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Logic

Trevor Nunn's Site And the Public Service Ombudsman Watcher Main site link click here

  Read what Fredrick Forsyth has to say about Ombudsmen 

"Year's ago a new people's champion called the Ombudsman was introduced. He, we were told, would stand up for the citizen against persecution by the state and rich and powerful companies. Whatever happened to him? I haven't heard of any Ombudsman rectifying injustice in years. It's time they started again. There is surely no people I can think of with less chance than the British to ever have a friend in high places to take their side against the new and ruthless Establishment".

Fredrick Forsyth, Daily Express (page 13), October 12th 2007

Public Service Ombudsman Watchers: We agree with Fredrick Forsyth. Some 75% of all people who submit complaints to Local Government Ombudsman are dissatisfied. People have been suffering injustice for long enough whilst Local Government Ombudsmen have been allowed to bury maladministration for their friends and ex colleagues in Local Government!



What the ????

 

A new section to this website is currently being developed. Essentially we want to correlate all the stupid comments made by Public Service Ombudsmen and/or their staff together with any stupid comments made by Public Authorities and/or their staff. What we are looking for is comments (or actions) that are so stupid they take your breath away and make you think 'WHAT THE ????'. Here's a few examples to give you an idea of what we are looking for,

 

A local councillor stating that an eyesore development wasn't the councillors' fault because permission for it was given by a council officer under the delegated powers they had given him.

 

An assistant ombudsman who stated that they wouldn't investigate a complaint until the council had done something (that they had already done) and the complainant had made a complaint about it (which they had already done because it was the complaint the assistant ombudsman was refusing to investigate).

Please send your submissions to



'Unfit for purpose'  The Welsh Local Government Ombudsman

A complainant's story about Brecon Beacons National Park Authority and the Welsh Public Service Ombudsman.

 

Scottish Public Service Ombudsman condemned as 'unfit for purpose'

The Scottish Public Services Ombudsman comes in for heavy criticism of it's failure to deal properly with complaints.

 

All British Public Service Ombudsmen (Local Government Ombudsmen in England) treat complainants with the same degree of disdain. They are demonstrably not capable of delivering any sort of justice for members of the public. It's about time governments replaced them with a fair, open, honest and accountable system. 

Update on the petition calling for the Scottish Parliament to set up an Appeal Tribunal to review final decisions by the Public Services Ombudsman where any complainer so requests. The matter has now been debated. To view the debate click here. The debate about the petition is approx 1hour 12 minutes into the session. Move the side bar to quickly access the debate.

The MSPs recognised that the problem might lie with the people running the SPSO and not actually the legislation that governs them. One MSP asked that the petitions committee contact Audit Scotland to see what they could do, however this was not recorded in the minutes of proceedings see below.

Outcome The Committee agreed to seek responses to the issues raised in the petition from the Scottish Parliamentary Corporate Body, Scottish Government and British and Irish Ombudsman Association.

As far as England is concerned we also think the problem lies with the people running the Public Service Ombudsman's organisation and not the actual legislation that governs them.

A tribunal of foxes will always find a fox innocent.

 

   Why aren't Local Government Ombudsmen trying to stop

 Local Authorities abusing their powers?

Families Anti-Social Service Inquiry Team (Fassit)

The Sheer scale of the injustice is far worse than anyone can imagine

Denise Robertson - ITV This Morning


 A Court of Star Chamber was established in 1487 by Henry VII as an instrument of royal power. The power of the Court of Star Chamber grew considerably and by the time of Charles I it had become a byword for misuse and abuse of power by the king and his circle. The court could be used to suppress opposition to royal policies. Court sessions were held in secret, with no right of appeal. It used simplified methods of effecting justice by which the common law rules were dispensed with. It was a hated symbol of royal despotism and finally abolished by Parliament in 1641, though its name survives still to designate arbitrary, secretive proceedings in opposition to personal rights.

Local Government Ombudsmen were established by the Government in 1974. UK Local Government Ombudsmen also use simplified methods of effecting justice by which common law rules are dispensed with, they work in private and there is no right of appeal. As a result they are becoming a hated symbol of local government despotism. Local Government Ombudsmen are nothing more than a modern version of a Court of Star Chamber, set up by government to suppress complaints about local  government.

If you believe that Parliament must now curb this abuse then sign the petition above and then write to your MP , the Prime MInister and the Queen.


LGO investigators are paid a bonus if they meet targets.


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    The book on disambiguation

A citizens' toolbox for everyday. DIY disambiguation of spin, casuistry, sophistry, and malfeasant mindlessness. A selection from over one hundred topics in the forthcoming book.

    ___________________________________________________________________

  1. Theoretical considerations, in a treatise on critical thinking.

  2. The laws of thought, Theory of flux.

  3. Natural cause and final cause reasoning; where the boundaries meet, and how the breaches of final cause reasoning lead to Machiavellian ethics.

  4. Bureaucracy and template systems, that fail in correspondence with facts, and the lack of will and templates that admit faults, leading to the detriment in the integrity of mental health.

  5. Blurred distinctions in B. Russell's “On Denoting”, and Wittgenstein's Notes, leading to erroneous formulations in wholly determinate senses, Frege's merit vindicated.

  6. Relevant extracts from Carl Jung's 'Structure and dynamics of the Psyche', showing where conscience is the natural fulcrum regulating the conscious and sub-conscious.

  7. A practical guide going behind the faces of deception.

  8. Principles of Instinct, psychic function, heuristics, and autonomous thinking.

  9. Opposites, and or Contradictions, a substantial difference.

  10. Outlines of design and purpose revealing the inner will of directing minds.

  11. Six essential rules and two axioms of validity.

  12. Over twenty rules for disambiguation of sophistry.

  13. Causal and Final Reasoning, the fallacious boundary of malevolence.

  14. Observing the stream of consciousness, and disambiguating the 'forked tongue' syndrome.

  15. Scientific methodology, principles of necessary and sufficient reasoning.

  16. Forty plus common fallacies, and the infinite variety of correspondence theory breach.

  17. Divergent and convergent thinking in legal drafting.

  18. How some fallacious rulings in exception determinations are self confuting.

  19. The art of “suppressio veri”, “suggestio falsi.”

  20. Knowing and believing, showing and deceiving.

  21. How to swear a truthful lie, and to determine how many layers of ambiguity.

  22. Disambiguating the sentential parts into propositional forms.

  23. Truth table matrices in the calculus of logic, and probability theory.

  24. Critique of foundation errors in Russell's 'On Denoting' and Wittgenstein's notes

  25. How and where keywords indicating the subconscious truth are determined with clarity.


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Traversals 1

The PCNs

  1. All PCN's below and prior to August 10th when Camden may have altered their formulation to correct the description of being 'unenforceable nullities' Main / extract.

  2. Two Date issue. J. Jackson High Court 2nd Aug 06 P35 and P5 - d)

  3. Should NOT have been enforced. ALG Newsletter P52 and P6 –e)

  4. Hyams v Camden Specific Ruling P69 and P6 - f)

  5. 'Mistake of Fact / Law' , Statute of Limitations. P49 and P6 - g)

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Traversals 1 (this section is being updated as at Nov 2007).

    1. The 'FORUM' Argument (irrelevant in this hearing).

      • Usually used to take the challenge away from the ambit of a Court, and either back to TEC or PATAS preferably PATAS where rulings have a characteristic of being softer on councils, trivialising their breaches and upholding strict compliance for trivia against the motorist.

      • If your case is one for restitution this section is far more complex and can take a day's hearing in time. It involves significant case law references for the argument that the local county court can hear cases ruled in the high court. And there are a few new arguments that are untenable against a 'reductio ad absurdum' test, ones that have come up in a recent hearing, that are rebutted also, it is the level 2 bundle for people prepared to take their case even tot eh high court where necessary, and you will need to be well equipped to argue, preferable with a barrister, or very very good McKenzie friend.

      • Looking for evidence or grounds on this? The defendant can show two letters from Camden that show perfect equivocation. One making it clear that an adjudicator's ruling is binding in a court of law, the other stating that an adjudicator's ruling does not set a precedent. Except they don't say which way. Usually and in the majority of cases, an adjudicator's ruling that is prejudicial and biased eventually becomes overruled by a ruling, where the appellant has argued thoroughly, and the earlier prejudicial one is rejected, not the other way around. The Bill of Rights argument has been impliedly repealed, not expressly, prejudicially backwards to enable a penal system to be removed from its origins in the Crown prerogative; to prevent 'mischief' (the term the DVLA uses), and conferred upon councils restoring the very mischief that was deplored when Parliament bridled it. Simple scientific methodology in nomic relationships and causes in necessary and sufficient conditions. This has now become well established and criticised benignly since there is a benefit obviously helpful to central funding. Such a system undermines the integrity at PATAS and delivers want of confidence in the public, because they are unaccountable. An appellant can go to a hearing, play Russian Roulette, with a knowing adjudicator dismissing his appeal, simply because of the asymmetry of knowledge, where his chamber was empty at the trigger, or he failed to play the right card. This is egregiously invidious and smacks of a Hippocritic oath rather then a Hippocratic one. A lawyer would not expect his doctor to behave in such a manner when amputating a leg. But this whole argument dis-applies here, having traversed the entire procedural progress to the court, as the final impartial arbiter.

    1. The 'TWO' date argument (thoroughly treated here special focus on Camden)

      • RTA 1991 section 66,

      • Al's V Bar,

      • Barnet V Moses - High Court,

      • Restitution Case precedent Southend on Sea,

      • ALG 14th Aug 2006 newsletter,

      • ALG review 2005-6,

      • Moulder V Sutton,

      • Hyams V Camden, and

      • Simple pure logic, one cannot possibly extrapolate TWO different dates, from one date referred to in several senses - the first day of 2007, the first day of the first month in 2007, the 1st January 2007, Monday 1st January 2007 do not permit the possibility of any option of a sense of the next day 2nd January 2007. Justice Jackson states, certainty is required, and one date does not satisfy that condition. The 28 days payment within or from is affected as below following from no date whatsoever.

    2. There is a series of inconstancies and contrarieties at PATAS, showing the two date issue being ruled in accordance with the Justice Jackson Hearing. Many are upheld at appeal in favour of the motorist who appeared in person, with one exception. Trade team V Camden, wher a short list were dismissed without reason, and it is understood that Trade team did not appeal in person, being a larger company who could afford to disregard these costs, no doubt their being built in to sales.

      • This short-list of about six, against many more to the contrary indicated what in the obverse case would look highly likely to be venal conduct. Consider: A large number of motorists have their appeals dismissed, and Trade team; singularly, has theirs upheld. One would be likely to consider that Trade team was taking care to ensure there rulings were favourable, saving them revenue. Returning to the original 'reversed back', Trade-team's dismissals enable two things for Camden, 1- Camden gain the revenue in some cases, AND 2 – Camden can argue with truth, with implied falsity that rulings against their two date non complain PCNs continue to be in their favour. The choreography, single name dismissal, and pecuniary advantages look remarkably biased.

    3. The 'YOU' Argument

      • A PCN using 'YOU' instead of the impersonal 'IT', is flawed, and non compliant, it has to refer strictly to the impersonal sense as in RTA 1991, section 66. Any person may be reading the PCN, it is aimed at the registered keeper, if a PCN, and at the OWNER if a NTO. Therefore You must pay, fails to direct liability to the owner, who may be the driver, keeper and owner, BUT they may also be three different people.

      • These are argued and ruled on at PATAS in the following cases;

        • Macarthur –v- Bury Metropolitan Council, PATAS Case BC188.

        • Aspire Loft –v- London Borough of Camden PATAS Case 2070172175.

        • Al's Bar –v- LB Wandsworth PATAS Case 2020106430.

        • Aldridge –v- City of Westminster PATAS Case 2050479095, last para.

      • From PATAS Review 2002; Therefore, the person who receives the Penalty Charge Notice may or may not be the person legally liable to pay the penalty charge. It is no doubt for this reason that the draftsman chose the impersonal 'that the penalty charge must be paid' Al's Bar V Wandsworth V Al's Bar, For the notice to say 'You are required to pay' will be an inaccurate statement of the legal position in a great many cases. In those circumstances, it cannot to my mind be said that the formulation in the PCN constitutes substantial compliance. The point here is that the adjudicator states clearly that 'you' does not constitute substantial compliance.

      • On page 12 of the PATAS review 2002. to repeat the entire relevant section;

        Did the PCN comply with section 66(3) (c), (d) and (e)?The Adjudicator said that substantial compliance would be sufficient; literal compliance was not essential. (see the next section)However, this should not be thought of as encouraging enthusiastic departure from the statutory language. Disciplined drafting dictated that where a statute required a document to contain particular statements, the starting point for drafting a compliant document ought always be that the statutory language should be carried across to the document unless there were very good reasons for doing otherwise. This was for the very obvious reason that using the statutory language eliminated the opportunities for challenging the document for non-compliance. The statutory requirements took precedence over the commendable aim of couching documents in plain English. Local Authorities must be aware that the language they used, however plain, must bear the same meaning in substance as that prescribed by the statute. As to paragraph (c), the PCN said: 'You are therefore required to pay the sum of £80 within 28 days.' This did not comply with paragraph (c) because: • The parking attendant effects service of the PCN by either fixing it to the vehicle or giving it to 'the person appearing to him to be in charge of the vehicle'. Under section 66(2) the person legally liable for payment of a penalty charge is the owner. It may or may not be that the person in charge of the vehicle is the owner. Therefore, the person who receives the PCN may or may not be the person legally liable to pay the penalty charge. For the notice to say 'You are required to pay' would be an inaccurate statement of the legal position in a great many cases. • The prescribed period for payment is 'before the end of the period of 28 days beginning with the date of the notice'. The PCN said 'within 28 days'. “

      • The 'SUBSTANTIAL COMPLIANCE' internal contradiction and biased thinking argument.

        To say “that substantial compliance would be sufficient; literal compliance was not essentialis materially equivalent to “IN-substantial NON-compliance is sufficient”

        • I trust this material equivalence each side of the equation is abundantly clear, and conforms to the requirements of mathematical and logical precision.

        • It follows from this rule that if a council may be treated flexibly in its IN-substantial NON-compliances”. THEN the motorist must expect; for the scales of Justice to be equally balanced, AND every person is equal under the law, that all motorists whose contraventions are insubstantial and trivial in non compliance MUST be treated with the same rule, and PCN's issued in a substantial number of cases for seconds and a few minutes are in direct proportion with the substantial number of cases a council is IN-substantial in its NON-compliance.

        • If PATAS invariably rules against a motorist for trivial contraventions and NOT against the council for the materially identical fault then PATAS is displaying bias, and venal conduct ruling unjustly. PATAS rules literally against motorists, and non literally for councils.

      • FURTHERMORE;


      The '28 days” argument.

      • Usually documentation like the PCN, NTO, NOR, CC and PATAS letters say “you must pay within or from, 28 days”; also “28 days from the date of this letter,” (non compliant). These must refer to a date of notice / issue, and must state date of service of this letter.

      • Additional certainty is added to the cascade effect of 'pay within 14 / 28 days' where the date of Notice / Issue, is absent, and only a date of contravention present, then the 28 days follows from no date whatsoever.

      • There is a further point on this second element. In order to calculate the period, it is necessary to know 'the date of the notice'. Implicitly, therefore, paragraph (c) requires the notice to bear its date. The date '20/11/01' appears twice on the PCN. It appears about halfway down where it is stated that the vehicle 'was seen in Lockington Road SW8 at 09:24 on 20/11/01'. That is in fact part of the 'grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle' required by paragraph (a).

      • PATAS review 2002 para 12. (c), the PCN said: 'You are therefore required to pay the sum of £80 within 28 days.' This did not comply with paragraph (c) because: • The parking attendant effects service of the PCN by either fixing it to the vehicle or giving it to 'the person appearing to him to be in charge of the vehicle'. Under section 66(2) the person legally liable for payment of a penalty charge is the owner. It may or may not be that the person in charge of the vehicle is the owner. Therefore, the person who receives the PCN may or may not be the person legally liable to pay the penalty charge. For the notice to say 'You are required to pay' would be an inaccurate statement of the legal position in a great many cases. • The prescribed period for payment is 'before the end of the period of 28 days beginning with the date of the notice'. The PCN said 'within 28 days'.

      • Amongst the many documents submitted to me by Mr Sutton was a copy of the judgement of his case against the London Boro' of Camden in the Central London County Court. District Judge Wigfield handed down the judgement and pages 19 to 28 are the relevant pages. The local authority has a copy of this judgement. The points to which the Judge refers in those pages are exactly the same as Mr Sutton raised in this appeal and are all concerned with the fact that a Penalty Charge Notice MUST state what is set out in Sec 66(3)(a)-(f) inclusive of the Road Traffic Act 1991.In particular, in this case, the PCN does not state that the penalty must be paid within 28 day period. Word MUST is mandatory.; PCN also does not state that this period should begin with the date of the notice; also, no date of notice stated as such. PCN does not state that penalty must be paid within 14 period to begin with the date of the notice-date of issue and date of notice may not be the same. PCN also fails to refer to "before the end of the 28 day period" see sec 66(3)(e) RTA 1991 or to refer to the NTO being served by the "London authority on the person appearing to them to be the owner of the vehicle." All these matters are traversed in some detail by Judge Wigfield and I incorporate pages 19-28 of his judgement into my adjudication as they are entirely to the point. I would also draw attention to the Judge's reference to the case of Moulder v Sutton London Boro Council at page 26 as it also deals with similar issues as arise in this case. .......the law is clear. It follows that I allow this appeal.

        Comment: What follows is uncertainty to the point of absurdity. Just look at the document, every 27th day and read that you must pay within 28 days, another 28 days, recurring endlessly?

      • Time limit for service of a Notice to Owner, NTO.

      • PATAS review 2002, page 8. A Local Authority is not entitled to pursue enforcement where the Notice to Owner is not served within the statutory time limit.

      • The Adjudicator referred to Lord Hailsham's comment in London & Clydesdale that 'I do not think we are entitled to play fast and loose with statutory requirements designed to inform the subject as to his legal rights against an authority possessed of compulsory powers.

      • The time limit for service of a NTO is six months.

    1. ALG Recommendations: Members are recommended to

      • ensure that their boroughs have:

      • stopped issuing non-compliant PCNs

      • revised the format of their PCNs to ensure that they do comply with the relevant decisions

      • stopped processing any non-compliant PCNs *****

    2. The PCN does not comply with the RTA 1991, and cannot be enforced.

    3. As a 'Mistake of Fact / Law' , and under the Statute of Limitations. Non Compliant PCNs are order to be refunded with interest at 8%.


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The Road Traffic Act 1991, Section 66,


The Road Traffic Act 1991, Parts.


Parking penalties in London.

Section

66.—(1) Where, in the case of a stationary vehicle in a designated parking place, a parking attendant has reason to believe that a penalty charge is payable with respect to the vehicle, he may—

(a) fix a penalty charge notice to the vehicle; or

(b) give such a notice to the person appearing to him to be in charge of the vehicle.

(2) For the purposes of this Part of this Act, a penalty charge is payable with respect to a vehicle, by the owner of the vehicle, if—

(a) the vehicle has been left—

(i) otherwise than as authorised by or under any order relating to the designated parking place; or

(ii) beyond the period of parking which has been paid for;

(b) no parking charge payable with respect to the vehicle has been paid; or

(c) there has, with respect to the vehicle, been a contravention of, or failure to comply with, any provision made by or under any order relating to the designated parking place.

(3) A penalty charge notice must state—

(a) the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;

(b) the amount of the penalty charge which is payable;

(c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;

(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;

(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;

(f) the address to which payment of the penalty charge must be sent.

(4) In subsection (3)(d) above "specified proportion" means such proportion, applicable to all cases, as may be determined by the London authorities acting through the Joint Committee.


(5) A penalty charge notice fixed to a vehicle in accordance with this section shall not be removed or interfered with except by or under the authority of—

(a) the owner, or person in charge, of the vehicle; or

(b) the London authority for the place in which the vehicle in question was found.

(6) A person contravening subsection (5) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.


(7) Schedule 6 to this Act shall have effect with respect to penalty charges, notices to owners and other matters supplementing the provisions of this section.


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The Road Traffic Act 1991, Section 44,




The Road Traffic Act 1991, Parts.


Parking penalties in London.

Parking attendants.

Section

44.—(1) After section 63 of the [1984 c. 27.] Road Traffic Regulation Act 1984, there shall be inserted—



Parking attendants.

63A. — (1) A local authority may provide for the supervision of parking places within their area by individuals to be known as parking attendants.


(2) Parking attendants shall also have such other functions in relation to stationary vehicles as may be conferred by or under any other enactment.


(3) A parking attendant shall be—

(a) an individual employed by the authority; or

(b) where the authority have made arrangements with any person for the purposes of this section, an individual employed by that person to act as a parking attendant.



(4) Parking attendants in Greater London shall wear such uniform as the Secretary of State may determine when exercising prescribed functions, and shall not exercise any of those functions when not in uniform. (comment; NO HAT on, is a breach).


(5) In this section "local authority" and "parking place" have the meanings given by section 32(4) of this Act.

"



(2) In section 35 of that Act (provisions as to use of parking places provided under section 32 or 33), subsection (9) shall be omitted.


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The Road Traffic Act 1991, SCHEDULE 6,

Breaches here, breach your human rights to a fair and public hearing within a reasonable time. Councils are skipping procedure in malfeasance and issuing charge certificates, either while an appeal is pending, or skipping it completely where they can serve a charge and rely on the ignorance of the motorist knowing his fundamental human rights EU convention Protocol 5 Article 6. This is deplorable unacceptable conduct and needs to be bridled urgently before a wholesale breach of presumption of guilt and appeals process is demolished and it becomes acceptable as reasonable within a so called democracy.


The Road Traffic Act 1991, Parts.


Parking penalties in London.


SCHEDULE 6 Parking Penalties

The notice to owner        1.—(1) Where—

 (a) a penalty charge notice has been issued with respect to a vehicle under section 66 of this Act; and

 (b) the period of 28 days for payment of the penalty charge has expired without that charge being paid,

the London authority concerned may serve a notice ("a notice to owner") on the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred.

    (2) A notice to owner must state—

 (a) the amount of the penalty charge payable;

 (b) the grounds on which the parking attendant who issued the penalty charge notice believed that a penalty charge was payable with respect to the vehicle;

 (c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date on which the notice to owner is served;

 (d) that failure to pay the penalty charge may lead to an increased charge being payable;

 (e) the amount of that increased charge;

 (f) that the person on whom the notice is served ("the recipient") may be entitled to make representations under paragraph 2 below; and

 (g) the effect of paragraph 5 below.

    (3) The Secretary of State may prescribe additional matters which must be dealt with in any notice to owner.

Representations against notice to owner        2.—(1) Where it appears to the recipient that one or other of the grounds mentioned in sub-paragraph (4) below are satisfied, he may make representations to that effect to the London authority who served the notice on him.

    (2) Any representations under this paragraph must be made in such form as may be specified by the London authorities, acting through the Joint Committee.

    (3) The authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the notice to owner was served.

    (4) The grounds are— (do not accept this as limiting the grounds, the most covering one is (f) below that can be used for any PCN where you feel the amount is not owed at all, this covers such contentions).

 (a) that the recipient—

 (i) never was the owner of the vehicle in question;

 (ii) had ceased to be its owner before the date on which the alleged contravention occurred; or

 (iii) became its owner after that date;

 (b) that the alleged contravention did not occur;

 (c) that the vehicle had been permitted to remain at rest in the parking place by a person who was in control of the vehicle without the consent of the owner;

 (d) that the relevant designation order is invalid;

 (e) that the recipient is a vehicle-hire firm and—

 (i) the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and

 (ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice fixed to the vehicle during the currency of the hiring agreement;

 (f) that the penalty charge exceeded the amount applicable in the circumstances of the case.

    (5) Where the ground mentioned in sub-paragraph (4)(a)(ii) above is relied on in any representations made under this paragraph, those representations must include a statement of the name and address of the person to whom the vehicle was disposed of by the person making the representations (if that information is in his possession).

    (6) Where the ground mentioned in sub-paragraph (4)(a)(iii) above is relied on in any representations made under this paragraph, those representations must include a statement of the name and address of the person from whom the vehicle was acquired by the person making the representations (if that information is in his possession).

    (7) It shall be the duty of an authority to whom representations are duly made under this paragraph—

 (a) to consider them and any supporting evidence which the person making them provides; and

 (b) to serve on that person notice of their decision as to whether they accept that the ground in question has been established. ( Failures here are legion and excused as software / postal faults that are council faults - 2007)

Cancellation of notice to owner        3.—(1) Where representations are made under paragraph 2 above and the London authority concerned accept that the ground in question has been established they shall—

 (a) cancel the notice to owner; and

 (b) state in the notice served under paragraph 2(7) above that the notice to owner has been cancelled.

    (2) The cancellation of a notice to owner under this paragraph shall not be taken to prevent the London authority concerned serving a fresh notice to owner on another person.

    (3) Where the ground that is accepted is that mentioned in paragraph 2(4)(e) above, the person hiring the vehicle shall be deemed to be its owner for the purposes of this Schedule.

Rejection of representations against notice to owner        

4.    Where any representations are made under paragraph 2 above but the London authority concerned do not accept that a ground has been established, the notice served under paragraph 2(7) above ("the notice of rejection") must—

 (a) state that a charge certificate may be served under paragraph 6 below unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—

 (i) the penalty charge is paid; or

 (ii) the person on whom the notice is served appeals to a parking adjudicator against the penalty charge;

 (b) indicate the nature of a parking adjudicator's power to award costs against any person appealing to him; and

 (c) describe in general terms the form and manner in which an appeal to a parking adjudicator must be made,

and may contain such other information as the authority consider appropriate.

Adjudication by parking adjudicator        

5.—(1) Where an authority serve notice under sub-paragraph (7) of paragraph 2 above, that they do not accept that a ground on which representations were made under that paragraph has been established, the person making those representations may, before—

 (a) the end of the period of 28 days beginning with the date of service of that notice; or

 (b) such longer period as a parking adjudicator may allow,

appeal to a parking adjudicator against the authority's decision.


