Is PCN valid

[bmwman]

Hi Patdavies

 

reissued NtO after Stat Decs as NtO Not received 28days after PCN

[Bernie_the_Bolt]

I also object to his attitude that sites like this (and Pepipoo) don't know what they are talking about

 

It's bluster.

 

What is interesting is that this response can only have been issued following informal representations as no NTO had been served. I suspect that they may need to take a bit more notice from the representations made now a NTO has been served and the right to appeal arises in law.

[Bernie_the_Bolt]

Hi Bernie the Bolt

 

Would prefer independant Adjudicator carries more clout aspecially after a letter I received from Brighton and Hove City Council

 

Then go to press

 

That's fine but remember you have to appeal to BHCC first as you need a "Notice of Rejection" to go to NPAS.

[bmwman]

Hi Bernie the Bolt

 

How about this is taken form a post by someone else with a few amendments to suit my needs.

 

Penalty Charge Notice No: BH30070655

Representation – The Penalty Charge exceeded the amount applicable

It is my contention that either or both of the PCN and the notice to owner are nullities. The applicable charge in these circumstances is zero which is exceeded.

My reasons for this are as follows:

Section 66 (3) of the Road Traffic Act sets out the information that must appear on a penalty charge notice.

(3) A penalty charge notice must state—

(a) the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;

(b) the amount of the penalty charge which is payable;

© that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;

(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;

(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;

(f) the address to which payment of the penalty charge must be sent.

It is my contention that the Penalty Charge Notice is non-compliant with (d), (e) and (f) above.

The Penalty Charge Notice consists of words printed on a single piece of paper, at the bottom of which is a payment slip, separated from the PCN by perforations. On the reverse of the piece of paper are a number of explanatory notes. The explanatory notes are printed in a different typeface and layout to the words of the PCN, there is no heading to indicate that they form part of the PCN, there is no border comparable to that surrounding the words of the PCN, in short, nothing to indicate that what is printed on the reverse forms part of the PCN.

It was established in Al’s Bar and Restaurant Case No 2020106430 that the payment slip is not part of the PCN. This is reflected by the London Authority in not extending the distinctive border of the PCN onto the payment slip. It is perfectly possible for the person making payment of the PCN to detach the payment slip and make payment, without having referred to the explanatory notes on the reverse of the piece of paper. The PCN makes no attempt to draw attention to any explanatory notes, for example, by saying “your attention is drawn to the statutory information overleaf”. The fact that the Local Authority has not done so — and the fact that Mr Justice Jackson in his decision in the case of The Queen on the Application of The London Borough of Barnet Council -v- The Parking Adjudicator on 2 August 2006 said “On the back of the PCN there are various pieces of information provided . . . “ clearly indicating that what is on the front (excluding the payment slip) is the PCN and what is on the back is not – support this view.

In any event, it remains my contention that the language forming part of the explanatory notes is not compliant with Section 66 (3) of the Road Traffic Act.

Schedule 6 Paragraph 1 (2) of the Road Traffic Act 1991 sets out the information that must appear on a notice to owner.

Penalty Charge Notice No: BH30070655

(2) A notice to owner must state—

(a) the amount of the penalty charge payable;

(b) the grounds on which the parking attendant who issued the penalty charge notice believed that a penalty charge was payable with respect to the vehicle;

© that the penalty charge must be paid before the end of the period of 28 days beginning with the date on which the notice to owner is served;

(d) that failure to pay the penalty charge may lead to an increased charge being payable;

(e) the amount of that increased charge;

(f) that the person on whom the notice is served (“the recipient”) may be entitled to make representations under paragraph 2 below; and

(g) the effect of paragraph 5 below.

