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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

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      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Legally parked car removed while on holiday


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Hi there everyone

Can anyone help me find a wayout of this one?

I was legally parked in aresidential bay; no machines in this street, (Christchurch Avenue Purley,Croydon) from 22 October to 31 October 2011. As per response to my appeal afterpaying £255.00 to have my car released, Croydon Council have rejected my appealsaying I should have been there to remove my car. My car was ticketed andremoved on 31 October in the morning and I returned that evening to find itgone only to phone around the following morning to find out its where abouts.

However I feel it is not fairthat they put the signs up two days prior to 31 October and my car was legallyparked prior to the warning signs being put up and I think leniency and/orcompromise should be exercised in matters of this nature.

Thank you

Tsvakayi66

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Hi Jamberson

 

I found out that while I was away they decided to do some electrical work in this street, so they put up some signs warning people not to park in that street or remove their vehicles from that street during the mentioned times, but since I was not there I could not have seen the signs in order to remove my vehicle which was parked there for a couple of days before the electrical works were planned, so they ticketed my car and removed it to their pound. The code is 02.

 

Thanks

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I thought the council had provisions for such cases? eg when they posted the notice, aren't they supposed to note vehicles already parked and if subsequently needed to be moved, then released with no charge?

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And is there not a lead time from posting the sign of the intention and the actual period of restriction?

It must be more than a few hours but understandably not indefinitly.

 

A 14 day period covering Residents Permits during their annual holidays seems sence, but how long is it?

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In my area they survey vehicles when the signs go up and also photograph them. When the suspension comes into force (which is a couple of days later), vehicles which were there originally are re-sited to empty bays nearby - only cars which have arrived AFTER the signs went up are towed away.

 

I would recommend a bit of research with your council. I'd phone them and ask what their policy is in these situations and what they recommend drivers should do to avoid this. It will clarify why they towed and are refusing to refund you.

 

It could be that their evidence is not complete, or they misunderstood the basis of the appeal somehow. Anyway, if you could find out if they really meant to tow and enforce the charges, then we could take things from there.

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I suggest including all the text below in your appeal if you received a council on street PCN.

 

I bring to your attention that the council had no lawful right to insist I paid the penalty charge as a condition for the release of my vehicle. I am informed that the council consider their right to do so is provided under s.101A RTRA 1984. I contend that s.101A is only applicable when the vehicle being recovered is one that had been perceived by the council to have the appearance of being abandoned. Evidence of this is found under regulation 18 of The Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008 and when one considers that the precursor to s.101A was s.101(4) RTRA 1984 then further evidence is found under regulation 16 of The Removal and Disposal of Vehicles Regulations 1986. Both the aforementioned regulations fall under a “Part” that concerns the recovery and disposal of supposedly abandoned vehicles. I believe the correct charges to apply were those enabled under s.102(2A) RTRA 1984. Clear indication of this can be found under paragraph 1(1)(b) within Schedule 9 TMA 2004.

 

I further contend that the council had no lawful right to retain my vehicle until I paid the removal charges either. The right to retain a vehicle until the charges are paid is only applicable to councils not operating civil parking enforcement. This is clearly indicated under s.102(4) RTRA 1984. On investigation it appears that the right to retain a vehicle until the removal charges are paid has never existed where a council operates decriminalised parking enforcement. In support of this claim I bring to your attention that s.68 RTA 1991 inserted paragraph (d) into subsection 102(2) RTRA 1984 but s.102(4) was not amended to include the new paragraph (d). It seems Parliament purposely withheld from those councils with civil powers the right to retain a vehicle until the charges are paid.

 

I do not think it plausible that Parliament would insist a Regulation 9 PCN be served before a vehicle is removed if that PCN is to have no value to the recipient. It is absurd to serve a notice informing the recipient of their lawful rights and responsibilities only for it to be false. I contend that it is not false but is made to appear so by the council’s incorrect application of the law. It is my understanding that in a CPE area the correct procedure in regard to a removed vehicle that a council does not perceive to be abandoned, is to allow a person to pay or appeal against the penalty charge in full accordance with those provisions of the TMA 2004 that correlate with the service of a regulation 9 PCN. As for any removal or storage charges then a council is by virtue of s.102(2A) entitled to ask for these to be paid when the vehicle is collected but if a person declines then a council must return the vehicle and decide whether to commence court proceedings in accordance with s.102(3) RTRA 1984. Where the removal charges are paid and an appellant’s appeal is subsequently allowed then the adjudicator can direct a council to refund the appropriate sum.

 

When considering this appeal it is important to note that there is no power contained within s.101A RTRA 1984 that allows a council to “retain” a vehicle until the relevant charges are paid. Section 101A is all about providing the owner with power. This being the power to prevent disposal by paying the relevant charges and removing the vehicle within the prescribed period or where disposal has taken place, with the power to seek those proceeds of sale that exceeded the relevant charges. It is of equal importance to note that the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and administered by the council is made pursuant to s.101B RTRA 1984 and therefore it is not relevant to those vehicles subject to charges imposed under s.102(2A) RTRA 1984. Put simply it does not apply to vehicles that were not considered to be abandoned.

