Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: flash2005 on November 24, 2023, 03:06:55 pm
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Please why have you added the last post to this thread?
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hey @mrmustard could you please check your inbox, many thanks!
I started the Appeal on 31 January 2024, as follows:
1 Procedural impropriety
The Appellant provided live links in his formal representations to the supporting documents. The links are contained in a google drive folder which records the number of times they have been read i.e. by the use of a 'clicks' count. The record of those clicks given to me today shows that the Enforcement Authority ('EA') did not click on them at all. They did not therefore read the four documents before rejecting the representations which they were part of. The duty on the EA is to consider the representations. If they have not looked at them the EA cannot have considered them and that is a procedural impropriety.
As it happens the subject matter of the decision in Malcolm Newman v London Borough of Hounslow has been subject to refused decisions by Mr Houghton in later cases. The fact that the decision which was prayed in aid is no longer followed by the adjudicator is irrelevant as to whether the EA should have read it or not, they should have looked at it and decided if it was legally persuasive or not.
2 Notice to owner non-compliant.
As formal representations
3 Procedural Impropriety as regards the Notice of Rejection
There is no evidence that the EA considered the representations to the effect that the PCN is non-compliant (two adjudicators now say it is) nor that the Notice to owner is non-compliant. That is a procedural impropriety.
I was at the tribunal today and gave them my list of next week's hearings, seven of them, for 7 March, including this one. They told me that the council had just notified them that the Appeal would not be contested and the PCN is cancelled. I have checked the council site on line and the PCN does show as cancelled.
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Worth the shandy then. Thanks for the spare chips.
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I started the Appeal on 31 January 2024, as follows:
1 Procedural impropriety
The Appellant provided live links in his formal representations to the supporting documents. The links are contained in a google drive folder which records the number of times they have been read i.e. by the use of a 'clicks' count. The record of those clicks given to me today shows that the Enforcement Authority ('EA') did not click on them at all. They did not therefore read the four documents before rejecting the representations which they were part of. The duty on the EA is to consider the representations. If they have not looked at them the EA cannot have considered them and that is a procedural impropriety.
As it happens the subject matter of the decision in Malcolm Newman v London Borough of Hounslow has been subject to refused decisions by Mr Houghton in later cases. The fact that the decision which was prayed in aid is no longer followed by the adjudicator is irrelevant as to whether the EA should have read it or not, they should have looked at it and decided if it was legally persuasive or not.
2 Notice to owner non-compliant.
As formal representations
3 Procedural Impropriety as regards the Notice of Rejection
There is no evidence that the EA considered the representations to the effect that the PCN is non-compliant (two adjudicators now say it is) nor that the Notice to owner is non-compliant. That is a procedural impropriety.
I was at the tribunal today and gave them my list of next week's hearings, seven of them, for 7 March, including this one. They told me that the council had just notified them that the Appeal would not be contested and the PCN is cancelled. I have checked the council site on line and the PCN does show as cancelled.
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Perhaps along the lines of.....
I understand the authority's position regarding the contravention and the strict liability position which they have taken regarding compliance, as is their prerogative. However, this invites me to adopt a similar approach to their compliance with the Appeals Regulations, specifically regulation 6 and the duty placed upon an authority when rejecting representations.
I submit that in this case there are clear and material defects in the NOR.
The regulations to which the authority refer specify matters which are to be included in a NOR. There is no suggestion that parliament intended that any of these were of more importance than others and therefore it should be presumed that each carries equal weight and that as regards consideration of procedural impropriety on the authority's part I submit that equal weight should be applied by the adjudicator to each provision. Whereas in the case of individual words where it might be possible to consider synonyms and the like and apply the principle of 'substantial compliance', I submit that no such leeway should be afforded to an authority whose NOR omits complete regulatory provisions or misstates their meaning.
Specifically and quite correctly the NOR refers to the authority's power to serve a Charge Certificate and the means by which an appeal may be registered. Similarly, it refers to the issue of 'costs', albeit that this is incomplete. But I submit that the effect of this mandatory information is rendered useless when, without exception, the NOR misquotes the time period which is the trigger for each of these coming into effect. The NOR states:
Pay the penalty within 28 days of this letter being served..
Appeal..must be done no later than 28 days of this letter being served..