This part is deplorable. Camden Council has a duty to serve with the notice of rejection an appeal form to appeal to the parking adjudicator. Where they fail to do either or both, then there is conveniently for them, NO WAY you can appeal. This is used to bully people into submission, and plays on the postal delinquency. Ask insistently for the notice or rejection and appeal form, in writing, recorded until you get it, it is the ambit where Camden Council controls your human rights to an appeal.

THE SAME malfeasance occurs at CPR 75. 3, and you find bailiff visits out of the blue, askign for more money without real visits to substantiate their work.

    (2) On an appeal under this paragraph, the parking adjudicator shall consider the representations in question and any additional representations which are made by the appellant on any of the grounds mentioned in paragraph 2(4) above and may give the London authority concerned such directions as he considers appropriate.

    (3) It shall be the duty of any authority to whom a direction is given under sub-paragraph (2) above to comply with it forthwith.

Charge certificates        6.—(1) Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice may serve on that person a statement (a "charge certificate") to the effect that the penalty charge in question is increased by 50 per cent.

    (2) The relevant period, in relation to a notice to owner, is the period of 28 days beginning—

 (a) where no representations are made under paragraph 2 above, with the date on which the notice to owner is served;

 (b) where—

 (i) such representations are made;

 (ii) a notice of rejection is served by the authority concerned; and

 (iii) no appeal against the notice of rejection is made,

with the date on which the notice of rejection is served; or

 (c) where there has been an unsuccessful appeal against a notice of rejection, with the date on which notice of the adjudicator's decision is served on the appellant.

    (3) Where an appeal against a notice of rejection is made but is withdrawn before the adjudicator gives notice of his decision, the relevant period in relation to a notice to owner is the period of 14 days beginning with the date on which the appeal is withdrawn.

Enforcement of charge certificate        7.    Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the authority concerned may, if a county court so orders, recover the increased charge as if it were payable under a county court order.

Invalid notices        8.—(1) This paragraph applies where—

 (a) a county court makes an order under paragraph 7 above;

 (b) the person against whom it is made makes a statutory declaration complying with sub-paragraph (2) below; and

 (c) that declaration is, before the end of the period of 21 days beginning with the date on which notice of the county court's order is served on him, served on the county court which made the order.

    (2) The statutory declaration must state that the person making it—

 (a) did not receive the notice to owner in question;

 (b) made representations to the London authority concerned under paragraph 2 above but did not receive a rejection notice from that authority; or

 (c) appealed to a parking adjudicator under paragraph 5 above against the rejection by that authority of representations made by him under paragraph 2 above but had no response to the appeal.

    (3) Sub-paragraph (4) below applies where it appears to a district judge, on the application of a person on whom a charge certificate has been served, that it would be unreasonable in the circumstances of his case to insist on him serving his statutory declaration within the period of 21 days allowed for by sub-paragraph (1) above.

    (4) Where this sub-paragraph applies, the district judge may allow such longer period for service of the statutory declaration as he considers appropriate.

    (5) Where a statutory declaration is served under sub-paragraph (1)(c) above—

 (a) the order of the court shall be deemed to have been revoked;

 (b) the charge certificate shall be deemed to have been cancelled;

 (c) in the case of a declaration under sub-paragraph (2)(a) above, the notice to owner to which the charge certificate relates shall be deemed to have been cancelled; and

 (d) the district judge shall serve written notice of the effect of service of the declaration on the person making it and on the London authority concerned.

    (6) Service of a declaration under sub-paragraph (2)(a) above shall not prevent the London authority serving a fresh notice to owner.

    (7) Where a declaration has been served under sub-paragraph (2)(b) or (c) above, the London authority shall refer the case to the parking adjudicator who may give such direction as he considers appropriate.

Offence of giving false information        

9.—(1) A person who, in response to a notice to owner served under this Schedule, makes any representation under paragraph 2 or 5(2) above which is false in a material particular and does so recklessly or knowing it to be false in that particular is guilty of an offence.

    (2) Any person guilty of such an offence shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Service by post        

10.    Any charge certificate, or notice under this Schedule—

 (a) may be served by post; and

 (b) where the person on whom it is to be served is a body corporate, is duly served if it is sent by post to the secretary or clerk of that body.

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CPR 75

The same happens here as in SCHEDULE 6, councils skip service of a notice of debt registration, and appeal form / N244 or P2/P3 statutory declaration. Call the TEC centre weekly after receipt of a CHARGE CERTIFICATE, ask if it lodged, and if it is REGISTERED as a debt, THEN GET YOUR OWN statutory declaration / download, or TEC will email you one, and appeal all the way back to the PCN stage where your rights have been abused.


Request

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75.3 (1) The authority must file a request in the appropriate form scheduling the amount claimed to be due.

(2) The authority must, in that request or in another manner approved by the court officer

(a) certify –

(i) that 14 days have elapsed since service of the notice of the amount due;

(ii) the date of such service;

(iii) the number of the notice of the amount due; and

(iv) that the amount due remains unpaid;

(b) specify the grounds (whether by reference to the appropriate code or otherwise), as stated in the notice, on which the authority claims to be entitled to claim that amount; and

(c) state –

(i) the name, title and address of the respondent;

(ii) the registration number of the vehicle concerned;

(iii) the authority's address for service;

(iv) the court fee; and

(v) such other matters as required by the practice direction.

(3) On receipt of a request that meets the requirements of paragraphs (1) and (2), the court officer will order that the amount due may be recovered as if it were payable under a county court order by sealing the request and returning it to the authority.

(4) On receipt of a sealed request the authority may draw up an order and must attach to it a form of statutory declaration for the respondent's use.

(5) Within 14 days of receipt of the sealed request, the authority must serve the order (and the form of statutory declaration) on the respondent in accordance with Part 6.

Camden Council read must as 'may' and skip their clear obligation under the law. A breach of CPR is serious, as is the breach at Schedule 6 above. They just allow 'omissions to occur' then you get a baliff visit askign for £390.24, implying some visits that usually do not take place, as at 2006 / 2007.

(6) Where an order is served by first class post (or an alternative service which provides for delivery on the next working day) rule 6.7 is modified so that the date of service will be deemed to be the seventh day after the date on which the order was sent to the respondent.


Electronic delivery of documents

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75.4 (1) Where the authority is required to file any document other than the request, that requirement is satisfied if the information which would be contained in the document is delivered in computer-readable form.

(2) For the purposes of paragraph (1), information which would be contained in a document relating to one case may be combined with information of the same nature relating to another case.

(3) Where a document is required to be produced, that requirement will be satisfied if a copy of the document is produced from computer records.


Functions of court officer

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75.5 (1) The practice direction sets out circumstances in which a court officer may exercise the functions of the court or a district judge.

(2) Any party may request any decision of a court officer to be reviewed by a district judge.

(3) Such a request must be made within 14 days of service of the decision.


Enforcement of orders

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75.6 Subject to the 1993 Order and this rule the following rules apply to the enforcement of specified debts –

(a) Parts 70 to 73;

(b) CCR Order 25, rules 1 and 9;

(c) CCR Order 26, rule 5; and

(d) CCR Order 27, rules 1 to 7, 7A, 7B, 9 to 16 and 18 to 22.



(Rule 30.2 provides for the transfer between courts in order to enforce a judgment.)


Warrant of execution

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75.7 (1) An authority seeking the issue of a warrant of execution must file a request –

(a) certifying the amount remaining due under the order;

(b) specifying the date of service of the order on the respondent; and

(c) certifying that the relevant period has elapsed.

(2) The court will seal the request and return it to the authority.

(3) Within 7 days of the sealing of the request the authority must prepare the warrant in the appropriate form.

(4) No payment under a warrant will be made to the court.

(5) For the purposes of execution a warrant will be valid for 12 months beginning with the date of its issue.

(6) An authority may not renew a warrant issued in accordance with this Part.


Revocation of order

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75.8 Where, in accordance with any enactment, an order is deemed to have been revoked following the filing of a statutory declaration –

(a) the court will serve a copy of the statutory declaration on the authority;

(b) any execution issued on the order will cease to have effect; and

(c) if appropriate, the authority must inform any bailiff instructed to levy execution of the withdrawal of the warrant as soon as possible.

Transfer for enforcement

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75.9 If an authority requests the transfer of proceedings to another county court for enforcement, the request must –

(a) where the authority has not attempted to enforce by execution, give the reason why no such attempt was made;

(b) certify that there has been no relevant return to the warrant of execution;

(c) specify the date of service of the order on the respondent; and

(d) certify that the relevant period has elapsed.

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Al's V Bar – Ruling


Title: London Borough of Wandsworth v Al's Bar & Restaurant Ltd

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Page No 1


London Borough of Wandsworth v Al's Bar & Restuarant Ltd

Case Reference: 2020106430 PCN: WA04516186

Decision

This is an application by the Borough of Wandsworth ('the Council') for review of the

decision of the Parking Adjudicator, Richard Crabb, on 2 July 2002 when he allowed the

appeal of Al's Bar & Restaurant Ltd ('the Appellant') and directed the Council to cancel

the Penalty Charge Notice ('PCN') and the Notice to Owner ('NTO'). I heard the

application on 10 October 2002. Mr Pitt-Payne of Counsel represented the Council and

Mr Sutton the Appellant. The facts as to the issue of the PCN are not in dispute. The issue

between the parties is the validity of the PCN. The Appellant says that the PCN is invalid

and unenforceable because it does not comply with the requirements as to content

prescribed by section 66 (3) of the Road Traffic Act 1991. It provides as follows.

'(3)penalty charge notice must state- grounds on which the parking attendant

believes that a penalty charge is payable with respect to the vehicle; amount of the

penalty charge which is payable; the penalty charge must be paid before the end of the

period of 28 days beginning with the date of the notice; if the penalty charge is paid

before the end of the period of 14 days beginning with the date of the notice, the amount

of the penalty charge will be reduced by the specified proportion; if the penalty charge is

not paid before the end of the 28 day period, a notice to owner may be served by the

London authority on the person appearing to them to be the owner of the vehicle; address

to which payment of the penalty charge must be sent. 'At the hearing of the original

appeal, which the Council did not attend, Mr Crabb found, in essence, that the PCN did

not comply with the requirements of paragraphs (c), (d) and (e) and that this rendered it

invalid. In doing so, he adopted relevant parts of the judgment of District Judge Wigfield

in Sutton v London Borough of Camden (In the Central London County Court Case No:

BT106545), a case heard earlier this year (the exact date is unclear). This was a claim

under the Torts (Interference with Goods) Act 1977 relating to the clamping of a vehicle.

It raised similar issues about the validity of a PCN issued by Camden and the District

Judge found against Camden.On 19 August 2002 the Council applied by fax for a review

of Mr Crabb's decision, under paragraph 11(1)(e) of the Road Traffic (Parking

Adjudicators) (London) Regulations 1993. Regulation 11, as amended, provides, so far as

relevant, as follows. '11. (1) The adjudicator shall have power on the application of a

party, to review and revoke or vary any decision to dismiss or allow an appeal or any

decision as to costs on the grounds (in each case) that - ------------------------- (e) the

interests of justice require such a review.-------------------------(3) An application under

this regulation shall be made to the proper officer within 14 days after the date on which

the decision was sent to the parties, and must state the grounds in full. (4) The parties

shall have the opportunity to be heard on any application for review under this regulation;

and if, having reviewed the decision, the adjudicator directs the decision to be set aside,

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he shall substitute such decision as he thinks fit or order a re-determination by either the

same or a different adjudicator. (5)....................'The first issue I have to consider is

whether there should be a review of the decision. Should there be a review? The

application was made outside the 14 days prescribed by regulation 11(3). However,

regulation 14(1)(a) empowers me to extend that time notwithstanding that it may have

expired. The Council contended that the interests of justice required a review because1)

the decision was of general importance to the Council, and perhaps to other Local

Authorities, since it held that the Council's current form of PCN did not comply with the

legislation. 2) the decision was reached following an oral hearing in which the Council

did not take part 3) there were important arguments and authorities that were not taken

into account by Mr Crabb 4) there was no prejudice to the Appellant as the Council

would not in any event enforce the particular PCN. Mr Pitt-Payne told me that the

Council was initially not minded to apply for review but later decided to do so, given the

importance of the issues. He said that the decision could affect a large number of PCNs

and the issues needed resolving quickly. Whilst the Council would need to consider re-

drafting its PCN whatever the outcome, this left open the question of whether past PCNs

were valid. If the issue were left, there could be a collateral challenge in another forum,

as was the case in Sutton v Camden. Mr Sutton argued that the Council had no arguable

case; that Mr Crabb's decision disclosed no error in law. He also pointed out that the

Council had had the opportunity to attend the original hearing; Mr Crabb had adjourned

the hearing to make them aware of the Appellant's detailed submissions. Mr Pitt-Payne

told me that the adjournment letter to the Council had apparently gone astray and it was

only when the Council received a telephone call from the Parking and Traffic Appeals

Service on the day of the hearing that they became aware of the position. By then it was

not possible to find someone to attend. The crucial point in my view is that the case does

raise issues of general importance concerning the decriminalised enforcement of traffic

controls. Clarification of these issues would be of benefit to both Local Authorities and

the motoring public. It is therefore right that it should be decided after full arguments

from both parties, an advantage Mr Crabb did not have. I accordingly decided to proceed

with the review, notwithstanding that the application had been made late.I now turn to

consider the substantive issues. These are two. First, does the PCN comply with section

66(3)? Secondly, if not, what is the effect of non-compliance with section 66(3)? The

second only arises, of course, if the answer to the first is that it does not. Does the PCN

comply with section 66(3)?There is no dispute that the PCN complies with paragraphs

(a), (b) and (f). The Appellant contends it does not comply with (c), (d) and (e).Before

considering each of these in turn, there is a preliminary point I must deal with. This is:

must the PCN follow the wording of section 66 or may it use different words provided

that they mean the same? To put it another way, must there be literal compliance or is

substantial compliance sufficient? There is no doubt in my mind that substantial

compliance is sufficient. But this should not be thought of as encouraging enthusiastic

departure from the statutory language. Disciplined drafting dictates that where a statute

requires a document to contain particular statements, the starting point for drafting a



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compliant document ought always be that the statutory language should be carried across

to the document unless there are very good reasons for doing otherwise. This is for the

very obvious reason that if the statutory language is adopted, the opportunities for

challenging the document for failure to comply with the statutory requirements, as in this

case, are eliminated. Local Authorities, like other organisations, are encouraged to couch

their communications in plain English, and of course this is to be applauded. But the

statutory requirements take precedence over this laudable aim, and Local Authorities

must be aware that the language they use, however plain, must bear the same meaning in

substance as that prescribed by the statute. I now turn to consider compliance with each

of the paragraphs in issue. Section 66(3)(c): that the penalty charge must be paid before

the end of the period of 28 days beginning with the date of the notice The PCN says this.

'You are therefore required to pay the sum of ?80 within 28 days. 'This does not follow

the wording of the Act and therefore does not literally comply. Does it comply in

substance? To decide, I must examine the elements of paragraph (c).First, 'that the

penalty charge must be paid'. The reference to 'the sum of ?80' in the above sentence

from the PCN is in fact the only place in which the full amount of the penalty charge is

stated. It is referred to as a 'sum' rather than being specifically described as a penalty

charge. In fact, rather than being simply the statement required by paragraph (c), the

sentence attempts to cover both (b) and (c). Whilst compliance with (b) was not disputed

by the Appellant, it seems to me that merely to describe the ?80 as 'the sum' is at best

unsatisfactory and at worst non-compliance. The sentence that follows does refer to 'The

charge' (not penalty charge) being reduced, but describing the full sum as a penalty

charge when it is first referred to would avoid any doubts. Indeed, curiously the

expression penalty charge appears nowhere in the PCN except as part of the term 'Penalty

Charge Notice'. It appears that the draftsman of the PCN may not have appreciated the

distinction between the penalty charge, which is the penalty payable, and the Penalty

Charge Notice, which gives notice of the penalty charge payable. I say this because on

the back the Notice says 'If payment of this Penalty Charge Notice is

received....'Reverting to paragraph (c), Mr Pitt-Payne contended that 'You are required to

pay' means in substance the same as 'This sum must be paid'. I accept that 'are required'

means in substance the same as 'must'. Having said that, I cannot see that it is an

improvement. What could be plainer than the simple word 'must'? But there is another

point on this element. Under section 66(1) the parking attendant effects service of the

Penalty Charge Notice by either fixing it to the vehicle or giving it to 'the person

appearing to him to be in charge of the vehicle'. Under section 66(2) the person legally

liable for payment of a penalty charge is the owner. It may or may not be that the person

in charge of the vehicle is the owner. Therefore, the person who receives the Penalty

Charge Notice may or may not be the person legally liable to pay the penalty charge. It is

no doubt for this reason that the draftsman chose the impersonal 'that the penalty charge

must be paid'. For the notice to say 'You are required to pay' will be an inaccurate

statement of the legal position in a great many cases. In those circumstances, it cannot to

my mind be said that the formulation in the PCN constitutes substantial compliance.

Turning to the next element, the prescribed period for payment is 'before the end of the

period of 28 days beginning with the date of the notice'. The PCN says 'within 28 days'.

The general rule is that where a period is fixed for the taking of some step, the day of the



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act or event from which the period runs is excluded in calculating the period. Mr Pitt-

Payne conceded that 'within 28 days' fell to be construed in accordance with this rule as

excluding the date on which the PCN was issued. The wording does not literally comply

with paragraph (c), but does it substantially comply? Mr Pitt-Payne referred me to Trow

v Ind Coope (West Midlands) Ltd [1967] 2 All E.R. 900, which he conceded was against

him. This concerned the interpretation of the Rules of the Supreme Court Order 6 rule

8(1), which provided that a writ was valid 'for twelve months beginning with the date of

its issue'. The Court of Appeal held that 'beginning with the date' included the day on

which the writ was issued and ousted the general rule.Mr Pitt-Payne urged me to construe

this case narrowly; to treat it as authority for the meaning of 'beginning with' only in the

context with which the Court was concerned and as not applying to a penal or quasi-penal

administrative penalty. This is a most unappealing proposition. If the term's meaning is

dependent on context, it would mean that in every context where the term appeared there

would be likely to be uncertainty as to its meaning. I would in any event have decisively

rejected it, but in any case it seems to me to be inconsistent with the decision in Trow.

Furthermore, another authority, Hare v Gocher [1962] 2 Q.B. 641, is to the same effect as

Trow: In Hare, where the words in question were 'beginning with the commencement of

this Act' and 'beginning with the date on which it is passed', Winn J concluded that the

phrase 'beginning with' was especially used to avoid equivocation and to exclude the

ordinary rule. In Trow, Harman LJ said 'I see no escape from the conclusion that where

the word "with" is used, the first day is included'; and Salmon LJ said that 'Any period of

time to be calculated as commencing or beginning with a certain day must include that

day.' I emphasise: 'Any period'. This makes clear that this is a matter not of context but of

the ordinary meaning of the language. Mr Pitt-Payne argued that if the draftsman had

intended the first day to be included, he could have made that clear by including words

such as 'including the day of issue of the notice'. The answer to that is that given that the

meaning of the phrase chosen by the draftsman is well established, any such

embellishment would have been verbiage. Mr Pitt-Payne also argued that if the wording

of the PCN differed from the language of the statute, the effect was to give an extra day

for payment to be made. If there was an error, it was in favour of the person liable to pay;

so nobody was prejudiced by the error. This argument might well be relevant to the

second substantive question - the effect of non-compliance - but it does not support the

argument that the PCN is compliant. The Local Authority has no power to extend the

statutory period as a matter of law. The fact that it may as a matter of administrative

practice allow longer than the prescribed periods (an issue I will return to) is a different

point and cannot justify a misstatement of the legal position, which is the purpose of the

requirements of section 66(3).The PCN therefore fails the compliance test in this regard

also There is a further point on this second element. In order to calculate the period, it is

necessary to know 'the date of the notice'. Implicitly, therefore, paragraph (c) requires the

notice to bear its date. The date '20/11/01' appears twice on the PCN. It appears about

halfway down where it is stated that the vehicle 'was seen in Lockington Road SW8 at

09:24 on 20/11/01'. That is in fact part of the 'grounds on which the parking attendant

believes that a penalty charge is payable with respect to the vehicle' required by

paragraph (a). It appears again on the part of the document described as a 'Payment Slip'.

At the top of the document the 'Notice No.' appears. This also appears on the Payment

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appear adjacent to the notice number at the top. Mr Pitt-Payne conceded that it might

have been clearer if the date had appeared at the top with the notice number. He

contended, however, that there was no reasonable ground for uncertainty and that no

reasonable person looking at the PCN could be in any doubt about its date. I asked Mr

Pitt-Payne what would happen if I, having received a PCN, tore off the Payment Slip and

sent it with my remittance for the penalty charge. If I later wanted to know the date of the

notice for some reason - for example, because an issue arose between me and the Local

Authority about whether I had paid the reduced penalty within the time allowed - where

would I then find the date of the notice on what I was left with? Mr Pitt-Payne suggested

that I might then have to ask the Local Authority for a copy of the Payment Slip. If that is

so, it follows that the date does not appear on what I am left with - the PCN after

detaching the Payment Slip. That seems to me to be the position. It is not sufficient for a

date to appear in the paragraph (a) statement of grounds. The date appears there for the

purpose of describing the grounds, not as stating the date of the notice. As to the Payment

Slip, it is in my view not part of the PCN at all; it is a separate document that is, for

convenience, attached to the PCN. I note that on the Wandsworth NTO, both the number

and date appear at the top of the notice and the attached Payment Slip, in contrast to the

PCN.The PCN as drafted would in my view still not be adequate even if the date of the

alleged contravention and the date of the notice were always the same. But in any event

this is not the case. A PCN may be served by post where enforcement is carried out

remotely by camera and where the parking attendant has been prevented by someone

from serving a PCN on the street. In such cases, the date of the notice will be different

from the date of the alleged contravention. Again, therefore, the PCN fails the

compliance test. Section 66(3)(d):if the penalty charge is paid before the end of the

period of 14 days beginning with the date of the notice, the amount of the penalty charge

will be reduced by the specified proportion. The PCN says:' The charge will be reduced

to ?40 if payment is received within 14 days'; and' If payment of the Penalty Charge

Notice is received within 14 days of the date of issue (as shown overleaf) the reduced

charge will be accepted as settlement. 'I note, in passing that in these sentences the

impersonal form is used. But similar issues arise concerning the phrase 'beginning with'

and the absence of the date of the notice, and my conclusions are the same. A further

point arose. The second sentence uses the expression 'date of issue' rather than 'date of the

notice'. Mr Pitt-Payne submitted there was no difference. I would say that if the date had

appeared on the notice and it had there been described as the date of issue, I would have

agreed this amounted to substantial compliance. However, I can see no merit in using

'date of issue' rather than 'date of the notice', the phrase in the Act. If the notice had

described the date as 'Date of Notice' or simply 'Date', as on the payment slip, then I

suppose there might be scope for confusion if the paragraph (c) and (d) statements used

the expression 'date of issue'. There could really be no confusion if the statements said

'date of the notice' even if the date itself were merely described as 'Date'. There is perhaps

an even better way of complying with the requirement to state on the notice the time

limits that apply. Many PCNs are nowadays issued by using handheld computers. I would

have thought it ought to be a straightforward matter for the handhelds to be programmed

to print the relevant dates on the notice automatically. This would avoid the recipient

having to work them out and any possibility of misunderstanding. This is an example of

where it may be desirable to effect compliance otherwise than by merely following the



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wording of the statute. Section 66(3)(e):if the penalty charge is not paid before the end of

the 28 day period, a notice to owner may be served by the London authority on the person

appearing to them to be the owner of the vehicle The PCN says: 'If no payment is

received within 28 days of the date of issue, a Notice to Owner may be sent to the

registered keeper of the vehicle requesting payment. 'Again, the relevant period is

incorrectly stated. The second point the Appellant takes on this paragraph is that the PCN

says that the NTO may be sent to 'the registered keeper' whereas the Act refers to 'the

person appearing to [the London authority] to be the owner of the vehicle'. Mr Pitt-Payne

submitted that there is no difference in substance between the two. He said that the point

made in the PCN is that the way in which the Council will determine the identity of the

apparent owner is by finding out who is the registered keeper. I do not accept these

submissions. It is not the case that there is no difference in substance between 'the

registered keeper' and 'the person appearing to the [London authority] to be the owner'.

