PCN- traffic management act 2004. recieved 13.2.10

[oz0707]

Hi all.

 

New to the forum and will be grateful for any advice on the following matter.

 

I went to a stationers today in a local town High st. Had single yellow lines along pavement. My PCN says i was 'parked in a restricted st during pescribed hours'.

 

Ok so my intentions weren't pure but as i knew i was going to be litterally 2 minutes MAX I pulled over, put my hazards on and went into the shop. 2 Minutes later i come out to see a warden printing a ticket. I jump straight into van and try to get away but bam he gets ticket under the wipers, accompanied with the yellow envelope but not inside. Anyway he walked to the back of the van so I got out and had a chat with him (since i assumed he'd copped me).

 

I explained that i had been away from the van for a max of 2 minutes! I was under the assumption they have to observe you for atleast 5 minutes. The chap explanied that in Leicester city this is the case but this was outside and issued by Oadby & Wigston Borough council. Anyway asked if he could do anything but he said i would have to write to the council as the pcn had now been issued.

 

On my PCN it says ' observed from 13:02 to 13:02'

Is this allowed? As said above i was under the impression they had to give you 5 minutes.

 

So anyway got home and wrote a letter about how my vehicle was involved in an incident and i had to pull over asap. I have said in letter as i returned from resolving 'incident' (buying a filofax!) I encountered traffic warden and he has advised to write and explain.

 

I am now thinking scrap this letter though and go down the route of no PCN on vehicle. He never got a photo of pcn on vehicle i am 100% sure. Also on my ticket it has the vechicle reg, make and colour but where it says 'Tax disc: Not Taken Expiry: ' Is this allowed? I am thinking the fact that he didnt observe tax disc will back up my theory he never affixed pcn to windscreen.

 

Anyway as i said above my intentions arent 100% pure but i was under the impression 5 minutes was allowed. So i thought i was legitimate. Any advice on beating these stealth tax collectors will be much appreciated!!

 

Cheers,

 

James

[Rooster-UK]

Personally, I think that, unless there are errors in the paperwork, they've gotcha!

A ticket doesn't have to be placed under the windscreen-wipers..... take the case of a drive-away, the ticket can be sent by post!

 

I must admit that I'm not well-up on council/police tickets, but there are plenty of users here that are. Maybe they might have better news for you than I can give.

 

Regards, Rooster.

[oz0707]

Think i will wait to hear from the more clued up on this subject. Hoping they have some good news for me! Im not down and out yet thought, still got plan A typed up ready to send off, play on the sympathy card!

[TheBogsDollocks]

Before anything else check out the 5 minute obs rule. Its not statutory but if it is council policy then they must abide by it. Check out their website to see if it says anything, if not, phone or email on Monday and get it clarified. Then come back to us for advice. Plenty of other avenues to explore.

[Bernie_the_Bolt]

There is no requirement in law for observation time if the CEO has reasonable grounds to believe that a contravention has occurred.

 

Hazards are irrelevant as far as parking contraventions go.

 

Were there loading restrictions in place? If there were that would also explain why no obs are needed (unless a boarding/alighting exemption applies).

 

From your description, you were not legit as you were buying goods so you cannot claim a loading/unloading exemption (if it is not in a no loading area).

 

Please also bear in mind that it is a criminal offence to knowingly make a false statement in your representations.

 

Scan and post the PCN, there may be errors.

[oz0707]

It seems the lack of tax disc observation irrelevant?

[TheBogsDollocks]

When you go on the Borough council's website for parking it takes you to Leicestershire County Council. This implies that on street parking comes under the county council and not the borough council. I expect that the county is responsible for highways while the borough is responsible for local car parks.

 

As you were parked on street, it is the county's policy that matters and if their policy is a 5 min obs then anything less will not hold at adjudication. This will not apply if there was a no loading restriction as well as a no waiting restriction in place. A no loading restriction will be marked by a sign and yellow markings on the kerb.

 

When you appeal do not incriminate yourself by confessing your actions. If applicable, simply state that the councils policy is for a 5 minute obs period and this was not adhered to. Therefore, the council has failed to abide by it's own policy and that they have not beyond all probability established that an exemption did not apply to your vehicle. In addition request photographic or written evidence that the PCN was affixed to your vehicle as required by law.

[Bernie_the_Bolt]

Why do you think policy trumps law?

Some councils have policies that state that goods vehicles must be used for loading/unloading. Some also have policies that vehicles must not be left unattended. None of this is law.

[TheBogsDollocks]

Why do you think policy trumps law?

Some councils have policies that state that goods vehicles must be used for loading/unloading. Some also have policies that vehicles must not be left unattended. None of this is law.