If you do not pay or appeal before the end of the 28 day period ..we may serve a Charge Certificate..at this stage you have no further opportunity to appeal
Whereas the regulations prescribe:
...within the period of 28 days beginning with the date of service of the decision notice.
In the event that the authority might attempt to finesse this flaw by stating that their internal processes allow this extra day and that they would not exercise their power any earlier, I submit that the regulations do not allow such variations. The simple fact is that if the owner paid on day 29 or (in the authority's mind) submitted an appeal on day 29, they would in either case have lost their legislative rights and left themselves open to the authority's goodwill.
At the same time that the regulations impose strict requirements upon the authority as regards the NOR, they provide the adjudicator with discretion to accept appeals submitted late. However, the NOR omits any reference to this vitally important provision - particularly in the context of current well-documented postal problems- and overtly states that 'if you do not ..appeal before the end of the 28-day period..you have no further opportunity to appeal.' which statement I suggest is contrary to law.
I respectfully submit that the above constitute a procedural impropriety on the authority's part and that my appeal should be allowed on these grounds.
Just some thoughts.
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I am being the representative
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The wording issue was tried by me last week and failed I am sorry to say. I used two of those cases. I also understand from Mr Mustard that EH has now changed his mind?
Re served/delivered: the deemed date of receipt is Monday the 29th. If you wanted to take the risk and apply to the Tribunal on the very last day of 28 days beginning with that date (you can work it out when it is), and they serve a charge certificate, that would certainly prove prejudice.
I also used the served/delivered argument in the same case last week which the adjudicator did not address in the decision so I am seeking a review. In that case, the appellant did not receive the NOR until 3 days after the deemed date of service.
As usual, when "the usual suspects" employ technical arguments, it's in the lap of the gods these days.
As for examples of appeal, if you mean cases in support I am unsure at present. Also, adjudicators do not like being inundated with others' decisions unless one is very specific about what in the decision applies to your case.
I would have to check the representations against the NOR to see if there is any failure to consider. Some adjudicators, even if there is a clear failure to consider a technical argument, will still refuse an appeal on said issue if they do not agree with it. Cannot access them anymore.
Just giving balanced and pragmatic advice. As Incandescent says, now a no-brainer.
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Well the obvious next step is to appeal, you have to decide whether you want to do this yourself or whether you would prefer to have a representative.
There is also a served v delivered flaw in the notice of rejection, which is an argument some adjudicators accept.
As the penalty doesn't go up if you lose, there's no point in paying now.
Yes I am happy to appeal. Any good examples of appeal I can leverage ?
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+1
It is now a complete no-brainer to take them to London Tribunals as they have not re-offered the discount, and the penalty remains the same and there are no additional costs.
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Well the obvious next step is to appeal, you have to decide whether you want to do this yourself or whether you would prefer to have a representative.
There is also a served v delivered flaw in the notice of rejection, which is an argument some adjudicators accept.
As the penalty doesn't go up if you lose, there's no point in paying now.
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The council has rejected the formal representation. No links have been clicked either from the first appeal or the second representation. Please see below
Can I get advice on the next steps please ? @Hippocrates, @cp8759, @mrmustard
(https://i.imgur.com/ypAY8Ms.png)
(https://i.imgur.com/jRt0rDZ.png)
(https://i.imgur.com/BIMJJrU.jpeg)
(https://i.imgur.com/AAZgdFC.jpeg)
(https://i.imgur.com/wwKqGM1.jpeg)
(https://i.imgur.com/pBz88cv.jpeg)
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I've added one final comment, also please note this is a formal representation, not an appeal.
Many thanks, I have changed the word appeal to formal representation in the document and also submitted it to the council now.
I have removed sharing on the draft document so that there is no risk of anybody clicking the short.io links by mistake.
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There are good vibes. :)
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I've added one final comment, also please note this is a formal representation, not an appeal.
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@cp8759 - There is still time available for the appeal, but I wanted to check if there is any further feedback ?
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Should I submit the appeal now ?
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I would not deploy the link tactic at this stage: it's warning them that they have a problem and they can fix it by opening the link. A failure to consider at the informal stage has very little weight, you really need them to fail to open the link now when they consider your challenge to the notice to owner. You would then deploy the click statistics at the tribunal stage, when it's too late for the council to go back and remedy their error.
