I am writing to make a representation regarding a Penalty Charge Notice (PCN) xxxxxxxx issued on 09/11/2010.

Transcription

1 xxxxxxx Honeybourne Road London NWxxx PCN Processing, PO Box London NW1 9GH Dear Sir, I am writing to make a representation regarding a Penalty Charge Notice (PCN) xxxxxxxx issued on 09/11/2010. I ed you on Dec 2 nd (see Appendix 3) to ask you for the precise location of the vehicle when the PCN was issued. Despite your obligation to disclose all relevant information at the earliest opportunity I have not received a reply. Please find below two appeals based on which suspension order was alleged to have been contravened: Appeal 1: Parking bay suspension 1-24 Yale Court, Honeybourne Rd (CUS ) Appeal 2: Parking bay suspension 12-57/64 Yale Court, Honeybourne Rd (CUS )

2 Appeal 1 and Appeal 2 1. Location of vehicle insufficiently identified on PCN. I did not know on receipt of the PCN where the contravention was alleged to have occurred and subsequently have not been able to find out this location, despite contacting Camden Council on 2 nd December (see Appendix 3). I telephone on 26 th Nov as well but was refused this information. The PCN fails to comply with the requirements of Section 4(8)(a)(i) of the London Authorities and Transport for London Act This provides that the PCN "must...state...the grounds on which the council... believe that the penalty charge is payable with respect to the vehicle". There were least 4 separate parking bay suspensions on Honeybourne Road on the day the PCN was issued. I refer to the "Joint Annual Report of the Parking Adjudicators to The Association of London Government Transport and Environment Committee " and in particular the case "Inadequate description of contravention in PCN: location insufficiently identified 'Adamou v Haringey (PATAS Case No )" page 33, and also 'Reeve v Haringey (PATAS Case Reference ). These judgements and others clearly require the PCN to give an adequately specific location for an offence, in particular that the PCN should state the location e.g. in terms such as, "High Road N22 at its junction with Bounds Green Road" and not just state one road, e.g. "High Street N22" and "Green Lanes N4" were ruled inadequate. It is clear that the PCN issued did not meet this requirement and hence is not valid in law. 2. The Parking Bay Suspension Sign is not lawful Camden Council has failed in their statutory duty to sign the restriction in accordance with the law. The sign does not comply with the variant permitted by the Department for Transport on 17/06/2010, drawing GT46/2/137(Pt2)-11 see Appendix 5. The sign used does not contain the full wording ADVANCE WARNING Parking Suspension and is thus not valid in law. The sign used does not contain the headings DATES FROM and TO, REASON FOR SUSPENSION, CONTACT DETAILS and is thus not valid in law. The sign used does not contain two side panels to form a triangle and is thus not valid in law.

3 3. Forced payment of PCN Prior to the removal of my vehicle a CEO served a regulation 9 PCN. Once a regulation 9 PCN is served then the law gives the recipient the statutory right to submit an informal appeal that must be considered and a statutory 28 day period in which to pay the penalty charge should they not want to appeal informally or formally. When I collected my vehicle, the Council insisted the penalty charge be paid immediately. I do not consider that the regulation 9 penalty charge was payable at the time I paid it, since I wanted to informally appeal with the possibility, should my informal appeal fail, of paying it later at the re-offered discounted rate or proceeding to adjudication. Section 101A of the RTRA 1984 requires any penalty charge payable to be paid on recovery of a vehicle. If a person has no intention of appealing then a regulation 9 PCN is not immediately payable but can be paid at any time no later than 28 days from the date of service. This is a statutory provision. However, where a person does wish to appeal, then a regulation 9 PCN only becomes payable by virtue of regulation 4 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 once all appeal stages have been exhausted and an adjudicator has dismissed the appeal having found as fact that the contravention was committed. For clarity, below is what regulation 4 advises; 4. Subject to the provisions of these Regulations a penalty charge is payable with respect to a vehicle where there has been committed in relation to that vehicle (a) a parking contravention within paragraph 2 of Schedule 7 to the 2004 Act (contraventions relating to parking places in Greater London); (b) a parking contravention within paragraph 3 of that Schedule (other parking contraventions in Greater London) in a civil enforcement area in Greater London; or (c) a parking contravention within paragraph 4 of that Schedule (parking contraventions outside Greater London) in a civil enforcement area outside Greater London. One of the "subject provisions" is that a person is given a statutory 28 day period to pay the PCN or otherwise appeal before service of an NtO. The law requires one or the other not both. This principle is commonly emphasised on many council PCN s that warn the recipient that they must not pay the PCN if they want to challenge it. In other words the PCN is not considered payable if you intend to appeal; this is similar to being assumed innocent until proven guilty. Regulation 4 further advises that the penalty charge is "payable... where there has been committed" a parking contravention. The PCN however only states an allegation of a parking contravention. If a person pays the penalty charge without coercion then this is accepted as admitting that the contravention was "committed" but if a person does not think the allegation is correct then they can appeal until ultimately an