As I have said above, the Act places liability for penalty charges on the owner. Section 82

provides as follows. 'S. 82(2)the purposes of this Part of this Act, the owner of a vehicle

shall be taken to be the person by whom the vehicle is kept.determining, for the purposes

of this Part of this Act, who was the owner of a vehicle at any time, it shall be presumed

that the owner was the person in whose name the vehicle was at that time registered

under the [1971 c.Vehicles (Excise) Act 1971.'The scheme of the Act does not therefore

place liability on the registered keeper. It places liability on the owner; the owner is to be

taken to be the keeper; and there is then merely a presumption that the owner was the

registered keeper. That presumption is rebuttable; under paragraph 2(4) of Schedule 6 to

the Act, one of the grounds on which the recipient of a NTO may make representations to

contest liability is: '(a)the recipient- was the owner of the vehicle in

question;ceased to be its owner before the date on which the alleged contravention

occurred; orits owner after that date' Paragraph 2 (5) and (6) go on to provide, in

substance, that where (a)(ii) or (iii) are relied on, the person making the representations

must supply the name and address of the person to whom the vehicle was disposed of or

from whom it was acquired, if they have that information. Paragraph 3(2) empowers the

Local Authority to serve a further NTO on that person. The power to serve a NTO is

prescribed in paragraph 1 of Schedule 6, which empowers the Local Authority to serve

such a notice on 'the person who appears to them to have been the owner of the vehicle

when the alleged contravention occurred'; not, it is important to note, on the registered

keeper. The power is clearly expressed in these terms because it may or may not be that

the registered keeper was the owner at the relevant time; and it is possible that at the

point of deciding on whom to serve the notice the Local Authority is in possession of

information that the registered keeper was not the owner. Let me give one example. It

may occur that more than one PCN is issued to a vehicle over a period of time. Say two

are issued to a vehicle. The Local Authority eventually serves a NTO on the registered

keeper in respect of the first. It receives representations from the registered keeper on the

basis of which it accepts that he had disposed of the vehicle before the date of the

contravention and therefore was not the owner at that time. The Local Authority then

comes to consider service of the NTO in respect of the second, later, PCN. It could hardly

be that at that point the registered keeper could be 'the person who appears to them to

have been the owner of the vehicle when the alleged contravention occurred.'The

draftsman constructed a carefully thought out scheme of liability and chose his words



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with equal care to reflect it. He chose the more elaborate expression 'the person appearing

to the [London authority] to be the owner' rather than 'registered keeper' for the very good

reason that to empower the Local Authority to serve the NTO on the registered keeper

would not reflect the more complex scheme of liability. Mr Pitt-Payne submitted that the

statement in the PCN was compliant since it describes what generally happens; and that

the word 'may' reflected the fact that the notice might be sent to someone else. I do not

agree. The requirement in paragraph (e) was clearly deliberately formulated by the

draftsman so as to inform the recipient of the Local Authority's power under Paragraph 1

of Schedule 6. That is the requirement; to instead inform the recipient of what generally

happens does not fulfil the purpose of the requirement. Nor does 'may' have the meaning

advocated by Mr Pitt-Payne. It is taken from paragraph (e) and the use of that word

reflects the fact that the Local Authority has a power, not a duty, to serve a NTO. It has

nothing to do with on whom the notice will be served. So I conclude that in relation to

both points taken by the Appellant the PCN is not compliant. But there seem to me to be

two other difficulties with it. First, the PCN says 'If no payment is received....'; the

requirement in the Act is to state that 'if the penalty charge is not paid'. The wording in

the PCN could be seen as unclear: does the whole of the penalty charge have to be paid or

is a part payment sufficient? Following the plain and carefully chosen words in the Act

would avoid any element of ambiguity. Secondly, the requirement of the Act is to state

that a NTO may be served 'by the London authority'. The Act requires the PCN to state

by whom the notice may be served. It does not do so. So it is clear that the PCN fails to

comply with the requirements of Section 66(3)(c), (d) and (e) in a number of respects.

Accordingly I must now consider the second substantive question: What is the effect of

non-compliance with section 66(3)?The requirements of section 66(3) are without doubt

mandatory, not directory. However, it is clear from the authorities that this does not mean

that non-compliance automatically renders the PCN a nullity. In London & Clydesdale

Estates Ltd v Aberdeen DC [1980] 1 WLR 182, which concerned the absence of a

required statement of rights of appeal from a certificate, Lord Hailsham said that whilst

the failure to include the information was fatal to the certificate, it was not a nullity; it

'was effective until it was struck down by a competent authority'. And Lord Fraser of

Tullybelton said: 'I have no doubt that the effect of the omission in the case was to

make the certificate invalid in the sense that it cannot stand if challenged by the

appellants. It is not a complete nullity. 'So this PCN, although defective, remains

effective unless I find it to be a nullity. The question is whether I should do so. This is a

matter of discretion. Mr Pitt-Payne referred me to R v Immigration Appeal Tribunal ex p

Jeyeanthan (1999) 11 Admin LR 924 CA for the principles he said I should apply. In that

case Lord Woolf MR cited Lord Hailsham in the London & Clydesdale case, where he

said: 'When Parliament lays down a statutory requirement for the exercise of legal

authority it expects its authority to be obeyed down to the minutest detail. But what the

courts have to decide in a particular case is the legal consequence of non-compliance on

the rights of the chain of events. It may be that what the courts are faced with is not so

much a stark choice of alternatives but a spectrum of possibilities in which one

compartment or description fades gradually into another. At one end of this spectrum

there may be there may be cases in which a fundamental obligation may have been so

outrageously and flagrantly ignored or defied that the subject may safely ignore what has



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been done and treat it as having no legal consequence upon himself ........ At the other end

of the spectrum the defect.......may be so nugatory or trivial that, if the subject is so

misguided as to rely on the faults, the courts will decline to listen to his complaint. But in

a very great number of cases, it may be a majority of them, it may be necessary for a

subject, in order to safeguard himself, to go to the court for declaration of his rights, the

grant of which may well be discretionary....... The jurisdiction is inherently discretionary

and the court is frequently in the presence of differences of degree which merge almost

imperceptibly into differences of kind'.The crucial passages from what Lord Woolf

himself said are as follows. 'Because of what can be the very undesirable consequences

of a procedural requirement which is made so fundamental that any departure from the

requirement makes everything that happens thereafter irreversibly a nullity it is to be

hoped that provisions intended to have this effect will be few and far between. In the

majority of cases ....... the tribunal ........ has the task of determining what are the

consequences of failing to comply........in the context of all the facts and circumstances of

the case in which the issue arises. In such a situation that tribunal's task will be to seek to

do what is just in all the circumstances..............It must be remembered that procedural

requirements are designed to further the interests of justice and any consequence which

would achieve a result contrary to those interests should be treated with considerable

reservation...............I suggest that the right approach is to regard the question of whether

a requirement is directory or mandatory as only at most a first step. In the majority of

cases there are other questions which have to be asked which are more likely to be of

greater assistance than the application of the mandatory/directory test. The questions

which are likely to arise are as follows: (a) Is the statutory requirement fulfilled if

there has been substantial compliance with the requirement and, if so, has there been

substantial compliance in the case in issue even though there has not been strict

compliance? (The substantial compliance question.)(b) Is the non-compliance capable

of being waived, and if so has it, or can it and should it be waived in this particular case?

(the discretionary question.) I treat the grant of an extension of time for compliance as a

waiver.(c) If it is not capable of being waived or is not waived then what is the

consequence of the non-compliance? (the consequence question.)'I will apply this

approach to the question of the effect of non-compliance with section 66(3).Mr Pitt-

Payne conceded that the discretionary question did not arise in this case. I must

accordingly consider the substantial compliance and consequence questions. The

substantial compliance question I have already found that the PCN did not comply with

the requirements of section 66(3). It did however seem to me that there might be a wider

aspect to this question in relation in particular to the time limits of 28 and 14 days:

whether the Council was able to say that there was compliance with the enforcement

scheme prescribed by the Act as a whole, even though looked at in isolation the PCN did

not accord with the requirements of section 66(3). This is where the contention that there

was no prejudice because the PCN allowed an extra day in relation to the time limits is

relevant. If following service of the NTO the Council then proceeded with further

enforcement on the basis of those longer time limits, would that satisfy the substantial

compliance test? In this connection, Mr Pitt-Payne told me that in practice the Council

allowed 35 days before serving the NTO. This was at odds with what happened in this



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case: the PCN was issued on 20 November 2001, the NTO sent on 19 December 2001. It

seems - although there was an element of speculation about this - that the latter may have

been brought forward because of the approach of the Christmas holiday. Whatever the

reason, it is clear that the 35 days is not rigidly adhered to. And I heard evidence from Ms

Coral Kirkwood, a Senior Parking Officer from the Council, that she understood the 28-

day statutory period as including the day of the contravention, so that in calculating when

the Council was legally entitled to serve the NTO she would include it - at odds with the

PCN. Mr Pitt-Payne put it to me that if a PCN were served immediately on expiry of the

statutory time limit the recipient would be entitled to take the point that it had been

served too soon given the time limit stated on the PCN. But this is approaching the issue

back to front: it is the statement on the PCN that is non-compliant; the service of the

NTO would comply with the statutory power. As to the 14 days for payment of the

reduced penalty, Mr Pitt-Payne told me that in practice the Council allows 17 days.

However, my view of this was that it was no more than an administrative convenience to

avoid disputes about whether payment had been made within time. Mr Pitt-Payne was

unable to provide a definitive answer to the question as to the period up to the end of

which the Council regarded itself as obliged in law to accept the reduced penalty. The

evidence did not satisfy me that there was no possibility of the Council declining to

accept payments received outside the statutory period but within the longer period given

on the PCN, perhaps in an individual case or because of a general change of practice. If

there were to be any question of my concluding that there was substantial compliance

with the general scheme of time limits in the wider sense, I would have had to have had

clear evidence that the Council applied the longer time limits described on the PCN on

the basis of an understanding that those were the statutory limits; otherwise there would

be the danger of the rights of the public being affected by mere changes of practice. I did

not have such evidence; indeed, Ms Kirkwood's evidence was to the contrary. In any

event, even if there were substantial compliance in this wider sense with the time limits,

there could be no question of there being such compliance with other aspects. In those

circumstances, it is not necessary for me to come to a firm conclusion on this point.The

consequence question I should first say that I do not regard this case as falling at either of

the extremes of Lord Hailsham's spectrum of possibilities but within the majority falling

in between. What I have to do is exercise the discretion whether to find the PCN in issue

in this case a nullity. Mr Pitt-Payne contended that I should not do so because the

Appellant had not alleged any actual confusion or prejudice, even if a PCN in this form

might be found a nullity in another case. That is certainly one consideration I must take

into account, but it is in my view by no means the only one. I bear in mind that the

Council did not apply for review because the issue of liability for this individual PCN

was itself of great importance. It did so because, it said, of the important general issues

and implications, which could affect other Local Authorities as well as the Council. It

was for that reason I considered it appropriate to conduct a review and granted the

application. It would therefore be wrong to confine my consideration of the consequence

question to the PCN the subject of this case; I must consider the question in the widest

context. This means considering it in the overall context of parking control in London. In

considering this question I take account of this passage from Lord Hailsham's judgment



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in London & Clydesdale: 'I do not think we are entitled to play fast and loose with

statutory requirements designed to inform the subject as to his legal rights against an

authority possessed of compulsory powers...........I do not think that prescriptions for the

benefit of the subject are to be so disregarded. 'And in the highly respected textbook

Wade & Forsyth: Administrative Law (8th Edn.) page 230 it is stated as follows: 'In

notices affecting private rights, particularly where the effect is penal, scrupulous

observance of statutory conditions is normally required....An enforcement notice is void

if it fails to state, as it should, the time allowed for compliance.' (citing Burgess v Jarvis

[1952] 2 Q.B. 41). Mr Pitt-Payne accepted that the fact that the Council's powers in this

case are penal was a factor I should take into account. The requirements of section 66(3)

are plainly designed to inform the subject as to his legal rights in the context of the penal

scheme. These considerations weigh in favour of finding the PCN a nullity, but they are

not conclusive on their own. I also consider the nature and extent of parking control as an

activity. It is a necessary one of considerable importance that affects the daily lives of

millions of motorists. PCNs are issued in their thousands every day; over 4 million every

year. Only about 1 per cent gets as far as an appeal before a Parking Adjudicator. In

relation to such a routine, everyday, prolific activity it is highly undesirable for non-

compliant PCNs to be served in large numbers. My decision should in my view provide

every encouragement to Local Authorities to ensure that the PCNs they serve are

compliant with the statutory requirements as to their content. This is not the first occasion

this issue has come before a Parking Adjudicator. In the case of Moulder v Sutton LBC

(PATAS Case No. 1940113243 24 May 1995) an Adjudicator found the PCN in that case

to be a nullity because it omitted the statement required by section 66(3)(e). Yet it seems

that invalid PCNs are still being issued, as both this case and Sutton v London Borough

of Camden show. The drafting of a compliant PCN is a simple drafting task and it is

difficult to understand why these difficulties have arisen and continue to do so. These

sentiments apply to every stage of the enforcement process, not just the issue of a valid

PCN. The Parking Adjudicators have had cause in their annual report on more than one

occasion to comment on procedural irregularities that have come to their attention in

appeals. The motoring public deserves nothing less than that the public authorities

exercising penal powers understand the importance of their complying with the

conditions attached to their powers and are scrupulous about having in place

administrative processes that do so. It is imperative that the public can have confidence in

the fairness and propriety of the enforcement of parking controls. It is also relevant that

the penalties for parking contraventions are relatively low. It is very undesirable in those

circumstances for the imposition of those penalties to be attended by uncertainties about

its legality for procedural reasons. What is required is simplicity, clarity and certainty.

That aim is not assisted by a less than rigorous approach to procedures by Local

Authorities.I also take into account the fact that the PCN in this case was non-compliant

in a considerable number of respects. This is not a case of a single, minor error. I am

afraid that the Council has played rather fast and loose with the carefully drafted

requirements of the Act, no doubt inadvertently, but it is none the less serious for that. All

these factors taken together in my view point strongly towards the interests of parking

control being best served by my finding the PCN to be a nullity irrespective of whether

the non-compliance caused prejudice in this case. But what factors are there pointing the

other way? Apart from the non-prejudice point in this particular case, Mr Pitt-Payne put



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forward two arguments. First, that there was no danger of prejudice or confusion on any

likely facts. That is a matter of speculation. In any event, it is not acceptable for the

Council to say, in effect, that it may not have complied with the statutory requirements

but it really does not matter. The statutory requirements are as they are for very good

reasons, they are mandatory and the Council should comply with them. In any event, it is

in my view incorrect to suggest that there are no foreseeable circumstances in which the

errors could cause prejudice. It is perfectly possible to envisage such cases: I have

mentioned for one the possibility of confusion over the period applicable to the right to

pay the reduced penalty. Secondly, he argued that if I find this PCN a nullity without

finding prejudice, that would put in jeopardy many other PCNs. This may be so, but I do

not consider that it tips the scales in favour of not finding the PCN a nullity. The effect

would be historical and time limited. Historical because, clearly it would affect only past

invalid PCNs - provided that the Council in future issues valid ones. Time limited

because, as I have said, it would not mean all past invalid PCNs becoming nullities. It

would be necessary for a challenge to the validity of each PCN to be brought before a

competent judicial forum, and there are time limits for doing so. The issue would

therefore only affect PCNs issued relatively recently. Nor would finding this PCN a

nullity prejudicially affect the Council's ability to carry out the enforcement of future

valid PCNs. The fact that some motorists may now escape liability for past

contraventions does not seem to me to outweigh the factors on the other side of the

scales. Those incidents are long over and done with; they are not continuing situations.

The fact that the PCN issued may now turn out to be invalid can have had no effect on

the conduct of the motorist at the time. Mr Pitt-Payne quite properly did not suggest that

any loss of revenue to the Council was a relevant factor since, as is well established, the

purpose of parking enforcement is traffic control, not revenue raising: see R (City of

Westminster) v The Parking Adjudicator QBD Judgment 22 May 2002. The future of

parking control, on the other hand, is a continuing future consideration and is the one to

which I ought to give precedence. In my view it is clear that the interests of justice, and

the interests of both Local Authorities and the public, are best served by Local

Authorities scrupulously observing the statutory requirements attached to their powers of

enforcement. Their not doing so can only result in parking control being brought into

disrepute. I accordingly find that this PCN is a nullity and uphold the decision of Parking

Adjudicator Richard Crabb to allow this appeal.I should record that Mr Sutton made an

application for costs. He did so somewhat tentatively, correctly so. I may only award

costs against the Council if I find that it acted frivolously, vexatiously, or wholly

unreasonably. There is no question of its having done so.

Decision Allowed

Adjudicator Martin Wood



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Original Decision Subsequently Reviewed Under Regulation 11 of The Road Traffic

(Parking Adjudicators) (London) Regulations 1993

Previous Decision Allowed

Adjudicator Richard Crabb


UDecision

The Appellant advanced a number of grounds of appeal and has been successful on

ground No 5 as set out in a document with the heading "Grounds relating to the alleged

contravention did not occur". This is that the Penalty Charge Notice was not legally

issued nor was it valid. When Mr Sutton first appeared before me on the 7th May 2002

the local authority was not present or represented. Mr Sutton intimated that he had a

number of legal authorities to which he would be referring. In these circumstances I

thought it best that I should have a hard copy of these and that the local authority should

be supplied with the same. Accordingly, this was done and the case was adjourned until

today. I had asked, in the meanwhile, if the local authority would like to comment on the

documentation supplied to it and emanating from Mr Sutton. By mid day today no

comment had been forthcoming. A fax message was, however, sent today by the local

authority, to say that the Council had no further comments to make and its position

remained as set out in the Appeals submission. Amongst the many documents submitted

to me by Mr Sutton was a copy of the judgement of his case against the London Borough of

Camden in the Central London County Court. District Judge Wigfield handed down the

judgement and pages 19 to 28 are the relevant pages. The local authority has a copy of

this judgement. The points to which the Judge refers in those pages are exactly the same

as Mr Sutton raised in this appeal and are all concerned with the fact that a Penalty

Charge Notice MUST state what is set out in Sec 66(3)(a)-(f) inclusive of the Road

Traffic Act 1991.In particular, in this case, the PCN does not state that the penalty must

be paid within 28 day period. Word MUST is mandatory.; PCN also does not state that

this period should begin with the date of the notice; also, no date of notice stated as such.

PCN does not state that penalty must be paid within 14 period to begin with the date of

the notice-date of issue and date of notice may not be the same. PCN also fails to refer

to"before the end of the 28 day period" see sec 66(3)(e) RTA 1991 or to refer to the NTO

being served by the "London authority on the person appearing to them to be the owner

of the vehicle." All these matters are traversed in some detail by Judge Wigfield and I

incorporate pages 19-28 of his judgement into my adjudication as they are entirely to the

point. I would also draw attention to the Judge's reference to the case of Moulder v

Sutton London Borough Council at page 26 as it also deals with similar issues as arise in this



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case. Although it may seem that this case is unmeritorious, as it is based on technical

argument, the law is clear. It follows that I allow this appeal.




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Lukha V Aylsebury - Ruling



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Page No 1


Page 1 of 3


National Parking Adjudication Service Case No: AY 05003B

Adjudicator’s Decision

Mrs Deepa Lukha

and

Aylesbury Vale District Council

Penalty Charge Notice AY00350448

Penalty Charge ?60.00

Appeal Allowed

I direct the Council to cancel the Penalty Charge Notice and Notice to Owner.

Reasons

The PCN was issued on 03 May 2005 at 11:25 to vehicle XXXX XXX in West St for being

parked in a restricted street during the prescribed hours. However Mrs Lukha did not find the

PCNand the first she knew of it was when she received a Charge Certificate demanding payment

of ?90. She contacted the council and explained that while she did not deny the contravention,

but had never found the PCN, and was denied the right to settle the penalty charge at the reduced

rate of ?30.

The council have produced copies a number of Notices they issued to Mrs Lukha in connection

with this penalty charge, purportedly under the Road Traffic Act 1991, all of which are flawed.

Apart from the time scales set for the original PCN, which are 14 and 28 days from the date of

issue of the PCN, all the other time limits in the Road Traffic Act 1991 are set from the date of

service of the particular notice, i.e. the date when it was delivered to the recipient. Therefore the

council must add at least two days to the date of issue if they send notice by first class post, five

days if they send them second class. In this case Aylesbury Vale District Council have expressed



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Page 2 of 3


National Parking Adjudication Service Case No: AY 05003B

the time limits in their various notices as running from the date of issue of the notice. In some

instances they have written it in bold type, thereby highlighting their mistake.

1. The Notice to Owner (NtO) does not conform to paragraph 1(2)(c) of Schedule 6 which

since the time period stipulated for paying or making representations is, “before the end

of the period of 28 days beginning with the date on which the notice to owner is served

(my emphasis)”. The NtO in this case was issued on 15 June 2005, but the time limit

shown on the Notice is as follows:


13 July 2005 is 28 days from the issue date of the NtO, not the date of service, which is

the date that it would have been delivered to Mrs Lukha. Depending on whether the

council sent it first or second class post, the earliest date of service would be 15 July

2005. Therefore by threatening to increase the charge to ?90 on 13 July the council have

failed to comply with paragraph 1(2)(4)(e).

2. The Charge Certificate that is dated 27 July 2005 says:


Paragraph 7 of Schedule 6 states, “Where a charge certificate has been served on any

person and the increased penalty charge provided for in the certificate is not paid before

the end of the period of 14 days beginning with the date on which the certificate is

served” (my emphasis). Therefore the Charge Certificate does not comply with Paragraph

7.

3. The Notice of Rejection sent to Mrs Lukha after she had made representations to the

council against a second Notice to Owner also fails to comply with Paragraph 4 of

Schedule 6. Mrs Lukha had requested to pay the reduced penalty charge of ?30, which

would have been her right had she found the original PCN. The council not only glibly,

but also surprisingly, in my view, refused that offer on the basis that it was beyond their

control that Mrs Lukha had not found the original PCN. They went on to say in the

Notice of Rejection:



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Page 3 of 3


National Parking Adjudication Service Case No: AY 05003B


Paragraph 4 of Schedule 6 of the 1991 Act requires that a Notice of Rejection must (my

emphasis) state that a charge certificate may be served under paragraph 6 unless before

the end of the period of 28 days beginning with the date of service of the notice of

rejection” the recipient pays the penalty charge or appeals to the adjudicator. Therefore

again the council have failed to comply with a mandatory requirement of the Road Traffic

Act 1991.

Mrs Lukha has appealed to me against that purported Notice of Rejection. However, since it

does not comply with paragraph 4 it does not constitute a Notice of Rejection at all.

The council enforcement process throughout this case has wrongly expressed the mandatory

requirements of the 1991 Act by attempting to shorten the time that the vehicle owner has to

complete payment or the next process. I find that Mrs Lukha is under no obligation to pay a

penalty charge demanded on a non-compliant notice and accordingly her appeal is allowed.

Given the tortuous history of this case I see fit to direct the council to cancel the PCN as well

as the other defective notices.

Caroline Sheppard

Parking Adjudicator appointed under Section 73 of the Road Traffic Act 1991

Date: 09 May 2006



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Barnet V Moses - High Court Ruling




Neutral Citation Number: [2006] EWHC 2357 (Admin) CO/3355/2006

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
2nd August 2006

B e f o r e :

MR JUSTICE JACKSON
____________________

THE QUEEN ON THE APPLICATION OF THE LONDON BOROUGH OF BARNET COUNCIL (CLAIMANT) -v - THE PARKING ADJUDICATOR (DEFENDANT)


THIS TRANSCRIPT HAS BEEN HIGHLIGHTED IN RED AND BLUE, (NOT MODIFIED IN ANY OTHER WAY)

To make it easier to go directly to the relevant sections and understand quickly if and why a PCN is compliant or not......

Click HERE to go directly to the first highlight, and subsequent sections thereafter.

Computer -Aided Transcript of the Stenograph Notes of
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190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR M LEWIS AND MISS X MONTES -MANZANO (instructed by LB Barnet) appeared on behalf of the CLAIMANT
MR I ROGERS (instructed by Head of Parking & Traffic Appeals Service) appeared on behalf of the DEFENDANT
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ?

MR JUSTICE JACKSON: This judgment is in six parts, namely:

Part 1.    Introduction

Part 2.    The Facts

Part 3.    The Present Proceedings

Part 4.    The Date of the Notice

Part 5.    The Effect of the Extra Day

Part 6.    Conclusion

Part 1. Introduction

This is a case about two parking tickets. The claimant in these proceedings is the Council of the London Borough of Barnet, to which I shall refer as "Barnet". The defendant in these proceedings is the Parking Adjudicator who issued a written decision dated 6th March 2006. Mr Hugh Moses is the motorist to whom the two parking tickets the subject of this action relate. Mr Moses is identified in these proceedings as an interested party.

The correct name for what is commonly called a parking ticket is "Penalty Charge Notice". This is generally abbreviated to "PCN". I shall adopt that abbreviation.

I must now outline the statutory framework within which this litigation arises. For many years, the contravention of parking controls was a criminal offence prosecuted in the Magistrates' Courts. The Road Traffic Act 1991 (to which I shall refer as the "1991 Act") introduced a new scheme for the civil enforcement of parking controls. Under the new scheme, the enforcement of parking controls is carried out by local authorities. A range of financial penalties are payable for the contravention of parking controls. Under this scheme, the owner of the vehicle rather than the driver is liable for the penalty, subject to certain exceptions.

Section 66 of the 1991 Act is headed "Parking penalties in London" and it provides as follows:

"(1) Where, in the case of a stationary vehicle in a designated parking place, a parking attendant has reason to believe that a penalty charge is payable with respect to the vehicle, he may - -

(a) fix a penalty charge notice to the vehicle; or

(b) give such a notice to the person appearing to him to be in charge of the vehicle.

(2) For the purposes of this part of this Act, a penalty charge is payable with respect to a vehicle by the owner of the vehicle if - -

(a) the vehicle has been left - -

(i) otherwise than as authorised by or under any order relating to the designated parking place; or

(ii) beyond the period of parking which has been paid for;

(b) no parking charge payable with respect to the vehicle has been paid; or

(c) there has, with respect to the vehicle, been a contravention of, or failure to comply with, any provision made by or under any order relating to the designated parking place.

(3) A penalty charge notice must state - -

(a) the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;

(b) the amount of the penalty charge which is payable;

(c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;

(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;

(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;

(f) the address to which payment of the penalty charge must be sent.


(4) In subsection (3)(d) above "specified proportion" means such proportion applicable to all cases, as may be determined by the London authorities acting through the Joint Committee . . .

(7) Schedule 6 to this Act shall have effect with respect to penalty charges, notices to owners and other matters supplementing the provisions of this section."

In this judgment I shall use the term "serve" as a compendious term to embrace the two alternative methods of delivering a PCN set out in section 66(1) of the 1991 Act.

Schedule 6 to the 1991 Act provides:

"1(1) Where - -

(a) a penalty charge notice has been issued with respect to a vehicle under section 66 of this Act; and

(b) the period of 28 days for payment of the penalty charge has expired without that charge being paid,

the London authority concerned may serve a notice ("a notice to owner") on the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred . . .

2(1) Where it appears to the recipient that one or other of the grounds mentioned in subparagraph (4) below are satisfied, he may make representations to that effect to the London authority who served the notice on him.

(2) Any representations under this paragraph must be made in such form as may be specified by the London authorities, acting through the Joint Committee.

(3) The authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the notice was served.