On the second ground (date of service vs date of contravention), there are these three cases you can cite:
https://drive.google.com/file/d/1RJouvEIzKoxr0VLtZ6EnMSiquc3Y9QMT/view
https://drive.google.com/file/d/1qjkKYJxAHhFvrWhpwTqGwhrUfa-pD5Sv/view
https://drive.google.com/file/d/1HLgXkoFeKSPDT1k09A_jPyaybFvP98ac/view
I would quote them by only giving the names of the parties, to Richard Weisz v London Borough of Barnet, Malcolm Newman v London Borough of Hounslow and Branislav Baca v Portsmouth City Council, that way they're far less likely to claim they looked them up in the register (and the last one can't be looked up anyway).
You then have multiple links and to prove they've considered the representations as required by law they would have to open all four, which they're unlikely to do.
I've also added a few comments to the google doc.
I have made the suggested changes in the document. Please let me know if there is any further feedback. I haven't added the final links yet to reduce the risk of accidental clicks.
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I would not deploy the link tactic at this stage: it's warning them that they have a problem and they can fix it by opening the link. A failure to consider at the informal stage has very little weight, you really need them to fail to open the link now when they consider your challenge to the notice to owner. You would then deploy the click statistics at the tribunal stage, when it's too late for the council to go back and remedy their error.
On the second ground (date of service vs date of contravention), there are these three cases you can cite:
https://drive.google.com/file/d/1RJouvEIzKoxr0VLtZ6EnMSiquc3Y9QMT/view
https://drive.google.com/file/d/1qjkKYJxAHhFvrWhpwTqGwhrUfa-pD5Sv/view
https://drive.google.com/file/d/1HLgXkoFeKSPDT1k09A_jPyaybFvP98ac/view
I would quote them by only giving the names of the parties, to Richard Weisz v London Borough of Barnet, Malcolm Newman v London Borough of Hounslow and Branislav Baca v Portsmouth City Council, that way they're far less likely to claim they looked them up in the register (and the last one can't be looked up anyway).
You then have multiple links and to prove they've considered the representations as required by law they would have to open all four, which they're unlikely to do.
I've also added a few comments to the google doc.
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Please see the draft appeal here (link below) which combines the strategy from both @cp8759 and @mrmustard. Kindly let me know any feedback. Commenting privileges are enabled in the document.
Appeal Draft (https://docs.google.com/document/d/11O5TkJLfha7VC6VpjR1KLR0nCCI_qU-hR0RxyU7xVoE/edit?usp=sharing)
Needs to be tidied up. But the basic points are there.
Many thanks.
Can you suggest what tidying up is required, as I have tried to do the best possible draft. If you need edit access please click on the button in google docs.
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Please see the draft appeal here (link below) which combines the strategy from both @cp8759 and @mrmustard. Kindly let me know any feedback. Commenting privileges are enabled in the document.
Appeal Draft (https://docs.google.com/document/d/11O5TkJLfha7VC6VpjR1KLR0nCCI_qU-hR0RxyU7xVoE/edit?usp=sharing)
Needs to be tidied up. But the basic points are there.
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Ok for the moment. I won a case some years ago re the first point.
M Dyett v Surrey County Council (with Elmbridge B C)
https://drive.usercontent.google.com/download?id=1OPAoSU2TYodCZsIX8zDgQrxvkrqXkBBD&authuser=0
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Please see the draft appeal here (link below) which combines the strategy from both @cp8759 and @mrmustard. Kindly let me know any feedback. Commenting privileges are enabled in the document.
Appeal Draft (https://docs.google.com/document/d/11O5TkJLfha7VC6VpjR1KLR0nCCI_qU-hR0RxyU7xVoE/edit?usp=sharing)
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You're not restricted to one ground, you can use both.
Try posting a draft on here in the first instance.
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This was the strategy recommended bt @cp8759 which I have followed and the council has not seen the link to the report Link (https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/city-of-edinburgh-02-parked-in-a-restricted-street-lochrin-buildings-gilmour-pla/msg7413/#msg7413)
However the procedural impropriety by @mrmustard has also worked in the past. Which one is the best to adopt here ?
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Case No: : 2230448785 which Mr Mustard won and kindly sent to me yesterday re another case. I would add procedural impropriety as a ground.
By the way, I have a certificate in Dyslexia from Kingston University.
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Got the NTO today. Can I get some guidance on the next steps please ?