4 adjudicator finds as fact that the contravention was or was not "committed". Therefore I believe the Council acted ultra vires in demanding payment of the regulation 9 PCN immediately on recovery of my vehicle, contrary to what statute provides and contrary to what the PCN advised were my rights. In addition, I was given no opportunity to submit an informal appeal. Being able to submit an informal appeal following receipt of a regulation 9 PCN is also one of the subject provisions and therefore a statutory right. The PCN confirms this right and the Secretary of State s statutory guidance does under paragraph 83 make it clear that the loss of the right to an informal appeal is only applicable to regulation 10 PCN s. I was served with a regulation 9 PCN. 83. The vehicle owner may dispute the issuing of a PCN at three stages: Owners may make so-called informal challenges or informal representations against the PCN before the authority has served an NtO (this does not apply when the PCN is issued by post as the PCN then acts as the NtO). Although I was given information on how to appeal this was only in regard to a formal appeal. There was nothing given to me that advised that any right to an informal appeal as advised by the PCN was lost or had been revoked. At the pound, I was given both the PCN and formal appeal documents and these items gave conflicting information as to what my legal rights were. This was and is confusing and prejudicial. It should also be noted that where a regulation 9 PCN is served then statute provides that any formal appeal against the PCN (not the removal costs) should be in response to receiving a Notice to Owner. The formal appeal document given to me was not a Notice to Owner but simply appeared to be a document served by virtue of regulation 11 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 informing me that I could make representations against removal (not the PCN). This gave me differing and more restrictive grounds for appeal than a Notice to Owner. Although my vehicle was removed it seems irregular and unjust to give me differing and more restrictive grounds for appeal than any other situation where a regulation 9 PCN is served. I believe such unfair restrictions and limitations to be contrary to the general principles of law. The Traffic Management Act 2004 and its associated regulations as well as the RTRA 1984 do not stipulate that the statutory rights, provisions and procedures relating to the service of a regulation 9 PCN are revoked and void where that vehicle is later removed by virtue of s.99 RTRA Therefore I believe the Council has acted ultra vires and is guilty of procedural improprieties. In addition The Removal and Disposal of Vehicles Regulations 1986 (S.I. 1986/183) do not prescribe the method of removal used in regard to my vehicle.

