Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: b789 on January 17, 2024, 07:01:57 pm
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Very well done. We don't often see councils accept informal representations.
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Penalty cancelled.
(https://i.imgur.com/PyszhbG.jpeg)
(https://i.imgur.com/upV0MQD.jpeg)
(https://i.imgur.com/zSaYKkW.jpeg)
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Some councils can be very tardy in dealing with representations, we see this a lot.
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Checking the Wigan Council website, Case Status states:
"This Penalty Charge Notice is currently in the discount period. A 50% discount has been applied. You can still make a challenge if you have not previously challenged this PCN."
Keeper details are all correct on V5C and not an issue.
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There is no time limit for responding to informal reps (yours), although they have a common law duty to act fairly and expeditiously. There is a limit of 56 days to respond to formal representations against a Notice to Owner. ALso there is a limit of 6 months to actually issue an NtO, but they would have some serious explaining to do if it was over 3 months.
Have you checked the status of the PCN on their website ?
I presume the name and address on the V5 Registration Certificated is correct, up-to-date, and the same now as it was on the alleged contravention date ?
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Is there any timeline by which a response to the initial representation should be responded to? It is now over 40 days since initiating the representation.
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Initial representation submitted together with the drivers contemporaneous photos evidencing road markings obscured by snow and a pdf map showing the route taken to the location which, if inspected, will show no signs indicating that the area was a controlled zone for parking.
This is the final submission:
I am challenging this PCN with representations on the following grounds:
1. Road markings at the location where the vehicle was stopped were obscured by snow so there was no indication of a bay and therefore the driver would not be expected to look for any signs. The photographs provided by the CEO do not show any road markings and additional photographs taken by the driver upon discovering the PCN also show that any road markings were obscured by snow.
2. There are no signs indicating that this was a controlled zone for parking along the route taken from the A49 along Freckleton Street to the location of the alleged contravention on Swinley Lane. After returning to the vehicle and seeing the PCN, the driver had to walk 25m behind the vehicle to see any sign indicating any parking restrictions. The driver never passed this sign when manoeuvring the vehicle in to the location from the junction with Freckleton Street and Swinley Lane. There are no photographs from the CEO showing the vehicle and any sign in the same frame because it was impossible to do so.
3. A procedural impropriety by using the incorrect contravention Code [12] "Parked in a residents’ or shared use parking place or zone without a valid virtual permit or clearly displaying a valid physical permit or voucher or pay and display ticket issued for that place where required, or without payment of the parking charge” should not have been used for the following reason: It should be contravention code [16]: "Parked in a permit space or zone without a valid virtual permit or clearly displaying a valid physical permit where required" . Contravention code [16] is the correct code, not code [12].
4. An additional procedural impropriety is that the PCN cites the wrong period for payment. The Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022, Schedule 2 paragraph 2(d) states: "that the penalty charge must be paid within the period of 28 days beginning with the date on which the alleged 'contravention' occurred,". The PCN actually states: "28 days from the date of 'service'", which is wrong and which introduces the potential for prejudice.
Based the above points, I believe that the PCN has been issued incorrectly and should be cancelled.
Additional evidence includes photographs taken by the driver upon discovery of the PCN showing any road markings obscured by snow. Also, no evidence of any signs within 25m of the vehicle. (evidence_1.jpg, evidence_2.jpg, evidence_3.jpg and evidence_4.jpg)
The following link to a Google Street View of the entrance to Freckleton Street evidencing no signs indicating a "Controlled Parking Zone": https://maps.app.goo.gl/JLocXJ1hE9cN15gZ6
A Google map indicating the route taken from the junction of the A49 and Freckleton Street to the location of the alleged parking contravention. (map_1.pdf)
I'll keep you updated on progress. Thanks for the assistance.
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Not really. An informal challenge gets the ball rolling, and you hope they'll make a booboo of their response.
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So, not too much effort needed at this stage! ::)
Is there any benefit or advantage delaying the initial reps until the last minute or should the driver just go ahead with it now?
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Will the appeal be to someone (an adjudicator?) with a legal background?
Are you kidding ! All you'll get is a Fob-Off letter from a lowly official using a "computer says no" terminal. This person will have no knowledge of the law whatsoever, and is probably on the Minimum Wage. The only time anything is seen by a legally qualified person is at adjudication, in this case it would be the Traffic Penalty Tribunal. All the councils want is your money !
