Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: Deb2000 on October 22, 2023, 10:29:33 am
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WTF??
Who mentioned PCN in the context of the second grounds, it's the NOR which was faulty!
I therefore felt compelled to appeal and look in further detail at the NOR. In this respect, I submit that the NOR fails to state that an appeal may be submitted and registered by the adjudicator later than the 28-day period stated provided that reasons for lateness are included. The NOR gives a single deadline of 'no later than' which, given the reportedly chaotic state of postal services in some areas, could have a significant effect upon an owner. As this requirement is specified in the 2022 regulations, I submit that it doesn't lie with the authority to choose those parts it will include in NORs and those that it will not. I would add that this defect is compounded by their use of revoked regulatory provisions regarding 'Service' i.e. 2007 Regulations.
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Outcome (https://drive.google.com/file/d/1by-tIItO8bjggKw_IpP7uaxh5xD-UQ9D/view).
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....I avoided claiming this was a PI in itself because:
A “procedural impropriety” means a failure by an enforcement authority to observe any requirement imposed on it by—
(a)the TMA 2004,
(b)the 2022 General Regulations, or
(c)these Regulations,
in relation to the imposition or recovery of a penalty charge or other sum.
I referred to the 2007 regs in the way I did because I didn't want to overplay the point because quoting the rules of service is not a requirement 'imposed' the authority have simply chosen to add this.
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I see CP8759 has sent you a PM, so hopefully he will help you.
Anyway, I think HCA's suggested text says most of what needs to be said. The only thing is I would break away his last sentence on them quoting the 2007 regs and put this as a new item. It is a procedural impropriety to quote the wrong regulations.
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I've sent a PM.
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Good morning
Can anyone help with my appeal to the independent adjudicator? I know I've got until 7 Feb to do it but I need to piece it together and make sure it covers everything I need it too, and also make sure I get any information together that I need to.
Thanks everyone.
Deb
Hi
I don't do TPT cases anymore but I suggest you ask cp8759 and/or Mr Mustard.
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It is a total no-brainer to now take them to the Traffic Penalty Tribunal, because they have not re-offered the discount, the penalty remains the same, and there are no extra costs either.
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As your only alternative is to pay then you may as well appeal.
NOR deemed served 12 Jan - pl forget about 13th - therefore you must register no later than 8 Feb.
I think your only grounds are Procedural Impropriety:
1. I have been consistent throughout the enforcement process in my belief that cars have parked in exactly the same location as here for a long period but without being issued with PCNs and that by extension I had a legitimate expectation that such parking was not penalised. Indeed I have parked there before without issue. I accept that on normal roads parking by a dropped footway should be enforced. However, I submit that there is no way in which this area could be considered as a 'normal' road. GSV shows the unorthodox method apparently adopted by the council to stop up this road which gives the whole area the appearance of a dump and not a road. Had the authority responded robustly and evidentially to this assertion in my informal representations then I would have accepted my mistake, paid and moved on. But they did not.
All they have said at both the informal and formal stages is that they have reviewed the PCN and concluded that it was issued correctly. I submit that this fundamentally misunderstands their duty which is not simply to decide whether the PCN was issued correctly, which can only turn on what was known to the CEO at the time, but to consider my representations.
I respectfully suggest that they have not met this duty.
2. At the time, I believed that although the authority's response to my informal representations was defective, I would receive proper and more detailed condsideration at the formal stage. Unfortunately, I did not, neither was the discount re-offered. I therefore felt compelled to appeal and look in further detail at the NOR. In this respect, I submit that the NOR fails to state that an appeal may be submitted and registered by the adjudicator later than the 28-day period stated provided that reasons for lateness are included. The NOR gives a single deadline of 'no later than' which, given the reportedly chaotic state of postal services in some areas, could have a significant effect upon an owner. As this requirement is specified in the 2022 regulations, I submit that it doesn't lie with the authority to choose those parts it will include in NORs and those that it will not. I would add that this defect is compounded by their use of revoked regulatory provisions regarding 'Service' i.e. 2007 Regulations.
Just some thoughts.
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Hi
Hope you all had a great weekend.
Can anyone confirm whether or not I've got a case against MCC, and whether it's worth me preparing an appeal for the Independent Adjudicator?