5 With the commencement of the Traffic Management Act 2004 and the introduction of Civil Enforcement Officers, S.I. 1986/183 was amended by The Removal and Disposal of Vehicles (Amendment)(England) Regulations 2007 (S.I. 2007/3484) to include new regulation 5C. However, regulation 6 of S.I. 1986/183 has not been amended to take into consideration the newly inserted 5C regulation. As such there is no prescribed method of removal for vehicles that are removed by arrangement of a Civil Enforcement Officer. Without the methods of removal available to Civil Enforcement Officers being prescribed it cannot be certain that the method used was lawful and therefore the Council needs to establish that the method of removal was lawful. 4. Confirmation from Camden Parking Services that vehicle would not be impounded On Nov 6th I departed on holiday (see Appendix 2 for a copy of my flight ticket and boarding pass) On Nov 8 th I received a text saying the bay where vehicle was parked would be suspended on Nov 9 th. On Nov 9 th My mother-in-law, Dr. xxxxx, telephoned Camden Council Parking Services, on my behalf, to inform you that a parking bay suspension sign was not present when the vehicle was parked, and that it was not possible to move the vehicle as I was on holiday (please note that no one else was insured to drive the vehicle). Camden Council informed her that the vehicle would definitely not be towed, but relocated, and would receive only the standard 60 penalty. Please see Appendix 1 for documentation of this conversation. Please confirm or deny that this signed document is an accurate description of the conversation took place on November 9th? Please also confirm or deny that you informed Dr. xxxxx that the vehicle would not be impounded? 5. Mitigating circumstances regarding car pound fee On the Nov 6 th I left the UK and did not return until the Nov 21 st. During this time I was unable to collect the vehicle from Camden Car Pound. On this basis a storage fee of 440 is both unfair and disproportionate to the original offence. I request that this be taken in to account and the car pound fees waived. 6. Inadequate Photographic Evidence The photographs of the sign that the CEO took do not clearly identify the parking bay suspension which it is alleged was contravened. See Appendix 4

6 7. The Parking Bay Suspension Sign is not a lawful variant of any diagram from the TSRGD 2002 The sign used is not a permitted variant of any diagram from the TSRGD The council operate traffic enforcement under the provisions of the Traffic Management Act This act under section 92 advises; traffic sign has the meaning given by section 64 of the Road Traffic Regulation Act Section 64(1) of the Road Traffic Regulation Act 1984 defines a traffic sign as either being. (a) specified by regulations made by the Ministers acting jointly, or (b) authorised by the Secretary of State, Section 64(2) of the RTRA 1984 adds further that; (2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character. The regulations referred to in section 64(1)(a) of the RTRA 1984 are known as the Traffic Signs Regulations and General Directives DfT circular 02/2003 informs about their purpose; The TSRGD 2002 prescribe the designs and conditions of use for traffic signs to be lawfully placed on or near roads in England, Scotland and Wales. Regulation 11 within the TSRGD 2002 reiterates this circular and section 64(2) of the RTRA (1) Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, Part II of Schedule 10 and Schedule 12 to traffic on roads shall be of the size, colour and type shown in the diagram. Further to the TSRGD 2002 the DfT has compiled and published numerous manuals known as the Traffic Signs Manuals to provide deliberate and extensive detail and information on how Local Authorities are to apply and interpret the plethora of regulations and directions given within the TSRGD These manuals contain no confusion as to how the DfT expect Local Authorities to interpret the law on traffic signs. The TSM Chapter 1 advises; 1.15 Authorities may only use signs including carriageway markings of a size, colour and type prescribed or specially authorised by the Secretary of State, The prescribed signs are included in The Traffic Signs Regulations and General Directions 2002.

7 1.18 The use on Public highways of non-prescribed signs which have not been authorised by, or on behalf of, the Secretary of State, is illegal and Authorities who so use unauthorised signs act beyond their powers. Additionally, an unauthorised sign in the highway is an obstruction. The TSM Chapter 3 advises; 2.1 All traffic signs placed on a highway or on a road to which the public has access (right of passage in Scotland), as defined in section 142 of the Road Traffic Regulation Act 1984 and amended by the New Roads and Street Works Act 1991, must be either prescribed by Regulations or authorised by the Secretary of State for Transport. and that no non-prescribed sign is used unless it has been formally authorised in writing. Failure to do so may leave an authority open to litigation, or make a traffic regulation order unenforceable. The TSM Chapter 5 advises; 2.1 All road markings placed on a highway or road to which the public have access must be either prescribed by Regulations or authorised by the Secretary of State for Transport. 2.5 Care should be taken to ensure that markings are used only in the manner prescribed in the Regulations, and that no non-prescribed marking is used unless it has been authorised in writing. Failure to do so may leave an authority open to litigation, or make a traffic regulation order unenforceable. In addition the DfT has compiled and published more than 14 series of extensive detailed works known as Working Drawings to assist Local Authorities in ensuring that they get the design of traffic signs correct. It is nonsensical that the DfT would go to such extreme lengths of detail and precision if they believed legislators intended Local Authorities to be allowed freedom of action or any degree of autonomy in traffic sign design. Although both the RTRA 1984 and the TSRGD 2002 were enacted prior to the Traffic Management Act 2004 they are both still active and form the legal foundation for traffic enforcement under the TMA Section 87 of the TMA 2004 made provision for the Secretary of State to issue statutory guidance to Local Authorities in which they must have regard to when implementing and administering their traffic enforcement. It is clear from the extracts below that the Secretary of State expects Local Authorities to use traffic signs that comply with the law. 12. Enforcement authorities should aim to increase compliance with parking restrictions through clear, well designed, legal and enforced parking controls. 17. all Traffic Regulation Orders (TROs), traffic signs and road markings are in compliance with legal requirements

