Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: BeemerDriver on April 11, 2024, 01:49:49 pm
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It is clear Adjudicator Todd thinks the law is bendable to suit his opinion of it. What a load of tosh and surely grounds for a review.
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As to the last paragraph in the decision and HCA's comment.
I'm not comfortable with it either.
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See para. 34 of the decision, the prior reference to 'the penalty charge and the daily licence fee should be paid within 28 days.
Penalty Charge Amount: £120.
and compare with Section 1 of the NOR, Reasons..etc. and the last comment:
PLEASE NOTE - if you decide to appeal .....and your appeal is rejected, the full cost of the penalty, £129 will be due.
IMO, you could still rattle their cage by only paying the penalty charge. I do not think they have any legal power to recover an unpaid 'daily licence fee' by issuing a Charge Certificate...
..or does Adjudicator Dodd want to rewrite this piece of legislation as well?
The last comment appears to be directed at cp personally. Certainly as far as ETA is concerned lay representatives as given leeway which is not afforded to lawyers in that they accept the rather selective use of decisions in favour of arguments while ignoring those against. IMO, it's not for Dodd to create their own rules and impose these on other adjudications as regards how representatives conduct their appeals. But I suspect cp will fight this battle if they want.
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Outcome (https://drive.google.com/file/d/1yniSN2pT-xjh_H2iD6tVX52K9dlkeX-E/view).
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Understood that the advice here is a) free and b) advice only. Happy to take a punt, if not for me then for other users.
I think we can do a bit better than that, I'm going to drop you a PM.
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Revised outline of a draft appeal to the TPT:
Reiterate the DART PCN decision 2018.
Accept that under regulation 2 part 4, the CAZ authority is entitled to specify whether the road user charge is to be levied in addition to the penalty charge, and the Bradford Clean Air Zones Charging Order article 12 states "A penalty charge will be payable, in addition to the charge imposed under article 7".
However the PCN received states that the road user charge is to be paid in addition to the penalty charge, whereas regulation Part 3, Regulation 7, 7.3(f) states that only the penalty be paid, and there is no regulation to demand both the penalty and initial road user charge, which are separate elements.
Bradford's Notice of Rejection of Representation states that the successful Dart PCN appeal "has no relevance to the Bradford Clean Air Zone or the Bradford Clean Air Zones charging scheme order. The decision at the time was not made in reference to the Bradford Clean Air Zone or can be used to determine the outcomes of this case. The decision was made in 2018. The Bradford Clean Air Zone was live from September 2022". I believe this analysis is flawed since the Bradford CAZ is regulated by both regulation 2 part 4 and Part 3, Regulation 7, 7.3(f). Despite the Charging Scheme Order allowing for a penalty and the CAZ charge to be recovered, the regulations governing the PCN do not provide a mechanism to do both.
This amounts to a procedural impropriety and therefore the PCN should be cancelled.
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Understood that the advice here is a) free and b) advice only. Happy to take a punt, if not for me then for other users.
The CAZ regulations allow for the adding of the PCN charge to the road user charge, that's not in doubt. But the mechanism for the PCN doesn't allow for adding the road user charge onto the PCN, presumably that would need another bit of regulation.
That's where the slimness and balance of probabilities of success lies for me - an appeal based on the strict wording of the PCN only allowed to mention the penalty charge ( Part 3, Reg 7, 7.3(f) ).
A draft along the lines of:
Reiterate the DART PCN decision 2018.
Accept that under regulation 2 part 4, the CAZ authority is entitled to specify whether the road user charge is to be levied in addition to the penalty charge, and the Bradford Clean Air Zones Charging Order article 12 states "A penalty charge will be payable, in addition to the charge imposed under article 7".
However the PCN received states that the road user charge is to be paid in addition to the penalty charge, whereas regulation Part 3, Regulation 7, 7.3(f) states that only the penalty be paid, and there is no regulation to demand both the penalty and initial road user charge, which are separate elements.
This amounts to a procedural impropriety and therefore the PCN should be cancelled.
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An appeal should succeed because there is already an adjudication (2018) on the lawfulness of adding the toll charge to the PCN. At that time these CAZs didn't exist, but the regulations they work under are the same as then that adjudication occurred.
It's like all these things, we advise, but we're not the adjudicators.
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It would be nice to get a view on this. I've got another 2/3 weeks or so to decide ...
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So the chances are that a well-drafted appeal - on the grounds that the legislation / regs say the CAZ authority can decide whether to include the penalty + original but the PCN regs say it can only include the penalty charge - may work?
If the hive mind thinks an appeal would succeed I'm happy to do that - anyone care to lend a hand drafting?
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As far as my simplistic view goes the "unless" doesn't kick in.
However, cautionary, well drafted appeal will be needed.
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So part 2 says "whether a penalty charge ... is payable in addition to the road user charge or instead of such charge" and part 3 reg 7 only mentions "penalty charge".
So it's a matter of interpretation of the fine detail then? Dart decided one way, and the difference there is that the road user paid the charge albeit a day late.
If the tribunal goes strictly by the letter of the regs, then the PCN would seem to be "an impropriety" unless "penalty" is defined as including the original charge?
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The dart decision does not apply in as much as decisions don't set real precedents. An adjudicator could come to a different decision.
It is your money of course. It is, perhaps, curious that there is no known case of Bristol going to tribunal where this narrow point has been raised.
So far (in all probability) nobody related to Bradford enforcement who has any real understanding of the regulations has looked at it to recognise the issue.