Thank you in advance.
Deb
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Good morning
Can anyone help with my appeal to the independent adjudicator? I know I've got until 7 Feb to do it but I need to piece it together and make sure it covers everything I need it too, and also make sure I get any information together that I need to.
Thanks everyone.
Deb
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Good morning H C Andersen
My apologies. I've attached the 2nd and 3rd pages now.
What are your thoughts please?
Thanks again.
Deborah
[attachment deleted by admin]
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The full NOR pl, you've only posted the first page. We need to see it in full to check whether they've complied with procedure which can be as persuasive at adjudication as substantive issues regarding the contravention.
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Hi cp8759 and DancingDad
Sadly they have chosen to reject my appeal and yesterday I received the attached (in post of 14 Jan). I believe they haven't considered my mitigating circumstances at all. They have also ever given me the opportunity to pay the discounted rate, apart from when the PCN was issued in the first instance.
The advice I seek now from you good folk is, do I have a case I can put forward and appeal to an independent judicator or do I now have to pay the £70?
Really hope someone can help? They have given me 28 days from date of letter (10 Jan) but only received on 13 Jan.
Many thanks
Deb
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Good morning :)
So, an update on my PCN. I duly appealed to MCC with the following:
Dear Sir/Madam
I received a parking ticket on 21 October 2023. The place where I parked, has been used for parking for years without penalty. And it is for this reason that I would like to submit an appeal.
I have parked in this place twice since 2020 for the purpose of attending a football match. Once before this occasion, when the PCN 27 was issued. Up until that point, I would park at the Stadium as my father was eligible for parking due to his disability. Sadly, I lost my father in May 2020. The Stadium do offer limited parking and to-date I have not been successful in securing a parking space as they sell very quickly when they go online.
For many years I have noted that 4/5 cars have parked in this space without penalty. On 21 October, I arrived at the Stadium incredibly early and decided to park there as there was an available spot. I sat and read my book for a couple of hours in my car, during which time four other cars parked up too.
On the PCN I have been issued, it says that I parked in a location that states, ‘No Waiting at Any Time.’ But there is no signage to indicate this? I have attached a photo of the only blank sign that is there. And there was also an assumption that parking was allowed there as there is a big mound of dirt right across the road that clearly makes the road inaccessible/unusable.
I am a law bidding citizen and now understand that I made an honest mistake. And as I mentioned in my initial appeal, now that I am aware that parking in this spot is not permitted, I will make alternative arrangements. And sadly, as I am currently unemployed and in receipt of only Universal Credit, I cannot afford the fine.
I do hope that upon reviewing my mitigating circumstances, you will reconsider your decision and waive the fine.
Yours faithfully
Miss Deborah L Evans
Sadly they have chosen to reject my appeal and yesterday I received the attached. I believe they haven't considered my mitigating circumstances at all. They have also ever given me the opportunity to pay the discounted rate, apart from when the PCN was issued in the first instance.
The advice I seek now from you good folk is, do I have a case I can put forward and appeal to an independent judicator or do I now have to pay the £70?
Really hope someone can help?
Many thanks
Deb
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Good morning
Sorry, can anyone help with my representations please? I.e. how do I facilitate the counter view to check whether or not they have reconsidered my evidence, and specific wording which will strengthen my challenge.
Thanks so much.
Deb
Ps I may add, they are now routinely sticking parking tickets on all cars parking in this spot. I'm not sure whether this adds weight to the argument that people have seen others park here for years and clearly believe it's ok. Until of course they are now receiving a parking ticket (people don't deliberately park in a spot knowing they'll get a parking ticket surely?!)
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Good afternoon cp8759.
I've received my Notice to Owner today (copy attached). I've read the links you very kindly sent me last time. The example of the disabled gentleman driving over the bridge in Merseyside was brilliant.
You've mentioned to me in previous communications about approaching strategy being failure to consider evidence and incorporating a count/counter view? I have to be honest, I've no idea how to do that at all. And also if there are any examples I may refer to to put together my challenge?
And lastly, from the Tribunal info, would the appeal be for 'a procedural impropriety by the authority' or a 'compelling reason', should my case get to that stage?