8 25. Unclear restrictions, or restrictions that do not comply with regulations or with the Secretary of State s Guidance, will confuse people and ultimately undermine the operation and enforcement of the scheme overall. 33. Once a solid foundation of policies, legitimate TROs, and clear and lawful signs and lines are in place, the success of CPE will depend on the dedication and quality of the staff that deliver it. 38. CEO duties will also include related activities such as the following: checking and reporting defective traffic signs and road markings. In addition to the Secretary of State s statutory guidance the DfT published further guidance for the benefit of Local Authorities. This publication is known as the Operational Guidance to Local Authorities and this gives further clarification in regard to traffic signs Authorities should not issue PCNs when traffic signs or road markings are incorrect, missing or not in accordance with the TRO. These circumstances may make the Order unenforceable. If a representation against a PCN shows that a traffic sign or road marking was defective, the authority should accept the representation because the adjudicator is likely to uphold any appeal. An enforcement authority may be acting unlawfully and may damage its reputation if it continues to issue PCNs that it knows to be unenforceable The Secretary of State will not sign an Order until a senior official of the authority has confirmed in writing that all existing and new TROs, traffic signs and road markings in the proposed CEA: are in line with Government regulations and guidance in relevant chapters of the Traffic Signs Manual or have special authorisation from DfT; Considering all the above, what it is evidently clear, ever since the introduction of the RTRA 1984 up to the publication in 2008 of the DfT Operational Guidance to Local Authorities, is that there has been consistent and explicit direction by both the legal profession and Government, as to what is considered to be a lawful traffic sign. The courts have helped confirm this direction, such as in Davies v Heatley[1971] RTR45 where it was determined that the fact that a traffic sign may be clear does not make it legally correct. This finding of fact has been considered correct by numerous adjudicators but most notably in the key cases between Burnett v Buckinghamhire CC (PAS case HIW0003), Mr J Letts v London Borough of Lambeth (PA ) and Mr Keivan Jalali Bijari v Bolton Metropolitan Council (case no BO05375E). The legislators did accept that a degree of flexibility would be required by Local Authorities and this is why the law not only prescribes numerous variations of traffic signs but permits a Local Authority to approach the Secretary of State to seek authorisation to use a non prescribed traffic sign. If you as a Local Authority chose not to follow the scope of the law then you must suffer the consequences without

