Author Topic: PCN. Code 01 violation - Parking in Restricted Street: Romeland Hill, St Albans  (Read 174 times)

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Faisybobs

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Hello fighters for justice, nice pad you have here!


So, quick recap, received a parking ticket on 24th Jan 2023, photos below:











I made an informal challenge on the 6th February that cp8759 very kindly drafted for me (apologies if some of the indents are missing):


Quote
Dear St Albans District Council,

In the first instance, I draw your attention to paragraph 8(5) of Schedule 8 to the Traffic Management Act 2004, which provides that:

  References in this Part of this Act to the enforcement authority in relation to parking contraventions in a civil enforcement area outside Greater London, are—
      (a) in relation to contraventions relating to a parking place—
        (i) provided or authorised under section 32(1)(a) or (b) of the Road Traffic Regulation Act 1984 (c. 27), or

        (ii) designated by order under section 45 of that Act,
      to the authority by whom the parking place was provided, authorised or designated;

The highways authority for roads in St Albans is Hertfordshire County Council, therefore only Hertfordshire County Council is entitled as the enforcement authority to issue penalty charge notices in respect of parking places it has provided.

St Albans District Council has no power to serve a PCN in its own right for an alleged contravention in an on-street parking place, so service of the PCN is a procedural impropriety.

In the alternative, if St Albans District Council is acting as an agent for Hertfordshire County Council, then there is a procedural impropriety because nowhere does the PCN state that the name of the Enforcement Authority is Hertfordshire County Council, this being a regulatory requirement imposed by paragraph 1(a) of Schedule 2 to The Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022.

In light of the above procedural impropriety, the council's position is hopeless and it would be wholly unreasonable for the authority to reject the ground above, which is plainly unanswerable.

Further to this, the penalty charge exceeds the amount due in the circumstances of the case because, by virtue of regulation 5(2) of The Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022, no penalty was payable at 3:40 pm.

In addition the PCN carries an 0845 number which comes with a 2p per minute service charge, for the reasons explained in Paul Bateman v Derbyshire County Council (DJ00037-2209, 10 November 2022) (copy attached) this means that the penalty demanded exceeds the amount due in the circumstances of the case. As the High Court held in London Borough of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin), the fact that other payment methods are available which do not attract the surcharge is irrelevant and makes no difference: once an excessive penalty is made, a statutory ground is made out and the penalty must be cancelled.

The council will appreciate that in light of the above grounds, it would be wholly unreasonable for enforcement to be pursued any further.

Yours faithfully,


Now I thought this had gone away, as I hadn't heard back from them for so long, and I had another ticket about a month or two before this one where they acknowledged the argument about St Albans District Council being an agent for Hertfordshire County Council and they cancelled the PCN.


But they might be digging their heals in this time as on a letter I received yesterday (dated 24th June) they refuted all the arguments:






So I guess my question is, do I just wait for the NTO to arrive and send pretty much the same letter again?  And also it took them over 4 months to respond to my informal challenge, are there timeframes they are supposed to abide by when responding?


Hope I included everything, let me know if you need anything else!


Cheers!
« Last Edit: June 28, 2023, 05:56:31 pm by Faisybobs »

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Incandescent

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That is a quite inordinate delay in replying, and you need to note it, and use it against them when the Notice to Owner arrives.  This must be served within 6 months, but the statutory guidance is that it should be sent out much sooner: -

Quote
"Issuing the notice to owner
If the penalty charge is not paid the enforcement authority may issue a notice to owner (NtO). The purpose of this is to ensure that the PCN was received by the vehicle owner and to remind the vehicle owner that the payment in full is now due and, if it is not paid within a further 28 days, it may be increased.

The NtO may be issued 28 days after serving the penalty charge, and we expect authorities to send them within 56 days. The ultimate time limit, in exceptional circumstances, is 6 months [footnote 33] from the ‘relevant date’. There should be a very good reason for waiting that long to serve an NtO."

Here is the guidance, and councils are under a duty to "have regard to it"
https://www.gov.uk/government/publications/civil-enforcement-of-parking-contraventions/guidance-for-local-authorities-on-enforcing-parking-restrictions
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cp8759

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They've basically confessed to failing to state the name of the enforcement authority on the PCN, which is an open and shut procedural impropriety. There was a way they could have argued their way out of it, but given what they've put in the rejection, you basically can't lose now.

Assuming the address is 100% up to date on the V5C, just wait for the Notice to Owner.
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
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Faisybobs

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That is a quite inordinate delay in replying, and you need to note it, and use it against them when the Notice to Owner arrives.  This must be served within 6 months, but the statutory guidance is that it should be sent out much sooner: -

Quote
"Issuing the notice to owner
If the penalty charge is not paid the enforcement authority may issue a notice to owner (NtO). The purpose of this is to ensure that the PCN was received by the vehicle owner and to remind the vehicle owner that the payment in full is now due and, if it is not paid within a further 28 days, it may be increased.

The NtO may be issued 28 days after serving the penalty charge, and we expect authorities to send them within 56 days. The ultimate time limit, in exceptional circumstances, is 6 months [footnote 33] from the ‘relevant date’. There should be a very good reason for waiting that long to serve an NtO."