Thanks cp8759.
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Thank you cp8759.
What's a 'Notice to Owner'please?
Read up on this please: https://www.trafficpenaltytribunal.gov.uk/appeals-process-parking-england/
Forget about the discount, the council will almost certainly reoffer it at the next stage as long as you challenge the notice to owner. The deadline they've given you is just intended to scare you into paying without making such a fuss.
You can submit an FOI if you want but frankly I think it's irrelevant and won't make any difference.
Your best bet is probably the strategy explained here (https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/city-of-edinburgh-02-parked-in-a-restricted-street-lochrin-buildings-gilmour-pla/msg7413/#msg7413), which worked very well in Simandeep Johal v London Borough of Lewisham (2230428653, 04 November 2023) (https://drive.google.com/uc?id=1uO4vGI2oqMEn4AfG0PX8a90jO0Imon3E)
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Thank you cp8759.
What's a 'Notice to Owner'please? I'm conscious that I've only got until Monday 27 November to pay the reduced fine, and can ill afford the full penalty fee.
Sorry to be a nuisance. One of the other options I'd thought of, was requesting a FOI request to establish how many parking tickets had been issued at that spot since I had been? Although this would be at a cost to me, and the time to get the information would probably be months.
Thanks again for all your help with this. It's been a godsend to me.
Deb
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In the circumstances I'd suggest waiting for the notice to owner, and we can help put a more weighty representation together. At the very least we should be able to get a failure to consider.
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Exact copy of email sent
Good morning
I hope you're having a good week.
As you can see from the above, I received a PCN on 21 October, where I'd parked my car to attend a football match at the Etihad Stadium.
Before losing my father in 2020, when we parked at the Stadium with his Blue Badge as he was disabled, I have sought to park as close to the Stadium as possible (as I too suffer from arthritis and breathlessness due to blood clots in my lungs). I always try to get a parking space at the stadium but they're always sold out. I have noticed over the past 3 years that at least 4/5 cars have parked where I parked on this day, without penalty. As I arrived very early on this day to the game and there was space, I legitimately expected to park here, as parking has always been tolerated here during match days and PCNs not enforced.
I'm writing to ask if you'll kindly cancel the above parking charge, and afford me the allowance of now being made aware that parking here isn't tolerated and I can observe this in future.
I hope your response will be favourable.
Yours faithfully
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Show us a copy of exactly what you sent please.
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Afternoon :)
Can anyone help with my enquiry below please? As well, does anyone know if and how I can apply for a FOI for the number of PCNs given at this each spot over a period of time?
Thanks guys.
Deb
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Good morning!
I've now received my response (pdf attached FYI). Basically it's a 'pay up'.
I also, as suggested by you great folk on here, reported to the Waste and Highways about the mound of dirt on Coleshill Street. To this day, the mound is still there, and people are still parking as I was on that day.
Receipt re:Waste
The location of the problem on the map 386407
What type of land needs cleaning up? a road or pavement
Page: The problem
What needs cleaning up? If there's more than one type, choose the most obvious. litter, dirt or dust
Give more information to help us find the problem. There are big mounds of soil completing blocking access to the road. As it's a public highway, I believe the Council has a duty to keep it open unless there's a reason why this street has been stopped up?
Receipt re:Highway
Location of the problem 386405,399487
Give any more information that will help us locate the problem. For example, house number, road name, landmarks. At the entrance to Coleshill Street, off the A6010, it is totally obstructed by mounds of spoil. These mounds are right near a dropped kerb and a set of traffic lights.
Page: What is the problem?
What is causing the obstruction? other: please say what below
Tell us anything else that may help us sort out the problem. Mounds of spoil totally blocking the entrance to Coleshill Street which is restricting access.
The spoil needs removing to allow pedestrians access, either on foot or with wheelchair/pram etc.
Has Coleshill Street been stopped-up for any particular reason?
As I wish to appeal, can you suggest what mitigation I can provide in my Reps to help with this?
Thanks again guys.
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OP, you're only at the PCN stage and therefore the 'failure to consider' 'ambush'(my take, not a legal term) won't apply IMO.
If you include a link which you can later prove wasn't opened then at this point you would be at the NTO stage. And then what?
