Council PCN with wrong make of car - have attached scan now

cte1111

My Dad has just been issued with a PCN in a council car park. He tried to buy a ticket but the machine kept spitting out his money. He says he tried several times with different coins but it wouldn't take any of it.

The reason I'm posting is that the ticket has the make of his car down incorrectly. It's got his correct registration number but the wrong make and model.

Here are links to the scans of front and back of the PCN:
http://i1097.photobucket.com/albums/g356/cte1111/Parking_Fine.jpg
http://i1097.photobucket.com/albums/g356/cte1111/parking/Parking_Fine_Back.jpg

I'm happy to try and appeal on the grounds that the machine wasn't working but is it better to challenge it because of the wrong make first?

Thanks for any help you can offer. My Dad was very upset and he can't write to complain about it himself because he had a stroke last year and struggles to express himself in writing although he is fine to drive.

Coupon-mad

You will need to post a pic of the front and back of the PCN. Never mind a scanner, does no-one in your family have a mobile phone or digital camera they can take close up pics with?

You can get help here and on pepipoo forums but they'll need pics.

cte1111

The problem is my Dad and the parking ticket are some distance away. I will try and get the ticket later in the week but wondered if anyone could help with advice about the wrong make of car on the PCN. Thanks

peter_the_piper

Colour and wrong make of car are unlikely to be much help on their own. Add them to other faults which are possibly on the pcn and you will be much more likely to get the ticket sorted.
Mobile phone camers on macro/close up will do the trick. Don't forget to remove personal details but leave dates. Both sides of pcn please.

cte1111

I have now scanned the PCN and attached links to the image. Any help on how best to phrase the appeal would be gratefully welcomed. Thanks

TheBogsDollocks

This appeal will give them something to think about. Keep in the underlined and bold highlights.

Dear Sirs

I wish to appeal against the penalty charge. The reason why no ticket was visible was for the simple reason that the car park ticket machine would not accept the coins entered. I tried various and numerous coins and each one was rejected which suggests the machine was malfunctioning. I made a reasonable attempt to comply with the parking regulations and I should not be penalised due to a malfunctioning ticket machine. I hope you accept this appeal as being truthful and cancel the penalty charge. If you do not accept this appeal on the point above then I require you to give proper consideration to the following other appeal points.

Although you accuse me of this contravention you have not provided any evidence that confirms that the restriction is supported by a legally enacted traffic order. You may possess a few photos of my vehicle against the backdrop of a traffic sign but this is meaningless as evidence of a supposed contravention unless it is supported by a valid traffic order.

Therefore it is necessary for you to provide me with a full copy of the traffic order that you believe has been contravened and I require you to explain fully what article or articles I allegedly contravened and to direct me to the specific entry for the location concerned within the relevant schedule and to explain fully why you believe that I do not qualify for one of the given exemptions within the traffic order. It is paramount that the traffic order includes the preamble and all the articles as well as the schedules and is sealed and dated and accompanied by all maps. If the original order has been amended then it is necessary that these amendments are also provided in full. I will remind you that in the case between Terence Chase v Westminster City Council, the adjudicator emphasised that a council has a legal duty to provide all evidence at the earliest opportunity to an appellant. Failure to do so is considered by the courts to be prejudicial as it is likely to effect the appellant’s judgement on whether their case for further appeal is strong or whether they should take advantage of any discount period.

In addition, I am aware of the provision under section 76(3) of the Traffic Management Act;

(3)Civil enforcement officers—
(a) when exercising specified functions must wear such uniform as may be determined by the enforcement authority in accordance with guidelines issued by the appropriate national authority, and
(b) must not exercise any of those functions when not in uniform.

The council has provided no evidence that the CEO was wearing a uniform in compliance with section 76(3)(a) and with the guidance given in section 42 of the Secretary of State’s Statutory Guidance;

42. When exercising prescribed functions a CEO must wear a uniform. The
uniform should clearly show:
· that the wearer is engaged in parking enforcement;
· the name of the local authority/authorities of whose behalf s/he is acting;
and
· a personal identity number.

As the wearing of uniform by the CEO is mandatory when serving a regulation 9 PCN, it is reasonable to conclude that an efficient and conscientious enforcement authority will inspect and keep a record of each officer before they begin their patrol to ensure a uniform is worn and that it complies with the guidance. Since it is a mandatory requirement, the burden of proof must remain with the enforcement authority. This principle is supported in the adjudication case between Derek Jack Hayward v London Borough of Croydon. Therefore, I require unequivocal evidence that the officer who served the PCN upon my vehicle was wearing the correct uniform in the correct manner. Without any evidence to the contrary, it is not unreasonable to assert that the PCN was served by the CEO in contravention of section 76(3)(a) thus invalidating the PCN served. A parallel can be drawn here in that where an authority fails to provide evidence that a PCN was affixed to the vehicle then an adjudicator will often allow the appeal. The wearing of a uniform is given no less mandatory weight in law than the affixing of a PCN and if the council cannot provide any records to satisfy the burden of proof then there is nothing to swing the balance of probabilities in their favour. The simple fact that a PCN was served is not in itself evidence that a uniform was worn correctly at the time of service and should not be construed as such.

