Free Traffic Legal Advice

Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: ttn48 on February 18, 2024, 05:07:22 pm

Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: cp8759 on June 24, 2024, 10:01:21 pm
Outcome (https://drive.google.com/file/d/1u80QbPoC9E4apFjrcN7Iq-Gn-X4svu1m/view).
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: cp8759 on April 11, 2024, 07:54:24 pm
@ttn48 well I've not heard back from you but here is The Kingston upon Hull City Centre (Controlled Parking Zone) Order 2018 (https://drive.google.com/file/d/1LaWP9eKWnhvnVqTQuiVFXKrqhH0rBVnT/view).

The relevant entry is on page 52:

the east side from a point 47 metres south of the southern kerbline of Liberty Lane in a southerly direction to a point 75 metres south of the southern kerbline of Liberty Lane

I'm not convinced it is marked correctly.

Further to this, article 8(2) of the order provides that when suspending a bay:

(2) Any person suspending the use of a parking place or loading bay or any part thereof in accordance with the provisions of paragraph (1) or paragraph (2) of this Article shall thereupon -
(a)Place or cause to be placed, at parking bays controlled by a pay and display ticket machine, a traffic sign indicating that waiting is prohibited

Section 64 of the Road Traffic Regulation Act 1984 (https://www.legislation.gov.uk/ukpga/1984/27/section/64) says that any traffic sign must be:

(a) specified by regulations made by the relevant authority , or
(b) authorised by the relevant authority,


As the devices they have used are neither specified by the Traffic Signs Regulations and General Directions 2016 (https://www.legislation.gov.uk/uksi/2016/362/schedule/3/made) nor specifically authorised by the secretary of state, there was no traffic sign as required by article 8(2) of the order, so there was no suspension in force.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: cp8759 on April 06, 2024, 03:02:34 pm
I think they'd lose on the first point. That being said, they've not reoffered the discount so there's no reason not to go the full distance.

These two cases come to mind:

Richard Mills v Transport for London (2180309331, 15 September 2018) (https://drive.google.com/file/d/1gdnVicBTpZT77MyViJoqXvfBoT9VBBY8/view)
James Cox v West Sussex County Council (with Mid Sussex DC) (XS00001-2101, 19 February 2021) (https://drive.google.com/file/d/1zJJTmiX5NFWwRGB9w_jAXAnalytI-hyC/view)

I'm going to drop you a PM in case you would prefer to be represented.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Phantomcrusader on April 05, 2024, 07:33:02 pm
The suspended parking is pay and display parking which requires an order made under sections 45 and 46 of the Road Traffic Regulation Act 1984 and therefore I don't think they've quoted the correct Traffic Regulation Order in their notice of rejection since they don't quote these sections. No waiting cones are for use where a temporary traffic order or notice imposes a temporary no waiting restriction (a code 01 PCN), they're not a traffic sign authorised to convey a parking place suspension. If they were, there would be no need for the DfT to authorise applications from councils seeking authority to place parking suspension signs.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Incandescent on April 05, 2024, 06:40:42 pm
I can imagine them saying in the office, "who is this guy !"

Good luck and hope you win, BTW
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on April 05, 2024, 04:55:00 pm
In fact I had already sent in my representation when I read your last post, @cp8759, and this was the representation I made:-
(https://i.imgur.com/erFWA5V.jpeg)

.
I have today received the notice of rejection.
.

(https://i.imgur.com/pQ8jZZd.jpeg)
(https://i.imgur.com/fYfuWwR.jpeg)
(https://i.imgur.com/9OCNzrF.jpeg)
(https://i.imgur.com/mzITCKV.jpeg)

This is my summary of their responses to the three points in the representation.
1) The contravention did not occur
- they say it did because a traffic cone is enough.
2) Procedural impropriety (A regulation 9 PCN must include wording that representations "must be made to the enforcement authority in the form and manner and at the time specified in the notice to owner.")
- This confused them, I think, and me. 
An additional piece of maybe relevant information is that before they had sent the NTO I had (foolishly) submitted a 2nd informal representation with points 1 and 2 in.  They replied at that point (21 Feb) to say 'a further attempt at an informal challenge is not possible', and 'The second challenge you submitted will be held on file until you have submitted your formal representation'. 
They seemed to think I was complaining about them not considering my 2nd informal representation - but of course I wasn't.
3) Procedural impropriety (28 day period wrong) - they kinda disagree.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: cp8759 on March 31, 2024, 08:11:46 pm
Thanks very much for all the advice.  It is very much appreciated.

For my draft response to the NTO, the online form only allows one of the 'specified grounds' boxes to be ticked, so I shall reply by post - using the Royal Mail 'Signed for' service to ensure it is received.
@ttn48 I would strongly recommend you make representations online. The website might limit what you can say or what boxes you can tick, but the solution is to stick everything into a PDF file and upload it as an attachment.