(4) The grounds are - -

(a) that the recipient - -

(i) never was the owner of the vehicle in question;

(ii) had ceased to be its owner before the date on which the alleged contravention occurred; or

(iii) became its owner after that date;

(b) that the alleged contravention did not occur;

(c) that the vehicle had been permitted to remain at rest in the parking place by a person who was in control of the vehicle without the consent of the owner;

(d) that the relevant designation order is invalid;

(e) that the recipient is a vehicle hire firm and - -

(i) the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and

(ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice fixed to the vehicle during the currency of the hiring agreement;

(f) that the penalty charge exceeded the amount applicable in the circumstances of the case . . .

(7) It shall be the duty of an authority to whom representations are duly made under this paragraph - -

(a) to consider them and any supporting evidence which the person making them provides; and

(b) to serve on that person notice of their decision as to whether they accept that the ground in question has been established."

Paragraph 5 of Schedule 6 to the 1991 Act enables the vehicle owner to appeal against an adverse decision to a Parking Adjudicator. Any reference in this judgment to "Adjudicator" is a reference to a Parking Adjudicator.

The Road Traffic (Parking Adjudicators) (London) Regulations 2003 provide for appeals to be brought against the decisions of Parking Adjudicators. An appeal may take the form of a review on paper, or it may be dealt with at a hearing if either party so requests. The person hearing the appeal will be another Parking Adjudicator of equal status to the first Adjudicator.

As can be seen from section 66 of the 1991 Act and from Schedule 6 to that Act, the scheme as originally established related only to London. However, the scheme has subsequently been extended to a number of other areas around the country. By way of example, the Road Traffic (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Bury) Order 2002 provides that section 66 of the 1991 Act and Schedule 6 to that Act should apply, subject to certain modifications, to the Metropolitan Borough of Bury.

The London Local Authorities Act 2000 (to which I shall refer as "the 2000 Act") contains provisions which amplify the scheme for civil enforcement of parking controls. Section 4 of the 2000 Act provides that where a contravention of parking control is detected by camera, a PCN may be served by post on the relevant vehicle owner within 28 days of the contravention. Section 5 of the 2000 Act provides that in a situation where a parking attendant is prevented from issuing a PCN, then a PCN in relation to that contravention may be served by post on the vehicle owner within 28 days.

Having outlined the statutory framework, I must now turn to the facts of the present case.

Part 2. The Facts

On the morning of 31st March 2005, Mr Moses parked his Mercedes car in a residents' parking space at Woodville Road in Barnet. A parking attendant observed the vehicle and issued a PCN which read as follows:

"PENALTY CHARGE NOTICE

Road Traffic Act 1991 (AS AMENDED)

Number: BA25117544 VRM: Y562OLF

Make: Mercedes

Contravention believed committed: 15.

Parked in a Residents' parking space without clearly displaying a valid Residents' parking permit.

Street: WOODVILLE ROAD (BX).

Date: 31/03/05.

Time: 11.27.

A PENALTY CHARGE OF ?80 IS DUE WITHIN 28 DAYS OF ISSUE.

?40 will be accepted in full and final settlement if received within 14 days of the date of this notice.

Parking Attendant No: 201."

There is then a line of perforations, below which there is a slip reading as follows:

"Number: BA25117544

Date of offence: 31/03/05

Total charge fee: 80.00

Discount if paid within 14 days: 40.00

Payment enclosed

A receipt will not be issued unless requested and a stamped addressed envelope is provided."

On the back of the PCN there are various pieces of information provided, including the address to which payment should be sent, and the following piece of information:

"If the discounted payment is not received within 14 days, and full payment is not made within 28 days the registered keeper or the person who the borough believes to be the owner of the vehicle may receive a Notice to Owner asking for payment."

The parking attendant either fixed the notice to the vehicle or handed it to Mr Moses. On the evidence, it is unclear which method of service was employed.

A little while later, Mr Moses drove to Golders Green Road and parked his car there. His car attracted the attention of a different parking attendant who issued a PCN which read as follows:

"PENALTY CHARGE NOTICE

Road Traffic Act 1991 (AS AMENDED)

Number: BA 30078011 VRM: Y562OLF

Make: Mercedes.

Contravention believed committed: 01

Parked in a restricted street during prescribed hours.

Street: GOLDERS GREEN ROAD (BX)

Date: 31/03/05

Time 12:05

A PENALTY CHARGE OF ?80 IS DUE WITHIN 28 DAYS OF ISSUE.

?40.00 will be accepted in full and final settlement if received within 14 days of this notice.

Parking Attendant No: 230."

There was then a perforated line. Below that is a tear -off slip reading:

"Number: BA30078011

Date of offence: 31/03/05

Total charge/fee: 80.00

Discount if paid within 14 days: 40.00."

On the back of the PCN there is the same information as was given on the other PCN.

The parking attendant attempted to serve the PCN, but it is now accepted that Mr Moses successfully drove away before service was achieved.

Mr Moses did not pay within 28 days the penalty charge which had been demanded in either of the PCNs. Accordingly, Barnet sent a notice to owner in respect of each PCN to Mr Moses in accordance with paragraph 1 of Schedule 6 to the 1991 Act. Mr Moses made representations to Barnet, pursuant to paragraph 2 of Schedule 6, in respect of each of the two incidents. Unfortunately, those representations have not been put in evidence. So I cannot enumerate the points taken by Mr Moses in those representations. Suffice it to say that the representations did not find favour with Barnet. Barnet decided that the grounds relied upon by Mr Moses had not been established.

Mr Moses appealed against Barnet's two adverse decisions to a Parking Adjudicator, pursuant to paragraph 5 of Schedule 6 to the 1991 Act. Mr Moses' two notices of appeal have not been put in evidence and so I can only speculate about what they said.

Mr Moses' two appeals were heard together by Mr Timothy Thorne, a Parking Adjudicator, on a date which is not revealed by the bundle. Mr Moses was represented by Mr Barry Segal at the hearing. Mr Moses gave oral evidence in support of the two appeals, and he also put in written evidence. Barnet submitted written evidence but was not represented at the hearing of the appeals.

Mr Thorne, having considered the oral and written evidence, allowed both appeals in two written decisions dated 18th February 2006. Mr Thorne's reasons in respect of the first appeal read as follows:

"After hearing oral evidence from Mr Moses I am satisfied that he is an honest and reliable witness. I accept that when he parked his vehicle in the residents' bay he properly displayed a valid visitor's permit and that such permit was properly displayed at the time the PCN was issued. He supplied me with the original permit and his evidence was corroborated by the written statement of Mrs Anne Kramer. I therefore conclude that the respondent has failed to prove on a balance of probabilities that the alleged contravention occurred and I therefore allow the appeal on the merits of the case.

In addition, it was submitted by Mr Segal that the PCN was invalid in any event as it did not contain the date of issue. He argued therefore that the PCN was not issued in accordance with the provisions of section 66 Road Traffic Act 1991. He relied upon the analysis of this legislation made by a Parking Adjudicator in the case of McArthur v Bury Metropolitan Council [Case No BC 188]. This decision is not binding on me but is persuasive. I agree with the reasoning of the decision and I am satisfied that the PCN in this case is invalidated by its failure to specify the date of issue (as opposed to the date of alleged contravention). The appeal is therefore allowed for all of the reasons specified above."

Mr Thorne's reasons in respect of the second appeal read as follows:

"After hearing oral evidence from Mr Moses I am satisfied that he is a honest and reliable witness. I accept that he has a clear and accurate recollection of the relevant incident and that, upon seeing the Attendant, he drove off before the Attendant had an opportunity of serving the PCN. I therefore conclude that the respondent has failed to prove on a balance of probabilities that the PCN was lawfully issued by being attached to the vehicle or handed to the driver.

I therefore allow the appeal on the merits of the case.

In addition, it was submitted by Mr Segal that the PCN was invalid in any event as it did not contain the date of issue. He argued therefore that the PCN was not issued in accordance with the provisions of section 66 Road Traffic Act 1991. He relied upon the analysis of this legislation made by a National Parking Adjudicator in the case of McArthur v Bury Metropolitan Council [Case No BC 188]. This decision is not binding on me but is persuasive. I agree with the reasoning of the decision and I am satisfied that the PCN in this case is invalidated by its failure to specify the date of issue (as opposed to the date of alleged contravention). The appeal is therefore allowed for all of the reasons specified above."

Barnet accepted the Adjudicator's factual decisions in respect of both alleged contraventions. Accordingly, Barnet no longer pursued Mr Moses for payment in respect of either PCN. Nevertheless, Barnet took the view that the second reason given by the Adjudicator in each appeal decision was legally incorrect. The second reason was, in each case, that the PCN did not comply with section 66 of the 1991 Act.

Since Barnet has issued many PCNs in similar form, the Adjudicator's decisions had far reaching consequences. Accordingly, on 27th February 2006, Barnet appealed against Mr Thorne's two decisions, pursuant to the 2003 Regulations. Barnet served a single "application to review and vary" in respect of both matters. Barnet challenged only the second of the two reasons given by the Adjudicator, namely the invalidity of the PCNs. Barnet did not request an oral hearing and it did not seek to call evidence.

Barnet's application dated 27th February was referred to a different Parking Adjudicator, Mr Austin Wilkinson. Mr Wilkinson dismissed that application in a written decision dated 6th March 2006. The core passages in Mr Wilkinson's decision read as follows:

"The issues exercising the Adjudicators in both McArthur and Al's Bar were more extensive and fundamental than is suggested in the Council's submissions. In both cases the Adjudicators had to consider the wording of the relevant PCNs and apply to them the requirements of section 66. In concluding as they did, both Adjudicators specifically pointed out that the need for substantial compliance was because section 66(3)(c,d and e) required the recipient of the Notice to have communicated to him/her a certainty as to the requirement to pay AND certainty in the period of time given for the payment. There must therefore be a 'date of the notice' and there must be a description of the payment period for both the full penalty and the discounted penalty which refers to that date: 'beginning with the date of the notice'.

In these instant appeals the date half way up the PCN is simply a 'date'. In fact it is the date of the allegation (as a result of section 66(3)(a)).

The base of the PCN has a payment tear -off slip. Strictly this might be regarded as not being part of the PCN at all - - the view of the Adjudicator in McArthur. But even if it were an integral part, it does not refer to a date of the Notice. It refers to a date of contravention - - exactly the same thing as the date of the allegation further up. (In fact the sample PCN does this. The ACTUAL notices adjudged by the Adjudicator referred to a date of 'offence'. De -criminalised contraventions are not offences and have not been so since 1991.)

The PCNs inform the recipient that the penalty ' . . . is due within 28 days of issue'. This wording is fundamentally non -compliant for two reasons:

(1) It does not refer to any date; and none of the date positions relied upon are dates 'of issue'. There should be a date of notice described as such and it should relate to the description of time period.

(2) The time period is plainly wrong for reasons fully aired by the Chief Adjudicator in 2002. The time period must 'begin with' the date of the notice to be compliant with Statute. The wording used would appear, upon accepted case law, to add a day onto the payment period ...

'I also consider the nature and extent of parking control as an activity. It is a necessary one of considerable importance that affects the daily lives of millions of motorists. PCNs are issued in their thousands every day; over 4 million every year. Only about 1 per cent gets as far as an appeal before a Parking Adjudicator. In relation to such a routine, everyday, prolific activity it is highly undesirable for non -compliant PCNs to be served in large numbers. My decision should in my view provide every encouragement to local authorities to ensure that the PCNs they serve are compliant with the statutory requirements as to their content. This is not the first occasion this issue has come before a Parking Adjudicator. In the case of Moulder v Sutton LBC (PATAS Case No 1940113243, 24 May 1995), an Adjudicator found the PCN in that case to be a nullity because it omitted the statement required by section 66(3)(e). Yet it seems that invalid PCNs are still being issued, as both this case and Sutton v London Borough of Camden show. The drafting of a compliant PCN is a simple drafting task and it is difficult to understand why these difficulties have arisen and continue to do so. These sentiments apply to every stage of the enforcement process, not just the issue of a valid PCN. The Parking Adjudicators have had cause in their annual report on more than one occasion to comment on procedural irregularities that have come to their attention in appeals. The motoring public deserves nothing less than that the public authorities exercising penal powers understand the importance of their complying with the conditions attached to their powers and are scrupulous about having in place administrative processes that do so. It is imperative that the public can have confidence in the fairness and propriety of the enforcement of parking controls.'

It is up to local councils to ensure their PCNs are drafted in compliance with the Statute. These appeals show only too clearly that the findings and concerns of the Adjudicators over several years have been disregarded - - a most unattractive basis for asserting good administration.

I conclude that Mr Thorne was correct to find as he did that the PCNs in these appeals were not compliant and could not be enforced." GO TO next Highlighted section....

Barnet was aggrieved by Mr Wilkinson's decision. Accordingly, Barnet commenced the present proceedings.

Part 3. The Present Proceedings

By a claim form issued on 19th April 2006, Barnet applied for judicial review of the decision made by the Parking Adjudicator, Mr Austin Wilkinson, on 6th March 2006. Barnet contends in its claim form that, in so far as section 66(3) requires a PCN to state the date of the notice, both PCNs complied with that requirement. Barnet further contends that although the periods of time stated in the PCNs for discounted payment and for full payment are one day longer than the periods specified in section 66(3) of the 1991 Act, this does not render either PCN invalid. Barnet contends that no prejudice was caused by any technical defects in the notices. Accordingly, this court should grant a declaration that the two PCNs "did comply wholly or substantially with the requirements of section 66(3)". Certain additional parts of the declaration sought in the claim form were not pursued in oral argument.

On or about 10th May 2006, the Parking Adjudicator served an acknowledgment of service which included detailed grounds supporting his decision. On 8th June 2006 Dobbs J granted permission to proceed with the claim for judicial review and directed an expedited hearing. Following the grant of permission, the defence evidence was served. This comprises a witness statement by Mr Wood, the Chief Parking Adjudicator for London, together with exhibits.

Mr Wood's statement sets out much helpful background information and includes the following facts. There are 52 Parking Adjudicators in London. Approximately 5 million PCNs are issued each year in London alone in respect of parking matters. Approximately 1 per cent of these PCNs are challenged by way of appeal. Over the years, there have been a number of cases in which Parking Adjudicators have held PCNs to be invalid on account of non -compliance with statutory requirements. In their annual reports, the London Parking Adjudicators have drawn attention to this state of affairs and have encouraged local authorities to comply with the statutory requirements, in order to avoid the risk of prejudice to motorists (see the annual reports for the years 2002 to 2003, and 2003 to 2004).

On 31st July, Barnet served evidence in reply comprising a witness statement by Mr Edward O'Bree, a barrister employed in Barnet's legal department. Mr O'Bree states that Barnet has now adopted a new form of PCN, which meets the criticisms made by the Parking Adjudicator and which strictly complies with the requirements of section 66 of the 1991 Act. He exhibits a specimen of the new form of PCN which, as can be seen, clearly complies with the statutory requirements. Mr O'Bree also outlines the practice of Barnet in relation to PCNs, but an objection has been taken to that part of his evidence on the ground that it comes too late in the day. The essential objection is that evidence of this nature ought to have been called during the course of the adjudication process so that the evidence could be tested by cross -examination and so that the Adjudicator could make appropriate findings of fact.

This action came on for hearing yesterday. Mr Meyric Lewis represents Barnet. Mr Ian Rogers represents the Parking Adjudicator. I am grateful to both counsel for their assistance and for the excellence of their skeleton arguments and oral submissions. Mr Moses, the interested party, has not taken any part in these proceedings before yesterday. However, yesterday Mr Barry Segal, who represented Mr Moses at the hearing of the first appeal to a Parking Adjudicator, attended court. He made brief oral submissions in opposition to Barnet's appeal. I am grateful to Mr Segal for his assistance.

I shall now turn to the two principal issues in this case, namely the date of the notice and the effect of the extra day.

Part 4. The Date of the Notice

There are 35 different forms of parking contravention which may be committed. These include, for example, parking in a restricted street during prescribed hours, or parking in a residents parking space without displaying a permit, or parking in a car park which is closed. This last form of contravention may require some ingenuity. Section 66(3)(a) of the 1991 Act requires a PCN to state the grounds upon which it is believed that a penalty charge is payable. I would expect any such statement of grounds to identify the form of contravention and to state where and when the contravention occurred. Indeed, both the PCNs in this case did just that. The core part of the first PCN reads as follows:

"Contravention believed committed: 15

Parked in a Residents' parking space without clearly displaying a valid Residents' parking permit.

Street: WOODVILLE ROAD (BX)

Date: 31/03/05.

Time: 11.27.

The date 31st March, when read in that context, must be the date upon which the contravention occurred. The core part of the second PCN reads as follows:

"Contravention believed committed: 01

Parked in a restricted street during prescribed hours.

Street: GOLDERS GREEN ROAD (BX)

Date: 31/03/05.

Time: 12.05."

The date 31st March, when read in that context, must be the date upon which the contravention occurred.

Section 66(3)(b) of the 1991 Act requires the amount of the penalty charge to be stated. There is no dispute that this requirement was complied with in the present case. Section 66(3)(f) of the 1991 Act requires the PCN to state the address to which payment must be sent. There is no dispute that this requirement was complied with in the present case.

Section 66(3)(c) requires the PCN to state:

" . . . that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice."

Section 66(3)(d) requires the PCN to state:

" . . . that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion."

Section 66(3)(e) requires the PCN to state:

" . . . that if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle."

In my view, these three subsections, either as a matter of construction or by clear implication, require that the date of the notice should be stated on the notice. If this is not done, the statutory purpose of section 66(3)(c),(d) and (e) will be thwarted.

The date of the notice will usually be the same as the date of contravention but this is not always the case. Let me give three examples:

(1) A parking attendant attempts to issue a penalty notice but is prevented from doing so. Accordingly, pursuant to section 5 of the 2000 Act, a PCN is prepared on a later date and posted to the owner.

(2) Many parking attendants work at night. Shortly before midnight a vehicle is observed parked on double yellow lines. At midnight the contravention comes to an end. This is perfectly feasible as the prescribed hours in many streets end at midnight. The parking attendant prepares a PCN and fixes it to the windscreen shortly after midnight. In this example, the date of the notice is one day after the date of the contravention.

(3) A parking contravention is recorded by camera. On a later date a PCN is issued and posted to the vehicle owner pursuant `to section 4 of the 2000 Act.

It seems to me that section 66 requires two dates to be stated on a PCN. These are the date of the contravention and the date of the notice. The need for both dates to be stated has been stressed by Parking Adjudicators on more than one occasion. In Al's Bar and Restaurant Ltd v London Borough of Wandsworth (28th October 2002 Case No 2020106430) the Parking Adjudicator, Mr Martin Wood, considered a number of criticisms which were levelled at a PCN issued by the London Borough of Wandsworth. Mr Wood held that literal compliance with section 66 was not required. It was sufficient if there was substantial compliance. I agree with that analysis. In relation to the third criticism levelled at the Wandsworth PCN, Mr Wood said this at pages 6 to 7 of his decision:

"In order to calculate the period, it is necessary to know 'the date of the notice'. Implicitly, therefore, paragraph (c) requires the notice to bear its date. The date '20/11/01' appears twice on the PCN. It appears about halfway down where it is stated that the vehicle 'was seen in Lockington Road, SW8 at 9.24 on 20/11/01'. That is in fact part of the 'grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle' required by paragraph (a). It appears again on the part of the document described as 'Payment Slip'. At the top of the document, the 'notice number' appears. This also appears on the Payment Slip adjacent to 'Date: 20/11/01'. In contrast to the Payment Slip, the date does not appear adjacent to the notice number at the top.

Mr Pitt -Payne conceded that it might have been clearer if the date had appeared at the top with the notice number. He contended, however, that there was no reasonable ground for uncertainty and that no reasonable person looking at the PCN could be in any doubt about its date.

I asked Mr Pitt -Payne what would happen if I, having received a PCN, tore off the Payment Slip and sent it with my remittance for the penalty charge. If I later wanted to know the date of the notice for some reason - - for example, because an issue arose between me and the local authority about whether I had paid the reduced penalty within the time allowed - - where would I then find the date of the notice on what I was left with? Mr Pitt -Payne suggested that I might ask the local authority for a copy of the Payment Slip. If that is so, it follows that the date does not appear on what I am left with - - the PCN after detaching the Payment Slip. That seems to me to be the position. It is not sufficient for a date to appear in the paragraph (a) statement of grounds. The date appears there for the purpose of describing the grounds, not as stating the date of the notice. As to the payment slip, it is in my view not part of the PCN at all; it is a separate document that is, for convenience, attached to the PCN. I note that on the Wandsworth NTO, both the number and date appear at the top of the notice and the attached Payment Slip, in contrast to the PCN.

The PCN as drafted would in my view still not be adequate even if the date of the alleged contravention and the date of the notice were always the same. But in any event this is not the case. A PCN may be served by post where enforcement is carried out remotely by camera and where the parking attendant has been prevented by someone from serving a PCN on the street. In such cases, the date of the notice will be different from the date of the alleged contravention.

Again, therefore, the PCN fails the compliance test." NEXT HIGHLIGHT.........

Three years later, a similar issue arose in relation to a PCN issued by the Bury Metropolitan Borough Council. In McArthur v Bury MBC (4th April 2005, Case No BC 188) a PCN was issued which showed the date of contravention but not the date of the PCN. A Parking Adjudicator, Mr Mark Hinchliffe, held that the PCN was invalid on this ground. At pages 5 to 6 of his decision, Mr Hinchliffe said this:

"I am not the first Parking Adjudicator to consider these matters, and I am mindful of the desirability of consistency. I am required to reach my own decisions whilst having regard to the previous decisions of colleagues both in England and Wales, and in London. Accordingly, I have reached a number of conclusions:

•     Section 66(3)(c),(d) and (e) requires every PCN to convey certain specified information. The use of the words 'must state that' suggests that the exact words of the section are not mandatory, but the PCN must accurately convey the information set out in the subsections . . .

•     To comply with section 66(3)(c), a PCN must have a date. The date of the contravention is not the date of the notice even if, in most cases, the PCN will be issued on the same day as the contravention. I accept that, in Bury, there are no notices issued after the event. Nevertheless, the absence of a date of notice is a serious problem because a motorist will not always be sufficiently au fait with the Act to appreciate that as a matter of practice (but not as a matter of law) the date of the contravention will usually be the same as the date of the notice. It is perhaps worth remarking, by way of example, that in certain circumstances in London contraventions can be photographed and then subsequently followed up with a PCN issued on a completely different date. In Bury, a motorist will search in vain for a 'Date of Notice' or 'Date of Issue' on the face of the PCN. A date is necessary because the 28 day period begins with "the date of the notice". In my view, if Parliament had intended the date of the contravention to be the starting point for the relevant periods, it would have said so. The specimen PCN in the guidance specifically shows a 'Date of Issue' at the top. The tear -off slip is not part of the PCN and may be detached. The Bury PCN does not comply with section 66(3)(c), nor was it modelled on the guidance. There is a serious possibility that real prejudice could be caused as a consequence of this omission because of potential uncertainty as to when the 28 day period begins. The same reasoning applies to 'the period of 14 days beginning with the date of the notice' referred to in section 66(3)(d)."

I find the reasoning in the passages quoted from McArthur and Al's Bar to be compelling. The statutory requirements are simple and clear. Compliance is not difficult. The Department of Transport has published a specimen form of PCN for the assistance of local authorities. This specimen form has been available for over 10 years. It has "Date of Issue ..." on the top line. There really is no excuse for local authorities who persist in issuing PCNs which do not state the date of the notice.

There are good policy reasons why PCNs should comply with the statutory requirements. These documents are issued in large numbers. They often change hands. A PCN may, for example, be issued to a driver on one date and handed over by the driver to the owner on a later date. When a PCN reaches the owner, he or she may wish to pay the discounted charge. There must always be certainty about the date when the notice was issued and the dates when the various periods for payments will expire.

Let me now turn to the present case. The two PCNs issued by the parking attendant in Barnet on 31st March 2005 both showed the date of the contravention. Neither PCN showed the date of the notice. The date on which the notice was issued ought to have been shown as a separate entry on the notice. On this ground alone, I hold that neither PCN achieved substantial compliance with section 66 of the 1991 Act.

Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.

In the present case, the two PCNs issued by Barnet on 31st March 2005 did not comply with section 66(3)(c),(d) and (e) of the 1991 Act. Accordingly, the requirements of section 66 were not satisfied and no financial liability was triggered either by the PCN or by any subsequent stage in the process such as the notice to owner.

For the above reasons, I conclude that Mr Wilkinson, the second Parking Adjudicator in the present case, was correct to hold that the two PCNs were not compliant with the 1991 Act and were therefore invalid. It follows from this conclusion that Barnet is not entitled to the relief which it seeks and these proceedings must be dismissed.

Part 5. The Effect of the Extra Day

Since the defendant has succeeded on the first issue, it follows that Barnet's claim must be dismissed and the second issue does not arise for decision. Nevertheless, having heard argument upon this issue, I shall comment upon it.

Both PCNs contain the sentence "a penalty charge of ?80 is due within 28 days of issue." As that phraseology has been interpreted by the courts, the computation of the 28 days begins on the day after the date of issue. Both PCNs contain the sentence:

"?40 will be accepted in full and final settlement if received within 14 days of the date of this notice."

As that phraseology has been interpreted by the courts, the computation of the 14 days begins on the day after the date of issue. Both PCNs have on the back a sentence which reads:

"If the discounted payment is not received within 14 days and full payment is not made within 28 days, the registered keeper or the person who the borough believes to be the owner of the vehicle may receive a notice to owner asking for payment."

As that phraseology has been interpreted by the courts, the computation of the 14 day period and the 28 day period referred to in that sentence begins on the day after the date of issue.

Thus it can be seen that in each case the PCN adds one day to the time period stipulated by section 66(3) of the 1991 Act. Mr Rogers, for the Parking Adjudicator, contends that this departure are invalidates the notice. Mr Lewis, for Barnet, contends that the gifting of an extra day is an indulgence which benefits the motorist and cannot invalidate the notice.

