 2004 says must follow the service of any regulation 9 PCN.

 

Understandably councils will not willingly concede 18 years of maladministration and even the adjudication service will not like the fact that they've been complicit in this by failing to pick up on it.

Edited September 10, 2011 by TheBogsDollocks

[TheBogsDollocks]

Thanks, I will give this a go. Ill send a copy to the mother in law so she can sign it.

 

Before I do this what are the potential ramifications of sending this letter?

 

The potential ramifications for your mum in law is that she may get a full refund. The potential ramifications for the council is that they discover they have acted unlawfully for the last 18 years and have to re-examine their methodology behind vehicle removal. What is likely to happen is that the council will reject the appeal and claim they are acting lawfully. The next step is to appeal to the independent adjudicator by submitting another letter (that I will write for you) and then we hope you get an adjudicator who actually has some understanding of the associated laws and gives the appeal proper consideration.

 

Your mum in law has absolutely nothing to lose and everything to gain. Just make sure the appeal is received by the council within the 28 day period.

[TheBogsDollocks]

TheBogsDollocks, you are the.. dogs bollocks!

 

My mum in law got her refund and I am very grateful for you help.

 

I wrote to my local MP and her reply was arsey, arrogant and she didn't answer most of the questions but what do you expect from a politician. They are all full of it and can now do one!

 

Glad to have been of some assistance. I doubt very much the council accepted the argument. Most likely they provided no reason for cancelling or they conceded a minor error.