1. My client raised the issue of an inappropriate ground appearing on the PCN concerning a traffic order being invalid. In its NOR, the council
failed to consider this important issue. The following statement in their case summary
should have been included in the NOR:
The appellant states in their representation - The PCN is unenforceable because it contains a ground referring to the traffic order being invalid which does not belong in this legislation. The council can confirm that this does not invalidate the Penalty Charge Notice. 2. Furthermore, there appear on the PCN two lists of grounds, which clearly do not agree with each other and, indeed, another wrong ground concerning the TWOC:
The vehicle had been permitted to rest in the place in question by a person who was in control of the vehicle without the consent of the owner. – Clearly, this and the aforementioned ground belong to parking legislation.
3. This issue is further compounded and exacerbated by the council’s website which contains further grounds pertaining to parking legislation and some irrelevant grounds. Please see the attached screenshots. Their contents are self-explanatory; however, I would wish to add that the council has had similar issues with its Code 34 j PCNs as the costs decision in
Gar Poon v London Borough of Havering 223043933 proves. Similarly, in that case, they included procedural impropriety as a ground and also in
Tal Ofer v London Borough of Havering Case No 2230533614. In the latter case, they did not contest the costs application.
4. With particular regard to the grounds on the website, I rely upon the following decisions allowed by the following adjudicators, some of which agree with other’s decisions: 2230228494; 2180498755; 2230274232; 2230398949; 2230446542; 2230398949; 2230446542; 2230494501; 2230541860; 2230539585; 2230487415; 2230464748; 2230545861; 2230483130; 2230496595; 2230534763; 2240258389; 2240138955. The Adjudicators who allowed these appeals are in alphabetical order: Miss Alderson, Ms Brennan, Mr Greenslade, Mr Harman, Mr Styles, Mr Teper and Mr Walsh. For example, I rely upon Mr Harman’s decision in Case no 2230483130.
Mr Murray-Smith, for the appellant company, attended the hearing today via telephone. The council did not attend the hearing either in person or via telephone nor did it seek an adjournment. Mr Murray-Smith made submissions in accordance with those set out in his skeleton argument uploaded to the case on 17/12/23. I reserved my decision. I accept Mr Murray-Smith's argument that the grounds upon which representations can be made were correctly stated on the PCN but not on the council's website. My noting his submissions on the point supported by the decisions upon which he relies (one of which is mine) I am not accordingly satisfied that the council's online system adequately conveys to motorists the grounds upon which they can make representations the council thus I find being in breach of its duty to act fairly. I am satisfied for that reason that enforcement may not be pursued. That being so I need make no finding as to any other issue raised by either party to the proceedings. Of course, in this instance the grounds are not correctly stated on the PCN as it includes two which are wrong. It follows, therefore, that this scenario presents an appellant with a somewhat aleatoric predicament to put it mildly, which is hardly legally valid.
5. The NOR fails to mention that the Adjudicator can extend time in which to lodge an appeal. The NOR fails to mention that the Adjudicator can extend the period of time in which to lodge an appeal. In this regard I rely upon the following two cases and respective extracts: David Miller v London Borough of Barnet Case No: 217024143 in which Mr Chan said:
Mr Dishman makes a further submission in relation to the contents of the Notice of Rejection. In essence, he complains that it has not advised motorists contemplating an appeal to the Adjudicator that the Adjudicator may extend the time limit for an appeal. There is no requirement that the Notice must spell out the appeal process. It must however "describe in general terms the form and manner in which such an appeal must be made". I find that this must include a reference to the time limit and that it can be extended." I am not satisfied that the PCN can be upheld. I allow the appeal. And Shelley Sinclair v London Borough of Lewisham Case No: 218033612A in which Mr Walsh said with reference to the aforementioned case:
The second alleged deficiency is that the Notice of Rejection does not expressly state that an adjudicator may extend the period of 28 days provided for lodging an appeal, as provided by Regulation 7(1)(b). It is right to say, of course, that Regulation 6 does not stipulate that it should. It is also right to say that the Notice of Rejection alludes to the power to extend the period, in that it states that a person who does not appeal within the period ‘may’ have missed the opportunity to appeal. I conclude, however, that a reasonable reader of the Notice of Rejection 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 the appellate process and a power of which a potential appellant should be made aware. In the case of Miller v. London Borough of Barnet (2170241413, 21 June 2017), cited by Mrs Sinclair, my fellow 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 held that a Notice of Rejection that does not contains 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). For the reasons I have given I agree with that decision which I consider highly persuasive. In this instance I refer to Schedule 1, para. 3(b):
3 Where any representations are made under paragraph 1 above but the enforcing authority do not accept that a ground has been established, the notice served under sub-paragraph (7) of the said paragraph 1 (in this Schedule referred to as “the notice of rejection”) must— (b)describe in general terms the form and manner in which such an appeal must be made,6. The PCN does not include the option to pay by post as it must as provided at 4(
(vii):
the address to which payment of the penalty charge must be sent;
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I will use the Scrabble metaphor at the hearing.