(https://i.imgur.com/25UYEu5.png)
(https://i.imgur.com/N1Advlq.jpg)
(https://i.imgur.com/4pZPUpg.jpg)
(https://i.imgur.com/UaOcsOp.jpg)
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Nothing to do until the Notice to Owner arrives
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@cp8759, @mrmustard
Can you advise me on the next steps please ?
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Just received a response from the council, who have rejected the appeal. I have checked the link report and they haven't checked the report which was submitted with the appeal. What are the next steps here please ?
Click Report
(https://i.imgur.com/jLiQ3pR.png)
Letter from council
(https://i.imgur.com/LEwGBKs.png)
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Many thanks, I have submitted the appeal.
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You don't need to quote any regulations, the relevant ground is "other grounds".
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That's actually one of the best I've seen.
Send it off and let's see what comes back.
I wanted to check what xxx applicable regulations should I quote ?
Also which option should I select ? @cp8759
(https://i.imgur.com/uqPo6cR.png)
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That's actually one of the best I've seen.
Send it off and let's see what comes back.
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@cp8759, please see the draft representation above.
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Dear Sir,
Further to PCN AF06741795, I would like to make informal representations based xxx of the applicable Regulations, as well as a further or alternative plea that the PCNs be dismissed due to there being ‘compelling reasons to cancel the ticket(s)’.
The driver of the vehicle was my wife who is severely dyslexic. Unfortunately the signs were very confusing with the overlapping time frames as well as the days of the week, and hence she made a mistake in interpreting them. I can assure you that her disability was the driving factor in this mistake, and she will make sure it will never happen again. I have attached a dyslexia screener report at the below link for your review as evidence.
Link to the report - xxx
While I appreciate and accept the reasons for punitive measures to enforce parking restrictions, I would like to make clear that there is no cure for dyslexia and not treatable, so a penalty charge at this difficult time would simply cause hardship to my family and serve no purpose in helping her improve for the future. As such, and in consideration of this, I would request that you kindly rescind the PCNs and accept my deepest apologies, and assurance that measures are in place to prevent any future issues.
Yours faithfully
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That looks fine but you need to create a new link that you should not publish anywhere nor open yourself, as you need the click count to remain at zero.
Try drafting a representation and put it on here for review.
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@cp8759 - Here is the report link for testing, I have tried to use the website recommended. I have uploaded the PDF on dropbox, but if you have a better recommendation let me know.
https://cgr8.short.gy/XdWzA2
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I use https://short.io/ unless it's a video, in which case I just put an unlisted video on youtube.
You can use the report but isn't there anything more recent? Would the be anything on the driver's medical history?
It is a PDF report which can be included in the link
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I use https://short.io/ unless it's a video, in which case I just put an unlisted video on youtube.
You can use the report but isn't there anything more recent? Would the be anything on the driver's medical history?
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Definitely the second, I'm not sure the first would be acceptable at all to the tribunal. Normally I'd set up the links myself, but if you have the ability to do that then so much the better, saves me a bit of time.
Which service were you going to use ? This subscription I have for link tracking is associated with my work so was a bit wary of using it for a personal situation and would use it only as a last resort. If there is another alternative, then I would prefer that.
Is there evidence of dyslexia that can be provided via a link? And anything illustrating its severity?
There is a very old report(more than decade old) which is available. will that work ?
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I have subscription to a service called docsend.com, which allows you to track when the link is opened. There are 2 options - one is where you can force the person to enter an email id before they can open the link and the another one is where they can just open the link, and you can track when it was opened how much time they spent reading it. Does that work ? Which option is better ?
Definitely the second, I'm not sure the first would be acceptable at all to the tribunal. Normally I'd set up the links myself, but if you have the ability to do that then so much the better, saves me a bit of time.
Being dyslexic - is that a good mitigating circumstance to get confused between saturday and sunday as well as figuring out the overlapping parking slot timings in the signs ?
Is there evidence of dyslexia that can be provided via a link? And anything illustrating its severity?
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I think your best bet might be the strategy of last resort which is described here (https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/city-of-edinburgh-02-parked-in-a-restricted-street-lochrin-buildings-gilmour-pla/msg7413/#msg7413), however that would be reliant on you having some relevant and meaningful mitigating evidence to put to them.