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Based on the information kindly provided, this is a draft of what I am planning to advise the driver to put in their initial reps:
I am challenging this PCN on the following grounds:
1. Road markings were obscured by snow so there was no indication of a bay and therefore the driver would not be expected to look for any signs. The photographs provided by the CEO do not show any road markings and additional photographs taken by the driver upon discovering the PCN also show that any road markings were obscured by snow.
2. There are no signs indicating that this was a controlled zone for parking along the route taken from the A49 along Freckleton Street to the location of the alleged contravention on Swinley Lane. After returning to the vehicle and seeing the PCN, the driver had to walk over 25m behind the vehicle to see any sign indicating any parking restrictions. The driver never passed this sign when manoeuvring the vehicle in to the location from the junction with Freckleton Street and Swinley Lane. There are no photographs from the CEO showing the vehicle and any sign in the same frame because it was impossible to do so.
3. Contravention Code 12 "Parked in a residents’ or shared use parking place or zone without a valid virtual permit or clearly displaying a valid physical permit or voucher or pay and display ticket issued for that place where required, or without payment of the parking charge” is a procedural impropriety for the following reason: It should be code 16 "Parked in a permit space or zone without a valid virtual permit or clearly displaying a valid physical permit where required"
4. An additional procedural impropriety is that the PCN cites the wrong period for payment. The Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022, Schedule 2 paragraph 2(d) state: "that the penalty charge must be paid within the period of 28 days beginning with the date on which the alleged contravention occurred,". The PCN states: "28 days from the date of service", which is wrong and which introduces the potential for prejudice.
Based the above points, I believe that the PCN has been issued incorrectly and should be cancelled.
Additional evidence will be the drivers own photographs which show an absence of visible road markings due to snow. A Google maps plan showing the route taken from the A49 along Freckleton Street to the parking location on Swinley Lane that shows there are no "Controlled Zone" signs to indicate restrictions on parking. A GSV picture showing there is only one tiny sign along the 50+m stretch of road where the bay is located and that it was 25m behind the alleged contravention location.
If anyone can provide a critique, I would be grateful. Any pointers to the relative legislation would be appreciated too.
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Also the PCN cites the wrong period for payment It should be 28 days from date of contravention but says 28 days from date of service
In most cases these will be the same but not always so there is a potential for prejudice and that potential is enough
Going through the Traffic regs (https://www.legislation.gov.uk/ukdsi/2022/9780348232752/part/2/chapter/1) 3(2)(a)(ii) states:
any such representations made outside the period of 28 days beginning with the date on which the notice is served (“the payment period”) may be disregarded;
I can't find anywhere it states that date of "contravention" should be used whereas, in the legislation it keeps referring to date of "service".
Edited to add: I believe the procedural impropriety is that referred to in The Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022, Schedule 2 paragraph 2(d): "that the penalty charge must be paid within the period of 28 days beginning with the date on which the alleged contravention occurred,"
Is this correct?
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So, looking for the key words to use in the representations...
1. Procedural impropriety
2. Inaccurate statutory information
3. Obscured road markings
4. Wrong contravention code
Am I on the right track here?
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There are a growing number of cases where the date issue wins in most cases it will be semantics but the PCN does not contain accurate statutory information
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Thank you for pointing that out @Pastmybest. However, on the front of the PCN it states "PCN served on: 17/01/2024". It also states on the front "Date of alleged contravention: 17/01/2024". I thought that "date of service" only applies to documents served by post.
So that I can get my head around all these difference between private PCNs and Council ones, the driver should make representations to the authority about the following facts:
1. Road markings were obscured by snow so there was no indication of a bay.
2. There were no signs indicating that it was controlled zone for parking on the route taken from the A49 via Freckleston Street to the location of the alleged contravention on Swinley Lane.
3. The procedural impropriety that the wrong contravention code has been used. It should have been Code 16, not Code 12.
4. The procedural impropriety that the the PCN should state that payment should be 28 days from the date of "contravention" but instead states 28 days from the date of "service" which introduces the potential for prejudice.
I'm assuming that this is sone using the council website or is it better to send it as a PDF attachment to an email?
