Author Topic: PCN - Herefordshire council. 5 mins grace??!  (Read 448 times)

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H C Andersen

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #30 on: October 30, 2024, 02:09:56 pm »
Mandatory PCN info is missing IMO.


Your PCN was issued under regulation 9 of the (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022. These provide that:

9(7) A penalty charge notice given under this regulation must include the information set out in—

(a)Schedule 2, and

(b)regulation 3(1) of the 2022 Appeals Regulations.


Regulation (3)(1) of the Appeals Regulations provides:

3.—(1) A regulation 9 penalty charge notice must include the following information—

(a)that a person on whom a notice to owner is served may, in accordance with these Regulations, make representations to the enforcement authority against the penalty charge and, if those representations are rejected, appeal to an adjudicator;

(b)that if, before a notice to owner is served, representations against the penalty charge are received at such address as may be specified in the notice for the purpose those representations will be considered by the enforcement authority;

(c)that if a notice to owner is served despite the representations mentioned in sub-paragraph (b), representations against the penalty charge must be made to the enforcement authority in the form and manner and at the time specified in the notice to owner.


Having established what information must be included in the PCN, it only remains to review what is included. The relevant section is to be found on the reverse under the heading 'If the Penalty Charge is not paid or successfully challenged'.

I acknowledge that sub paras. 3(1)(a) and 3(1)(b) are given, however the wording and meaning of 3(1)(c) are not given. The PCN fails to state that on receipt of a NTO, and irrespective of whether the owner was party to a prior challenge, 'representations against the penalty charge must be made to the enforcement authority in the form and manner and at the time specified in the notice to owner.'

The significance of this regulation must be apparent to the authority as indeed must its omission being a procedural impropriety. Simply put, if a prior challenge has been submitted and a response has not been received - whether not sent(which is not required under the regulations) or sent but not received, then the owner must not wait for this, they must act upon the NTO as required because otherwise they risk losing their statutory rights and access to the adjudicator which is predicated upon receiving a Notice of Rejection of Representations which itself is contingent upon representations against the NTO having been made as required.

I would ask that the authority do not simply respond to the above - which prima facie is a clear omission and PI - with superficial comments to the effect that 'our legal department have checked it' or 'we are satisfied that it is compliant', but instead respond in similar form and detail to that in which these representations have been submitted.

And there's the other grounds that the contravention did not occur(because display is optional etc.)

Others may suggest shortening the procedural impropriety grounds - because normally their significance is lost on officers who consider challenges- and that's OK providing the essence remains. My long version would serve for formal reps against a NTO and the basis of a subsequent appeal.

Wait for others.
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brutal_deluxe

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #31 on: November 01, 2024, 08:49:57 am »
Thanks very much, this is really helpful.

So in the first instance, I launch a soft appeal? Something like..

Dear sirs,

There does not appear to be any mandatory Regulation 9 appeals information (specifically Section 7 (a) and (b)) on the reverse of the PCN.

Section 7(b) includes section 3(1)(c) of the 2022 appeals regulations, of which the wording and meaning appear to be missing. This seems to be a procedural impropriety.

Please could you not simply respond to the above, but respond in like manner to which these representations have been made.

I also do not understand the grounds for the charge as a window ticket is optional.

I was attempting to purchase a virtual ticket via RingGo as advertised on the ticket machine but after considering the information, was not able to complete the transaction. I then promptly decided to return to move the car but a PCN had already been served.

Kind regards

BD
« Last Edit: November 01, 2024, 09:41:39 am by brutal_deluxe »

brutal_deluxe

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #32 on: November 02, 2024, 08:35:34 am »
Mandatory PCN info is missing IMO...


If you can let me know re my response above that would be amazing thank you!

H C Andersen

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #33 on: November 02, 2024, 08:38:40 am »
My reply #30 gives chapter and verse.
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cp8759

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #34 on: November 02, 2024, 09:59:32 am »
@brutal_deluxe Either go with H C Andersen's suggestion, or answer this and I'll see if we can expand on it slightly:

@brutal_deluxe where did you eventually move the car to, and did you ever actually pay to park?
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. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

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

brutal_deluxe

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #35 on: November 02, 2024, 11:53:32 am »
@brutal_deluxe Either go with H C Andersen's suggestion, or answer this and I'll see if we can expand on it slightly:

@brutal_deluxe where did you eventually move the car to, and did you ever actually pay to park?

Moved to a free location further out as I had no change for the machine

cp8759

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Re: PCN - Herefordshire Council council. 5 mins grace??!
« Reply #36 on: November 02, 2024, 03:56:01 pm »
@brutal_deluxe here's a draft:

Dear Herefordshire Council,

I would ask for the PCN to be cancelled for the following reasons. Firstly app payment available so I tried used the app, but the internet connection was poor so the app kept failing, walking around did not result in a better signal so I eventually went back to the car to move it elsewhere.

However I am confused by the wording on the penalty charge notice because it states that I failed to display a ticket, but even if my purchase had successfully gone through I would not have had anything on display, which suggests a PCN could have been issued regardless of whether I bought a parking session or not.

Furthermore I note that regulation 3(1)(c) of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 requires the PCN to warn that if a notice to owner is served while informal representations are outstanding, the owner must make representations against and must not wait for the informal representations to be dealt with, this mandatory warning has been omitted from the penalty charge notice and that is a procedural impropriety.

It follows that the penalty charge must be cancelled in any event.