This issue arose in Al's Bar. The Adjudicator heard evidence from a Senior Parking Officer of Wandsworth Borough Council, from which it emerged that in practice the Council did not always allow the extra time indicated in the PCN. The Adjudicator held that the incorrect statement of the time period in the PCN (in conjunction with other defects) invalidated the PCN.

In McArthur, a similar point arose. At page 6 of his decision the Adjudicator said this:

"The phrases 'within 28 days' and 'within 14 days' convey different information from that specified in section 66(3). By legal convention, where the 'within' formula is deployed, the day upon which the triggering event occurs is excluded from the period. The 14 and 28 day periods referred to in section 66, however, include the date of the notice. The wording on the Bury PCN, therefore, does not comply with the requirements imposed by section 66(3). The Guidance, however, also uses the 'within' formula and it is hard to see how real prejudice could arise by virtue of allowing an extra day for payment. Modelling a PCN on the specimen at ANNEX 12.1 of the Guidance is urged by the bold italics of paragraph 12.1 of the Guidance. I therefore find that, in this respect, the wording of the Bury PCN does not warrant judicial criticism, and it is therefore without adverse legal consequence."

It seems to me that the different decisions which were reached on this point in Al's Bar and McArthur arise from differences in the evidence. In McArthur there appears to have been no evidence that what the Council gave with one hand it took away with the other.

In the present case, there has been no investigation of this issue before either Parking Adjudicator. The effect of the extra day was not an issue in the appeal to the first Adjudicator, Mr Thorne. Likewise, the effect of the extra day was not a matter raised in Barnet's "application to review and vary" dated 27th February 2006. No evidence relevant to this issue was adduced at the hearing before the first Adjudicator, Mr Thorne, or in the proceedings before the second Adjudicator, Mr Wilkinson.

In those circumstances, I do not think that Mr Wilkinson ought to have dealt with the effect of the extra day in his decision dated 6th March 2002. This was a new point. If Mr Wilkinson was minded to invalidate the two PCNs on this additional ground, he ought to have informed all parties of what he had in mind and given them an opportunity to comment. If either party had wished to adduce evidence on this point (as was done in Al's Bar), Mr Wilkinson ought to have admitted such evidence.

It follows from the foregoing that Mr Wilkinson's decision on the effect of the extra day cannot stand. If the two PCNs were otherwise valid notices, the proper course might possibly be to remit the matter to the Parking Adjudicator so that he could (a) receive any evidence which either party wished to submit and (b) hear argument on the effect of the extra day. In the present case, however, no useful purpose would be served by such a course. I shall not, therefore, invite counsel to make further submissions on what, hypothetically, would be an appropriate remedy. For the reasons set out in Part 4 above, I have already held that the two PCNs are non -compliant and that the claimant is not entitled to the relief sought.

Part 6. Conclusion

For the reasons set out in Part 4 of this judgment, both the first and second Parking Adjudicators were correct to hold that the two PCNs issued by Barnet on 31st March 2006 failed to comply with section 66 of the 1991 Act. Both Parking Adjudicators were correct to hold that the PCNs were invalid on that ground. Accordingly, Barnet is not entitled to the declaratory relief which it seeks and these proceedings must be dismissed.

MR ROGERS: My Lord, may I thank you for the speed with which you have managed to deliver judgment and also the care which you have obviously taken. It has been agreed between the parties that there should be no order as to costs, subject to your view.

MR JUSTICE JACKSON: I am perfectly content to make no order as to costs. You are both public authorities and that sounds very sensible.

MISS MONTES -MANZANO: My Lord, in light of the judgment I have a brief application for permission to appeal.

MR JUSTICE JACKSON: Yes, Miss Montes -Manzano.

MISS MONTES -MANZANO: My Lord, we say that this matter has a reasonable prospect of success on the issue, which has never been previously judicially decided by the court, that the PCN in the form previously adopted by Barnet is substantially compliant with the requirements of section 66 of the 1991 Act. Also, there are compelling reasons why this should be heard by the Court of Appeal. First of all, the importance attached by both parties to the matter and to the issue, and secondly, the fact that this issue has never been judicially decided before. Those are my submissions, my Lord, unless I can assist you any further.

MR JUSTICE JACKSON: Thank you.

MR ROGERS: My Lord, it is obviously a matter for you. I can only assist the court in saying that it is true that you are the first judge to consider this issue. However, you have applied the approach set out in London & Clydeside and Jeveanthan, and the House of Lords has also added that that is the approach to be followed. My Lord, it is a matter for you, but I would feel confident in urging you to refuse permission to appeal.

MR JUSTICE JACKSON: This is an application for permission to appeal to the Court of Appeal against the judgment which has just been delivered. There are two grounds upon which permission to appeal might be granted. They are: (a) that the court considers that the appeal would have a reasonable prospect of success, or (b) that there is some other compelling reason why the appeal should be heard (see rule 52.3(6) of the Civil Procedure Rules). Counsel for the claimant relies upon both grounds in the application for permission.

So far as the first ground is concerned, on the view which I take of the matter the outcome of this case is clear. This court has come to a decision which is in line with a body of jurisprudence developed by Parking Adjudicators. I do not consider that this appeal has a reasonable prospect of success.

So far as the second ground is concerned, it should be borne in mind that Barnet has now amended its form of penalty charge notice so as to comply with the requirements of the Act. Therefore, the judgment which has just been given will have no impact upon the current form of notices being issued by Barnet. The interest in this matter from Barnet's point of view is purely a historical one, in so far as there are outstanding challenges to old penalty charge notices.

In that situation, in my view, this is not a case where there is some other compelling reason why the appeal should be heard. Accordingly, for all of the above reasons, this application for permission to appeal is refused.


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Restitution Case Precedent Southend on Sea ?? November 2006.

JH

.......

.

.



November 2006


Re: HH v Southend-on-sea Borough Council.

Claim no. with the court.


Dear Judge E,


I write in response to the Defendants Amended defence received by me on the ?? November 2006. I am seeking the restitution of four parking tickets paid for, by mistake by myself , they are as follows:-


.

.

.


And

.


.


..


The total amount that I am claiming from the Southend Borough Council is therefore:-


This mistake was induced by Southend Borough’s council’s actions of placing PCN’s on my car, on the above dates, demanding a sum of £30.00 be paid. The notices purported to be Penalty Charge Notices issued under the Road Traffic Act 1991. These notices however were not Penalty Charge Notices as they did not conform to the requirements of the regulations in that they did not specify a date of issue. Since the notices are invalid, they are a nullity void ab ignitio with no legal force and the demand for payment made by the Council on the notice is invalid. At the time I was not aware of this and was induced by their purported official character to make the payment to the Council for which I am now seeking restitution.


I now have the benefit of the ruling by Mr. Justice Jackson of 2nd August 2006 in Barnet v Parking Adjudicator(2006) EWHC 2357(Admin) which now provides a definitive ruling on the requirements of a penalty charge notice and the effects of a notice which fails to conform to the regulations. At Para.36 he states, ‘It seems to me that section 66 requires two dates to be stated on a PCN. These are the date of the contravention and the date of the notice and at para.41, ‘The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.


Yours sincerely,


HH


Cc Southend Borough Council


I spoke to the councils solicitor before we went into the court and she said to me, 'do you understand that we are just requesting an adjournment today?' I was expecting it to just be adjourned.

The judge didn't even seem to be bothered with any documentation other than the Judge Jackson ruling. Is this what you mean by particulars of claim? If not, let me know, and ill post it.

The judge just referred to Judge Jackson's ruling. He said that he thought it quite straightforward - he said a

'Mistake of Fact'. And referred to the

Statute of Limitations up to 6 Years.

He didn't allow the council to have an adjournment.

The council said that they had employed a barrister, to say that the county court wasn't the right forum,and that he needed an hour and a half.

The judge said that
he had jurisdiction and could rule on this. He said that the council should pay me the pcns that I had already paid plus costs plus 8% interest.

Plus the council asked permission to appeal and the judge denied them permission to appeal.

I didn't have to say anything that I'd planned to say, the judge simply seemed satisfied with Judge Jackson's ruling and judged it according to that.

Details of this case can only be obtained at level 2 bundle.


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The ALG newsletter

advising London Councils to NOT enforce non compliant PCNs.



PAGE 2 of 3ALG TEC Executive Sub Committee Update on the High Court Judgement

in the case of Barnet –v- The Parking AdjudicatorItem No:20Report by:Nick Lester Job title:Director ALG TEPDate:14 September 2006 Contact Officer:Nick Lester

http://www.londoncouncils.gov.uk/doc.asp?doc=18145&cat=2377

Telephone:020 7934 9905Email:Nick.lester@alg.gov.uk Summary:This is a report for information to update the committee on the position for enforcing authorities following the High Court Judgement in the judicial review application lodged by the London Borough of Barnet against a Parking Adjudicator’s decision in the case of Moses. That decision found that the PCN was invalid because it failed to specify the date of issue.

Recommendations:Members are recommended to

ensure that their boroughs have:

stopped issuing non-compliant PCNs

revised the format of their PCNs to ensure that they do comply with the relevant decisions

****stopped processing any non-compliant PCNs

Background


On 2 July 2002, Parking Adjudicator Richard Crabb allowed an appeal against a Wandsworth Penalty Charge Notice (PCN) on the grounds put forward by the appellant: that it was invalid because it failed to include the mandatory details set out in section 66(3) a-f inclusive on the Road Traffic Act 1991. One of the defects was that the PCN showed no date of notice, another that it failed properly to describe the relevant payment periods.


The London Borough of Wandsworth made an application for review of the decision. The review application was considered at an oral hearing by the Chief Parking Adjudicator, Martin Wood; Wandsworth Council was legally represented. Mr Wood’s detailed decision, issued on 28 October 2002, confirmed the decision of the original Adjudicator – that the PCN was invalid.


On 26 July 2002, following the Adjudicator’s original decision in the case of AL’s Bar –v- Wandsworth, the Head of PATAS sent a copy of the decision, together with a copy of the judgement of District Judge Wigfield in the Central London County Court referred to by the Adjudicator to all the London authorities. That letter reminded authorities that, if they submitted computer print outs as PCN evidence to the Adjudicator, they should ensure that the print out was an exact copy of the wording on the PCN and that it did comply with the mandatory requirements. This letter is attached at Appendix 2.


The review decision in the Al’s Bar case of 28 October 2002 was posted on the PATAS web site.


The Al’s Bar review decision was referred to in the Adjudicators annual report of 2002-3 which was submitted to this committee on 24 October 2003, and sent to all London authority Parking Managers. One of the major themes of the report was that enforcement should be recognised as a legal process. The following is an extract from the annual report, dealing with the Al’s Bar decision:


“The mandatory requirements of section 66(3) of the Road Traffic Act 1991 and the effect of non-compliance were the issue in Al’s Bar and Restaurant Ltd v LB Wandsworth. The Adjudicator found that the Penalty Charge Notice in question did not comply in a number of respects and that these rendered the Penalty Charge Notice invalid. He went on to consider whether he should find the Penalty Charge Notice to be a nullity and decided that he should. He considered that the balance was heavily in favour of his doing so. He pointed out that this was not the first occasion this issue has come before a Parking Adjudicator. In the case of Moulder v Sutton LBC (PATAS Case No. 1940113243 24 May 1995) an Adjudicator found the PCN in that case to be a nullity because of non-compliance with section 66. Yet it seemed that invalid PCNs were still being issued. The drafting of a compliant PCN is, he said, a simple drafting task and it is difficult to understand why these difficulties have arisen and continue to do so. He went on to say:

““These sentiments apply to every stage of the enforcement process, not just the issue of a valid PCN. The Parking Adjudicators have had cause in their annual report on more than one occasion to comment on procedural irregularities that have come to their attention in appeals. The motoring public deserves nothing less than that the public authorities exercising penal powers understand the importance of their complying with the conditions attached to their powers and are scrupulous about having in place administrative processes that do so.”


“We would commend these comments to Local Authorities. All these cases seem to be evidence of a lack of understanding of the Authorities legal obligations or insufficient rigour in applying them. We wonder whether Local Authorities take advice from their lawyers in establishing their processes and systems. It would be wise for them to do so. We recommend that all Local Authorities should have in place procedures, including taking appropriate advice, to ensure that their enforcement processes are legally compliant.”


In 2004, PATAS held 2 seminars for local authority parking staff on submitting evidence and applications to the Adjudicators. At both of those seminars, the Chief Parking Adjudicator gave a short presentation on PCN evidence and the mandatory details required on a PCN.



Moses v. London Borough of Barnet


On 18 February 2006, Parking Adjudicator Timothy Thorne considered two appeals at a personal hearing from Mr Moses against PCNs issued by the London Borough of Barnet. Mr Moses was represented at the hearing by Mr Barrie Segal, of ‘appealnow.com’. Representations were made as to the facts of the cases, and on the point that the Barnet PCN was defective because it failed to state the date of notice. Mr Segal referred to a decision by a National Parking Adjudicator (McArthur –v- Bury Metropolitan Council) in support of this argument. The Adjudicator allowed the appeal on the basis of the facts presented and also because he found that the PCN was defective.


The London Borough of Barnet submitted an application for review of that decision, but did not request an oral hearing. Their application was rejected following consideration of the documents submitted by Parking Adjudicator, Mr Austin Wilkinson. Barnet were informed of this decision on 6 March 2006. They then submitted an application to the High Court for Judicial Review of Mr Wilkinson’s decision to reject the review application.


The application for Judicial Review was heard by Mr Justice Jackson on 1 August 2006. His Lordship delivered Judgement orally on 2 August 2006 in which he broadly endorsed the adjudicator’s decision. He refused the application and also refused leave to appeal against his judgement PATAS has requested a transcript from the Court: it will be circulated to authorities and posted on the PATAS web site as soon as it is received. A note of the judgement was taken by PATAS staff attending court and is attached at Appendix 1.


Following the original decision by the adjudicator, on 27 March 2006 ALG TEP officers held a seminar for authority Parking Managers to draw to their attention the issues raised by the Moses decision and Barnet’s judicial review application and to urge them to ensure that their PCNs complied with statutory requirements, as set out in the Al’s Bar decision.


On 3 May 2006, the Director of ALG TEP wrote to all Parking Managers urging those that had not done so to review their PCNs in the light of the Al’s Bar decision. That letter also pointed out that the model PCN shown in the draft revised Code of Practice, issued to boroughs in late 2005, could be used as a basis for reviewing PCN formats. A copy of that letter is attached at Appendix 3.


On 3 August 2006, there was an ALG TEP seminar for borough Parking Managers. ALG TEP’s director gave an urgent update on the note of the High Court judgement. Boroughs were advised that they should not pursue any non-compliant PCNs.


On 9 August 2006, the Director of ALG TEP again wrote to all Parking Managers in the light of Mr Justice Jackson’s judgement delivered in the High Court. He attached a copy note of the judgement. That letter (copy attached at Appendix 4) reiterated that boroughs should not pursue non-compliant PCNs. It also suggested that enforcement might need to be suspended pending the issue of compliant PCNS.


Financial Implications


While this case has few financial implications for the ALG, there may be significant financial implications for boroughs with open non-compliant PCNs.


Legal Implications


These are covered in this report


Equalities Implications


There are no specific equalities implications from this report


Conclusions


It is clear that the need for PCNs and all other enforcement notices to comply with the legal requirements has been highlighted to all authorities.. It is imperative that authorities ensure that all their notices comply with requirements without delay. Members are, therefore, recommended to ensure that their boroughs have:

stopped issuing non-compliant PCNs

revised the format of their PCNs to ensure that they do comply with the relevant decisions

stopped processing any non-compliant PCNs

APPENDIX ONE



BARNET v THE PARKING ADJUDICATOR

JUDGEMENT 01 AUGUST 2006


INTRODUCTION

Mr Justice Jackson set out the requirements of a Penalty Charge Notice, as defined in S66(3) of the Road Traffic Act 1991, and in the extension of decriminalised enforcement by the LLA Act 2000 to include service of PCNs by post.


THE FACTS

Mr Justice Jackson went through the wordings of the PCNs at issue in detail. He pointed out that all the parties had agreed that, in the case of the second PCN, the motorist (Mr Moses) had driven away before the PCN could be issued.


In both cases, the motorist made representations to Barnet, which were rejected. He then appealed to the Parking Adjudicator. The Adjudicator allowed the appeals against both PCNs, on the facts of each case and because he found that the wording of the PCNs (failure to specify a date of notice) made them invalid.


Barnet accepted the direction on both decisions, but applied for review on the grounds that the Adjudicator had erred in his interpretation of the law and that the PCNs were valid.


Barnet did not request an oral hearing of the review application, and did not submit further evidence. The application was dismissed by another Adjudicator, who drew on an earlier decision (Al’s Bar v. Wandsworth) in stating that the wording of a PCN needed to show substantial compliance with the statutory requirements. He emphasised the need for certainty.


PRESENT PROCEEDINGS

Barnet claim that their PCNS were ‘substantially compliant’. They said that the way time limits were described on the Notice effectively added an extra day to the statutory requirement, but that this did not matter as it did not cause prejudice to the motorist.


Mr Justice Jackson noted the ‘helpful background’ set out in the Chief Adjudicator’s acknowledgement of service and noted that Barnet’s new PCN does comply with the statutory requirements.


DATE OF NOTICE

The judge referred back to the RTA ’91 requirements of s.66(3) and confirmed that the date of notice must be on the charge, otherwise the statutory purpose of sections 66((3) c-e is thwarted.


He went on to explain that the date of contravention and the date of notice are usually the same, but not always because of the question of postal issue and if a contravention was observed just before midnight, but the PCN issued just after.


He also indicated that the date of notice had to appear on the main body of the ticket rather than just in the tear-off payment slip. To illustrate this, he mentioned in detail the example contained in the Al’s Bar decision of a motorist returning the slip with payment, and then wishing to dispute the Council’s refusal to accept a discounted payment.


Mr Justice Jackson mentioned that the requirement of the two dates, (contravention and notice), had been mentioned by Adjudicators on more than one occasion. He emphasised that the statutory requirement of the form of the PCN were simple and clear – compliance was not difficult and a specimen form had been available for more than 10 years. Enforcing authorities therefore had no excuses for non-compliance.


The Barnet PCN showed the date of the contravention, but not of the notice, therefore was not substantially compliant.


Mr Justice Jackson concluded this section of his judgement by stating that the question of prejudice did not arise because the statutory conditions of the notice were not met, therefore financial liability did not arise.


EFFECT OF EXTRA DAY

The judge stated that, in the light of his decision, there was no need to pass judgement on the ‘effect of the extra day’ in the wording of Barnet’s PCN. He stated that it would be necessary to consider further evidence to discover whether, in the case of Barnet enforcement procedures, a prejudice did occur, but that this was not necessary as he had already found that the PCNs were non-compliant.


CONCLUSION

Barnet’s application for judicial review was dismissed. Leave to appeal against the judgement was refused.


APPENDIX TWO




(Sent by e-mail to all Parking Managers)



<AppOff>

<Parking_Address>



26 July 2002



Dear <Dear>

PCN Evidence

Further to my letters sent to you in September-November 2000 regarding PCN evidence, the Chief Adjudicator has asked me to bring the attached decision to your attention, as it may have a significant impact. Following that decision is a copy of the Judgement of District Judge Wigfield in the Central London County Court in the case of Anthony Sutton –v- The Mayor and Burgesses of the London Borough of Camden. Please see particularly pages 19 to 28.

If you submit computer printouts as PCN evidence you might like to take this opportunity to check that each printout is in fact an exact copy of the wording on your PCN and does comply with the requirements.

Please ensure that this information is passed on to staff in your appeals section. It would be helpful if a member of your appeals staff could notify us of their e-mail address if they require us to copy future communications to them.

Yours sincerely


Charlotte Axelson

Head of the Parking and Traffic Appeals Service



encs




APPENDIX THREE: Nick Lester’s letter of 3 May 2006











APPENDIX FOUR: Nick Lester’s letter of 9 August 2006



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Parking Adjudicators’ Annual Report 2005/2006



Page 2 of 3ALG TEC Executive Sub Committee Parking Adjudicators’ Annual Report 2005/2006Item No:Report by:Martin WoodJob title:Chief Parking Adjudicator

Date:17 October 2006Contact Officer:Martin WoodTelephone:020 7747 4850Email:Martin.Wood@alg.gov.uk Summary:A joint annual report by the Parking Adjudicators for the year 2005/2006.

Recommendations:That Members receive the report Financial Implications for ALGN

one Is the report ‘open’ to the public?Yes

In accordance with S73(17) of the Road Traffic Act 1991, the Parking Adjudicators have pleasure in presenting to the Committee their Annual Report for the year 2005/2006 which is attached.

Page 5 of 33


House of Commons Transport Committee Enquiry into Parking Policy and Enforcement


In parallel with the Department for Transport Review, the House of Commons Transport Committee initiated, in August 2005, an enquiry into the current effectiveness of parking provision and enforcement policy. The Chief Parking Adjudicators for both London and England and Wales were amongst the witnesses who gave evidence to the Committee. Members of the Committee also visited the Hearing Centre where they heard presentations from the Chief Parking Adjudicator and Nick Lester of the Association of London Government.


In their report, published in June 2006, the Committee strongly supported the principle of civil enforcement. They said that transferring responsibility for parking enforcement from the police to local government had succeeded in raising the levels of enforcement and compliance and that to retain two parallel parking systems, criminal and civil, was irrational. It was high time, they said, to move to a single country-wide system of civil parking enforcement.


However, they considered that, despite its success, serious flaws remained in the civil system, and concluded that in addition to the main task of introducing a unified system, the following action was required:


Clear performance standards in applying parking restrictions must be established

It must be made clearer to drivers what regulations are in force and how compliance is to be achieved

Appropriate recruitment, remuneration and training is needed to ensure a professional parking service throughout the country

The process for challenging penalty charge notices must be made much more transparent

The impact of the parking adjudication service must be increased and its profile heightened

Scrutiny of local authority parking departments is woefully inadequate and needs to be strengthened

Local authorities must develop parking strategies which meet local objectives fully, focusing particularly on congestion, road safety and accessibility.


They said that detailed, not generalised, guidance from the Department was necessary to address the key shortcomings of the system. Using this guidance as a basis, they expected the Department vigorously to encourage improved standards in all local authorities.


This report is timely, given the moves to implement the Traffic Management Act. Clearly everyone involved in civil parking enforcement needs to take on board the messages from this report in planning for the future, both in terms of the preparation of the regulations and guidance and of the day to day enforcement operation.


In terms of the raising of the profile of the adjudication service, whilst the Notice to Owner is required to inform the recipient of the ultimate right of appeal to a Parking Adjudicator, the Penalty Charge Notice, the first document in the enforcement process, is not required to do so. It seems to us that it would be appropriate that it should.


Pages 10 & 11 of 33

Validity of Penalty Charge Notices


R (Barnet) v Parking Adjudicator


Mr Moses appealed against two Penalty Charge Notices issued by Barnet Council.

The adjudicator allowed both appeals on the facts. However, he also held in each case that the Penalty Charge Notice did not comply with the requirements as to form prescribed by section 66(3) of the Road Traffic Act 1991; in particular, they did not specify the date of the notice. In doing so, he followed the decision of a Parking Adjudicator of the National Parking Adjudication Service in McArthur v Bury (NPAS Case No. BC 188), itself following the decision in Al’s Bar & Restaurant v Wandsworth (PATAS Case No. 2020106430). Barnet Council applied under regulation 11 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993 for a review of those decisions, contesting the decision on the compliance issue but not the decisions on the facts. The reviewing adjudicator upheld the decisions of the first adjudicator and rejected the applications for review. Barnet then applied to the High Court for judicial review of the decisions of the reviewing adjudicator. It sought a declaration that the Penalty Charge Notices complied wholly or substantially with the requirements of section 66(3).


On 2 August 2006 Mr Justice Jackson dismissed the claim. In upholding the decisions of the reviewing adjudicator, he held:


that on its proper construction or by necessary implication, section 66(3) requires a Penalty Charge Notice to state the date of the notice;

that if a Penalty Charge Notice does not do so, it is invalid and unenforceable;

that prejudice to the motorist is irrelevant;

that the date of the contravention included within the statement of the reasons why the parking attendant believed a penalty charge to be payable does not satisfy the requirement to state the date of the notice.


He cited with approval the reasoning of the adjudicators in the Al’s Bar and McArthur cases.


Procedural Compliance


The Barnet case illustrates the critical importance of local authorities carrying out enforcement in strict compliance with the procedural requirements of the statutory scheme. This is an issue that has caused the Adjudicators concern for some time and to which we have drawn attention before in our annual reports. Yet we continue to see cases where local authorities have failed to comply with the requirements.


The Barnet case concerned the issue of the required content of a Penalty Charge Notice. But it should be understood that local authorities need to ensure that the notices they issue at all stages of the process are compliant as to form.


Compliance also includes complying with the prescribed time scales. In this connection, it is apparent that some local authorities have still not grasped the distinction between the date of despatch of a document and the date of its service. A document is not served on the date it is posted. Section 7 of the Interpretation Act 1978 provides that service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. So where the next stage of the enforcement process is timed from the service of a document, local authorities must build into their administrative processes sufficient time to allow for service to be effected. For example, the periods after which a Charge Certificate may be served under paragraph 6(2) of Schedule 6 to the Road Traffic Act 1991 are calculated from service, not despatch. We are aware of cases where a Charge Certificate has been despatched 28 days after the date of posting of a Notice to Owner. This is serious, as the local authority is purporting to increase the penalty by 50% several days before it is empowered to do so.


It is to be hoped that the Barnet case will bring home to all local authorities the consequences of failing to ensure that their administrative procedures comply in every respect with the statutory scheme.

Page 24 of 33

Thornburn v Camden (PATAS Case no. 205027945A)


The Appellant turned right out of Buckley Road into a bus lane on Kilburn High Road. The issue was whether the signage was adequate. The advance warning sign in Buckley Road was parallel to the kerb, not facing the traffic. It therefore could not be read by motorists approaching the junction with Kilburn High Road.