The documentation issued by the London Authority consists of two pieces of paper. One coloured white and in the form of a letter headed “NOTICE TO OWNER/HIRER”, the reverse consists of details on how to pay. “REPRESENTATIONS”. It is my contention that the notice to owner issued by the Brighton and Hove City Council is non-compliant with the following part of Schedule 6 Paragraph 1 (2) of the Road Traffic Act 1991:

©

This paragraph states:

(4) The grounds are—

(a) that the recipient—

(i) never was the owner of the vehicle in question;

(ii) had ceased to be its owner before the date on which the alleged contravention occurred; or

(iii) became its owner after that date;

(b) that the alleged contravention did not occur;

© that the vehicle had been permitted to remain at rest in the parking place by a person who was in control of the vehicle without the consent of the owner;

(d) that the relevant designation order is invalid;

(e) that the recipient is a vehicle-hire firm and—

(i) the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and

(ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice fixed to the vehicle during the currency of the hiring agreement;

(f) that the penalty charge exceeded the amount applicable in the circumstances of the case.

It is my contention that the notice to owner is non-compliant with © above and that such non-compliance renders it a nullity.

In making these contentions I rely on PTAS case number 2060200740 which allowed an appeal because of an irregularity in compliance with Schedule 6 Para 2 (3).

I further rely on the decision of Mr Justice Jackson in his decision in the case of The Queen on the Application of The London Borough of Barnet Council -v- The Parking Adjudicator on 2 August 2006; London Borough of Wandsworth -v- Al’s Bar and Restaurant Case No 2020106430 and other cases published on the PTAS web site as

Penalty Charge Notice No: BH30070655

“Key Cases”.

It is my contention that the wording of both Section 66 (3) and Schedule 6 Paragraph 1 (2) of the Road Traffic Act 1991 is clear. The PCN and notice to owner must state (the prescribed items). This must be complied with absolutely, not to do so renders the PCN and notice to owner a nullity.

It is my further contention that it is not open to the London Authority to print different grounds for representation on a notice to owner or purported notice to owner than those set out in Schedule 6 Paragraph 2 (4) of the Road Traffic Act 1991. To do so renders both the notice to owner and PCN a nullity.

Your Comments Very Much Appreciated

[Bernie_the_Bolt]

bmwman, I will take a look and respond, probably towards the end of the w/e.

[patdavies]

bmwman,

 

Save that for the adjudicator. Until the Council issues a Notice of Rejection, they can reset and re-issue a corrected notice. the NoR effectively 'locks' the process to prevent this.

 

For the Council, I would simply tick " The Penalty Charge exceeds...." and inform them that the PCN and NtO re non-complaint with the RTA 1991 (as amended). Do not go into detail. After all, they are supposed to know what they are doing to produce valid legal paperwork.

[Bernie_the_Bolt]

bmwman,

 

Save that for the adjudicator. Until the Council issues a Notice of Rejection, they can reset and re-issue a corrected notice. the NoR effectively 'locks' the process to prevent this.

 

For the Council, I would simply tick " The Penalty Charge exceeds...." and inform them that the PCN and NtO re non-complaint with the RTA 1991 (as amended). Do not go into detail. After all, they are supposed to know what they are doing to produce valid legal paperwork.

 

Good point.

 

I was concerned that the adjudicator might be able to reject arguments that hadn't been put to the LA but I guess they can't as there is no right to a personal hearing at the LA stage.

[bmwman]

Hi Everyone

 

Will do just that and wait for notice of rejection. Will keep you posted

 

Many Thanks

[bmwman]

Hi Everyone

 

can anyone tell me how long the council has to reply to the formal represention.

 

Many Thanks

[Josie8]

subscribing

[bmwman]

Hi Every One

Received a letter From Brighton to day A WIN

 

 

 

Thank You Every one for your Help

[Bernie_the_Bolt]

Well done and congrats bmwman!

 

Of course it would be wonderful to know if the real reason was because of the arguments on their documentation and they just did not want that to be tested!

 

A win is a win!

[patdavies]

Pity nobody proof read the letter before signing and sending/

 

"...we would have told you this as suggested..."

 

Congratulations on the win though

[CrispDust]

good win but what a cop out by council.