Formal reps saying "please consider my informal reps as my formal reps", which with a bit of luck will result in the same outcome.
Councils tell motorists to go onto onto a website to view evidence all the time, if that is acceptable it must work both ways. It's not really an ambush because to avoid any problems, the council just needs to do what it should be doing anyway i.e. consider the representations and any supporting evidence.
If for argument's sake you send a DVD in the post or a sealed envelope with some photos and you had a telescopic camera that could see into the council offices, and you filmed the council officer opening the post and throwing said evidence in the bin without looking at it at all, would that be considered an "ambush"? Because what we're talking about here is the digital equivalent of doing exactly that.
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Thank you Dancing Dad. I'm hoping to get a response to them today. I'm a bit of a worry wart so don't like things lingering. As you say, it'll give me time to get some additional information back too.
Thanks again everyone. What a great bunch you really are :)
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Don't miss deadlines while trying to get extra information.
Send something within the 14 days and they will re-offer discount if they reject.
By the time that happens, you should have the added info to help make a decision
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H C Anderson, I think I've found my approach now. Sometimes it's only when people give you a different view, it makes sense. The fact that cars have parked there for years, without penalty, why would anyone assume it was an offence?
I'll let you all know how I get on.
Fingers crossed.
Deb
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I'm sure if a 'search' for PCNs on that spot was conducted, there would be no record of any being issued. But of course, I'd then need photographic evidence of vehicles previously parked there without penalty. How would I go about that? Does anyone know?
Not really.
Scenarios:
1. They have records of PCNs having been issued going back months/years, the record shows PCNs having been issued continuously and yours isn't one of them;
2. Their record of PCNs starts only a few games apg/this was the first time.
Remember, legitimate expectation is not you having been caught for the first time, it's a genuine belief based upon your personal experience that the council had made a decision to not enforce this location. 2 speaks for itself, but how you would deal with 1 depends upon specifics and IMO you'd need to know what their records show first.
You could also write separately to the highways and waste departments. Highways - has the council stopped-up Coleshill because you've noticed that the entrance is totally obstructed by mounds of spoil. Waste - just report the mounds of spoil. It's a public highway and the council has a duty to keep it open. If there's an official/unofficial decision to stop up the road then this could possibly work to your advantage.
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Sadly I don't have any hard evidence other than my word. Up to 4 cars (and sometimes 5) have parked here for many years on match days. I don't know how I could prove that, other than maybe ask people on the numerous Man City FB pages I'm on?
On most occasions, I've not managed to park there because it's already been full. People tend to get there very early, park up here and then totter off to Asda/the Stadium etc.
I'm sure if a 'search' for PCNs on that spot was conducted, there would be no record of any being issued. But of course, I'd then need photographic evidence of vehicles previously parked there without penalty. How would I go about that? Does anyone know?
Thanks again for everyone's support with this.
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OP, you're only at the PCN stage and therefore the 'failure to consider' 'ambush'(my take, not a legal term) won't apply IMO.
If you include a link which you can later prove wasn't opened then at this point you would be at the NTO stage. And then what? Make reps against the NTO on these grounds, and possibly others but:
Don't include the link i.e. simply rely upon their failure at the PCN stage? Or
Include the link?
If 1, then at appeal IMO an adjudicator would consider this to be an ambush.
If 2, then the authority are more than likely to view it.
In short, if this tactic (which IMO unless the link is fresh evidence sourced by the OP - not CEO photos - and set within a relevant context and legitimate grounds has no merit other than simply being a trap) is followed then surely it can only be included once at the NTO stage.
OP, what evidence other than your claim do you have that you have parked here on numerous occasions recently. (the council would know whether you or anyone else has been issued with PCNs simply by searching using location and date)?
What track record does this approach have at adjudication?
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I'd combined strategies 1 & 2, belt and braces.
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Thank you Cp8795 and Dancing Dad :)
I'm unsure now which approach to take?
If you were me would you -
a) Make a plea for discretion based on the legitimate expectation, and if failing that,
b) Adopt Strategy 2 with a link and counter and cross fingers for a 'failed to consider' contest?
Thank you so much for helping me with this. It's truly appreciated.
Deb
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All I got is Legitimate Expectation.