In its Notice of Rejection, the local authority said "the signs in Buckley Road are for information purposes and it is the main sign on the bus lane itself which provides the main notification".


The Adjudicator said this statement was misconceived. All the signs were for information; none was different from another in that respect. The implication that the signs in Buckley Road were less important than those in Kilburn High Road and that any deficiency in them did not matter was wrong. The signage was manifestly inadequate.

Appeal allowed.


Page 30 of 33


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Procedural Defects


Miah v Westminster (PATAS Case no. 2050339777)


The Appellant produced a Charge Certificate that was issued to him on 10 October. At that time this appeal was pending. The Charge Certificate informed the Appellant that the penalty was increased to ?150, threatened enforcement action through the courts if it was not paid, and stated that it was then too late to challenge the issue of the Penalty Charge Notice.

The Adjudicator said that issued as it was whilst the appeal was pending, this was an entirely unlawful demand for money, coupled with the threat of court action. For a public authority to issue such a document was utterly unacceptable. But this was not an isolated case. He was aware of other instances of this happening over a period of time. His understanding was that such unlawful Charge Certificates were being issued because of a problem with the local authority's computer system. That might be the explanation, but it did not make it any the less unacceptable. Nor did it seem that in the meantime the local authority had put in place steps for a manual scrutiny of the documents it issued to intercept any unlawful Charge Certificates to prevent them being despatched.

That the local authority continued to issue such documents, knowing full well that it was happening and that they were unlawful, and that this had persisted for some time, appeared to suggest a lack of appreciation by the local authority of the seriousness of the situation and a lack of urgency in resolving it.

The procedural impropriety in the issuing of the unlawful demand fundamentally undermined the lawfulness of the enforcement process in this case, and undermined the authority and jurisdiction of the tribunal. This unlawful act debarred the local authority from pursuing further enforcement of this penalty.

Appeal allowed.

Page 32 of 33


Proud v Westminster (PATAS Case no. 2050188081)


The parking attendant noted "I just dropped the PCN on the windshield as she was driving". The Adjudicator said that the Penalty Charge Notice must be fixed to the vehicle. Merely dropping it on to the windshield did not constitute fixing. The Penalty Charge Notice was not properly served.

Appeal allowed.




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Hyams V Camden – Patas Ruling Page 1




Page 2



page 3

The full and more thorough ruling is at addenda 1. This my own...COMMENT: The PATAS ruling is clear, and thorough, it takes up and re-enforces the J. Jackson Ruling, making the PCN formulation for CAMDEN UNENFORCEABLE for non compliance with the RTA 1991 section 66.

There is no way that a reference on the back of a PCN to a date on the front constitutes two dates, the more so as those two dates can be different.

Comment on this, for semantic and logical accuracy;

The others shall be for a determination at the court. However, what can be plainer than “a PCN requires two dates, (not one date in two senses, from which no different date can be extrapolated)” and the word must, in section 66 of the RTA. It is neither logically nor empirically possible.

Sense and reference, Frege, the classic example. Also 'On denoting' Bertrand Russell.

The evening star and the morning star, (two different days, coincidentally) refer to the SAME planet VENUS.

It is not possible to create two planets from the construction of two ways of looking at an object.

Otherwise, The Queen, The Husband of Prince Philip, and the Mother of Prince Charles, and the Monarch would give Britain four sovereigns or persons.

The council, PATAS and the courts have a Duty not to be irrational. To do so, strikes at the roots of the theory of knowledge and how it is obtained.

As in the three rulings below.

The Defendant is satisfied the non-compliance is proven and corroborated.


Duty not to be irrational.

Bromley and London Borough Council v Greater London Council (1983) Lord Diplock "Decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached".


Council of Civil Service Unions v Minister for the Civil Service (1985) Lord Diplock "By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness ............. it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."


R v Housing Benefit Review Board of London Borough of Sutton ex parte Keegan (1995) Conclusion "was arrived at in the teeth of the evidence and was accordingly Wednesbury unreasonable"




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Moulder V Sutton

Page No 1


-1-


THE PARKING COMMITTEE FOR LONDON

PARKING APPEALS SERVICE

CASE REFERENCE: 1940113243

PCN: SU63029551

DECISION

The Statutory Background

The Road Traffic Act 1991 ("the Act") provides a scheme which decriminalises the vast majority of

contraventions of the regulation of parking in London. It takes the enforcement of such parking

regulations out of the hands of the police, and puts it into the hands of the local authorities, that is the

London Boroughs. Parking contraventions - such as parking on a single yellow line during restricted

hours, or parking without payment of the initial charge in a pay and display bay - are not criminal

offences under the scheme, but they can result in a penalty being incurred. Such penalties are payable

to the authority responsible for enforcement of parking regulations under the scheme. The authorities

employ parking attendants to assist them in enforcement.

Under Section 66 of the Act, where a parking attendant has reason to believe that a contravention of

parking regulations has occurred such that a penalty charge is payable, he may issue a penalty charge

notice (commonly referred to as a "parking ticket": I will refer to it as a "PCN"), which he may fix to

the vehicle or give to the person appearing to him to be in charge of the vehicle. It is clear from the

wording of that section - and, in any event, from common sense - that the PCN is directed at the

person driving or apparently in charge of the vehicle, or (if there is no one with the vehicle at the time)

the driver or person in charge of the vehicle when that person returns to the vehicle. This is the

person who is intended to be - and is likely to be - the recipient. I will refer to this person as "the

driver". The driver will often (although not necessarily) be the owner, keeper or hirer of the vehicle

(who I will refer to as "the owner").



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Although a PCN is aimed at the driver, if he does not pay the penalty referred to in the PCN then he

(as the driver) cannot be pursued for it, at all. In the event of non-payment for 28 days, the authority

may serve a notice on the person who appears to them to have been the owner of the vehicle when

the alleged contravention occurred, i.e. a notice to owner (which I will refer to as an "NTO"). This is

provided for by Schedule 6, paragraph 1(1) of the Act, which reads:

"Where:

(a) a penalty charge notice has been issued with respect to a

vehicle under Section 66 of this Act; and

(b) the period of 28 days for payment of the penalty charge has

expired without that charge being paid,

the London authority concerned may serve a notice ("a notice to owner") on the person who

appears to them to have been the owner of the vehicle when the alleged contravention

occurred".

The owner may lodge representations against the NTO and, if these are not accepted by the authority,

then the owner may appeal to a parking adjudicator against the authority's decision. Subject to that

appeal, if the penalty charge is not satisfied by the owner, then the authority may serve on that person

a statement to the effect that the penalty charge in question is increased by 50%. If this is not

satisfied, then it can be enforced against the owner as if it were payable by him under a County Court

order. If the penalty is not paid by this stage, all of the enforcement procedures of the County Court

lie in the hands of the authority, e.g. a warrant of execution enforced by bailiffs. There are no criminal

sanctions for the non-payment of a penalty.

Therefore, although the intended recipient of a PCN is the driver, all steps towards the enforcement of

the penalty up to and including enforcement through the County Court, are taken, not against the

driver, but against the owner.

The Act provides for a number of matters which must (the Act says) be included in a PCN, and in an

NTO, respectively. By Section 66(3):

"A penalty charge notice must state:



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(a) the grounds on which the parking attendant believes that a penalty charge is payable

with respect to the vehicle;

(b) the amount of the penalty charge which is payable;

(c) that the penalty charge must be paid before the end of the period of 28 days beginning

with the date of the notice;

(d) that if the penalty charge is paid before the end of the period of 14 days beginning

with the date of the notice, the amount of the penalty charge will be reduced by the

specified proportion;

(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to

owner may be served by the London authority on the person appearing to them to be

the owner of the vehicle;

(f) the address to which payment of the penalty charge must be sent."

By Schedule 6, paragraph 1(2):

"A notice to owner must state:

(a) the amount of the penalty charge payable;

(b) the grounds on which th e parking attendant who issued the penalty charge notice

believed that a penalty charge was payable with respect of the vehicle;

(c) that the penalty charge must be paid before the end of the period of 28 days beginning

with the date on which the notice to owner is served;

(d) that failure to pay the penalty charge may lead to an increased charge being payable;

(e) the amount of that increased charge;

(f) that the person on whom the notice is served... may be entitled to make

representations...; and

(g) the effect of paragraph 5 below."

Paragraph 5 concerns an appeal to a parking adjudicator against the authority's decision.

Whilst considering the statutory background, for the sake of completion I should say that I am

informed by the London Borough of Sutton that the relevant part of Mulgrave Road, Sutton, referred to



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below, comprises a pay-and-display place in which parking during certain restricted hours is subject to

a charge and a further, penalty charge if payment is not made of that initial charge or if the vehicle

remains in that place for longer than the period for which the initial payment was made, by virtue of

the Sutton (Controlled Parking) (On-Street Places) (No.1) and (No.2) Orders 1994. The penalty

charge payable is ?40, or ?20 if paid within 14 days.

The Facts

At 11.31 am on 8 March 1994 (i.e. during restricted hours), Sutton Parking Attendant No.16 saw

vehicle registration number VLE 170X parked in Mulgrave Road, Sutton, in a pay-and-display bay.

The vehicle was not displaying a pay-and-display ticket at all. Having reasonable cause to believe that

the vehicle had been parked without payment of the initial charge (in contravention of the parking

regulations in the designation order), he issued a PCN, No.SU63029551. The PCN, as required by

Section 66(3), stated:

(i) the grounds on which the parking attendant believed that a penalty charge was

payable, namely that the car was parked without payment of the initial charge:

(ii) the amount of the penalty charge payable, namely ?40:

(iii) that the penalty charge was payable within 28 days:

(iv) that, as a concession for prompt payment, if the penalty charge was paid within 14

days it would be reduced to ?20: and

(v) the address to which payment should be made, including various modes of payment

(i.e. in person, by post or by credit card).

The PCN also stated:

"Any enquiry regarding this Notice must be made within 7 days quoting the Penalty

Charge Number".



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The PCN does not say what will happen if an enquiry is not made within 7 days, but is made later.

The Act does not provide a time limit in which enquiries - or representations - regarding a PCN must

be made. As indicated above, it merely provides that, in the event of non-payment of a PCN for 28

days, the authority may serve an NTO.

Finally, the PCN issued by Sutton Parking Attendant No. 16 in respect of vehicle registration number

VLE 170X, also stated:

"Under the Road Traffic Act 1991 it is an offence to fail to pay this Penalty Charge".

However, as indicated above, it is not a (criminal) offence to fail to pay a PCN. Furthermore, although

the PCN is directed at the driver (and, consequently, this provision in the PCN suggests that it is the

driver who commits an offence if there is a failure to pay the penalty charge), as described above, all

steps towards the enforcement of the penalty are taken, not against the driver qua driver, but against

the owner.

The authority before me accepted that the PCN did not state that, if the penalty charge was not paid

within 28 days, an NTO may be served by the authority by the person appearing to them to be the

owner of the vehicle, as Section 66(3)(e) says it must. The authority (the London Borough of Sutton)

said that none of the PCNs issued by them before November 1994 contained such a statement

(although this omission was rectified in respect of all PCNs issued from that month). Although there

was no evidence from them on the point, I was told by Miss MacGregor on their behalf that this

omission was not the result of a decision by the authority that that provision was unnecessary, but

rather it was a genuine mistake. The point had apparently not entirely escaped the authority, because I

was told that, if anyone raised a query concerning a PCN prior to November 1994, then they would

have received a standard form letter containing the following paragraph:

"Please note that if payment is not received a Notice to Owner will be sent to the

registered keeper of the vehicle. If this is not you, you should inform the registered

keeper of the fact that a Penalty Charge Notice has been issued as the owner is liable

for payment."




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I have no evidence before me as to why no provision complying with Section 66(3)(e) was included in

Sutton's PCNs until November 1994. However, for the purposes of this issue, I accept what Miss

MacGregor tells me, that it was simply a mistake.

Following the issue of PCN No. SU63029551, the authority received no payment. As a result, on 25

October 1994, they issued an NTO to a Frederick Steven Moulder who, according to the DVLA's

records, was the registered keeper on 3 August 1994. Mr Moulder responded to that NTO. The

authority considered his representations, but wrote to him on 28 October 1994 rejecting his

representations and indicating that he may appeal to a parking adjudicator in respect of their rejection.

This he duly did, on 24 November 1994.

Mr Moulder did not himself raise any ground of appeal based upon the omission from the PCN of a

statement complying with Section 66(3)(e). He appealed on entirely different grounds. For the

purposes of this decision, the particular grounds do not matter: but I should perhaps say that Mr

Moulder contends that he was not the driver of the vehicle at the relevant time. However, when it

came to his appeal, the parking adjudicator himself raised the point of the omission. It has therefore

been agreed that I will deal substantively with this point as a preliminary issue. This preliminary issue

is of course effectively a test case for other PCNs that were issued with this omission. Depending

upon my decision, the preliminary issue may be determinative of the instant appeal.

At the hearing of the issue on Friday 12 May 1995, the appellant did not himself appear. The authority

were represented by Miss Gabriel MacGregor (the authority's Senior Solicitor), and Mr Patrick Troy

(the authority's Head of Parking Services). I should like to thank both of them for their assistance on

the issue.

The Legal Principles

The authority having accepted the omission of any statement which could comply with Section

66(3)(e), Miss MacGregor usefully referred me to the transcript of a judgment of Mr Justice Sedley in

R -v- The London Borough of Tower Hamlets and the Tower Hamlets Combined Traders

Association, an unreported judgment delivered on 9 July 1993. That case concerned the setting of fees




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for market traders' licenses by the London Borough of Tower Hamlets. In particular, the authority in

that case was required to publish a notice of the proposed fees in a newspaper, and specify a

reasonable period of not less than 28 days in which representation could be made to the authority in

respect of those fees. The newspaper notice published by the authority failed to specify that period.

With regard to such omissions, Sedley J. set out four relevant principles which, it seemed to him, could

be derived from the authorities, namely:

"1. A statutory provision that something "shall" be done as a condition of adopting a

measure ordinarily means that failure to do it renders the measure invalid.

2. Whether such non-compliance has this effect in any one case, however, depends on

the importance of the provision in the context of the statutory purpose.

3. Unless its invalidity is patent, a measure is presumed valid until struck down by a

competent court and so can found certain consequential rights meanwhile.

4. Whether to strike down an invalid measure is a discretionary decision except where

nullity is the legal consequence of non-compliance."

Miss MacGregor says that these principles are correctly derived from the authorities, and I should

approach my task in this case as Sedley J. approached his in the Tower Hamlets case. I consider this

approach a proper one for me in this case, and I am pleased to adopt it.

Having set out these principles and the authorities from which he derived them, Sedley J. approached

the matter before him by considering two questions. First, as a matter of construction, he considered

whether the failure to comply with the statutory requirement was such as to render the measure

invalid. However, even it were invalid, he accepted the submissions of the authority in the case before

him that there would necessarily be a second stage, namely the exercise of judicial discretion.

I interpose here to comment that, with the greatest respect to the Learned Judge, I find this approach

curious in the light of the principles which he set out. His fourth principle envisages a category of



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invalid measure where "nullity is the legal consequence of non-compliance" and where there is no

discretion in the Court in the event of non-compliance. However, in the Tower Hamlets case itself,

although Sedley J. found that, as a matter of construction, the measure before him was "in law a

nullity", nevertheless he went on to say that there was "a further stage of discretion through which the

applicant must pass in order to succeed". Miss MacGregor urged me to adopt this two stage approach

in any event, which I propose to do.

Miss MacGregor primarily contended that the requirement of Section 66(3)(e) is not mandatory but

directory only or, to adopt the terminology of Sedley J, that the failure to comply with the requirement

was not such as to render the PCN invalid. She accepted that a discretion to allow an authority to rely

upon something which was invalid might only be exercised carefully and sparingly but, as very much a

subsidiary argument, she asked that all of the arguments she put in relation to the question of

construction be treated as arguments in relation to the exercise of discretion, if she were unsuccessful

in persuading me that the failure to comply with the relevant provision did not render the PCN invalid.

The Question of Construction

So, as a matter of construction, what is the effect on a PCN of a failure to comply with the

requirement of Section 66(3)(e)? I consider that the PCN is invalid. Indeed, if I were called upon to

decide the point, in my view the PCN is a nullity in the sense used by Sedley J. in the fourth principle

he set out in the Tower Hamlets case.

This is of course a question of statutory construction, in respect of which I must have regard not only

to the words of the statute, but also the statutory context, particularly the purpose of this statutory

provision. In construing Section 66(3)(e), I have in particular taken account of the following points

raised at the hearing.

II. In the Tower Hamlets case, Sedley J. had to construe a statutory provision using the word

"shall". The word used in Section 66(3) is "must" ("a penalty charge notice must state..."). In

London & Clydeside Estates -v- Aberdeen District Council [1980] 1 WLR 182 at 201H (in a

passage cited by Sedley J. in the Tower Hamlets case), Lord Keith said:



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"The word ‘shall’ used in article 3(3) is normally to be interpreted as denoting

a mandatory provision, meaning that what is thereby enjoined is not merely

desired to be done but must be done".

The emphasis is mine. In the course of her submissions Miss MacGregor - perhaps

unguardedly - adopted this terminology in distinguishing a mandatory provision from a

discretionary one. She did, however, formally submit that the words "shall" and "must" have

an identical meaning and, in particular, that neither imports a greater degree of obligation than

the other.

In my view, it may be that the word "must" has more of a ring of obligation, in common day

usage, than the word "shall". However, the word itself cannot be conclusive. With great

respect, I agree with the quotation brought to my attention by Miss MacGregor in the Tower

Hamlets case, but originally attributable to Lord Campbell LC in Liverpool Borough Bank -v-

Turner 29 LJ Ch 827:

"No universal rule can be laid down for the construction of statutes, as to

whether mandatory enactments shall be considered directory only or

obligatory, with an implied nullification for disobedience. It is the duty of

courts of justice to try to get at the real intention of the legislature by carefully

attending to the whole scope of the statute to be construed."

In Howard -v- Bodington (1877) 2 PD 203, Lord Penzance added the following to that

quotation:

"I believe as far as any rule is concerned, you cannot safely go further than

that in each case you must look to the subject matter; consider the importance

of the provision that has been disregarded, and the relation of that provision to

the general object intended to be secured by the Act; and that upon a review

of the case in that aspect decide whether the matter is what is called

imperative or only directory."




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With respect, I consider that this is the proper approach, and it is the approach I adopt.

However, in doing so, I bear in mind Sedley J.'s comment that when these words are used in

respect of something to be done as a condition of adopting a measure, it ordinarily means that

failure to do it renders the measure at least invalid.

III. As indicated above, the Tower Hamlets case concerned the setting of fees for market

licenses. Despite the fact that contravention of parking regulations in London has been

decriminalised, Section 66(3) concerns the imposition of a penalty by the authority, on a

member of the public. In such circumstances, where Parliament has specifically required that

a document must state certain information, then it would only be with great care that it could

be said that the giving of that information was only desired and not obligatory. However, of

course the mere fact that potential penalties are involved is, once more, not conclusive.

IV. Miss MacGregor accepted that all of the sub-paragraphs of Section 66(3) (with the exception

of (e)) are mandatory, in the sense that if the PCN does not state the information in those sub-

paragraphs then it would be a nullity, upon which an NTO (and subsequent enforcement

against the owner) could not be founded. (She also accepted that the provisions of Schedule 6

paragraph 1(2), which set out the information which an NTO "must" state are obligatory in the

same sense.) I consider that concession properly made. Again, whilst not being conclusive, it

assists in putting the relevant provision into context.

V. The purpose of the provision is clearly central to its construction. Miss MacGregor said that

Section 66(3)(e) merely provided the driver with information. She said that omission of the

information provided for by the other paragraphs of that subsection would derogate from the

rights of the recipient of the PCN. She said that it was essential that the omission resulted in a

deprivation of rights of the recipient of the notice, for that omission to be fundamental so as to

render the PCN a nullity. She said that by omitting the information in Section 66(3)(e), the

recipient of the PCN (the driver) was not deprived of any right. I am afraid I do not agree

with this analysis.



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I do not agree that a loss (or a potential loss) of legal rights is a pre-requisite for the omission

of a statutory requirement to render invalid the measure which it affects. In my view, there

may be, even on the question of construction, a "spectrum of possibilities" (a phrase used by

Lord Hailsham in London and Clydeside Estates, as quoted by Sedley J. in the Tower Hamlets

case) or "differences of degree" (a phrase used by Sedley J. himself). Where upon the

spectrum a particular case lies will depend, in part, upon the actual or potential prejudice to

those affected which may result from the omission. This prejudice goes to the gravity of the

breach in relation to the statutory purpose. For the purposes of this case (without deciding the

point), I accept Miss MacGregor's submission that persons affected in this case should be

restricted to recipients of PCNs, i.e. drivers.

Certainly, in terms of legal analysis, despite the submissions of the authority, I see no

difference between the absence of the information provided for by paragraph (e), and the

information provided for by the other paragraphs of Section 66(3). All of the provisions of

Section 66(3) concern the provision of information to the driver: information concerning why

the PCN was issued, how and what to pay, and what may happen in the event of non-

payment. The authority accept that it would be fatal to a PCN if it missed out any of this

information, save for the information as to what may happen in the event of non-payment. But

it seems to me that this information - about what may happen in the event of non-payment - is

also crucial. The information is - or could be - critical to the response of the driver to the

PCN.

As I have explained, the statutory scheme in respect of penalties for contraventions of the

regulation of parking in London has a structure. The first stage is the issue and service of a

PCN which is directed at the driver. The authority has no direct enforcement rights in respect

of the PCN. The second stage - in the event of non-payment of the penalty referred to in the

PCN - is that the authority may issue and serve an NTO on the owner. In my view, it is

fundamental to the scheme that the recipient of a PCN - whether or not he is the owner -

appreciates that there is an alternative to payment, that is a possible second stage, and what

that comprises.



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Where the driver is the owner, I consider he is entitled to know what may happen to him, if he

does not pay. This is not only a new statutory scheme, it is in many ways a new type of

scheme involving (as it does) the payment of penalties to local authorities rather than payment

of fines to central government. In the absence of any information as to what may happen in

the event of non-payment the driver/owner is left completely in the dark. There is no

suggestion on the face of the PCN that there is any alternative to payment and the

driver/owner may (to his detriment) believe that to be the case. He may think there are

potential criminal sanctions for non-payment: in this case, it seems to me that that thought may

have been encouraged (I am sure, inadvertently) by the erroneous reference in the PCN to

non-payment being an "offence". These matters could result in the driver/owner paying a

penalty that he might not pay, if properly informed. In my view, it is not any answer for the

authority to say that, if the driver has any query or concern, he can contact the authority and

they will tell him what will or might occur. There can be no duty on the driver to ascertain

what might happen. In my view, there is a duty on the authority (imposed by the Act) to tell

him what might happen.

Where the driver is not the owner, the same considerations apply, but there are also additional

factors. In the absence of the information required by paragraph (e), the driver does not know

from the PCN that the owner may be pursued, at all. The driver may have no legal obligation

to inform the owner that a PCN has been issued (which may result in the owner being pursued

in respect of the penalty), but he may wish to do so and he may be prejudiced by not doing so.

The London Borough of Sutton accept that there are circumstances in which the owner ought

to be informed, as reflected by their standard form letter to the driver, referred to above:

"...[Y]ou should inform the registered keeper of the fact that a penalty charge notice has been

issued as the owner is liable for payment". For example, where the driver is the employee of

the owner (or in some other relationship with the owner), the driver could be severely

prejudiced by not knowing that the owner can be pursued.

Therefore, whether or not classifiable as a loss of legal rights, I believe that the absence of the

information referred to in Section 66(3)(e) does seriously prejudice (or potentially prejudice)

the driver, whether or not the driver is the owner.




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VI. Finally, Miss MacGregor drew my attention to the fact that Section 66(3)(e) requires a PCN

to state that, if the penalty is not paid within 28 days, a Notice to Owner may be served on the

person appearing to be the owner. She said that, for the purposes of construing this provision,

it would have been "more vital in tone" if the provision was that an NTO had to be served.

This was not one of Miss MacGregor's central submissions, and I am afraid I was not assisted

by it. The provision in paragraph (e) merely reflects Schedule 6, paragraph 1(1), which

provides that the authority may serve an NTO where a PCN has been issued and the penalty

remains unpaid for 28 days. It seems to me that a driver has an equal right to know what may

happen in the event of non-payment, as he would to know what will (certainly) happen in such

an event. Whilst not of course assisting on the question of construction, I observe that the

standard form letter sent out by the London Borough of Sutton in response to any enquiry

about a PCN (referred to above) refers to the fact that "if payment is not received a Notice to

Owner will be sent to the registered keeper of the vehicle" (my emphasis).

Therefore, I consider that the omission in the PCN to specify what might happen in the event of non-

payment within 28 days was fundamental and of central importance to the validity of the PCN.

Consequently, the authority's failure to comply with the statutory requirement, in my view, resulted in

the PCN being invalid and a nullity.

The Exercise of Discretion

It seems to me that the finding that the PCN is a nullity is sufficient to dispose of this matter, in

accordance with Sedley J's fourth principle in the Tower Hamlets case. However, as I have indicated

above, he in fact went on to consider the exercise of discretion in that case and I have been requested

to follow suit by Miss MacGregor. I do so. Having found that the PCN is at least invalid, should I

exercise my discretion to allow it to stand, which would enable an NTO (and subsequent enforcement)

to be based upon it?

In the exercise of my discretion, Miss MacGregor asked me to take into account all of the matters she

raised in connection with construction, to which she did not seek to add. In particular, there was no

evidence that (and Miss MacGregor did not argue that) the authority would be put in an unduly (yet

alone impossibly) difficult position by an inability to rely upon this and - because this is in the nature of




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a test case - no doubt other PCNs. Since November 1994, the authority have changed the form of

their PCNs, to include a statement covering the provisions of Section 66(3)(e).

