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Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: ericaswas on June 12, 2024, 06:30:45 pm

Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: H C Andersen on July 30, 2024, 06:18:53 pm
Exactly. IMO, 9 precludes the council's current procedure - but they don't think so because they state it bluntly on their website.

Everything within the PCN is....a penalty, except it isn't.


 
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: slapdash on July 30, 2024, 05:17:09 pm
9(4) Seem to rule out the acquisition of the licence outside the +/- 6 day period which appears to cause a further problem.

How can they charge for a licence they cannot sell.

That must impact on whether they can recover it in any way at all
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: H C Andersen on July 30, 2024, 04:25:36 pm
(4) A charging scheme is to specify whether a penalty charge referred to in paragraph (1) or (2) is payable in addition to the road user charge or instead of such charge.

And:
https://cleanerairportsmouth.co.uk/wp-content/uploads/2021/12/PORTSMOUTH-CLEAN-AIR-ZONE-ORDER-SEALED-redacted.pdf

Nothing incompatible, IMO the council do not have the authority to impose the 'charge' as part of their recovery of the 'penalty charge'.

As observed by others, simply stating whether something is owed does NOT imply how it may be collected.

See para.9.

By what means a 'charge' is payable is specified and constrained by reference to 9(1) and adding it to a 'penalty charge' isn't one of them, IMO. 


Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: slapdash on July 30, 2024, 02:28:46 pm
You can find the Moran decision here

https://www.ftla.uk/the-flame-pit/dart-charge-pcn-flaws/msg27921/#msg27921

It is, so far, untested against a CAZ case. Bristol have shown substantial reluctance in letting a case get to tribunal where this argument has been raised.

Will it work for CAZ? It ought to, it's the same legislation. But there are other considerations.

- In Moran an underlying charge had been paid. An adjudicator may consider that in some way.

- The authority have, in effect, agreed to drop the penalty in exchange for the CAZ fee. Might this hold some sway with an adjudicator.

- If you win, are the authority still entitled to attempt to enforce the CAZ payment being due (I guess they'd have to ask you nicely and eventually sue you if they felt they really wanted to collect). I don't see any regulation which would discharge the letter ability. Though it might.

An adjudicator is not bound by another adjudicators decisions. Even one made by the Chief Adjudicator.

It is a strange state of affairs that the charging order for a CAZ can legitimately demand the toll, however the underlying regulations give no means of enforcement.

Not all charging schemes do allow the fee and a penalty (Birmingham don't, TFL don't for example). I think it may be the case that these were better advised.

(This also leads to another oddity. If the scheme does not apply the charge in addition and exceeds the penalty charge then why pay at all. Just settle discounted penalties).

I would like to see a CAZ case on this point, but you do need to consider what may be gained either way.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: Incandescent on July 30, 2024, 11:34:12 am
The lady at Portsmouth council is half-right. The council can collect the penalty charge in addition to the CAZ charge, but the regulations do not allow the CAZ charge to be demanded on the PCN. The two are completely separate, and the council must use normal debt collection processes to collect any unpaid CAZ charge.
See here the regulation she quotes: -
https://www.legislation.gov.uk/uksi/2013/1783/part/2/made
but then look at Regulation 7 in Part 3 that relates to PCNs and their content: -
https://www.legislation.gov.uk/uksi/2013/1783/part/3/made
see anything in there on a PCN containing a request for the CAZ charge ?
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on July 30, 2024, 09:32:02 am
A lady at the Portsmouth parking office just rang and advised that contrary to our representation, they WERE allowed to charge in the way they did - she quoted part 2 sec 4.4 and said something about 'in addition to, OR'. Obviously I wasn't able to follow or confirm whether she had a point or not.
But she said that they would allow me to just pay the £50 CAZ charge. This is obviously attractive since it will cost more than that to be represented at tribunal. I did say that there was a point about the signage that we would bring up at tribunal - she said that if that had been on the representation, they would have addressed it (but of course, they would probably have defended it).
I asked for 24 hours to consider the offer and she will ring tomorrow. It's a case of pursuing the principle vs financial outlay. Thoughts on her argument?
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on July 01, 2024, 12:46:48 pm
Thanks so much! - I have now submitted representation.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: cp8759 on June 30, 2024, 01:52:37 pm
I would tick "The penalty charge exceeded the amount applicable in the circumstances of the case", as they're asking for more than what the law allows, but in truth it doesn't really matter.

Tribunal hearings are done via video call (Microsoft Teams but you can join from your web browser). If you were to lose at the tribunal in theory the council could demand £170, but I would say they can only recover £120 as that's the penalty amount. If they want the £50 CAZ charge, they need to sue you in the small claims track of the county court.

I can represent you if you'd like, I'll send you a PM about it.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 27, 2024, 09:16:18 pm
OK, great, I'm going to do this - as soon as I can get through to the online link, which seems to be down at the moment. Because I missed the notification of your reply (my bad, have now ticked the notify box!), I seem to have missed the unofficial deadline of 14 days when I might receive the discount after representation rejection - it's a shame that is not reported officially anywhere...

I anticipate the online process will give me the same statutory grounds of appeal that the PCN states - which should I tick?

The charge did not apply to the vehicle.
The Council has made a procedural error when dealing with my case or the PCN.
The penalty charge exceeded the amount applicable in the circumstances of the case.

