Author Topic: Birmingham City Council, code 83 parked without displaying valid ticket, Moseley Village Car Park  (Read 384 times)

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kingsy

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No not yet. Will probably submit it tonight

kingsy

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Appeal has been registered now and Authority had 14 days to decide whether they want to contest it or not. Is there any chance they just will not bother?

kingsy

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It seems like they have indeed replied and uploaded all their evidence - the Authority's response is as follows

Quote
With regard to the specific reasons for issuing the Notice, and the appellant’s main points concerning the contravention, Birmingham City Council would refer to the Notice of Rejection which they consider adequately presents the Authorities assertions at this stage.
The use of discretion has been considered in this case, however the council believes that the circumstances do not amount to any mitigation that would justify cancellation of the PCN.
As can be seen from the contemporaneous photos lighting was sufficiently clear for motorists to read any information on the machine/notice board. The appellant states that the vehicle was parked around  19:45 hours. At this time in November, it would be sufficiently dark enough for full lighting to be in use. It would not be dusk at this time in November. There would not have been any more lighting on the car park when the CEO issued the PCN at 21:37 hours.
The appellant clearly saw the notice regards the machine not working, yet failed to read any further information supplied on the machine. It is a motorists responsibility to read, understand and act on all information provided to avoid the issue of a PCN.
Contrary to the appellants belief that the Notice of Rejection did not provide all the information required, a copy has been attached showing the information it contained. The Council believe that the PCN was correctly issued, enforced equally, fairly and without discrimination, and remains valid and payable at £50.

Now I have 7 days to pick whether I want a telephone hearing or just get the adjudicator to decide on the evidence presented. A bit scared about doing the telephone hearing  :-X

kingsy

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Have you been notified by the tribunal that your appeal has been registered? Post their communication.

Have you got any advice? I'm assuming I should probably do the hearing?

Incandescent

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Don't do the papers-based route, it usually fails. A telephone hearing is not at all daunting, but don't lose your rag whatever you do. Even if you lose, at least you'l have the satisfaction of knowing they've had to at least some work for their ill-gotten gains and also have had to pay the adjudication fee, so no profit for them.

cp8759

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Have you got any advice? I'm assuming I should probably do the hearing?
Undoubtedly, but I may be able to do the hearing for you, I'll drop you a PM.
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law. Section 6 of the Interpretation Act 1978 applies to everything I post as it would apply to an Act of Parliament. I am a Conservative councillor, this means some people think I am "scum". I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

kingsy

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Rough skeleton argument:

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I am appealing the PCN BM40615144 with the following main points:

1. There are compelling reasons why with the particular circumstances of the case that the authority should cancel the penalty charge according to Regulation 5 (2)(b)(ii)
2. The NoR served did not inform me of the capacity of the adjudicator to permit appeals after the 28 day period under Regulation 7(1)(b)
3. The NoR served did not indicate the nature of an adjudicator’s power to award costs according to Regulation 6 (6)(a)(ii).
4. NoR does not state that in addition to the grounds outlined in Regulation 5 (4) that a ‘compelling reasons’ argument can be made to cancel the penalty as stated in Regulation 5 (2)(b)(ii).

1.
The compelling reasons as to why this particular charge should be canceled are as follows. On the night of the alleged contravention:
The one and only ticket machine for dispensing pay and display tickets was out of order (see Figure 2).
To the driver’s best knowledge there were no other methods of payment available at the time of the alleged contravention as it was almost pitch black in the area around the machine and sign due to the lighting being faulty and/or off.

In response the local authority argued that the details for the ‘pay by phone’ facility was printed on the machine and so there was an available method to pay and that I had examined the machine. I had never said I inspected the machine in any of my representations.

They also stated that the lighting was sufficient because in the enforcement officers photographs of the parked car, it shows that specific area where my car was lit. What they fail to mention is that the location of where the car was parked and the machine are not the same nor were there any machines located near where the car was parked, this has not been disputed by the local authority. It is quite possible for the car to be lit and the main parking machine and signage to be in darkness. This is backed up by the enforcement officer’s own image of the main sign (Figure 1.) and it shows that a strong flash was used when the picture was taken. If you also look at the image taken at the time when an attempt to purchase a ticket was made by the driver, it is clear that none of the machine’s features are visible at all except the backlit screen, clearly showing how dark it was in the area surrounding the machine.

It should be noted that the driver noted that the car park was more lit when they returned to their vehicle than when they initially first parked at around 1945. One reason for this is that at the time of parking, it was dusk and the automatic detectors for the lighting may not have turned the lighting on yet. This is important as the enforcement officer’s images were taken much later in the evening after 9 pm.