I have taken into account all of the matters which Miss MacGregor raised. As well as those referred

to specifically above, I bear in mind that the omission was a simple mistake (and not, for example, a

deliberate attempt to flout the purposes of the Act). However, I also bear in mind Sedley J.'s words

from the Tower Hamlets case:

"It is... important, in my judgement, that it should not be thought by local authorities

that they can omit steps of the importance which I consider this step has and take

their chance on rescue by the exercise of the Court's discretion on facts which will

have emerged by the time of trial".

As Miss MacGregor accepted, a discretion to allow an authority to rely upon something which at law

is invalid can only be exercised with great care. This statute concerns the imposition of penalties on

members of the public and, having taken into account all of the matters put to me by Miss MacGregor,

in all of the circumstances, I do not consider that it would be a proper exercise of my discretion to

allow the authority to rely upon the PCN, with this omission.

Directions

In view of my finding on this preliminary issue, the issue is determinative of this appeal. I have found

that the PCN was invalid and a nullity, and it was not such that the authority could rely upon it to found

an NTO or any subsequent enforcement procedure. In these circumstances, I direct the London

Borough of Sutton to cancel PCN No. SU63029551 and the NTO based upon it.

Gary R Hickinbottom

24 May 1995


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Camden code of Conduct.


Page No 1


CODE OF CONDUCT


Adopted by Council 29 th March,2005.



Page No 2


Camden Council - Code of Conduct Page 2


TABLE OF CONTENTS

1 Introductions 3

2 Definitions 4

3 Purpose of the code of conduct 5

4 Key Principles 7

5 General Conduct Obligations 8

6 Conflicts of Interest 10

7 Personal Benefit 13

8 Relationshipbetween Council Officials 15

9 Access to information and council resources 17

10 Reporting breaches, complaint handling procedures & sanctions 20

11 Councillor misbehaviour 22



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Page No 3


Camden Council - Code of Conduct Page 3


1 Introduction

The Local Government Act 1993 requir es every council to adopt a code of

conduct that incorporates the provisions of The Model Code Of Conduct for Local

Councils in NSW. Councillors, members of staff of council and delegates of the

council must comply with the applicable provisions of council’s code of conduct. It

is the personal responsibilit y of council officials to comply with the standards in

the code and regularly review their personal circumstances with this in mind.

Council contractors and volunteers will also be required to observe the relevant

provisions of council’s code of conduct.

Failure by a councillor to comply with an applicable requirement of council’s code

of conduct constitutes misbehaviour. Failure by a member of staff to comply with

council’s code of conduct may give rise to disciplinary action.



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Page No 4


Camden Council - Code of Conduct Page 4


2 Definitions

In the model code of conduct the following definitions apply:

Council official Includes councillors, members of staff of council

and delegates of council.

Delegates of council A delegate of council is a person or body to

whom a function of council is delegated

Designated person See the definition in section 441 of the Local

Government Act 1993

Act of disorder See the definition in clause 29 of the Local

Government (Meetings) regulation 1999

The Act The Local Government Act 1993

The term “you” used in the model code of conduct refers to council officials.

References to sections in the model code of conduct are references to sections

in the Local Government Act 1993.



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Page No 5


Camden Council - Code of Conduct Page 5


3 Purpose of the code of conduct

The Model Code of Conduct for Local Councils in NSW sets the minimum

requirements of behaviour for council officials in carrying out their function. The

model code is prescribed by regulation.

The model code of conduct has been developed to assist council officials to:

 Understand the standards of conduct that are expected of them

 Enable them to fulfil their statutory duty to act honestly and exercise a

reasonable degree of care and diligence (section 439)

 Act in a way that enhances public confidence in the integrity of local government.



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Page No 6


Camden Council - Code of Conduct Page 6


4 Key Principles

The code of conduct applies equally to formal and informal dealings between

councillors, staff and others. The general principles upon which codes must be

based are:

4.1 Selflessness

Council officials have a duty to make decisions solely in the public interest.

Officials must not act in order to gain financial or other benefits for themselves,

their family or friends.

This means making decisions because they benefit the public, not because

they benefit the decision maker.

4.2 Integrity

Council officials must not place themselves under any financial or other

obligation to any individual or organisation that might reasonably be thought to

influence them in the performance of their duties.

4. 3 Objectivity

Council officials must make decisions solely on merit and in accordance with

their statutory obligations when carrying out public business. This includes the

making of appointments, awarding of contracts or recommending individuals for

rewards or benefits.

This means fairness to all; impartial assessment; merit selection in

Recruitment and in purchase and sale of council’s resources; considering only

Relevant matters.

4.4 Accountability

Council officials are accountable to the public for their decisions and actions and

must consider issues on their merits, taking into account the views of others. This

means recording reasons for decisions; submitting to scrutiny; keeping proper

records; establishing audit trails.

4.5 Openness

Council officials have a duty to be as open as possible about their decisions and



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actions, giving reasons for decisions and restricting information only when the

wider public interest clearly demands. This means giving and revealing reasons

for decisions; revealing other avenues available to the client or business; when

authorised, offering all information; communicating clearly.

4.6 Honesty

Council officials have a duty to act honestly. Officials must declare any private

interests relating to they’re public duties and take steps to resolve any conflicts

arising in such a way that protects the public interest. This means obeying the

law; following the letter and spirit of policies and procedures; observing codes of

conduct; fully disclosing actual or potential conflict of interests and exercising any

conferred power strictly for the purpose for which the power was conferred.

4.7 Leadership

Council officials have a duty to promote and support these principles by

leadership and example and to maintain and strengthen the public’s trust and

confidence in the integrity of the council.

This means promoting public duty to others in the council

and outside, by their own ethical behaviour.

4.8 Respect

Council officials must treat with respect other council officials and the role they

play, treating them with courtesy at all times.



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5 General Conduct Obligations

General conduct

5.1 You have an obligation to comply with the provisions of the Local

Government Act 1993, the associated regulations and council’s policies.

5.2 You must act lawfully, honestly and exercise a reasonable degree of care

and diligence in carrying out your functions under the Local Government Act 1993 or any other Act. (section 439 of the Local Government Act 1993)

5.3 You must respect all community members and other council officials and the

role they play, treating them with courtesy at all times.

5.4 Councillors must avoid behaviour that could be deemed to be an act of

disorder or misbehaviour. This includes conduct that:

 Contravenes the Local Government Act 1993 or associated regulations

 Is detrimental to the pursuit of the charter of a Council;

 Is improper or unethical;

 Is an abuse of power or otherwise amounts to misconduct;

 Causes, comprises or involves intimidation, harassment or verbal abuse;

 Causes, comprises or involves discrimination, disadvantage or adverse

treatment in relation to employment;

 Causes, comprises or involves prejudice in the provision of a service to the

Community;

 Causes, comprises or involves improperly directing or influencing or

attempting to direct or influence a member of the staff of the Council or a

delegate of the Council in the exercise of the functions of the member or

delegate.

Fairness and equity

5.5 You have an obligation to consider issues consistently, promptly and fairly.

This involves dealing with matters in accordance with established procedures, in

a non-discriminatory manner.

5.6 You must take all relevant facts known to you, or that you should be

reasonably aware of, into consideration and have regard to the particular merits

of each case. You must not take irrelevant matters or circumstances into

consideration when making decisions.



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Harassment and discrimination

5.7 You must not harass, discriminate, or support others who harass and

discriminate against colleagues or members of the public on the grounds of

sex, pregnancy, age, race (including their colour, nationality, descent, ethnic or

religious background), political affiliation, marital status, disability,

homosexuality or transgender.

Guide to ethical decision-making

5.8 If you are unsure about the ethical is sues around an action or decision you

are about to take, you should consider these five points:

 Is the decision or conduct lawful?

 Is the decision or conduct consistent with Council’s policy and with

Council’s objectives and the Code of Conduct?

 What will the outcome be for the employee or councillor, work colleagues,

the Council and any other parties?

 Do these outcomes raise a conflict of interest or lead to private gain at

public expense?

 Can the decision or conduct be justified in terms of the public interest and

would it withstand public scrutiny?

Remember – you have the right to question any instruction or direction given

to you which you think may be unethical or unlawful. If you are uncertain

about an action or decision, you may need to seek advice from other people.

This includes your supervisor or trusted senior officer, the Department of

Local Government, the Ombudsman’s Office and the Independent

Commission Against Corruption.

Independent Commission Against Corruption 8281 5999

NSW Ombudsman 9286 1000

NSW Department of Local Government 4428 4100



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6 Conflict of Interest

Pecuniary and non-pecuniary conflict of interests

6.1 A conflict of interests exists when you could be influenced, or a reasonable

person would perceive that you could be influenced by a personal interest when

carrying out your public duty.

6.2 You must appropriately resolve any conflict or incompatibility between your

private or personal interests and the impartial performance of your public or

professional duties.

6.3 Any conflict between your interests and those of council must be resolved to

the satisfaction of the council. When considering whether or not you have a

conflict of interests, it is always important to think about how others would view

your situation.

6.4 It is essential that you properly address conflict of interest’s issues that may

arise. You must:

 Try to understand the concept and practical implications of conflict of

interests issues

 Accept that failure to resolve an actual or reasonably perceived conflict of

interests is unacceptable in local government

 Take timely and appropriate action to avoid, or if not, to disclose any

actual, potential or reasonably perceived conflict of interests.

6.5 Perceptions of a conflict of interests are as important as actual conflict of

interests. The onus is on you to identify a conflict of interests, whether

perceived or real, and take the appropriate action to resolve the conflict in

favour of your public duty.

6.6 Where necessary, you must disclose an interest promptly, fully and in writing.

If a disclosure is made at a council or committee meeting, both the disclosure

and nature of an interest must be recorded in the minutes.

6.7 If you are in doubt whether a conflict of interests exists, you should seek legal

or other appropriate advice.



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6.8 A conflict of interests can be of two types:

Pecuniary - An interest that a person has in a matter because of a reasonable

likelihood or expectation of appreciable financial gain or loss to the person or

another person with whom the person is associated. (sections 442, 443 of the

Local Government Act 1993)

Non-pecuniary - A private or personal interest the councillor, staff member or

delegate has that does not amount to a pecuniary interest as defined in the

Local Government Act 1993 (for example; a friendship, membership of an

association, society or trade union or involvement or interest in an activity).

6.9 Where the interest is a pecuniary one, you must comply with the Act. If you

do not comply with the Act, the consequences may be severe.

The Act requires that if a pecuniary interest exists in a matter, you must not be

involved in consideration or discussion of the matter in which you have the

interest and must not participate in the decision-making process or vote on

any question relating to the matter. The Act requires that:

 Councillors and designated persons lodge an initial and an annual written

disclosure of interests that could potentially be in conflict with their public

or professional duties (section 449 of the Local Government Act 1993);

 Councillors or members of council committees disclose an interest at a

meeting, leave the meeting and be out of sight of the meeting and not

participate in discussions or voting on the matter (section 451 of the Local

Government Act 1993);

 Designated persons immediately declare, in writing, any pecuniary interest

(Section 459 of the Local Government Act 1993). Designated persons are

defined at Section 441 of the Local Government Act 1993.

6.10 Where the interest is a non-pecuniary one you have a broader range of

options for managing the interest. The option you choose will depend on an

assessment of the circumstances of the matter, the degree of the interest and

the significance of the issue being dealt with. You must deal with a conflict of

interests in at least one of these ways:

 Take no action because the potential for conflict is minimal. Council

officials should consider providing an explanation of why they consider a

conflict does not exist;

 Disclose the nature of the conflict;

 Limit involvement if practical (for example, participate in discussion but not

in decision making) or restrict your access to all relevant information. Care

needs to be taken when exercising this option;

 Remove the source of the conflict (for example, relinquishing or divesting

the personal interest that creates the conflict or reallocating the conflicting



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duties to another officer);

 Have no involvement by absenting yourself from and not taking part in any

debate or voting on the issue, particularly if you have a significant interest;

 Include an independent in the process to provide assurances of probity

(for example, for tendering or recruitment selection panels).

Other business or employment

6.11 A member of staff who is considering outside employment that relates to the

business of the council or that might conflict with their council duties, must

notify and seek the approval of the general manager in writing. (section 353 of

the Local Government Act 1993)

Political support

6.12 Councillors should note that matters before council for determination that

involve campaign donors or supporters have the potential to place the

councillor in a position of having a pecuniary or non-pecuniary conflict of

interests.

Personal dealings with council

6.13 You will inevitably deal personally with your council (for example, as a

ratepayer, recipient of a council service or applicant for a consent granted by

council). You must not expect or request preferential treatment for yourself or

your family because of your position. You must avoid any action that could lead

members of the public to believe that you are seeking preferential treatment.



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7 Personal Benefit

Gifts or benefits

7.1 You must not:

 Seek or accept a bribe or other improper inducement;

 By virtue of your position acquire a personal profit or advantage which

has a monetary value, other than one of a token value.

7.2 You must not seek or accept any payment, gift or benefit intended or likely to

influence, or that could be reasonably perceived by an impartial observer as

intended or likely to influence you to:

 act in a particular way (including making a particular decision);

 fail to act in a particular circumstance;

 otherwise deviate from the proper exercise of your official duties.

7.3 You may accept gifts or benefits of a nominal or token value and that do not

create a sense of obligation on your part.

Token gifts

7.4 Generally speaking, token gifts and moderate acts of hospitality could

include:

 Gifts of single bottles of reasonably priced alcohol to individual Council

officials at end of year functions, public occasions or in recognition of work

done (such as providing a lecture/training session/address);

 Free or subsidised meals, of a modest nature, and/or beverages provided

infrequently (and/or reciprocally) that have been arranged primarily for, or

in connection with, the discussion of official business;

 Free meals, of a modest nature, and/or beverages provided to Council

officials who formally represent their council at work related events such

as training, education sessions, workshops;

 Refreshments, of a modest nature, provided at conferences where you are

a speaker;

 Ties, scarves, coasters, tie pins, diaries, chocolates, flowers and small

amounts of beverages;

 Invitations to appropriate out of hours “cocktail parties” or social functions

organised by groups, such as, council committees and community

organisations.



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Gifts of value

7.5 You must never accept an offer of money, regardless of the amount.

7.6 Gifts and benefits that have more than a nominal or token value include

tickets to major sporting events, corporate hospitality at a corporate facility at a

sporting venue, discounted products for personal use, the frequent use of

facilities such as gyms, use of holiday homes, free or discounted travel and free

training excursions.

7.7 If you receive a gift of more than token value in circumstances where it

cannot reasonably be refused or returned, you should accept the gift and

disclose this promptly to your supervisor or the general manager. The supervisor

or general manager will ensure that any gifts received are recorded in a Gifts

Register.

7.8 You must avoid situations in which the appearance may be created that any

person or body, through the provision of hospitality or benefits of any kind, is

securing or attempting to influence or secure a favour from you or the council.

7.9 You must also take all reasonable steps to ensure that your immediate family

members do not receive gifts or benefits that could appear to an impartial

observer to be an attempt to influence or secure a favour. Immediate family

members ordinarily include parents, spouses, children and siblings.

7.10 Councillors and designated persons must by law disclose a description of

any gift or gifts totalling a value exceeding $500 made by the same person during

a period of 12 months or less. (required to be included in the disclosure of

interests returns – section 449 of the Local Government Act 1993)

Improper and undue influence

7.11 You must not take advantage of your position to improperly influence other

council officials in the performance of their public or professional duties to

secure a private benefit for yourself or for somebody else.

7.12 You must not take advantage (or seek to take advantage) of your status or

position with, or functions performed for, council in order to obtain unauthorised

or unfair benefit for yourself or for any other person or body.



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8 Relationship between Council Officials

Obligations of councillors

8.1 Each council is a statutory corporat ion. The councillors are the governing

body of the corporation. Councillors have the responsibility of directing and

controlling the affairs of the council in accordance with the Local Government

Act 1993.

8.2 Councillors must:

 Only provide, by way of council or committee resolution, or by the Mayor

exercising their power under s226 of the Local Government Act 1993,

proper and appropriate direction to the general manager in the performance

of council’s functions;

 Refrain from, in any public or private forum, directing or improperly

influencing, or attempting to direct or improperly influence, any other

member of the staff of the council or a delegate of the council in the

exercise of the functions of the member or delegate;

 Only contact a member of the staff of the Council in accordance with

procedures governing the interaction of Councillors and Council staff that

have been authorised by the General Manager;

 Not contact or issue instructions to any of Council’s contractors or tenderers,

including Council’s legal advisers.

Role of the Mayor

8.3 The role of the Mayor is defined by section 226 of the Local Government Act

1993. This role is the same whether the Mayor is popularly elected or elected

by the Councillors.

Obligations of staff

8.4 The General Manager is responsible for the efficient and effective operation

of the council’s organisation and for ensuring the implementation of, without

delay, the decisions of the Council.

8.5 Council staff have an obligation to:

 Give their attention to the business of council while on duty;

 Ensure that their work is carried out efficiently, economically and effectively;



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 Carry out lawful directions given by any person having authority to give such

Directions;

 Give effect to the lawful policies, decisions and practices of the council,

whether or not the staff member agrees with or approves of them.

Obligations during meetings

8.6 You must act in accordance with council’s Code of Meeting Practice and the

Local Government (Meetings) Regulation 1999 during council and committee

meetings.

8.7 You must respect the chair, other council officials and any members of the

public present during council and committee meetings or other formal

proceedings of the council.

Inappropriate interactions

8.8 The following interactions are inappropriate:

 Councillors approaching junior members of staff for information on

sensitive or controversial matters;

 Members of staff approaching councillors directly (rather than via their

director, staff representative or union delegate) on staffing or political

issues;

 Councillors approaching staff outside the council building or outside hours

of work to discuss council business;

 Staff refusing to give information which is available to other Councillors to a

particular Councillor because of the staff member’s or Councillor’s political

views;

 Councillors who have a development application before council discussing

the matter with junior staff in staff-only areas of the Council;

 Junior staff being asked to answer questions or provide documents to

Councillors who are overbearing or threatening;

 Councillors directing or pressuring staff in the performance of their work, or

recommendations they should make;

 Staff providing ad hoc advice to Councillors without recording or

documenting the interaction as they would if the advice was provided to a

member of the community;

 Councillors approaching Council staff organisations; for example unions

and associations; in relation to staffing matters;



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9 Access to information and Council resources

Councillor access to information

9.1 A Council must provide access to the documents listed in section 12 of the

Local Government Act 1993 to all members of the public, and to Councillors. A

council must also provide Councillors with information sufficient to enable them

to carry out their civic functions.

9.2 Any information that is given to a particular councillor in the pursuit of their

civic duties must also be available to any other Councillor who requests it.

9.3 Councillors who have a personal (as distinct from civic) interest in a

document of council have the same rights of access as any member of the

public.

9.4 Council staff have an obligation to provide full and timely information to

councillors about matters that they are dealing with.

9.5 Councillors have an obligation to properly examine all the information

provided to them relating to matters that they are dealing with, sufficient to make

a decision on the matter in accordance with Council’s charter.

Refusal of access to documents

9.6 The General Manager and Public Officer must act reasonably in deciding

whether a document sought by a Councillor should be made available under

section 12 of the Local Government Act 1993 or because it is relevant to the

performance of the Councillor’s civic duty. The General Manager or Public Officer

must state the reasons for the decision if access is refused.

Use of Council information

9.7 Council officials must:

 Protect confidential information;

 Only access information needed for council business;

 Not use confidential information for any non-official purpose;

 Only release confidential information if you have authority to do so.;

 Only use confidential information for the purpose it is intended to be used;

 Only release other information in accordance with established Council

policies and procedures and in compliance with relevant legislation;



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 Not use council information for personal purposes;

 Not disclose any information discussed during a confidential session of a

Council meeting;

9.8 You must carry out your duties in a manner that allows councillors, members

of staff, delegates and the public to remain informed about local government

activity and practices.

9.9 You must not use confidential information gained through your official

position for the purpose of securing a private benefit for yourself or for any other

person.

9.10 You must not seek or obtain, either directly or indirectly, any financial benefit

or other improper advantage for yourself, or any other person or body, from any

information to which you had access in the exercise of your official functions or

duties by virtue of your office or position.

9.11 You must not use confidential information with the intention to improperly

cause harm or detriment to your council.

Security of information

9.12 You must take care to maintain the integrity and security of confidential

documents or information in your possession, or for which you are responsible.

9.13 You must comply with the information protection principles, council’s privacy

management plan and legislation when dealing with personal information.

Personal information is information or an opinion about a person whose identity

is apparent, or can be determined from the information or opinion.

Use of council resources

9.14 You must use council resources ethically, effectively, efficiently and carefully

in the course of your public or profes sional duties, and must not use them for

private purposes (except when supplied as part of a contract of employment)

unless this use is lawfully authorised and proper payment is made where

appropriate.

9.15 You must be scrupulous in your use of council property, official services and

facilities and should not permit their misuse by any other person or body.

9.16 You must avoid any action or situation which could create the impression

that council property, official services or public facilities are being improperly

used for your own or any other person or body’s private benefit or gain.



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9.17 The interests of a Councillor in thei r re-election is considered to be a

personal interest and as such the reimbursement of travel expenses incurred on

election matters is not appropriate. The use of Council letterhead, Council crests

and other information that gives the impression it is official Council material must

not be used for these purposes.

9.18 You must not convert any property of the Council to your own use unless

properly authorised.

9.19 You must not use Council’s computer resources to search for, access,

download or communicate any material of an offensive, obscene, pornographic,

threatening, abusive or defamatory nature. In the case of Council staff this is

likely to constitute a disciplinary offence.

Councillor access to Council buildings

9.20 As elected members of the Council, councillors are entitled to have access

to the Council Chamber, committee room, Mayor’s office (subject to the Mayor’s

approval), Councillor’s rooms, and public areas of Council’s buildings during

normal business hours and for meetings. Should Councillors need access to

these facilities at other times, authority is required from the General Manager in

order that necessary arrangements can be made.

9.21 Councillors must not enter staff-only areas of Council buildings without the

approval of the General Manager (or delegate) or as provided in the procedures

governing the interaction of Councillors and Council staff.

9.22 Councillors must ensure that when they are within a staff area they are

cognisant of potential conflict or pecuniary interest matters and /or a perception

that they may bring influence to bear on Council staff decisions and should

conduct themselves accordingly.



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10 Reporting Breaches, complaint handling

procedures & sanctions

Corrupt conduct, maladminis tration and waste of public

resources

10.1 You have an obligation to act honestly and to report any instances of

suspected corrupt conduct, maladministration and serious and substantial waste

of public resources in accordance with council’s internal reporting policy.

10.2 The Protected Disclosures Act 1994 provides certain protections against

reprisals for council officials who report such matters. It is an offence to take

detrimental action against people who make such reports.

Reporting breaches of the code of conduct

10.3 You also have an obligation to report suspected breaches of the code of

conduct to the General Manager.

Investigation procedures – staff conduct (e xcluding the general

manager)

10.4 The General Manager will investigate breaches of the code of conduct

regarding Council staff and others engaged by the Council and will determine

the matter.

Investigation procedures – Coun cillor and General Manager

conduct

10.5 Council will establish a Conduct Commit tee that will consist of the Mayor,

the General Manager and Council’s nominated legal adviser or other

independentperson of appropriate standing. In the instance of a complaint being

madeagainst the Mayor or the General Manager, the Deputy Mayor will take the

place of the Mayor or General Manager on the Committee.

10.6 Councillors must report suspected breaches of the Code of Conduct to the

General Manager in the first instance and refrain from making allegations at

open Council meetings. The General Manager is responsible for reporting the

matter to the Conduct Committee.

10.7 Where a Councillor believes that the General Manager has failed to comply

with this Code, the Councillor should report the matter to the Mayor who will

report the matter to the Conduct Committee.



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10.8 Council’s Conduct Committee will be responsible for the investigation of

allegations of breaches of the Code of conduct by Councillors and must either:

 Investigate the alleged breach; or

 Engage an independent person to investigate the allegation.

10.9 An investigation conducted by the General Manager or the Conduct

Committee will follow the rules of procedural fairness. The investigator must:

 Inform the person/s against whose interests a decision may be made of any

allegations against them and the substance of any adverse comment in

respect of them;

 Provide the person/s with a reasonable opportunity to put their case;

 Hear all parties to a matter and consider submissions;

 Make reasonable inquiries or investigations before making a decision;

 Ensure that no person decides a case in which they have a direct interest;

 Act fairly and without bias, and

 Conduct the investigation without undue delay.

10.10 Council’s Conduct Committee must decide whether a matter reported to it

under this policy reveals a breach. The Committee may recommend that Council

take any actions provided for in this policy that it considers reasonable in the

circumstances.

Sanctions

10.11 Where the Council finds that a Councillor has breached the code, it may

decide by resolution to:

 Require the Councillor to apologise to any person adversely affected by the

Breach;

 Counsel the Councillor;

 Reprimand the Councillor;

 Censure the Councillor;

 Make public disclosures of inappropriate conduct;

 Refer the matter to an appropriate investigative body, if the matter is serious

(for example, the Department of Local Government, the

Independent Commission Against Corruption, the NSW Ombudsman or

the NSW Police);

 Prosecute for any breach of law.

10.12 Sanctions for staff depend on the severity, scale and importance of the

breach and must be in accordance with any staff agreements, awards, industrial

agreements and contracts.



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11 Councillor misbehaviour

11.1 For the purposes of Chapter 14, Part 1, Division 3 of the Act, failure by a

councillor to comply with an applicable requirement of this Code of Conduct

constitutes misbehaviour. (Section 44OF)

11.2 Under section 44OG, a Council may by resolution at a meeting formally

censure a Councillor for misbehaviour.

11.3 Under section 44OH, the process for the suspension of a Councillor from

civic office can be initiated by a request made by council to the Director General

of the Department of Local Government.

11.4 The first ground on which a Councillor may be suspended from civic office is

where the Councillor’s behavio ur has been disruptive over a period, involving

more than one incident of misbehaviour during that period, and the pattern of

behaviour during that period, and the pattern of behaviour during that period is of

such sufficiently serious nature as to warrant the Councillor’s suspension.