It is perhaps somewhat odd that the regulations allow for the charge to be payable (*) in addition to the penalty yet the mechanism of issuing a penalty does not allow it to be demanded as part of the penalty.
Birmingham and TFL may have produced their charging orders - which do not include the toll - having undertaken a more thorough review of what they were implementing with respect to the overarching regulations.
(*) There is a potential issue with that. The bristol order only allows the toll to be paid x days before or y days after.
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They're talking tosh, because the regulations are the same now as they were in 2018
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Ok then - so Bradford are wrong, even though they say their scheme was post 2018 and therefore the DART decision doesn't apply.
If I apply to the tribunal there's a very good chance of winning on appeal, is what I'm interpreting this to mean?
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Ok - so one piece of the legislation says they can decide whether to charge the penalty + PCN charge, and another says the PCN can only contain a penalty.
So Bradford's view is different and says they can charge both on the PCN, but the view here is that the PCN can only charge the penalty and there needs to be a separate mechanism to collect the outstanding CAZ charge?
And if so, I'd be a guinea pig?
Well, no, as the matter was decided at the TPT in 2018. Read the file I have attached. DART operate under the same road user charging regulations as Bradford. The key sentence in the adjudication is, "There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge".
[attachment deleted by admin]
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Ok - so one piece of the legislation says they can decide whether to charge the penalty + PCN charge, and another says the PCN can only contain a penalty.
So Bradford's view is different and says they can charge both on the PCN, but the view here is that the PCN can only charge the penalty and there needs to be a separate mechanism to collect the outstanding CAZ charge?
And if so, I'd be a guinea pig?
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Yes, they are entitled to charge the toll and the penalty. But that doesn't help them.
https://www.legislation.gov.uk/uksi/2013/1783/regulation/7/made
The regulation above determines what may appear on a PCN.
Can you find anything therein which allows it to be added? Thus if they still want the toll they need to give you a different method to pay it.
But, it has yet to be tested for any CAZ and will be at the full prnalty.
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I've had my appeal rejected - apparently the regs *do* allow councils to decide whether to charge both the penalty and the PCN.
Suggestions? Or is this the end of the road?
RUCS Regs article 4 - https://www.legislation.gov.uk/uksi/2013/1783/part/2/made
Link to Bradford CAZ Charging Order - https://www.bradford.gov.uk/media/7229/bradfordcleanairzonechargingorder2022.pdf
[attachment deleted by admin]
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Great, thanks. I'll appeal the PCN directly in the first instance and let you all know what the outcome is.
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So a form of words challenging it as a procedural impropriety, in that there are no powers under the relevant legislation and regulations to charge a penalty as well as the original CAZ charge?
No not quite correct; there are no powers to demand the CAZ charge on the PCN, only the Penalty Charge.
All you need to do submit is a simple and short representation.
This should state that the regulations that apply to the Bradford CAZ are The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013. You have been independently advised that the PCN is unlawful because there are no powers within the above regulations for the CAZ charge to be demanded in the Penalty Charge Notice, only the penalty charge can be demanded. This is confirmed by the Traffic Penalty Tribunal Case Number IA01249-1803 Decision dated 13/06/2018, Ajudicator Caroline Sheppard.
In her decision, she stated, (inter alia) that " There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge."
Therefore demanding payment of the CAZ charge as well as the Penalty Charge is a procedural impropriety and the PCN must be cancelled forthwith.
What I suspect they will do is ask you to just pay the CAZ fee as they seem desperate to avoid the matter getting to the TPT. I wonder why !!!
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So a form of words challenging it as a procedural impropriety, in that there are no powers under the relevant legislation and regulations to charge a penalty as well as the original CAZ charge?
Using wording from the PDF provided above similar to "There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge. Nor is there a power for the charging authority to refuse to allocate a payment made for a charge and hold it, possibly indefinitely, for future use."
Or do I need to be more watertight than that ?
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Like Bristol, (and also Bath), the PCN is unlawful because it is asking for more than the penalty demanded by law. Birmingham and the London ULEZ PCNs are compliant. The Order for Birmingham specifically states that payment of the PCN discharges liability for the toll fee
There are no powers in Regulation 7 of the road user charging regulation that allow them to claim the toll fee as well as the penalty. This was also ruled by an case in 2018 at the Traffic Penalty Tribunal for a DART PCN, (same regulations).
Anyway, have a read of the regulations (Reg 7) and also the file attached
https://www.legislation.gov.uk/uksi/2013/1783/regulation/7/made
[attachment deleted by admin]
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Have a look at Bristol CAZ cases. There is an argument that adding the toll to the penalty charge is unlawful because the overarching regulations do not allow this.
Technically the toll is still due but they can't make you pay it this way.
All Bristol cases challenged in this way have not actually got to tribunal.
But you will have rhe full penalty of £120 at risk.
Do not miss deadlines.
There may be other issurs with the unseen notice too.
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Without at this stage submitting documentation, I got a PCN for allegedly infringing Bradford's CAZ - clear picture of the vehicle and front registration plate, clear location, date/time of the picture appear to be correct.
I've checked the PCN spreadsheet for Bradford - no known weaknesses in appeal, so wanted to check before I paid the £60 + £9.
Date of delivery is noted as 2 days after date of posting, the phone number given is 0345 ... - any other procedural improprieties I could potentially use ?
Does anyone have knowledge of the signage / issues there which may help? Does that depend on the route taken through the CAZ, i.e. a sign missing if joining from a side road may invalidate the PCN?
Also, checking the location given against the map it seems the boundary there covers the whole road, doesn't split it down the middle - so presumably no grounds for driving one way and not the other along the particular road?