 

Your above examples are law if they are written into a TRO/TMO and only policy if they are written as guidance.

 

It is not only law that applies to parking contraventions. There is guidance, such as sec of state guidance, DfT operational guidance and the Council's own guidance. As you've previously said, obs time is not law. However, if it is promoted through guidance then it needs to be adhered to. If obs was not given (as yet we do not know if it was even required) and if it is policy, there has been a failure on behalf of the enforcement authority that can be used to benefit the OP.

 

The council cannnot create law (other than via a TRO/TMO) but if it promotes a policy, such as giving a minimum 5 min obs period, it will look rather foolish if it does not then apply those policies.

 

At no time does policy trump law and at no time have I said it does.

Edited February 14, 2010 by TheBogsDollocks

[Bernie_the_Bolt]

Let's not confuse things further!

 

If your suggestion is correct, that the LA will hang on their policy, the effect of that will be to give 5 minutes free parking (or however long the obs period might be).

 

I am suggesting that this is not the case. The reason for this is that if the CEO had other evidence to give them reasonable grounds that a contravention has taken place they can issue a PCN with no observation. Examples may be they see a car pull over, no one gets out and they see the driver on the phone or seating a sandwich; or, the driver gets out and enters a shop and is observed through the window selecting a item from a shelf. The CEO should record these details in their notes as evidence of their reasonable grounds but an observation period will not be required.

 

The OPs situation could fit into one of the above, we cannot be certain until we see the CEOs notes and these only need to be produced at adjudication.

 

If the OP makes reps based on no observation the LA will simply reject and say to the effect of "we hear what you say, observation periods are only used where there is a possibility that an exemption may apply, if you are claiming an exemption please supply us with evidence" and then where does the OP go.

 

Better IMHO to look for other point to appeal on and then by all means add the lack of obs to support.

[oz0707]

Ok so can probably clarify by saying that it is Leicester City council who give you 5 minutes. They give you this time in all scenarios i have come across eg double yellows and parking ticket expiry.

 

My PCN is from Leicester County council. The way the warden explained that in the county you get no observation time seemed pretty rehersed to me. This implies that he know's what he's doing and he's in the right. Although for a 5 minute phone call I will check myself.

 

The van (ie possible delivery?!) was parked on a single yellow line. The sign was yellow with a red circle and cross thru with times saying when you cannot park. (obviously i was during these times).

 

So anyway i was driving a van, stopped and went into a small independent shop. He would have no idea wether i was a customer or delivering.

 

Cheers for the advice people.

[TheBogsDollocks]

Let's not confuse things further!

 

If your suggestion is correct, that the LA will hang on their policy, the effect of that will be to give 5 minutes free parking (or however long the obs period might be).

 

I am suggesting that this is not the case. The reason for this is that if the CEO had other evidence to give them reasonable grounds that a contravention has taken place they can issue a PCN with no observation. Examples may be they see a car pull over, no one gets out and they see the driver on the phone or seating a sandwich; or, the driver gets out and enters a shop and is observed through the window selecting a item from a shelf. The CEO should record these details in their notes as evidence of their reasonable grounds but an observation period will not be required.

 

The OPs situation could fit into one of the above, we cannot be certain until we see the CEOs notes and these only need to be produced at adjudication.

 

If the OP makes reps based on no observation the LA will simply reject and say to the effect of "we hear what you say, observation periods are only used where there is a possibility that an exemption may apply, if you are claiming an exemption please supply us with evidence" and then where does the OP go.

 

Better IMHO to look for other point to appeal on and then by all means add the lack of obs to support.

 

What you say makes perfect sense to me and I agree. The CEO does not have to give any obs time if it is clearly evident that the purpose of the parking is not for any possible exemption, i.e. such as parking to take a phone call.

 

The whole point of giving an obs time (where a person, as in this case is parked on yellow lines) is to ascertain whether an exemption might apply. It is possible in this case the CEO saw the OP nip into the shop and doing nothing other than browsing. As you say we need the CEO's notes to be certain.

 

However, if the CEO was not aware of the OP's location or purpose for parking then it is normal practice to give a obs period of 5 mins. If they don't and the OP later claims they were parked for the purpose of loading it is then difficult for the Council to refute his claim if no reasonable period of obs is given to discredit the claim.

 

I would request the CEO's notes at the same time as you check the obs policy. Once you have a copy, you can better judge what action you should take next.

[oz0707]

Bogs Dollock's thanks for your advice. Just need to sure up on a few bits. I know you can load/unload on double yellows but does this still apply to a solid yellow?