 

I have here sufficiently demonstrated the council’s procedural impropriety when they applied s.101A RTRA 1984, when they retained my vehicle until all charges were paid and when they applied the appeal process provided under regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Unless the council accept this appeal then I will proceed to adjudication.

 

Yours respectfully

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Hi Guys

 

Here we go just spoken to some very abrupt non gentleman from the council who was in a hurry to brush me off the conversation/ enquiry I was making. H esaid the Croydon Council does not have any other provision for cars that will not have been removed on the day the work is to be carried out. If you appealed and it was rejected, you just need to use the supplied forms to escalate your appeal to the relevant body and the Council will abide by the rulings or appeal if they feel it was not fairly decided.

 

To TheBogsDollocks; I see that your contribution may be the only way to get redress, however I need to find out if I need to add anything else before the legalities that you have posted here. I would appreciate this and basing on the tone of voice from the council man I spoke to he seemed to be indicating that there may be a chance but not in many words as I believe he would be in hot soup if he did that openly.

 

Thank you and over to you all who are able to chop and bite off this tasteles granite cake.

 

Tsvakayi66

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Hi again

 

If I am going to appeal, there are 6 standard grounds of appeal and was wondering which one/ones to tick, if any or do I just ignore them and state my own grounds.

  1. The contravention did not occur.
  2. At the time the vehicle was clamped or removed there was no power to do so or the power had not arisen.
  3. The vehicle was parked by someone in control of the vehicle without my consent.
  4. The vehicle was not parked in a civil enforcement area.
  5. The penalty or other charge paid to have the vehicle released exceeded the amount applicable.
  6. There has been a procedural impropriety on the part of the Enforcement Authority.

Thanks

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It sounds like when you spoke to him, you were discussing what happened to you. What I was suggesting was not that you discuss your case, but that you find out what their policy is - ie, in a hypothetical situation. You could try again - maybe email them this time. Just say you're going away for a few weeks and would like to know. You should be able to get the info you need - and it will clarify your grounds of appeal.

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Hi there

 

Sorry I just gave you the short story because I concerntrated on the bit we discussed last which was about what happened to me. At the start of the discussion I told him I was going away and wanted to know if there was any likelihood there would be problems if I left my car in a specific street and he said I had to have someone constantly check that my car was not in contravention. However when I told him I did not have anyone else to assign this task he said the council will remove any cars that are obstructing essential works and take them to the pound they do not move to adjascent bays as is done in other boroughs. If at all someone finds their car taken then they can appeal but they have to pay to have it released first....then we got to discuss what happened to me. The reason I left that bit out was because I saw that either way they do not have any special concessions for csaes that may otherwise require reasonable consideration.

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he said the council will remove any cars that are obstructing essential works and take them to the pound they do not move to adjascent bays as is done in other boroughs.

 

Then that is their policy I guess. Not right in my view. Maybe you should make a complaint about it?

 

Looks like TDB has given you a way forward for your case.

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  • 3 months later...

Hoooraaaay hooooraaaaaay!!!!!!!!!!!!!!

 

Hi Guys

 

I cannot express enough my gratitude over the recent victory I had regarding my appeal to have the acrimonious PCN cancelled and funds refunded. Though I have yet to receive the cheque I have confirmed with the council that it is being processed, I will come back here to make a small gratuitous contribution when its paid; to express my sincere thanks to this forum, which I've never had any shred of doubt that it must stay alive for the greater good of us all.

 

A special mention is also necessary regarding the input from TDB and Jamberson, but I thank you all overally and say lets continue the fight against coporate bullying.

 

Please read for yourself the letter from PATAS attched below.

 

Thanks

 

Tsvakayi66

Edited by tsvakayi66
removing scans too small
:smile:
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Direction:cancel the Penalty Charge Notice and refund the penalty charge and the release charges paid.Reasons:The authority's case is that the Appellant's vehicle was parked in a restricted street where waiting and loading/unloading restrictions were in force when in Church Road on 31 October 2011 at 10.29.

 

The Appellant's case is that when she parked she was unaware of the suspension because she had gone away. In her Notice of Appeal the Appellant appears to have added a further defence in relation to the lawfulness of the requirement to pay the penalty amount before her vehicle was released from the car pound after its removal, the lawfulness of the retention of her vehicle until she had paid the removal charges, that the rights given by Parliament when a regulation 9 Penalty Charge Notice is issued have been removed by the demand for payment before the informal stage etc, and that the authority does not have power to retain the vehicle until payment is made.

 

The Appellant's defence in the Notice of Appeal appears to have been lifted from the internet where copies of it may be found.

 

I reject the Appellant's defence as raised in the Notice of Appeal. I am satisfied that an authority has power to remove a vehicle parked in contravention and require payment of the

penalties incurred before releasing the vehicle.

 

I have allowed this appeal because I find that the authority has issued an incorrect contravention code. The case against the Appellant has proceeded on the basis of the Appellant's vehicle being parked in a suspended bay, which is a code '21', however the Penalty Charge Notice is for a code '02' contravention of parking in a restricted street where waiting and loading/unloading restrictions were in force.

 

An Appellant is entitled to know what contravention code they are contesting and I find that the issuing of an incorrect code '02' instead of a 'code 21' renders this Penalty Charge Notice unsustainable.

 

The appeal is allowed for this reason alone.

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