I'm guessing the middle one?

Thinking forward to tribunal:
is telephone rather than physical appearance likely?
On loss, will I be paying 50+120 (CAZ + non-discounted penalty)?
Can someone represent me, and for what cost?
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: cp8759 on June 18, 2024, 12:29:20 am
I'd keep this nice and simple, as we know the council will likely reject no matter what you say:

Dear Portsmouth City Council,

I challenge liability on the ground that the alleged contravention did not occur, and also that the amount demanded on the face of the penalty charge exceeds the amount due by law. Nothing in regulation 7 of The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 permits the council to demand payment of the CAZ charge in addition to the penalty, the only amount that may be demanded is £120, discounted to £60 if paid during the 14 day discount period. There is no statutory authority to demand £170 discounted to £110 if paid during the 14 day discount period.

It follows that the penalty charge must be cancelled.

Yours faithfully,


You don't want to say anything about signage because you cannot do so without making some self-incriminating admission or another, so you might as well wait and see what evidence of signage they can come up with first.

Make the representations online and make sure to keep a screenshot of the confirmation page.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 17, 2024, 08:00:17 am
Thanks so much for looking at this ;) , I was beginning to give up hope as I saw the raft of other issues scrolling past - there are so many people generating cases!

The other PCN pages are here:
https://www.flickr.com/photos/183139830@N08/53796864748/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53795695262/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53796864748/in/dateposted-public/
if you would be so kind as to look for other issues...

I think I have until 5th July to respond to the Council - 5/6/24 + 2 + 28.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: cp8759 on June 16, 2024, 02:33:14 pm
@ericaswas I can see your pictures but for future reference, please read this guidance (https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/read-this-first-before-posting-your-case!-this-section-is-for-council-tfl-dartme/) which tells you many important things including on how to post images.

so here's the first page of the PCN:

(https://i.imgur.com/pySBqNe.png)

The PCN is invalid for the reasons explained in Luke Moran v Secretary of State for Transport (IA01249-1803, 13 June 2018) (https://drive.google.com/file/d/196wgUERzYDuZjwM9IEFYQwN0jD_jlcDD/view), but seeing the other pages would help us confirm if there are any additional grounds.

I would not mention the question of signage to the council, it's generally best to just put them to proof at the tribunal.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 12, 2024, 07:42:31 pm
Route
https://www.flickr.com/photos/183139830@N08/53787261588/in/dateposted-public/

I suppose this does show there is an exit from the dual carriageway on Havisham street, but it isn't obvious and probably wouldn't be for your average HGV.
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 12, 2024, 07:37:04 pm
PCN front page
https://www.flickr.com/photos/183139830@N08/53787351939/in/dateposted-public/
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 12, 2024, 07:15:07 pm
Try uploading to an image sharing site - can someone confirm they can see these?

https://www.flickr.com/photos/183139830@N08/53787303654/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53786044657/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53786986096/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53787202718/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53787403905/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53786986066/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53786044632/in/dateposted-public/
https://www.flickr.com/photos/183139830@N08/53786986071/in/dateposted-public/
Title: Re: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 12, 2024, 07:06:50 pm
Attached are pics of signs on the approach to the CAZ (may have to upload on different posts)

1. First advice on motorway
2. But this implies you will not enter the CAZ if you exit the motorway which we did.
3. We were going straight on at the roundabout on the dual carriageway which has no info.
4. Once on the roundabout there is an advance sign for CAZ on our exit, but no indication of distance.
5. Still on roundabout, same.
6. Point of no return - roundabout exit, CAZ sign saying 1/4 mile ahead, but displayed shortly after the buslane sign and if you are in the LH lane, doesn't come into view until you are committed to the exit.
7. Now you're on a dual carriageway with no possible exit or U-turn point before hitting the roundabout where we wanted to turn back to the filling station. There is a CAZ boundary sign here with camera sign.
8. Another CAZ boundary sign ahead of the roundabout where the camera is on the traffic lights allowing access onto the roundabout.


Actually cannot upload the pics yet, because it says the upload folder is full...
Title: Portsmouth, CAZ entry, PCN for non-payment in time
Post by: ericaswas on June 12, 2024, 06:30:45 pm
23 May - we were travelling in our motorhome (above 3.5T, so classified as private goods vehicle and therefore subject to CAZ charge) to sail from Portsmouth Brittany Ferries terminal. As usual, we filled up with petrol just round the corner from the port. This involves driving on Mile End Road, a dual carriageway, past the terminal road exit and turning round at the nearest roundabout to access the filling station on the other carriageway. I was aware that there was now a CAZ in place and did see advance warning signs. However, I thought that there would be an alternative route at the boundary to avoid going into it. Unfortunately there wasn't and we ended up briefly entering and exiting the CAZ. We weren't aware of this until returning home 2 weeks later and now have a PCN for £50 entry plus £60 fine if paid within 28 days, otherwise £120.

I will post the PCN and evidence of route and signage forthwith, but wanted to get this rolling asap. I would appreciate advice on whether the signage is sub-standard (the last sign is not far behind a buslane camera sign) and whether there should be a last minute get-out exit to avoid entering the CAZ (the last sign is at the exit of a roundabout, shows the distance to the boundary, but there is no way of avoiding CAZ entry once you commit to the exit).

Thanks in advance!