Hi thank you, that's perfect.
I did spot the Paypoint difference but not others, will include that too.
Thanks everyone for the help.
@taffer87 you have a slam-dunk case on the transfer of liability, as there is no lease agreement and no notice of acceptance to VWFS. Without that notice of acceptance, there was no statutory power to serve an NTO on you because only the cancellation of a previous NTO gives the council a power to serve a further NTO on another person.
Have a look at the cases here (https://docs.google.com/spreadsheets/d/1pVrE76_RYY6bNmEpYGbsZkxtpfIeud_BT3SKfg7TzQM/edit?gid=642784037#gid=642784037) that come up when you search "EA failed to prove cancellation of previous PCN in chain", "EA must follow correct procedure to transfer liability", "EA must procedure evidence to transfer liability" and "no copy of purported lease agreement in evidence", all the legal arguments you need to make are there.
I believe most of those cases are for moving traffic so you might need to go through the parking legislation to find the equivalent provisions, but the substance is exactly the same.
Also how good are you at spot the difference? The back of the PCN in the evidence pack is not a perfect copy of the PCN served on you, the first difference I found was that your copy has a "PayPoint Outlet or Post Office" option but the filed copy does not, I suspect there will be more discrepancies. Have a look at rows 771 to 800 of the above spreadsheet for cases on this point.
This is one of those cases that is virtually impossible to lose if it's argued correctly.
They do have a letter from VWFS..
...despite the restrictive statutory provisions which are re-stated in case law parties are not grasping[the transfer of liability mandatory] provisions.
I gave you the link to the 'restrictive statutory provisions'.
The letter from VWFS does NOT meet these IMO.
Where's the hire agreement, where's your signed statement(at the time of hiring) as regards this type of liability??
They do have a letter from VWFS..
...despite the restrictive statutory provisions which are re-stated in case law parties are not grasping[the transfer of liability mandatory] provisions.
I gave you the link to the 'restrictive statutory provisions'.
The letter from VWFS does NOT meet these IMO.
Where's the hire agreement, where's your signed statement(at the time of hiring) as regards this type of liability??
@taffer87 please show us all pages of evidence item B.
Transfer of liability
I have reported last year on issues concerning the transfer of liability when the
registered keeper of a hired vehicle seeks to transfer of liability to the hirers.
Adjudicators have found that despite the restrictive statutory provisions which are
re-stated in case law, parties are still not grasping provisions. Adjudicators noted that
some authorities have allowed transfer even when the required evidence has not
been provided. Adjudicators are then required to deal with appellants’ submissions
that their representations have been accepted by some but not other authorities.
Adjudicators would urge hire companies and authorities to pay greater attention to
the legal issues and consider the evidential requirements for a transfer before the
matter reaches the appeal stage.
Nothing comes to you until a minimum of 7 days before the hearing.No sure what you mean by that, I've got some cases where the tribunal scheduled the case months in advance (typically where I've been lucky enough to get a Saturday hearing slot, which get booked up months in advance) and I have had evidence packs from some authorities as much as 2 / 3 month prior to the hearing.
Is it also the case that the authority must submit (to the adjudicator) within 7 days post service of notice of appeal by the adjudicator the original PCN and related representations? If authority doesn't do that and there is nothing in appeal portal then is that a good enough point on its own under the Appeal regulations?Yes and no. I have got a couple of decisions on this point where I had other things to argue, but most adjudicators would use their powers to grant the council an extension of time (even if no extension has been sought). It's certainly not something an argument I would rely on, especially where there's something more solid to go on as is the case here.
Reg. 5 of the 'Appeals' regs:
Representations against the enforcement notice
5.—(1) The recipient may make representations against the enforcement notice to the enforcement authority which served it on the recipient.
5(2) The representations must be—
(a)made in the form determined by the enforcement authority, and
(b)to either or both of the following effects—
(i)that in relation to the alleged contravention, one or more of the grounds specified in paragraph (4) apply;
(ii)that, whether or not any of those grounds apply, there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should cancel the penalty charge and refund any sum paid to it on account of the penalty charge.
Initiating an appeal
2.—(1) An appeal must be made by delivering a notice of appeal to the proper officer.
(2) A notice of appeal—
(a)must be in writing and signed by—
(i)the appellant, or
(ii)a person authorised to do so by the appellant,
(b)must state the name and address at which the appellant wishes documents in connection with the appeal to be sent,
(c)must state the date and any reference number of the disputed decision and the name of the enforcement authority, and
(d)may include any representations which the appellant desires to make in addition to the original representations.