 

If this is the case I may write a brief letter stating that i was loading (or stopping to ask if there was a rear entrance) and leave it upto the LA to prove I wasn't and see if they will accept this. From speaking to the warden he didn't know I was in the shop, and even if he did - i am a van driver, stopping and walking into a shop. Otherwise better get my 35 quid out!...

[TheBogsDollocks]

Loading and unloading applies equally to single and double yellows, so long as there is not a sign saying "No Loading".

 

Can you upload both sides of the PCN as I've a suspicion it may be non compliant. Always best to cover all angles.

[oz0707]

Not got a scanner ill see how good i can get a photo of it. Should I blank out anything re forum rules? Cheers mate.

[TheBogsDollocks]

Cameras on macro mode work best I'm told. Make sure you paint over any identifying details such as PCN number, VRM.

[oz0707]

Attached to here was too small. Links Below

 

http://f.imagehost.org/0462/frontedit.jpg front

 

http://b.imagehost.org/0497/back.jpg rear

[lamma]

do the dates add up properly ?

[TheBogsDollocks]

PCN fails to comply with what the law requires.

 

(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a) that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and

 

(b) that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—

(i)those representations will be considered;

 

(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.

 

The PCN is required to inform you as to the lawful period available in which you have to submit an informal challenge. This lawful period is "before a Notice to Owner is served". Failure to make the recipient aware of this fact may cause prejudice.

 

For example, you may only remember about the PCN after the 30th day of service and on reading it you may be under the impression that you only had 28 days to appeal and that therefore you are out of time. As such you would not appeal when in fact your are legally entitled to if no NtO has yet been received.

 

The majority of PCN's outside London contain this error but the London Boroughs have got it right. If you search the forum for a London PCN you will see the difference in wording from this one.

 

It would seem that if Leicestershire CC and the district councils use this PCN formula then they've not issued a single lawful PCN since 31 March 2008.

[oz0707]

Sounds good to me. How to put this into practice though? Ie if all tickets they issue are like this surely it is doubtful they will cancel for this reason? Does this mean i may have to take this to court?

 

Cheers again

[TheBogsDollocks]

Admittedly they will not voluntarily admit their PCN's are non compliant. To do so will be admitting they are uneforceable and that would be too costly.

 

They may find a technical reason to cancel the PCN rather than for the reason above. The worst that can happen fo you is having to submit a written appeal to adjudication. At no time will you need to go to court, adjudication is an informal matter. You do not need to attend unless you choose to or you could have a hearing by phone or just rely on your written submission. It's all very simple and no more effort than writng any other appeal.

[oz0707]

So bearing in mind the reasons for the PCN being invalid would it be adviseable to wait until NTO is served before approaching the council?

 

Alternitavely I could write a letter asap stating the reasons you have explanied the PCN is invalid. Then breifly ask why as i was driving a commercial vehicle a reasonable obs time of 5 minutes was not given.

 

Do you think this will let them know I have the upper hand, while still giving them a reasonable excuse to cancel without 'losing face'?

 

Or do you think if I write to them asap I am discounting my whole argument on why the PCN is actually invalid?

 

Thanks again,

 

James

[TheBogsDollocks]

The aim is to get the PCN cancelled ASAP. If it was me, I would appeal on the observation point and finish with the fact that the PCN does not comply with regulation 3(2)(b) of Statutory Instrument 2007/3482.

 

I would avoid at this stage telling exactly why it does not comply. I would save that for any adjudication hearing should the council push it that far. If it was me I'd then ask for a telephone hearing and only explain why it does not comply with reg 3(2)(b) when asked by the adjudicator.

 

My reason being that I like revenge and I'd want the council to have all their outstanding PCN's ruled invalid and unenforceable. I'd want to cost them more than the £70 they tried to wrestle from my wallet.

[oz0707]

Good lad, glad we share the same goals!

 

I will write a letter up without too much detail of the events but basing appeal on obs point. Will mention the above aswell.

 

Do you really think it is that black and white with regards to invalid PCN?

 

Cheers.

[TheBogsDollocks]

Take a look at this PCN below and see how it clearly advises that any informal appeal before a NtO is served will be considered. (penultimate paragraph)

 

FightBack Forums > PCN Birmingham - Holliday Street

 

Your PCN does not give this advice when it is clearly required by statute to do so.

 

I can't guarantee an adjudicator will agree but I don't see how they can disregard what the law requires. This point was put before an adjudicator recently but the adjudicator said they do not need to consider the point as the PCN will be cancelled on a point already raised. The other point was a weak one and so it could be that the adjudicator was helping out the council, as otherwise all their PCN's would be unenforceable.

 

The decision must be yours.