I have subscription to a service called docsend.com, which allows you to track when the link is opened. There are 2 options - one is where you can force the person to enter an email id before they can open the link and the another one is where they can just open the link, and you can track when it was opened how much time they spent reading it. Does that work ? Which option is better ?
Being dyslexic - is that a good mitigating circumstance to get confused between saturday and sunday as well as figuring out the overlapping parking slot timings in the signs ?
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Well the best photo of the sign is the one that you've taken yourself, so definitely don't send that anywhere, these are the council photos:
(https://i.imgur.com/Nhyjswh.jpg)
(https://i.imgur.com/js4TAA4.jpg)
(https://i.imgur.com/zPelTC1.jpg)
(https://i.imgur.com/X15UgGc.jpg)
(https://i.imgur.com/pcCVtIG.jpg)
This is the map tile (https://store.traffweb.app/redbridge/documents/parkmap/msched/AJ11_rv1_1.pdf) and the TMO is here (https://store.traffweb.app/redbridge/documents/parkmap/sched/1.%20The%20Redbridge%20(Waiting,%20Loading,%20Stopping%20and%20Street%20Parking%20Places)%20Consolidation%20Order%202021.pdf).
I think your best bet might be the strategy of last resort which is described here (https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/city-of-edinburgh-02-parked-in-a-restricted-street-lochrin-buildings-gilmour-pla/msg7413/#msg7413), however that would be reliant on you having some relevant and meaningful mitigating evidence to put to them.
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The Council order is somewhere on Pepipoo under a similar thread.
The one issue we have never bottomed out for this taxi rank is that it is a TfL appointed one. This has been the case ever since the Slug and Lettuce used to be called the Lizard Lounge.
The photo of the sign has the TfL rank details to the top.
https://content.tfl.gov.uk/tfl-taxi-ranks-booklet.pdf
At one stage TfL only allowed black cabs on their ranks.
I wonder what sort of agreement TfL have with the Council for this rank and whether this gives us "wriggle room".
Mike
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There's no point in paying at this stage, as we get two shots at making representations before the discount is lost, so we might as well give it a go.
There's the issue Mr Mustard has identified, but we also have the fact that the traffic order might be defective. On top of that, none of the photos we've seen prove a contravention, @flash2005 please give us the PCN number and the number plate so that we can look at the council photos.
PCN - AF06741795
Reg - YU02SEF
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There's no point in paying at this stage, as we get two shots at making representations before the discount is lost, so we might as well give it a go.
There's the issue Mr Mustard has identified, but we also have the fact that the traffic order might be defective. On top of that, none of the photos we've seen prove a contravention, @flash2005 please give us the PCN number and the number plate so that we can look at the council photos.
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Yes, pay-up !
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Mr Mustard has more experience than me, but I think this is thin gruel, as I'm not sure adjudicators are of one mind on this one, bearing in mind it is a Regulation 9 PCN, so served at the roadside to the vehicle, (or driver) as soon as the PCN is printed. Certainly the council won't give way so you's have to risk the full PCN penalty at London Tribunals for an unbiased decision.
Is there any other option ? I have yet to do the appeal
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Mr Mustard has more experience than me, but I think this is thin gruel, as I'm not sure adjudicators are of one mind on this one, bearing in mind it is a Regulation 9 PCN, so served at the roadside to the vehicle, (or driver) as soon as the PCN is printed. Certainly the council won't give way so you's have to risk the full PCN penalty at London Tribunals for an unbiased decision.
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The driver of the vehicle(wife) parked on George Lane and made a mistake confusing Sunday with Saturday restrictions as she was in a hurry and unfortunately got a ticket. The signs require a bit of thinking to figure out, but they are quite clear once you interpret them properly.
I am not sure if there are any grounds to contest this. However MrMustard has highlighted a procedural impropriety in another thread which can potentially be used here - quoting here.
"There is a wording error on the PCN which arises out of a legislative change in 2022. The PCN should say you have to pay it within 28 days of the alleged contravention date but it says date of service. That is a procedural impropriety in my view which means an adjudicator must cancel the PCN if they agree."
Given this worked previously can this be used again to cancel the ticket ?
PCN
(https://i.imgur.com/pgCBDgo.png)
Picture
(https://i.imgur.com/uFWH25f.png)
Sign
(https://i.imgur.com/yrCtMXJ.jpg)
Google Maps Link
https://maps.app.goo.gl/RTz6S1iZdUi4bo9X6