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Apart from the road markings being obscured by snow so no indication of a bay so you would not look for signs The contravention is wrong they cite code 12 "Parked in a residents’ or shared use parking place or zone without a valid virtual permit or clearly displaying a valid physical permit or voucher or pay and display ticket issued for that place where required, or without payment of the parking charge"
It should be code 16 "Parked in a permit space or zone without a valid virtual permit or clearly displaying a valid physical permit where required"
Also the PCN cites the wrong period for payment It should be 28 days from date of contravention but says 28 days from date of service
In most cases these will be the same but not always so there is a potential for prejudice and that potential is enough
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what is an "approved device notice"?
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Thank you for that information. Is there any format that they should appeal in? Are there any examples of similar appeals using that argument. Will the appeal be to someone (an adjudicator?) with a legal background? Is there any advice on whether it is best to leave any appeal to the last minute?
Sorry for all the questions but as I mentioned, I am very up to speed with private parking PCNs but council ones are a new field for me.
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Well, OK, give it a go.
Having now seen the back of the PCN it seems to me that the information on the back of the PCN is not compliant with the regulations: -
https://www.legislation.gov.uk/ukdsi/2022/9780348232752/part/2/chapter/1
Read Section 3 and compare it to your PCN.
Not conveying what the regulations require is a procedural impropriety and grounds for cancellation of the PCN.
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These are the only other images from the Wigan CC website:
(https://i.imgur.com/ty9lHSh.jpg)
(https://i.imgur.com/Efe1qsX.jpg)
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That sign is 20m behind the spot and the driver never passed it. The driver turned into Swinley Lane from Freckleston Street and parked exactly opposite Freckleston Street. No "Controlled Zone" signs were passed and the tiny sign you are referring to was not passed or even seen.
The road was covered with snow that morning and any markings were obscured. There markings are obvious in the GSV pictures as they were taken in the summer on a dry day. After the heavy snow that morning, they were obscured.
The photos with the time stamp are from the Warden. The other photos were taken by the driver when he returned to the car and saw the PCN.
Here is the back of the PCN:
(https://i.imgur.com/SMKubmM.jpg)
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There is a sign for the bay: -
https://maps.app.goo.gl/poeZipHWDBMkGZBD7
However the bay is quite long, so I would have expected at least two signs. Whether this would win on its own at adjudication is another matter.
You also say the carriageway markings weren't visible. I have to say that doesn't look credible when looking at the photos. Are the photos yours or theirs ? Bay markings means it is encumbent on the motorist parking there to check for signs, especially as the bay is in a controlled zone, meaning all parking will be in bays.
https://maps.app.goo.gl/BdnYHj7h4vav7jhd9
Please post up the back of the PCN so we can check for fatal errors that can win on their own.
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Edited to add that the driver had been unable to find a parking place at the hospital. They approached Swinley Lane from Freckleton Street which is exactly opposite the spot they parked at. There are no signs anywhere on that approach from the A49 all the way down Freckleton Street to the junction with Swinley Lane to the location they parked at to indicate any parking restrictions.
GSV: https://maps.app.goo.gl/XX2EcTap9Xm78hE78
(https://i.imgur.com/x0nxkgN.jpg)
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I normally deal with private PCNs over on MSE but I'm handling this penalty notice for a family member. He was stopped at the location, Swinley Lane, Wigan, completely unaware that there were any restrictions. There were no obvious or prominent signs and, as can be seen in the photos he took at the time, there are no signs or road marks to indicate any restrictions.
The wardens photos include a photo of a sign but there is no indication where this sign is in relation to the car. At the time, the sign that was photographed by the warden was noticed on a lamppost 20m behind where the car was stopped.
On the day, the road was covered in snow and no road markings were obvious or observed.
Advice from the forum would be appreciated.
A GSV view of the location is here: https://maps.app.goo.gl/zTtUtUTapwT7qjHy6
(https://i.imgur.com/4Bja2az.jpg)
(https://i.imgur.com/sgNKf5x.jpg)
(https://i.imgur.com/ypHbbSG.jpg)
(https://i.imgur.com/r9eOIGA.jpg)
(https://i.imgur.com/F5zzSkG.jpg)
(https://i.imgur.com/kC0ovCV.jpg)
(https://i.imgur.com/aX2CKa3.jpg)