In addition to this, there is nothing on the sign itself to indicate that there are alternative methods to pay for a pay and display ticket nor has the authority given and proof that such information is on the pay and display ticket machine itself which they allege is present in the NoR.


2.
According to Schedule 2  part 2 para. 13 of Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) Regulations 2022 an adjudicator is able to make costs under specific circumstances outlined here. According to Regulation 6 (6)(a)(ii) an authority, if it does not accept representations, its decision notice must “indicate the nature of an adjudicator’s power to award costs”. In the NoR that the authority, under section 4 the only references to the adjudicator’s power for awarding costs are the sentence “..costs are not normally awarded. Details about when an order for costs can be made can be found on the website”. A reasonable person would not be able to discern the nature of the adjudicator’s power to award costs and referring the reader to a website is not sufficient to meet Regulation 6 (6)(a)(ii) as it must be within the NoR.

3.
The NoR it does not state that an adjudicator may extend the 28 days provided for lodging an appeal as provided by Regulation 7(1)(b) and while not required by any Regulation, existing Tribunal cases have accepted appeals on this point (see S. Sinclair vs London Borough of Lewisham, Case Ref 218033612A, 21 May 2018).

The only references to the 28-day limit are Page 2 of the NoR under heading 1. The reasons for rejecting your representations where it states in the last paragraph that “You have now 28 days from the date of this Notice of Rejection being served to pay the Penalty Charge or to appeal to an independent parking adjudicator (see below).” Later under section 4. How to appeal your decision, it states that “You should appeal before the end of the 28-days beginning with the delivery of this Notice of Rejection. Our website will explain this further.” Neither of these points clearly state the power of the adjudicator to extend this period.

Sinclair v Lewisham goes on to say, “a reasonable reader of the NoR would be unlikely to conclude that an adjudicator had the power to extend the 28 day period. That discretionary power is, in my view, an important component of appellate process and a power of which a potential appellant should be made aware.” It goes on to state in Miller v. London Borough of barnet (2170241413, 21 June 2017) another adjudicator, Mr. Chan held that “...it was essential that a Notice of Rejection describes the power of potential extension to the 28 day limit.”. He went on to say that a NoR that does not contain this detail does not describe in general terms the form and manner in which an appeal to an adjudicator must be made, in accordance with Regulation 6(1)(c).




4.
The ability to be able to appeal to an independent third-party is a fundamental component as highlighted in my previous point 3 by various previous adjudicators. Any reasonable person reading those statutory grounds for appeal would not be able to deduce that a ‘compelling reasons’ argument can be made for the penalty to be canceled under Regulation 5 (2)(b)(ii). This would in turn deter any potential appeals by appellants again penalty charges.

It should also be noted that at the ‘informal’ appeal stage this list of statutory grounds for appeal was also present in the response received from the local authority, clearly stated in a numbered list. I would assert that this list, without the ‘compelling reasons’ ground, stated at multiple stages of the appeal process by the local authority only disincentivizes any appellants to continue with the appeals process.

kingsy

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TRO / New Charges evidence from the council for those concerned.

cp8759

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Here are:

The Birmingham City Council (Off-Street Parking Places) Order 2018
The Birmingham City Council (Birmingham City Council (Off-Street Parking Places) Order 2018) (Variation) (No.1) Order 2023

I've run the first one through OCR software so it can be searched, why local authorities don't do this with all their old paper-based orders is beyond me.

@kingsy how did your hearing go?
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law. Section 6 of the Interpretation Act 1978 applies to everything I post as it would apply to an Act of Parliament. I am a Conservative councillor, this means some people think I am "scum". I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

kingsy

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Here are:

The Birmingham City Council (Off-Street Parking Places) Order 2018
The Birmingham City Council (Birmingham City Council (Off-Street Parking Places) Order 2018) (Variation) (No.1) Order 2023

I've run the first one through OCR software so it can be searched, why local authorities don't do this with all their old paper-based orders is beyond me.

@kingsy how did your hearing go?

yeah had the hearing, nowhere near as bad as I thought it would be! He adjourned it as he wanted to consider whether he wanted to give the council a chance to respond to the evidence I uploaded at the last minute.

Either way he decided not to give council second chance and allowed my appeal simply on my account of the contravention in question and evidence I had of the ticket machine.

Thanks for your help!
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Incandescent

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Well done, your persistence paid off !