3. Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
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Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
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Hi all,

Vehicle was issued a PCN shortly before 8am on 25th May, Contravention Code 01 Parked in a restricted street during prescribed hours - see scans below:





Vehicle was parked on the pavement with adjacent double yellows in Hainault Avenue, Westcliff-on-sea. Photos below are of its position as parked when the PCN was issue:





Google maps link

Are there any grounds to contest this?

Many thanks in advance
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Re: Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
« Reply #1 on: »
Yellow lines cover the whole road not just the carriageway so you have no chance with this unless you were loading or alighting/boarding someone. 

In London and other places now you would have got a footway parking PCN.

I'm assuming the PCN is correct - someone may check it for you. 

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Re: Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
« Reply #2 on: »
I've had a look and it is not compliant with Regulation 3 (1)(c) of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022

Quote
Information about right to make representations or appeal to be included in regulation 9 penalty charge notices and enforcement notices
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.

Of course this may not win an adjudication at the TPT, as adjudicator seem to have fallen in love with the words "substantial compliance", but for me, it is important to warn a PCN recipient that even if he submits represenations against a PCN, he must respond to the NtO despite having already submitted representations. This PCN does not make that clear.

I have to say I'm surprised to see this error, because it's been around in these and previous regulations for over 20 years.  Why can't councils just copy and past the clause into the PCN ?
« Last Edit: Yesterday at 11:24:16 am by Incandescent »
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Re: Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
« Reply #3 on: »
Great, thanks for this.

As a next step I shall submit the following to
Marston Holdings
southend.gov.uk
(as per PCN instructions) as an informal appeal:

Quote
The PCN received (see attached) is not compliant with Regulation 3 (1)(c) of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022.

The relevant section states:

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

(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."

This is not made clear in the instructions provided by the PCN

Is there anything else I should add at this stage?

Assuming this fails, I am more than happy to attempt this at Tribunal (assuming the most I am risking by doing so is the additional Ł35 for not paying the discounted rate within the 14 days)
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Re: Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
« Reply #4 on: »
What have 'Marston Holdings' got to do with this?

Do you understand why the PCN is not compliant?

The PCN states:

'If the penalty charge is not paid or challenged before...28-days from the date this penalty charge is issued..the Council may serve a Notice to Owner..'

This is materially incorrect in 2 respects.

Serving a NTO on the owner is NOT contingent upon whether it is 'challenged', the only condition is that a 28-day period has elapsed beginning with the date of service. Councils were making this mistake with PCNs years ago but after numerous adverse adjudication decisions(and you could probably throw in case law), PCNs served by CEOs have, where they've referred to the matter at all, used the phrase 'or successfully challenged'.

So this part of the PCN, which is mandated under the regs, is defective IMO.

But would the council cancel, in effect admitting their error?   

Can you give them any other reason to cancel e.g. been doing it for ever without issue, common practice in this road, you have a clean PCN record and won't do it again etc.

If the location is local you might want to take photos of any other large-scale contraventions in support.
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Re: Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
« Reply #5 on: »
Quote
What have 'Marston Holdings' got to do with this?

Lol no idea where that came from - that was supposed to just link to the council website to submit the appeal

Quote
Do you understand why the PCN is not compliant?

Based on Incandescent's earlier response, because the PCN suggests that responding to the NtO may not be necessary if informal appeals to the council had previously been made. I think that's effectively what you're saying as well? I'm not sure what the 2nd respect in which it is materially incorrect is though.

Quote
Can you give them any other reason to cancel e.g. been doing it for ever without issue, common practice in this road, you have a clean PCN record and won't do it again etc.

Many other vehicles regularly park on this section of the pavement when the street is full (which it always is from around 6pm - 9am the following morning). But as was already mentioned, the double yellows are clear and apply to the entire carriageway so I can't see that being a helpful defence. The only reason most other drivers can park there without issue is that the street is very rarely patrolled (parking otherwise unrestricted on both sides). I wouldn't want to second guess exactly why that stretch of pavement has been widened, or indeed what purpose is served by adding the DYLs, but it does seem pointless (no access of any kind is blocked by parking there).

In any case, I will re-write the appeal so that the wording is more clear and post the new version here before submitting.
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Re: Southend-on-sea, Code 01 Parked in a restricted street, Hainault Avenue
« Reply #6 on: »
These procedural improprieties are separate.

3(1) of the Appeals Regs -
The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022
These Regulations make provision entitling persons—who are or may be liable to pay penalty charges in respect of parking contraventions (in and outside Greater London), bus lane contraventions ou...
legislation.gov.uk


Mine relates to 2(d) and 2(f) of Schedule 2 to the General Regs:
The Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022
These Regulations, together with the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 (S.I. 2022/XXXX), provide for the civil enforcement of...
legislation.gov.uk

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