Sending something signed-for is no guarantee of delivery, it simply creates a (somewhat hit and miss) record of whether it has actually been delivered. The only guaranteed service is special delivery, but that costs almost £7 nowadays.

I'd suggest putting the representation in a PDF and getting a screenshot of the confirmation page is the way to go. Other than that your representation is amongst the best I've seen from a new member.

In the meantime I'll request the traffic order.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on March 24, 2024, 04:02:29 pm
Thanks very much for all the advice.  It is very much appreciated.

For my draft response to the NTO, the online form only allows one of the 'specified grounds' boxes to be ticked, so I shall reply by post - using the Royal Mail 'Signed for' service to ensure it is received.

On a photocopy of page 3 of the NTO I will tick The Specified Grounds boxes against:
* The alleged contravention did not occur.
and
* There has been a procedural impropriety by the enforcement authority.

On a photocopy of page 4 of the NTO I will write:
The alleged contravention did not occur.
Penalty charges can only be imposed by signs authorised under section 64(2) of the Road Traffic Regulation Act 1984, this means either signs authorised by the Traffic Signs Regulations 2016, or by signs specifically authorised by the Secretary of State.
The Traffic Signs Regulations 2016 do not authorise any parking suspension signs, and a search of the Department for Transport website at https://www.dft.gov.uk/traffic-auths/ indicates that Hull City Council has not obtained a special authorisation from the Secretary of State for the use of any parking suspension signs.
In the absence of a lawful parking suspension sign, the contravention alleged cannot have occurred.

There has been a procedural impropriety by the enforcement authority.
PCN KH13981341 is non-compliant with regulation 3 in the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 (https://www.legislation.gov.uk/uksi/2022/576/regulation/3) which state:
"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."
PCN KH13981341 does not include the information set out in 3 (1) (c).

There has been a procedural impropriety by the enforcement authority.
The wording of PCN KH13981341 in terms of the 28 days period is wrong since it does not comply with Schedule 2 para. 2 in the Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022 (https://www.legislation.gov.uk/uksi/2022/71/schedule/2) which state
(d)that the penalty charge must be paid within the period of 28 days beginning with the date on which the alleged contravention occurred,

and I will sign and date the form as instructed.

Please let me know if I've missed anything.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Hippocrates on March 21, 2024, 01:54:40 pm
Please post up your draft first.

Incandescent is correct.  There is also another issue with the PCN too.

If you were a lawyer, you would be aware of the scattergun approach: stick everything in.

The wording of the PCN in terms of the 28 days period is wrong since it does not comply with Schedule 2 para. 2 @ 
https://www.legislation.gov.uk/uksi/2022/71/schedule/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,
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on March 21, 2024, 01:03:38 pm
You may be right, but it's pretty nuanced.  I don't think it is obviously the case that "The whole point of (c)" is as you state - although I can see it is a possibility that that is its motivation.
I get the point that the means of submitting representations changes, or at least could change, before and after the issuance of the NTO, but the PCN says that the NTO will tell you how to appeal it.
I think your argument points at the vagueness of regulation 3(1)(a-c) as much as it does about inaccuracies in the PCN, and I only have an opportunity to challenge the PCN, not regulation 3(1)(a-c).

I may well still include this in my representation to the NTO, but I think it's nowhere near as strong as the "The alleged contravention did not occur" due to the lack of authorised (or any) parking suspension signs.
Still, every little helps, and I'm grateful for the time you've taken to make your suggestions and offer up valuable advice and detailed information.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Incandescent on March 21, 2024, 12:30:25 pm
Well, does it ?The whole point of (c) is to warn the PCN recipient that if he submits representations and gets a Notice to Owner before any response to his reps, that he MUST respond to the NtO. People getting an NtO having submitted previous reps, may think "well, I don't need to do anything, because I've already made representations"
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on March 21, 2024, 11:50:20 am
In addition to the above, the PCN is non-compliant with regulation 3 in the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 : -
Quote
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.

Can you see anything that looks like 3 (1)(c) ? No, thought not.

Actually, [Incandescent], I think I can see language to the effect of 3 (1)(c).  Specifically, from the PCN (2nd page, penultimate paragraph)..
".. The NTO will explain ... how to appeal and the period of entitlement to appeal against it and the form that appeal must take. .."
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Phantomcrusader on March 20, 2024, 02:13:55 pm
Paragraph 4(2)(b) of Schedule 7 would likely cover it.

I don't think so because a suspension does not replace a parking place with a physical or virtual yellow line. If it did, there would be no need for code 21 as code 1 or 2 would suffice. I suggest raising the point and let the council or adjudicator attempt to counter.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on March 20, 2024, 12:52:21 pm
Here is the NTO..