Further representations by the parties
4.—(1) Any party may deliver representations in relation to the matters referred to in regulation 5(2)(b), 8(5) or 11(3), as appropriate in the circumstances, to the proper officer at any time before the appeal is determined.
IMO, the NOR is flawed in that it does not advise you correctly of your rights to appeal. Indeed, using the power which the authority has it has added a statement which is in flagrant disregard to and contrary to the regulations.
A NOR must give the following information:
(8) If the enforcement authority does not accept that there are compelling reasons of a kind mentioned in regulation 8(5)(b) or that any of the grounds specified in regulation 8(6) apply, the enforcement authority’s decision notice must—
(a)inform R of the right to appeal to an adjudicator under regulation 10,
(b)indicate the nature of an adjudicator’s power to award costs, and
(c)describe the form and manner in which such an appeal is required to be made.
The NOR states the following:
'You have 28 days beginning with this Notice of Rejection to do this[register an appeal].'
It further states that:
'If neither payment nor appeal is made before the end of the 28 days beginning with the date of service of this notice of rejection a charge certificate may be served increasing the charge by 50%. It will then be too late to appeal further.
However, regulation 9(8)(c) above requires a NOR to 'describe the form and manner in which such an appeal [to the adjudicator] is required to be made.'
Regulation 10 deals with an Appeal to an adjudicator against an enforcement authority’s decision to reject representations and provides that:
10.—(1) A person (“P”) may appeal to an adjudicator against an enforcement authority’s decision not to accept that—
(a)any of the grounds specified in regulation 8(6) apply, or
(b)there are compelling reasons of the kind mentioned in regulation 8(5)(b).
(2) An appeal under this regulation must be made within—
(a)the period of 28 days beginning with the date of service of the decision notice under regulation 9(4)(b) informing P of P’s right to appeal to an adjudicator under this regulation, or
(b)such longer period as the adjudicator may allow.
I submit that not only have the authority failed to comply regulation 9(8)(c) they have also stated the exact opposite of what is required to be included, namely:
That once a charge certificate has been served 'it will then be too late to appeal' when the regulations provide that the adjudicator is the ultimate arbiter of the time allowed for an appeal to be made, not the authority.
@taffer87 this is really simple : if you search the two traffic orders for "Mundy Road" there is only one hit at item 45 of Schedule 2 to the 2018 order (https://drive.google.com/file/d/11ATdZ50zBmaeni9L9IeqijTCwJH0oZZC/view):Munday Road, the east side, from a point 8.1 metres south of a point in line with the common boundary of Nos. 16 and 18 Munday Road southward for a distance of 6.1 metres.
However the common boundary is here https://maps.app.goo.gl/4WqbDMwLoEFwzvGo7 and if you zoom out, it's quite obvious that this is not where the bay has been painted, it starts at least two car length further south than it should, so no part of your car is in the area designated by that order.
I respectfully disagree with this, I think the bay is in exactly the right place. If you zoom out and take the point of the boundary between nos. 16 and 18 and then you go 8.1 metres south (to the right on GSV), then that takes you to the exact point where the bay starts. I fear you maybe misread the order to mean the bay should start on that boundary line, not 8.1 metres (2 car lengths) away from it.
@taffer87 this is really simple : if you search the two traffic orders for "Mundy Road" there is only one hit at item 45 of Schedule 2 to the 2018 order (https://drive.google.com/file/d/11ATdZ50zBmaeni9L9IeqijTCwJH0oZZC/view):Munday Road, the east side, from a point 8.1 metres south of a point in line with the common boundary of Nos. 16 and 18 Munday Road southward for a distance of 6.1 metres.
However the common boundary is here https://maps.app.goo.gl/4WqbDMwLoEFwzvGo7 and if you zoom out, it's quite obvious that this is not where the bay has been painted, it starts at least two car length further south than it should, so no part of your car is in the area designated by that order.
@taffer87 this is really simple : if you search the two traffic orders for "Mundy Road" there is only one hit at item 45 of Schedule 2 to the 2018 order (https://drive.google.com/file/d/11ATdZ50zBmaeni9L9IeqijTCwJH0oZZC/view):Munday Road, the east side, from a point 8.1 metres south of a point in line with the common boundary of Nos. 16 and 18 Munday Road southward for a distance of 6.1 metres.
However the common boundary is here https://maps.app.goo.gl/4WqbDMwLoEFwzvGo7 and if you zoom out, it's quite obvious that this is not where the bay has been painted, it starts at least two car length further south than it should, so no part of your car is in the area designated by that order.