9 complaint rather than act ultra vires by attempting to enforce an unlawfully signed traffic restriction. If the law intended only that a traffic sign must not mislead a motorist then the law would simply have stated as such and neither the legislators nor Government would have gone to such extreme and costly measures in drafting and publishing volumes of legislation and guidance to assist Local Authorities in regard to the specific design of traffic signs. If you as a Local Authority ignore the overwhelming evidence that is in my favour and assert that, although the traffic sign fails to comply with the law, it is adequate to convey the restriction and that its non compliance with the law can be regarded as de minimis then I must strongly disagree. I have illustrated above that both the law and Government has gone to great trouble and effort to ensure that throughout the country motorists can be confident of finding identical traffic signs to the restrictions in force. This is not a case, where, for example, there is a very minor degree of wear to the lines or where one of the white lines is a millimetre or two out. The fact of the matter is that the council has simply used non prescribed signage without authorisation and it seems to me to be inappropriate to employ the de minimis principle to paper over the error. I certainly do not consider the amount of the penalty charge to be de minimis when compared to my disposable income. If you do argue a case of de minimis then I too should be allowed, in the interest of justice and fairness, the same degree of flexibility and leniency when interpreting the traffic order bylaw. We are repeatedly informed that the purpose of traffic restrictions is to maintain traffic flow and to encourage road safety for all users of the public highway. My vehicle was not parked in such a manner that it interrupted the traffic flow nor did it endanger the safety of any person upon the public highway. Therefore, it is not unreasonable to apply the principle of de minimis to the alleged contravention just as equally as you may attempt to apply it in your defence of the unlawful traffic sign.

10 Appeal 1 If the PCN is for the suspension of 1-24 Yale Court, Honeybourne Rd (CUS ) I would like to appeal on the following grounds. 8. Vehicle not located in suspended parked bay The vehicle was not parked outside 1-24 Yale Court, but outside 25 Yale Court. Since the vehicle was not in the location alleged by the PCN, the PCN is not valid in law. Appeal 2 If the PCN is for the suspension of Yale Court, Honeybourne Rd (CUS ) I would like to appeal on the following grounds: 9. Suspension Sign not present when vehicle parked The parking bay suspension sign outside 25 Yale Court was not present on Nov 6 th when the vehicle was parked. On Nov 6 th I parked my vehicle outside 25 Yale Court, Honeybourne Rd to ensure that it was parked in a non-suspended parking bay. Outside 25 Yale Court there still remained the expired suspension notice CUS (2 nd -4 th Nov: 33-40, Yale Court). This sign did not show any other future parking bay suspensions. Could you please provide proof that the suspension notice CUS was present on Nov 6 th when I parked the vehicle? Please note this is not a request for proof that the sign was present on Nov 9 th when the PCN was issued. Since the sign was not present on Nov 6 th when I parked the vehicle the suspension was not lawful. 10. Suspension Sign not erected with 15 days notice I very clearly recall only one sign (for suspension CUS ) being present in the two weeks prior to Nov 6 th. At no stage were there two separate suspensions signs on this lamppost. The only sign visible from 25 Yale Court and relevant to 25 Yale Court (where the vehicle was parked) was suspension CUS which had already expired (2nd- 4th Nov) Since the sign (for suspension CUS ) was not erected outside 25 Yale Court 15 days before the commencement of the alleged suspension, the sign was not lawful.

11 Summary Camden Council must prove the alleged contravention and must produce the legal documents including the authorisation for the suspension signs that they rely upon to allow them to issue this PCN. Absent this authorisation the sign does not exist not in law and the PCN, and any others issued for this reason, is ultra vires as was the act of issuing it plus any and all follow-on actions by the council. Furthermore, the council needs to produce evidence that lawful Procedures have been used in particular that consultation according to regulation 10(3) has been fully complied with regarding notifying statutory bodies such as the Chief of Police, that the Notice were erected in accordance with the regulations Schedule part 2 and that part 3 of the Schedule was also complied with in regard to the placing and removal of traffic signs. Request for Information Further to this the council needs to provide copies of The Parking Enforcement Officers Notes Photos of vehicle being lifted A copy of the suspension notice. Copies of logs that show that when the sign for suspension CUS was actually removed from outside 25 Yale Court. Copies of the logs that show when the new suspension sign CUS was place outside Yale Court. For the reasons explained above I require the council to acknowledge their signing error and to cancel this penalty charge forthwith. If you have any queries please do not hesitate to contact me Yours faithfully Charles Openshaw

12 Appendix 1 Documentation of the telephone conversation between Dr. xxxxxxx and Camden Parking Services.

13 Appendix 2 Proof of absence from UK. Flight details removed

14 Appendix 3 Request for details

15 Appendix 4 Parking Enforcement Officer Photographs

16 Appendix 5 Unlawful suspension sign

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