(https://i.imgur.com/W6r3zJn.jpeg)
(https://i.imgur.com/0Lb3m3m.jpeg)
(https://i.imgur.com/5bf10RD.jpeg)
(https://i.imgur.com/vJrLYuy.jpeg)
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Hippocrates on March 15, 2024, 12:37:52 pm
Para. 4 of the rejection letter also wrongly states the law:  will not may regarding the service of a Notice to Owner.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on March 14, 2024, 11:15:57 am
No, it hasn't reached me yet.  I will update when it does.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: cp8759 on March 14, 2024, 09:23:51 am
@ttn48 any update? The council website says they have issued a notice to owner, please post it up so we can check for errors in the small print.

Question for regular members.....if no offence under s.47 RTRA 1984 (https://www.legislation.gov.uk/ukpga/1984/27/section/47) occurs during any period that parking is not permitted (due to the loss of designated parking place status), what offence has occured under schedule 7 TMA 2004 (https://www.legislation.gov.uk/ukpga/2004/18/schedule/7) considering this occurred outside London?
Paragraph 4(2)(b) of Schedule 7 would likely cover it.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Phantomcrusader on February 23, 2024, 05:10:13 pm
The RTRA 1984 says this


Quote
49 Supplementary provisions as to designation orders and designated parking places.

(1)Where under a designation order vehicles may not be left at all times in the designated parking place—

(a)the parking place shall for the purposes of sections 46 and 47 of this Act be treated, as respects any time during which vehicles may not be left there in pursuance of the order, as if it were not designated by the order
Question for regular members.....if no offence under s.47 RTRA 1984 (https://www.legislation.gov.uk/ukpga/1984/27/section/47) occurs during any period that parking is not permitted (due to the loss of designated parking place status), what offence has occured under schedule 7 TMA 2004 (https://www.legislation.gov.uk/ukpga/2004/18/schedule/7) considering this occurred outside London?
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Hippocrates on February 19, 2024, 01:16:57 pm
Wait for the NTO from the "Arbiters".  ::)
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: Incandescent on February 18, 2024, 06:34:57 pm
In addition to the above, the PCN is non-compliant with regulation 3 in the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 : -
Quote
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.

Can you see anything that looks like 3 (1)(c) ? No, thought not.
Title: Re: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: guest17 on February 18, 2024, 05:32:34 pm
Hull does not have DfT authorisation for any suspension sign, so it is difficult to see how they can enforce a Code 21.

I would go back on the following basis:-

I challenge liability for PCN ????? because the contravention alleged did not occur. Penalty charges can only be imposed by signs authorised under section 64(2) of the Road Traffic Regulation Act 1984, this means either signs authorised by the Traffic Signs Regulations 2016, or by signs specifically authorised by the Secretary of State.

The Traffic Signs Regulations 2016 do not authorise any parking suspension signs, and a search of the Department for Transport website at https://www.dft.gov.uk/traffic-auths/ indicates that Hull City Council has not obtained a special authorisation from the Secretary of State for the use of any parking suspension signs.

In the absence of a lawful parking suspension sign, the contravention alleged cannot have occurred. I remind the council that unauthorised signs are an unlawful obstruction of the highway.

Mike
Title: Hull City Council, code 21 Parked in a suspended bay, Market Place
Post by: ttn48 on February 18, 2024, 05:07:22 pm
Hi,

I parked in a parking space, and on the pavement next to the space was a yellow flat-sided cone with a 'no waiting' sign on it.  The cones had 'HCC' written on by hand in marker pen.
The space in front of the one I parked in had a cone in when I parked.  The space I parked in did not.
I saw no notice suspending the bays.

I received the PCN attached to my windscreen.

I submitted an informal challenge, which was rejected.

I can wait for the Notice to Owner and then make a 'formal representation', apparently.  After that I could go to tribunal.

Do I have grounds on which I could successfully challenge the PCN, or should I pay now to get the discount?

The street pictures below are mine.

(https://i.imgur.com/thOccTc.jpeg)
(https://i.imgur.com/cz8sVUO.jpeg)

(https://i.imgur.com/ABaoR84.jpeg)
(https://i.imgur.com/dClFD0J.jpeg)
(https://i.imgur.com/I4uqRUa.jpeg)

(https://i.imgur.com/Sg4ongN.jpeg)
(https://i.imgur.com/vgNZS38.jpeg)
(https://i.imgur.com/MVzm26a.jpeg)
(https://i.imgur.com/RHdIFnI.jpeg)
(https://i.imgur.com/PQUFE1h.jpeg)
(https://i.imgur.com/sdcA0Ts.jpeg)
(https://i.imgur.com/DLYAdhw.jpeg)

Streeview location:
https://maps.app.goo.gl/A7Y6x3Xn9neayzRVA

Despite the name, Market Place is a street, not a market place.

Thanks very much in advance for any advice you can offer.