In the circumstances we can cut out all the woffle from the informal representations and just go with this:Dear London Borough of Nehwam,
The alleged contravention did not occur, this is because The Newham (Canning Town) (Disabled Resident Parking Places) (No. 1) Order 2017 (which I suspect you have not bothered to read) does not designate any parking place at the location where my car was parked. The order designates a parking place on "Munday Road, the east side, from a point 8.1 metres south of a point in line with the common boundary of Nos. 16 and 18 Munday Road southward for a distance of 6.1 metres", but if you have a look on Google Street view at https://maps.app.goo.gl/mvqxwbHQ21MHV2UY9 you will see the bay has been painted at least two car lengths further south than it should have. The result is that despite the signage, my car was not actually parked on a section of road designated by that order.
I invite you to actually read your own traffic order and apply your mind to the issues I have raised, if you issue a generic rejection with all the usual templated drivel about how the circumstances raised do not amount to an exemption or sufficient mitigation, I will apply to London Tribunals for a costs order on the ground that the notice of rejection is wholly unreasonable. This will apply even if you do not contest the appeal.
Yours faithfully,
Send this online and take a screenshot of the confirmation page.
Here are searchable versions of The Newham (Canning Town) (Disabled Resident Parking Places) (No. 1) Order 2017 (https://drive.google.com/file/d/1j65G1TUhOz8BgPZjYRkw7H2lWpkYvVuL/view) and The Newham (Canning Town) (Disabled Resident Parking Places) (No. 1, 2017) (Amendment No. 1) Order 2018 (https://drive.google.com/file/d/11ATdZ50zBmaeni9L9IeqijTCwJH0oZZC/view).
@taffer87 let us know when you get the notice to owner and I'll help with the formal representations.
Chapter 3 of the Traffic Signs Manual (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782724/traffic-signs-manual-chapter-03.pdf) specifies at 13.6.8. that:Where two bay markings, associated with different conditions, are sited next to each other there should normally be a gap of about 100 mm between them. If adjacent bays would normally have different widths, the greatest width should be adopted for all to avoid a potentially confusing stepped edge.
What the council purport to have done is created a single bay with different conditions, which is not a permitted layout. If the bay had been laid out correctly you would have been on notice that you were parking in a different bay potentially subject to different conditions.
For me the 3 things i would concentrate on would be
1 the bay markings. There should be double edge markings to differentiate the bay from the others If you hold a permit bay for that bay why would you look for a different sign
the disabled legend being faded
The TMO does it accommodate a disabled resident bay or is it designated purely as a resident bay
Picking upon PMB's point about bay markings, OP just stand back and look at the array of markings and signs, it's a mess.
Firstly, in order to review this it needs to be said IMO you were parked on the wrong side of the road therefore it's not what's behind you car which applies, it's what's in front!
Using GSV, the sequence starts o/s no. 18 with a single line parking place line. This means that the bay is continuous and not sub-divided by intra-bay markings into separate bays - standard for permit bays. Then two cars' lengths into the bay there's an internal dividing mark which is not accompanied by a traffic sign. This looks like a c**k-up. It could mean the end of the permit holder bay which would fit the single marking at the beginning. But this begs the question, if it's the end then what the hell is the next bay because there isn't a traffic sign to convey the new restriction.
But there is..if the next bay is a 24/7 disabled bay then as I understand it an upright sign isn't required, a road marking would do. So looking at this in the direction of travel of traffic it means that you were parked in a disabled bay. Not a permit bay.
Then when one reaches the end of this bay there's another end-bay marking with a traffic sign which does not include an arrow. This cannot therefore apply before the sign's reached, only after. Which means that the DPB is the next bay.
So, if the road marking is intended, it's a 24/7 disabled bay and it's the wrong contravention. But if not, it's a permit holder's bay, and you've got a permit!
IMO.
Can we pl nail this type of bay.
It is NOT a 'disabled bay', it is a bay reserved to specified permit holders. In this case 'Disabled Resident' with the permit identifier CT.
As regards permit bays, the Traffic Sign etc. Regs provide wording variants which include:
3. A type or types of user may be included and, where the user is a type of permit holder, a permit identifier may be included.
4. A legend provided for at 3 above may be varied by the addition of “only” or “only at all times”
No authorisation is needed IMO. If the council have created in a traffic order a type of permit called 'Disabled Resident Permit' then they are perfectly entitled to do so IMO and the sign is correct.
'Disabled' is not a permitted road marking for this bay - but it looks as if it's being allowed to fade away.
OP, your point regarding observation would seem to be relevant, which is why I suspect you introduced 5 minutes into your narrative for how long you parked, but whether this could win the day I don't know.
So here, I think: -
https://maps.app.goo.gl/QEBZXDapULkaFypA8
Clear sign and road marking.
Any reason for not noticing the sign which would have been right by your car ?