The PCN limits to one ground. The law states one or other of the grounds.
Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable
Case Reference: 2120030405
Appellant: Mr Rinat Bikatov
Authority: Waltham Forest
VRM: X998VYJ
PCN: FR21052928
Contravention Date: 07 Nov 2011
Contravention Time: 09:09
Contravention Location: Forest Road E17/Fernhill Court E17
Penalty Amount: £130.00
Contravention: Failing to comply with a sign indicating a prohibited turn
Decision Date: 23 Jun 2012
Adjudicator: John Lane
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice.
Reasons: This is an application by Mr. Rinat Bikatov in accordance with Paragraph 12 of Part 2 to the Schedule of The Civil Enforcement of Parking Contraventions (England) Representations And Appeals Regulations 2007 to review an Adjudicator's decision of 24th March 2012 in refusing his appeal.
The grounds for review are:
There was an error by administrative staff;
The appellant failed to appear or be represented at the hearing for good and sufficient reason;
After the hearing new evidence had become available since the conclusion of the hearing the existence of which could not have been reasonably known or foreseen;
The interests of justice require a review.
The appellant, who appeared on 9 th June 2012 with Mr. Herbert, relied on the last criterion, asserting that the Adjudicator had misdirected himself. The appellant produced a previous decision of the Adjudicator-appeal 211070709A. The appellant also produced other judgments by other Adjudicators. I have caused all these to be scanned onto the system as evidence.
I reserved judgment in accordance with paragraph 11(1) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
The penalty notice in this case was issued under Section 6 of the London Local Authorities and Transport for London Act 2003.
Section 4(
of the London Local Authorities and Transport for London act 2003 says that the penalty notice must state:
1 the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;
2 the amount of the penalty charge which is payable;
3 that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
4 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;
5 that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
6 the amount of the increased charge;
7 the address to which the penalty charge must be sent;
8 that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to the Act; and
9 specify the form in which such representations are made.
Paragraph 1(3) to the Schedule states, "The enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the penalty notice in question was served."
The penalty notice in this case is silent on that.
The original Adjudicator stated this in his judgment.
As stated above, the legislation at Section 4(
says that the penalty notice "must" state it.
In the High Court case of Barnet v The Parking Adjudicator, Mr. Justice Jackson in paragraph 37 of his judgment said that if the legislation says that something "must" be stated then "that suggests that the exact words are not mandatory but the pcn must accurately convey the information set out in the subsections."
The original Adjudicator has said that, "Absolutely no prejudice has been suffered by the appellant."
At paragraph 41 of his judgment in the Barnet case Mr. Justice Jackson stated that prejudice is irrelevant and does not need to be established.
In the same paragraph Mr. Justice Jackson said if statutory conditions are not met, then the financial liability does not arise.
In this case the penalty notice, on its first page, says that the penalty/reduced amount must be paid not later than 28 or 14 days from the beginning of the date of the notice, "Or the person on whom the notice is served may be entitled to make representations."
On the second page of the penalty notice there are instructions to the recipient how to make representations and the grounds of appeal available. The penalty notice invites the recipient to select one ground whereas the legislation states that representations may be made on
"one or other of the grounds"As stated above the penalty notice is silent as to paragraph 1(3) to the Schedule in that there is no mention that the local authority may disregard representations served on the local authority after the end of the period of 28 days beginning with the date on which the penalty notice is served.
It was accepted in the Barnet Case that substantial compliance with statutory requirements will render the penalty notice valid.
I find that the message contained in paragraph 1(3) is an important warning to the recipient of a penalty notice issued under the London Local Authorities act 2003. Without it I cannot find that the penalty notice is substantially compliant.
I will therefore allow the review and allow the appeal.
Original Decision Subsequently Reviewed Under Regulation 11 of The Road Traffic (Parking Adjudicators) (London) Regulations 1993
Decision Date 24 Mar 2012
Previous Decision Refused
Adjudicator Francis LLoyd
Direction None
Reasons Mr Bikatov attended in person at the hearing of his appeal before me. He had received a Penalty Charge Notice after performing a prohibited right turn in Forest Road. He accepted that such a turn had been made and that the contravention had been proved. He argued, however, that the Penalty Charge Notice was invalid as it did not state on it that representations should be made within 28 days of the receipt of the notice, but 28 days of the notice itself. Mr Bikatov claimed that the notice foreshortened the time in which he was able to make representations and was thus invalid. He referred me to decisions made by two other adjudicators - those decisions being Tuttle v Camden (Ref: 2080721804) and Stubbs v Westminster (Ref: 2090397156).
I have looked at the relevant piece of legislation which is the London Local Authorities and Transport for London Act 2003. Section 4(
of the Act lists what must be included in a PCN. It reads as follows:
(
A penalty charge notice under this section must-
(a) state-
(i) the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;
(ii) the amount of the penalty charge which is payable;
(iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(iv) 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;
(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
(vi) the amount of the increased charge;
(vii) the address to which payment of the penalty charge must be sent; and
(viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to this Act; and
(b) specify the form in which any such representations are to be made.
It will be noted that it is stated there that for payment of the PCN, the relevant date is the date 28 (or 14) days beginning with the date of the notice. However, Schedule 1 paragraph 1(3), dealing with representations, reads as follows:
(3) The enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the penalty charge notice in question was served.
It will be noted here that the relevant date for consideration of representations is here given as being 28 days beginning with the date on which the penalty charge notice in question was served.
Mr Bikatov argued that the PCN was invalid as it did not make clear that representations could be considered up to 28 days after the service of the notice.
I do not agree. The PCN in this instance correctly tells the recipient that he has 28 days to pay at the full rate (or 14 days at the reduced rate). That is in accordance with section 4(
of the Act. It also tells him that he can make representations. It is correct that the PCN is silent as to the permitted time in which representations can be made, but this does not appear to be a requirement of section 4(
(b) which merely says that the PCN must specify the "form in which any such representations are to be made". What is clear, I would suggest, from the PCN, is that representations should be made within 28 days. The legislation permits a certain latitude to the appellant by indicating that the authority should only disregard submissions made more than 28 days after service. However, I do not see that this needs be indicated on the PCN itself.
In any event, on the facts of this case, absolutely no prejudice has been suffered by the appellant. The PCN was issued on 28/11/12. The appellant responded on 12/12/12. In an email sent on that day, he pointed out the alleged failings of the PCN. The authority responded on 20 December rejecting those submissions, and granting the appellant a further 14 days to pay at the reduced rate. He did not accept that offer, and as a result the full amount of £130 is now correctly demanded.
The appeal is thus refused.