Yours faithfully,


Send this online and keep a screenshot of the confirmation page.
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. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

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

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Re: PCN - Herefordshire Council council. 5 mins grace??!
« Reply #37 on: November 02, 2024, 03:59:46 pm »
@brutal_deluxe here's a draft:

Dear Herefordshire Council,

I would ask for the PCN to be cancelled for the following reasons. Firstly app payment available so I tried used the app, but the internet connection was poor so the app kept failing, walking around did not result in a better signal so I eventually went back to the car to move it elsewhere.

However I am confused by the wording on the penalty charge notice because it states that I failed to display a ticket, but even if my purchase had successfully gone through I would not have had anything on display, which suggests a PCN could have been issued regardless of whether I bought a parking session or not.

Furthermore I note that regulation 3(1)(c) of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 requires the PCN to warn that if a notice to owner is served while informal representations are outstanding, the owner must make representations against and must not wait for the informal representations to be dealt with, this mandatory warning has been omitted from the penalty charge notice and that is a procedural impropriety.

It follows that the penalty charge must be cancelled in any event.

Yours faithfully,


Send this online and keep a screenshot of the confirmation page.

Thanks so much for your help with this. Will let you know of the outcome

brutal_deluxe

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #38 on: November 27, 2024, 12:12:49 pm »
Hi Guys, so, appeal rejected it seems because...

1/ No evidence of app activity
2/ Car was left before parking session could be purchased
3/ Other payment options available
4/ Procedural impropriety only applicable on Notice to Owner

Any advice appreciated!


https://photos.app.goo.gl/XujJTpZH9KboYnhd9
« Last Edit: November 27, 2024, 12:23:28 pm by brutal_deluxe »

Incandescent

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #39 on: November 27, 2024, 03:19:26 pm »
It's the usual Fob-Off letter. It all depends now on whether you think it worth taking the double-or-quits gamble of waiting for the Notice to Owner.
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H C Andersen

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #40 on: November 27, 2024, 05:12:30 pm »
IMO, au contraire, there's nothing usual about their second procedural impropriety.

OP, you've got them by the short and curlies, stick with procedural timescales and IMO you cannot lose.

From the Appeals Regs:

Interpretation of Parts 1 to 5

2.—(1) In this Part and Parts 2 to 5

"procedural impropriety” has the meaning given in paragraph (2);

2) A “procedural impropriety” means a failure by an enforcement authority to observe any requirement imposed on it by—

(a)the TMA 2004,

(b)the 2022 General Regulations, or

(c)these Regulations,

in relation to the imposition or recovery of a penalty charge or other sum.


We already know that what's missing from the PCN is a requirement imposed under Reg. 3(1) of these Regs and that Reg. 3 is in Part 2 and therefore that as a 'procedural impropriety' applies to Part 2 then they're *****ing useless, but sadly judges in their own cause at the moment.
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cp8759

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #41 on: November 27, 2024, 07:37:14 pm »
@brutal_deluxe definitely wait for the notice to owner, as long as you challenge it within 14 days of the date of issue they will reoffer the discount anyway.
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. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

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

brutal_deluxe

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #42 on: November 29, 2024, 05:52:25 pm »
@brutal_deluxe definitely wait for the notice to owner, as long as you challenge it within 14 days of the date of issue they will reoffer the discount anyway.

1/ So it says I need to wait for the penalty to revert to the full amount before challenging again as registered keeper?
2/ It also says that 'it is the responsibility of the owner to make sure a parking session is in place before leaving the car', however I do not see any of this in the terms/conditions.
3/ I don't see how this is a winner at all unless they're lying to me about the procedural impropriety bit. Can you explain in lay terms how I could win this?

Thanks again
BD

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #43 on: November 29, 2024, 10:16:10 pm »
Quote
1/ So it says I need to wait for the penalty to revert to the full amount before challenging again as registered keeper?
All this means is that you have to wait for the Notice to Owner if you want to continue to contest the PCN. As this can only be served after 28 days have elapsed from the date of service of the PCN, the legally-mandated discount option is obviously lost. However, there is nothing to prevent them re-offering it if they decline reps against an NtO.

Quote
2/ It also says that 'it is the responsibility of the owner to make sure a parking session is in place before leaving the car', however I do not see any of this in the terms/conditions.
And what if the owner isn't driving it that day ? Their sentence is total tosh. Of course it is sensible to make sure there is a parking session in place before leaving the car. Rather too many people rush off and pay the parking away from the car park. This means their parking session may not be in place when a CEO happens by, (we've seen this quite often).

Quote
3/ I don't see how this is a winner at all unless they're lying to me about the procedural impropriety bit. Can you explain in lay terms how I could win this?
The procedural impropriety is in serving PCNs that do not contain all the information mandated in the controlling regulations, so their answer is, again, tosh. However, it is only at the NtO stage where the statutory grounds for an appeal are listed in the NtO.

Realy, it's up to you, pay-up now the £35, or take them all the way to the adjudicators and risk the extra £35. ALl we have done is suggested a credible appeal case. They cannot escape from the fact that mandatory information is missing from their PCNs



cp8759

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Re: PCN - Herefordshire council. 5 mins grace??!
« Reply #44 on: November 30, 2024, 01:02:09 am »
@brutal_deluxe definitely wait for the notice to owner, as long as you challenge it within 14 days of the date of issue they will reoffer the discount anyway.

1/ So it says I need to wait for the penalty to revert to the full amount before challenging again as registered keeper?
@brutal_deluxe yes, but in our experience as long as the NTO is challenged within 14 days of issue, the council will reoffer the discount again to give you an incentive not to appeal to the Traffic Penalty Tribunal (which they don't want because it's a lot of work for them, and then the outcome isn't up to them any more).
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. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

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