I also bring to your attention the important fact that PCN fails to comply with regulation 3(2)(b) contained within Statutory Instrument 2007/3482 and it is therefore my belief that the PCN is not lawful.

3(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;

Although the PCN does say that representations will be considered, it fails to make the recipient aware of the period of time they are lawfully entitled to in which to submit such representations. The lawful period is given by regulation 3(2)(b) and it is given as any time before the NtO is served and as such a PCN must convey this fact to the recipient. This requirement is repeated in paragraph 8.40 of the DfT published ”Operational Guidance to Local Authorities”;

“that, if representations against the penalty charge are received at such address as may be specified for the purposes before an NtO is served”:

Failure to include this specific statutory information on a PCN could prejudice the recipient and consequently such a failure should not be considered immaterial. For example, a person (where the NtO has not yet been served) may only remember about the PCN on the 30th day after its service and as the PCN only makes reference to “challenges” in sentences that refer either to a 14 day or 28 day period, that person may conclude that it is too late to make representations even though that person is lawfully entitled to make representations at any time before an NtO is served. Thus the failure of the PCN to convey the information given by regulation 3(2)(b) is, or could be, critical to the response of the driver/owner to the PCN.

Considering this fact I expect you to cancel this penalty charge forthwith. If you do not cancel then I will require you to explain fully why you think the PCN does comply with regulation 3(2)(b).

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and provide the required evidence then I will be, due to your improper consideration, including a further charge of procedural impropriety when my defence is submitted for adjudication and in addition I will proceed with a formal complaint, regarding your maladministration, to the office of the council’s Chief Executive.

In the event of this appeal being rejected then I require the council to formally and immediately acknowledge the following request as a request for information under the Freedom of Information Act 2000. It is somewhat ironic that to assist my further appeal I have to put the council to an expense that far exceeds the worth of the penalty charge. However this request is necessary to enable a more informed appeal to be submitted by myself at the next stage.

1) Please provide all notes and photographs taken by the Civil Enforcement Officer in regard to this Penalty Charge Notice (PCN).
2) Please provide a print out of the case summary /log history and on street log history in regard to this PCN from your PCN processing system.
3) Please provide the full title of the traffic order I am alleged to have contravened in regard to this PCN.
4) Please confirm if the traffic order named above has been amended. If it has, then please confirm on how many occasions and provide the full title of each amending order and the date each one came in to force.
5) Where traffic orders are named in reply to 3 and 4 above, please provide copies of the Notice of Proposal and Notice of Making in each case and confirm in each case where and when these notices were advertised.
6) Please confirm the number of council employees or contracted staff whose duty it is to consider parking appeals.
7) Please confirm the number of staff that have attended accredited training courses on the provisions of the Traffic Management Act 2004 or any other Civil Parking Enforcement courses.
8) Where courses have been attended then please give the date of attendance and indicate how many staff attended and provide the course title and the full name and address of the training providers.
9) Please confirm whether the council obtain registered keeper details direct from the DVLA or whether the council use a third party to do so. If the council use a third party then please name the third party.
10) If a third party is used then please provide details on how this third party satisfies regulation 27 of the Road Vehicles (Registration and Licensing) Regulations 2002.
11) Please provide all maintenance records for the week prior and the week after the date of the alleged contravention for all the ticket machines located in the car park where the PCN was served.

Yours with love, hugs and kisses

taffy056

I read all that and i'm reaching for the aspirin do you think whoever is running the parking section will get past the first few paragraphs ? lol

peter_the_piper

taffy056 wrote: »

I read all that and i'm reaching for the aspirin do you think whoever is running the parking section will get past the first few paragraphs ? lol

I think that's the general idea

TheBogsDollocks

taffy056 wrote: »

I read all that and i'm reaching for the aspirin do you think whoever is running the parking section will get past the first few paragraphs ? lol

That's the plan so we can then include another appeal point of impromper consideration.

taffy056

Okay that made my mind melt

One thing though if the machine was not working properly , could the foi be used for a service and repair of the machine ? I mean if its been repaired because of this fault it could be used as a defence also ?

cte1111

Thanks very much, I've sent the suggested email and will wait for their response.