Here is the guidance, and councils are under a duty to "have regard to it"
https://www.gov.uk/government/publications/civil-enforcement-of-parking-contraventions/guidance-for-local-authorities-on-enforcing-parking-restrictions

Cheers, I wonder what constitutes "a very good reason for waiting that long to serve an NtO"?

Anyway, the PCN was issued on the 24th January 2023.  Meaning they have till 23rd July 2023 to get the NtO to me, which means they are going to be cutting it fine any way you shape it, in getting the NtO to me within 6 months, since presumably they will need to wait a month to serve it.  Also just noticed they haven't given me a deadline for paying the full amount in the most recent letter, only a deadline to pay the discounted rate (10th July 2023).

Faisybobs

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They've basically confessed to failing to state the name of the enforcement authority on the PCN, which is an open and shut procedural impropriety. There was a way they could have argued their way out of it, but given what they've put in the rejection, you basically can't lose now.

Assuming the address is 100% up to date on the V5C, just wait for the Notice to Owner.

Excellent stuff, music to my ears!  All my car admin stuff is bang up to date, so no worries there, and as I mentioned in the previous post they're going to struggle to get the NtO to me within 6 months of the PCN being issued anyway, so looking good on all fronts I think. 

Faisybobs

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Received the NTO today.

It's dated 7th July, so they've sent it to me despite the fact that in the last letter they stated I had till 10th July to make payment at this discounted rate (not sure if this matters or not).

Last time I got an NTO someone pointed out they used outdated 2007 regulations at the top of page 3, and they've done same again.  Anyway, here it is.





cp8759

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The NTO is deemed served on 11 July so it's not premature. I would have got some evidential screenshot of the amount due on the council website, but you've redacted the PCN number and number plate so I can't (this is just another example of an OP redacting details and hurting themselves in the process, let this be a warning to others).

Draft reps:

Dear St Albans District Council,

Firstly there has been a procedural impropriety because the penalty charge notice does not state the name of the enforcement authority, which is a mandatory requirement. Many organisations, public and private, issue PCNs on behalf of a local authorities: many district councils across the country, private companies such as Serco, Capita, NSL, even the Metropolitan Police has a contract to enforce on behalf of TFL. But obviously none of those organisations purport to be the enforcement authority.

In this instance your informal representations confirm that St Albans District Council is not the enforcement authority, it is merely the agent of Hertfordshire County Council. As you have confirmed the enforcement authority is Hertfordshire County Council but the PCN does not state as much, you have basically admitted to a procedural impropriety, in light of which it would be wholly unreasonable for you to reject this representation.

While I appreciate first-instance tribunal decisions are not legally binding, I have no reason to believe the tribunal would reach a different conclusion on this occasion, I therefore maintain that the penalty demanded exceeds the amount due in the circumstances of the case.

For the reasons given above, the PCN must be cancelled.

Yours faithfully,
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

Faisybobs

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Thank you cp8759, great stuff again!!

I've sent the representation off now.  Does it not make a difference that on the NTO issued on the 7th July 2023 the penalty charge amount is stated as £70.00.  However, on the 2nd page of the letter in the opening post they previously stated I had till the 10th July to pay at the discounted rate?

Anyway, will keep you posted on the outcome of this either way!

MMV Redux

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OP---if this one gets to Tribunal that is just one of the issues that can be contested although they should fold on the enforcement authority ground alone.

You have the inordinate delay in responding to your reps and the procedural improprieties in the NTO plus the premature demand for the full penalty amount. There will be others I am sure--they are not very good are they?

Mike

cp8759

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I've sent the representation off now.  Does it not make a difference that on the NTO issued on the 7th July 2023 the penalty charge amount is stated as £70.00.  However, on the 2nd page of the letter in the opening post they previously stated I had till the 10th July to pay at the discounted rate?
The Notice to Owner is deemed served two days after posting, so an NTO issued on 7 July is served on 11 July and it can't increase the charge to £70 before it's served because you've not been served yet.

That being said, we've got a timestamped record on here showing that the NTO was actually received on 8 July, so we can rebut the presumption of service at the tribunal stage.
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

guest179

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Strictly speaking the NTO could be served at any time after the expiry of the 28-day period in the PCN, i.e. any time after mid-Feb:

Notice to owner

20.—(1) Where—

(a)a penalty charge notice has been given with respect to a vehicle under regulation 9, and

(b)the period of 28 days specified in the penalty charge notice as the period within which the penalty charge is to be paid has expired without that charge being paid,

the enforcement authority concerned may serve a notice (a “notice to owner”) on the person who appears to it to have been the owner of the vehicle when the alleged contravention occurred.


However, the authority have compromised their position by undertaking to accept the discount as full settlement up to 10th July, they cannot therefore serve a NTO prior to this date. They could issue a NTO on 7th and if this was not served until 11th then they would be in the clear.

But this is a risk they ran. And in this case the OP says they have evidence that the NTO was delivered prior to 11th.

The grounds IMO are 'penalty exceeded the amount applicable...in the circumstances of the case.'

cp8759

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I think the grounds are procedural impropriety, as that includes service of any document at a time when service is neither authorised nor required by the regulations. As you say, they ran a risk and it didn't work out for them.
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

guest179

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The regs only limit service of the NTO to any time after 28 days of the initial PCN not being paid and it's now nearly 5 months. What scuppers them is their undertaking, which is not regulatory but none the less fatal.