IE parking has always been tolerated here during match days and not enforced.
But if a vehicle was a couple of foot further back, it would not be adjacent so would not be enforced.--- and there seems room so how to prove parked up in this position and not been penalised?
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Sadly, as the files are too big it wouldn't let me attach all.
It does if you actually read the instruction here: 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/ (but you have to actually read it properly, skimming over it and then not following the instructions doesn't count).
Here are the council photos:
(https://i.imgur.com/F1Amrg4.png)
(https://i.imgur.com/6n6yvF2.png)
(https://i.imgur.com/un2oya2.png)
(https://i.imgur.com/1TZyJyz.png)
(https://i.imgur.com/C81UHXB.png)
(https://i.imgur.com/dZYQA9R.png)
(https://i.imgur.com/SDP3FVH.png)
(https://i.imgur.com/ew2uBYx.png)
If you'd parked parallel to the road against the bank of earth, you would have been OK. Unfortunately however your car is parked adjacent to a kerb that has quite clearly been lowered to make it easier for pedestrians to cross the carriageway.
One possible argument that could be made is that the area where you were parked is a vehicle crossover, such that the footpath is not interrupted at all so the lowered keeb cannot be there for the purpose of allowing pedestrians to cross the carriageway at all, but that is only just about arguable and I don't think it would succeed at the tribunal.
In the circumstances there are only two possible strategies:
1) Make a plea for discretion, or
2) Try and trip the council up into failing to consider your representations.
Strategy 1 involves appealing to the authority's discretionary power not to enforce, which is a power only the council has (the tribunal cannot allow an appeal on this basis).
Strategy 2 involves giving the council a link to a video or image you want them to consider, and setting it up view a click / view counter so we can prove whether they're looked at your supporting evidence. If they fail to look at it, you can then win on a failure to consider.
The best approach might be to combine both approaches (provide evidence of mitigation by means of a link), but first we need to know if you have any meaningful mitigation to put forwards.
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Thank you. Yes, that's it exactly.
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......
Sorry, I'm trying to copy exact street view and not sure if it's worked?
It did but just repostng for clarity
https://www.google.com/maps/@53.4919689,-2.2063674,3a,75y,226.1h,77.66t/data=!3m6!1e1!3m4!1sjY5obbjOqiNvl5utP2tPFQ!2e0!7i16384!8i8192?entry=ttu
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https://maps.app.goo.gl/PHMeN1RCwEYt2xWB8
<iframe src="https://www.google.com/maps/embed?pb=!4v1697971512566!6m8!1m7!1sUWnYf7PMZONah6vem9tXlQ!2m2!1d53.49203145296008!2d-2.206478836425439!3f202.22198!4f0!5f0.7820865974627469" width="600" height="450" style="border:0;" allowfullscreen="" loading="lazy" referrerpolicy="no-referrer-when-downgrade"></iframe>
Sorry, I'm trying to copy exact street view and not sure if it's worked?
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Hi
Thanks for replying. I've attached PCN now. Sadly, as the files are too big it wouldn't let me attach all.
Hope this helps.
For context, yes I have parked here for the last 3 years when I go to the football once a fortnight. Manchester City Council are in the process of making alot of the streets around the Etihad and the new Coop Arena, residential. However, this isn't the case as yet.
There are traffic lights here too and when people are leaving the game and walking that way, they use the road and not the dropped kerb.
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And a Google Streetview location link pls.
At the moment can only say yes there is a dropped kerb and yes the vehicle is adjacent to it.
But context is important in these cases, the purpose of the dropped kerb etc
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You have not attached the PCN as far as I can see.
Please read this and update your thread
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/
Have you always parked part-way across the dropped kerb over the 3 years of parking ?
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Good morning
Really hope someone can help please?
Yesterday, I received a PCN (Manchester City Council) for the above contravention (attached).
When there has been available space (generally space for 4 cars here), I've parked here for 3 years.
I've never had a PCN for parking here and wish to challenge it if I can? Have I just been lucky, or do I have a chance at overturning this PCN?
Please feel free to ask for further information to clarify position. I've also attached photos for consideration.
Many thanks in advance for any guidance/assistance.
Have a lovely Sunday.
Deb
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