11.5 Council cannot request suspension on this ground unless during the period

concerned the Councillor has been:

 Formally censured for incidents of misbehaviour on at least one occasion;

 Expelled from a meeting of the Council or a committee of the Council for an

incident of misbehaviour on at least one occasion.

11.6 The second ground on which a councillor may be suspended from civic

office is where the Councillor’s behaviour has involved one incident of

misbehaviour that is of such a sufficiently serious nature as to warrant the

Councillor’s suspension.

11.7 Council cannot request suspension on this ground unless the Councillor has

been:

 Formally censured for the incident of misbehaviour concerned; or

 Expelled from a meeting of the Council or a committee of the Council for the

incident of misbehaviour concerned.

11.8 Under section 44OH, the process for the suspension of a councillor can also

be initiated by the Department of Local Government, the independent

Commission Against Corruption or the NSW Ombudsman


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Extortion Hansard House of Commons


Bailiff Conduct,

Extortion Hansard House of Commons


HANSARD COMMONS DEBATE.


http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070327/debtext/70327-0031.htm#07032835000004



27 Mar 2007 : Column 1471


Road Traffic Debts

Motion made, and Question proposed, That this House do now adjourn .—[Mr. Heppe l l.]


1.3 am

Mr. Austin Mitchell (Great Grimsby) (Lab): I am very lucky to be speaking to the House at this witching hour. However, the Table Office has somewhat marred the beauty, simplicity and elegance of my title, which was “The Enforcement of Road Traffic Fines by Bailiffs”. I want to raise that issue because it is producing a huge extortion racket, with local authorities—which should protect the people—colluding with cheating bailiffs to impose huge and excessive charges that are then justified by lies and enforced by bullying. Those charges are imposed on motorists who have unpaid fines, many of whom do not even know that they have offended. That is the group I wish to talk about in particular. I am talking about the innocent, not the Nigerian embassy or the American embassy, or habitual offenders who do not seem to get caught. This is an extortion racket against the innocent.


I want to give an example involving my daughter, Susan Mitchell. She lives in Dulwich—all my kids are middle-class and have moved up in the world faster than I have. She arrived home from work on 5 March this year and set off to take the kids to their swimming class only to find that her car had been clamped by an enforcement firm called JBW. It was demanding ?706.22, plus ?1 if she paid by credit card—?707.22—to release it. It said that if that was not paid it would tow the car off and sell it.


This incident was related to an unpaid parking charge from 8 September last year. My daughter says that a ticket was not stuck on the car, and given that she was moving house at the time to a house two streets away, it seems clear that any reminder to pay and any notice of the court order had gone to the old house. We have this obstinate British habit of not sending court orders, reminders to pay and other such documents by recorded delivery. Every other European country requires proof of delivery; we do not, but we should.


The local authority, Southwark council, had been notified of my daughter’s move. It had the change of address, but it did not bother to check its records; it simply handed the case to the bailiffs. The attitude was, “Here’s a nice contract for JBW. Let’s give them a nice little earner.” JBW, the enforcement agency, claim to have checked with the Driver and Vehicle Licensing Agency—indeed, it charged my daughter ?5.32 for that check—which had been notified of the change of address, so JBW knew of that change. Nevertheless, it claims to have made three visits to the old address, for which it charged my daughter ?152. Incidentally, the new residents at the old address did not notice those visits, so they cannot have been door-knocking visits.


JBW also claims to have written to the old address warning of distraint action, as it is required to do. Again, it did not send that letter by recorded delivery. It explained to my daughter that it is too expensive to send these things out by recorded delivery. It gets only a statutory allowance for writing one letter—?11.20. Recorded delivery costs 68p and a first-class stamp 32p—a total of ?1. So it prefers the certainties of

27 Mar 2007 : Column 1472

second-class mail for the delivery of these documents, to the wrong address. It did not waste any more stamps writing to the new address, when it found it. In fact, it did not write to it at all; it simply snuck round and clamped the car.


This is the fundamental problem. Bailiffs do not want people to pay up on a first approach, which my daughter would have done once the situation had been explained to her. There is no money for the bailiffs if the person coughs up. They get fees only if they visit the house, so we get these phantom claims for calls that were never in fact made. The streets of London are presumably filled with ghostly visitors flitting from house to house, unnoticed by the householders. They get money only if they distrain or clamp the vehicle, because that entitles them to charges, which they set.


JBW clamped my daughter’s car and charged her ?240 for doing so, which is double the rate that it says it charges for that service. That made a total of ?707, of which ?155 went to Southwark. Jamie Waller, the boss of JBW, says in an affidavit that he varies charges by area, so presumably the posh areas get the higher charges and the less well-off ones get the lower charges. My daughter must therefore live in a middling-posh area.


Eventually, once my daughter had paid, JBW came to remove the clamp—at 6 o’clock in the morning the next day. Anybody in that situation would be as distressed as my daughter was. What do they do? Who do they turn to? Naturally, she rang Southwark council for help. It told her that the charge was “not unreasonable”. A charge of ?707 seems to me absolutely monstrous, but to Southwark council it is not unreasonable. It must pay its staff very well indeed if they can afford to pay such charges out of their own pockets. The council is very courageous in committing itself to the phrase “not unreasonable”.


Southwark council also told my daughter that this was none of its business—it was between her and JBW. That is not true, because the council has a duty of care toward its residents; however, it also has a contract with JBW. However dodgy JBW might be, Southwark has a contract with it to perform this service. That makes it liable for the acts of its agents, because JBW is acting as the agent of the council. Instead of giving that useless and untrue information, the council could have told my daughter that she could have made a statutory declaration in the county court, which would have cost her ?5. That would have gone to the Northampton parking fines centre, stayed the process and the clamp could have been removed. However, Southwark council was spectacularly useless and did not give my daughter that information. It did not do so because it is in collusion on this issue with JBW, because it has a contract with JBW for the charges. People are left defenceless and bullied by the bailiffs into coughing up. My daughter coughed up ?707.22.


I was appalled by that enormous and ridiculous charge, so I began to investigate with the help of the London motorists action group. Sheila Harding, Philip Evans, Alison Laughton and others were all very helpful and very angry. Through those investigations, I have built up a picture of what is a huge extortion racket operated by a ?6 billion industry, primarily in London but all over the country. They are private contractors on contract to public bodies.


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The industry is cutting corners, lying and pretending that it has done things that it has not, because the fee structure does not pay it for simply getting the money, which is what the local authority presumably wants. That is not the real job of bailiffs. Their real job is to distrain goods. That is their traditional role and they only get any fees if they distrain goods—or clamp cars. So they fabricate charges, claim for phantom visits and use uncertified staff. In fact, Sheila Harding keeps a record of 103 inquiries about acts that should have been done by certified bailiffs, but when checked only 47 had been. I do not know whether Mr. Marsh, who clamped my daughter’s car, is certified. Southwark council does not seem to know and the firm is not saying. He may be certified or he may not be. All I know is that I do not like his tone or aggressive attitude in a recording of his interview with my daughter.


Sheila Harding’s research also shows that there are only 1,521 certified bailiffs in the country. Those 1,521 certified bailiffs are dealing, on 2006 figures, with4 million liability orders for unpaid council tax, 900,000 unpaid parking charges in London and 1.6 million people in arrears of child support. They cannot do that, so they are using uncertified staff. Sheila Harding’s research shows that the local authority contracts, which should be open and used to regulate the bailiffs, are useless. Some of them are secret and people have had to apply under freedom of information legislation to find out about them, none of them is published, and many of them have lapsed. One contract, Hammersmith’s, was lost and all of them are weak. The result is that the extortion racket is unchecked.


I shall give some examples. Equita, which is a subsidiary of Crapita—I am sorry, I mean Capita—is the biggest firm in the business. Alex Henney was clamped by Equita and he took the case to the local ombudsman and proved that Equita and Camden had both lied about the visits made—phantom armies making phantom visits. Simon Aldridge was charged ?704. He took Equita to court and the judge accepted that the visits had been claimed for but not made. Duncan McGowan was charged ?2,084 and he got ?1,426 back through the small claims court. I have many more examples—these are just a sample. In one case, a man had a letter dropped through his letter box saying that a certified bailiff had visited him. He dashed out and followed the man who had delivered the letter. That man was delivering a sheaf of similar letters, and he turned out not to be a certified bailiff but just a messenger. In 2004, Equita’s pre-tax profits amounted to ?7.4 million, against capital employed of ?5.8 million—a return on capital of 127 per cent. The company does not make that much from ?10 letters and regulated fees.


Bailiff certification is a licence to filch money from people over unpaid charges. That was exposed by the BBC’s “Whistleblower” programme last September. Given what I have learned through my daughter’s experience and my research, the question that I want to ask is, “What should we do about it?” The problem is that private bailiffs are working on public authority contracts, so my first suggestion is that local authorities must exert tighter control over contractors. The

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Transport Committee recommended that in 2005. It wanted careful regulation by the local authority to ensure that charges, operations and practices were all transparent. That should be put in place: when they hand out a contract, local authorities should exercise their powers to ensure that it is not a nice little earner, but a duty to be fulfilled.


Secondly, the fees need to be regulated. The present structure is based on the old fashioned view that bailiffs distrain goods, but it should recognise that nowadays they are about getting the money to pay charges. We need a structure that places the emphasis on getting the fines paid, not on grabbing goods—something that bailiffs want to do because that gives them access to bigger fees. Some industry leaders are trying to develop a more transparent fee scale. Good on them—I hope that they are successful and that the Government encourage them.


Finally, we need a regulator. Cowboys need a sheriff, and the mafia cannot be regulated by the mafia. Crooks—and I use that word in the Australian sense, to describe people who are “crook”—need a rule-maker to control them. The Government have proposed that the Security Industry Authority should be the regulator, but I do not think that it is up to the job. The SIA is a licensing authority, not a regulator, and bailiffs are not part of the security industry. We need a proactive regulator who can investigate complaints.


The Government began a consultation process in January but, unfortunately, they have set their face against giving the regulator the ability to investigate complaints. It is essential that someone protects people who suffer the sort of problems that I have described. It is daft to exclude investigation from the regulator’s role. The regulator should disqualify, discipline, regulate fees, hear appeals, and be available to help people faced with the sort of bullying that my daughter experienced.


I must warn my hon. and learned Friend the Minister that the best that her consultation paper proposes is not good enough, and that it is a shame to see the Government back-tracking. In the 2001 Green Paper, they suggested a dedicated regulator, and that was a good idea. However, they had pulled back a little by 2003, and the Tribunals, Courts and Enforcement Bill still has not got the matter right.


It is a rare pleasure to be here at 1.18 in the morning and chatting up my hon. and learned Friend. I am enjoying the experience, and I am delighted that she is replying to the debate, as I know that she has a concern for justice and fairness. I hope that she will be bold and make sure that the Tribunals, Courts and Enforcement Bill gets this matter right.


We need a regulator who can beat the bastards, bash the bullies, control the crooks, comfort the complaining and ease the pains of the people. Unless we get that, the sort of extortion racket that I have described will continue. I hope that my hon. and learned Friend will give us a regulator who can deal with these people.


1.19 am

The Parliamentary Under-Secretary of State for Constitutional Affairs (Vera Baird): First, may I congratulate my hon. Friend the Member for Great Grimsby (Mr. Mitchell) on securing parliamentary time for this important and timely debate? The

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Department for Transport is responsible for policy and the statutory framework for the enforcement of some road traffic regulations, including parking penalties and debts resulting from them. My Department is responsible for the bailiff certification process. Section 78 of the Road Traffic Act 1991 allows the Lord Chancellor to make orders for road traffic debts to be enforced by certificated bailiffs. It should be those certificated bailiffs, working for local authorities, who deal with the enforcement of road traffic debts. My hon. Friend referred to the Tribunals, Courts and Enforcement Bill, which finished its Committee stage in the House of Commons today. It includes important changes to enforcement agent law, which I hope he will find more convincing than he expects. Enforcement agent law is mixed up in myriad legislative fragments and in the common law. The role of bailiffs has evolved piecemeal over centuries. There is a need for the law to be clear, as well as a need to regulate the individuals and businesses responsible for the activities. What we are doing is to legislate and to regulate.


The Bill consolidates enforcement agent law and puts it all in one place, which is going to make it a lot easier for enforcement agents, creditors, the advice sector and debtors to understand it. Those provisions will apply to the enforcement of road traffic debts. Schedule 12 sets out a new procedure that must be followed when enforcing debts by taking goods. It is a framework, and further detail will be provided in the regulations to follow. A detailed policy statement has been laid before the House that sets out what we intend to include in regulations. In paragraph 160 of that statement, we set out what the enforcement agent will need to provide to the debtor when entering the premises. That information will include charges which have been made, information on any further charges that could be made in relation to the debt, and an outline of avenues of complaint and rights of appeal, including how to appeal against excessive fees.


There are different fees depending on the type of debt. The Bill provides for one fee structure and puts all fees in one place, which should empower people to resist abuse. Importantly, there will be an up-front fee element, payable to bailiffs so that they do not act entirely in pursuit of a cut of the cash recovered—we hope that that will help. It will be necessary, through the consultation on the detail, to ensure we get the level and nature of the fees right to avoid possible abuses such as grabbing goods and phantom visits of the kind discussed by my hon. Friend. As I said, there will be an appeal route and a complaint route. The Bill includes an enhanced and extended certification process, which will make a major contribution towards our goal of a fully regulated, trained and professionalised enforcement industry. No one at all save state employees can practise as an enforcement agent or bailiff unless they are certificated after that provision comes into force.


Under the new certification process, certificates will be issued by a county court judge, as they are now, but the conditions will be much stricter. There will be a greater emphasis on training, especially in diversity awareness, conflict avoidance and dealing with the vulnerable. In my view, that is about getting all members of the bailiff industry to understand, as many of them already do, that they are working in the public

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interest—they are not simply debt collectors working single-mindedly in the interests of their creditors on a commission. They are agents of the public authorities, notably the courts. However it is our longer-term intention for the whole enforcement industry, other than Crown employees, to be overseen by an independent regulatory body, and we are confident that the Security Industry Authority is an appropriate body to cover such bailiffs. An affirmative order under the Private Security Industry Act 2001 will bring bailiffs within the terms of the Act. On 30 January, as my hon. Friend said, a joint consultation paper was issued by the Department for Constitutional Affairs and the Home Office on the regulation of enforcement agents. The SIA contributed to that consultation, and we indicated that it is our preferred option. The consultation will end in about a month, and an announcement will be made in the summer.


The SIA’s regulatory structures are strong. Since it has been in a position of being able properly to regulate doormen, it has done a good job. It has raised standards immensely—the good-quality professionals are pleased with that—and it has got rid of many of the bandits.


Mr. Mitchell: I do not think that will be strong enough. The SIA is not a regulatory body; it is a recording and registration body. Bailiffs are not part of the security industry. Abuse is rife and there will be more cases—for example, as the police issue on-the-spot fines—that press further down the social scale, where difficulties are unique. People need a body to which they can appeal; the body needs to be able to investigate and hear appeals, and the SIA cannot do that.


Vera Baird: I realise that my hon. Friend is not yet convinced that the SIA is the right body. I have already outlined step 1: nobody will be a bailiff unless they are certificated by the court, which should get rid of a large number of the bandits. As my hon. Friend says, there is not a large number of certificated bandits and many of the types of people to whom he referred are still in the business. Training will be part and parcel of the job of the SIA. I would have thought that my hon. Friend’s constituency experience was similar to mine, in that the quality of doormen has infinitely improved since the SIA had a proper role in regulating them. Although there is a difference between a bailiff and a doorman, it seems to us that the SIA is the right body to take the regulatory role.


The SIA has regulatory structures; it will have the right tools to encourage compliance and will work first to achieve it rather than using enforcement. However, it will set the competences required for individuals and accredit training, and ensure that all enforcement agents have achieved levels of competency. It will also licence the managers and supervisors of front-line operatives and provide a voluntary approved contractor scheme for business.


The SIA’s enforcement policy code sets out in detail that it will use oral and written warnings first if it finds that companies or individuals fail to comply, but there are also penalties in the Private Security Industry Act 2001—a fine of up to ?5,000 maximum or six months’ imprisonment for various offences. In addition, we will

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be looking at the possibility of using alternative dispute resolution for complaints. There will thus be an interim system of enhanced certification with the emphasis on training, but there will be full-scale regulation soon. I urge my hon. Friend to respond to the consultation with some of the stories he has told us tonight.


On the actuality of the enforcement of road traffic debts, there is a set procedure which the Government believe gives motorists adequate opportunities to demonstrate that a penalty charge notice has been incorrectly issued. It is also intended to give them ample opportunity to pay. It is only when a motorist disregards the unpaid and unchallenged penalty charge notice that it becomes a debt and the matter will be sent to a bailiff. ( COMMENT – FALSE, A motorist that does all that is correct gets faced with a council that denies it has received a challenge.................Winter V Camden proved and admitted ) Only then will the motorist have a bailiff at their door. It is the motorist’s responsibility to settle their debts and avoid enforcement.


The parking operational guidance from the Department for Transport to local authorities is being redrafted and will be sent out for consultation later this year. We will take the opportunity then to enhance the

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existing guidance to local authorities on their contracts with bailiffs, so we will approach the matter from that angle, too.


Although my hon. Friend is clearly unhappy with the current position I hope he can see three things: first, that the Government are apprised of the problem; secondly, that we are legislating for simplification and certainty of bailiff powers, so that everyone will know what they are—the information will be promoted through leaflets and websites; and thirdly, that we are intent on regulating strictly and strongly the bailiff industry, a small part of which has been responsible for the kind of depredations to which he has referred tonight. (Comment – The government are apprised but do little or nothing since it helps protect central funds being disbursed towards councils). This question was put to a parking chief boss at meeting and he concurred)


I am sorry that my hon. Friend has had such trouble in his family. He is right to bring it to the attention of the House and I congratulate him again on securing the debate. We intend to protect citizens against such things happening in the future. (Comment -this makes it out that he is an unusual case)


Question put and agreed to.


HANSARD COMMONS DEBATE.

ROAD TRAFFIC DEBTS


What they do to one of us they do to all of us, eventually it reaches the top.

You shall not side with the powerful against the weak. Winslow - Rattigan


http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070327/debtext/70327-0031.htm#07032835000004




Adjourned accordingly at twenty-nine minutes past One o’clock.

PRESS NOTICE 15 – Thursday 4 January 2007.


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The Herald (Glasgow) © Newsquest (Herald & Times) Ltd.


The £6.5m parking gaffe as tickets are cancelled BRIAN DONNELLY February 15 2007

Millions of pounds worth of parking fines are to be waived following a legal blunder by one of Scotland's largest councils.

Transport executives at Edinburgh council have admitted parking fines totalling around £6.5m have now been cancelled, as the

tickets issued by wardens since 1998 were not legally binding.


Now executives at the council, which issues 250,000 parking tickets worth £7m each year, are bracing themselves for a potentially severe financial problem as they face up to the possibility of refunding millions of pounds worth of paid fines.


Campaigners urged people to mount legal challenges to win back their cash, which has already been done successfully in England. It is unclear whether other Scottish councils might be open to challenges.


The legality of the tickets in Edinburgh first came into question in June as they did not bear both the date of issue and date of offence as required by UK law.


Tickets issued from June 2006 were amended in accordance with the law but it emerged yesterday that all debt owed prior to that date has now been wiped clean.


Sheriff officers are being told to stop chasing all outstanding offences dating back to decriminalisation in 1998, understood to total about 70,000. The council has also abandoned pursuing 4327 fines it had not yet passed to sheriff officers.


A spokesman for the council said: "We have taken external legal advice, which has forced us to write off a number of unpaid tickets issued before June 1 last year."


The more immediate issue for the council is what will happen if the law-abiding people who paid their fines demand their money back.


Councils in England have had to cancel outstanding tickets for the same reason, and one family in London has won back all the money paid out in fines after mounting a legal challenge.


Campbell Deane, of the Scottish legal firm Bannatyne Kirkwood France, believes the most likely scenario in Edinburgh would see the council choosing not to contest any claims - given the relatively low cost of a refund - although he thought many residents would be put off starting a legal fight over just £30.


Edinburgh parking executives do not believe motorists who paid their tickets are due any cash back because they have effectively accepted their guilt, although the legal position remains unclear.


© All rights reserved. Reproduction in whole or in part without permission is prohibited.


http://www.theherald.co.uk/news/transport/display.var.1193530.0.the_6_5m_parking_gaffe_as_tickets_are_cancelled.php


Reproduced with the permission of The Herald (Glasgow) © Newsquest (Herald & Times) Ltd.

Date: Wed, 21 Feb 2007 10:52:42 -0000

From: "Catherine Watson" <Catherine.Watson@theherald.co.uk>

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Parking Adjudicators Annual Report 2002-2003

This is the html version of the file http://www.parkingandtrafficappeals.gov.uk/documents/ParkingAdjudicatorsAnnualReport2002-2003.pdf.


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Joint Annual Report of the Parking Adjudicators to The Association of London Government Transport and Environment Committee 2002-2003 CHIEF ADJUDICATOR’S FOREWORD I am pleased to present to the Committee this joint report of the Parking Adjudicators for the year 2002-2003. In terms of general tribunal issues, this has been a less eventful year than recent years, now that the dust has settled somewhat in relation to the various initiatives that have been ongoing: the Tribunal for Users Programme following the Leggatt Review of Tribunals, the preparation of the Framework of Standards for Tribunals by the Council on Tribunals and the drafting of a Competence Framework for Tribunal Members by the Judicial Studies Board. Whilst discrete projects, they share the common aims of raising standards and promoting coherence and common practice across tribunals. Indeed, the Competences Framework was designed to complement the Framework of Standards. As to the Tribunals for Users Programme, the position remains that there is no immediate prospect of this tribunal being brought within a unified tribunals service. Officials from the Programme did, however, visit us during the year to view our computerised adjudication system. The Council on Tribunals and the Judicial Studies Board published the Framework of Standards and the Competence Framework respectively in the autumn of 2002. Amongst the purposes of the Framework of Standards are to promote best practice and provide a tool for assisting tribunals in reviewing their performance. During 2003/2004 we intend completing an audit of our performance against the Framework, to identify areas where remedial action might be necessary. The Competence Framework sets out the skills, knowledge and behavioural attributes needed to perform the judicial function in tribunals that are generic to all jurisdictions. It is intended to be used by individual tribunals for developing their own specific competence framework, as a self-development tool for individuals and to feed into training programmes, appraisal schemes and appointments processes. I was pleased to attend the Council on Tribunals Conference in November 2002. This annual conference gives the opportunity for tribunal heads, members of the Council on Tribunals and the Judicial Studies Board and Government to meet to discuss current issues. The Conference received an update on the Tribunals for Users programme. The Competences Framework was discussed and the President of the Appeals Service gave a presentation on judicial performance appraisal in the Appeals Service. The Conference also saw the launch of ‘Making Tribunals Accessible to Disabled People’, produced jointly by the Council on Tribunals and the Disability Rights Commission. It contains guidance on applying the Disability Discrimination Act 1995. The Act makes it unlawful for a service provider to discriminate against a disabled person by treating a disabled person less favourably or failing to make reasonable adjustments for them unless the discrimination is justified for specific reasons, such ashealth and safety. The Act does not apply to the performance of a tribunal’s judicial functions; if a tribunal were to discriminate when deciding a question before it, recourse would be by the appropriate judicial remedy. The principle that the guidance addresses

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is that tribunals should be accessible to users and should focus on their needs. Accessibility means procedural as well as physical accessibility. The hearing centre atNew Zealand House is fully accessible to wheelchair users and both the administrative staff and the Adjudicators are alert to the need to ensure that any disabled person is able to participate fully in the proceedings. Apart from the requirements of the 1995 Act, to do otherwise would be likely to be a denial of the fair trial required by the European convention on Human Rights. All Adjudicators have received training in equal treatment, including disability issues. So far as the day-to-day work of the Adjudicators is concerned, an important development has been the modification of the computerised adjudication system to incorporate, from early 2003, the automated processing of bus lane appeals. These had previously been processed using traditional paper files. The advantages of this development are considerable. It has brought these appeals into the mainstream of the adjudication process, enabling them to be presented automatically on screen to the Adjudicator rather than being allocated and tracked manually by the administrative staff. The adjudication by the Adjudicator is facilitated by their being able to use the familiar computerised processes rather than, to them, obsolescent and cumbersome manual methods. The management of the workload is greatly assisted in many ways by the inclusion of these appeals in the automated reporting and recording facilities. To give a simple example, the figure for the number of postal cases awaiting adjudication, which is automatically displayed on the screen, now includes bus lane appeals, thus giving a complete picture of our pending workload. All of this assists the efficiency of our operation. Postal cases have in a sense tended to be treated as second-class citizens, in that appellants who attend the hearing centre for a personal hearing do of course have to be given priority. Thus, postal cases would be dealt with by Adjudicators when there were no personal appeals to be heard or by Adjudicators working at the terminals provided for dealing with postal cases only, if there were enough Adjudicators in the hearing centre to staff them. This has meant that the queue of postal cases has tended to build up and that the average time before an appeal was first considered by an Adjudicator was considerably longer for a postal case than a personal. We have taken steps to redress this by instituting regular ‘postals only’ weeks in which no personal appeals are scheduled. These ‘postal weeks’ will be retained as a normal feature for as long as is necessary to reduce the postal queue to a level that brings the ‘first considered’ date into line with that for personal appeals. We have held three training sessions for all Adjudicators dealing with a range of legal,procedural and operational issues, including amongst others the new Traffic Signs Regulations and General Directions 2002, bus lane appeals and the statutory declaration and review procedures. These events provide an important forum for Adjudicators to discuss current topics. Two Adjudicators, Kate Scott and Diana Witts, decided not to seek reappointment when their terms of office expired in December 2002. I would like to record my appreciation of the valuable contributions each of them made to the work of the tribunal and wish themwell for the future. We welcome three new Adjudicators who have joined us: John Hamilton, Francis Lloyd and Mamta Parekh. The Adjudicators wish to express their thanks to the Head of the Parking and Traffic Appeals Service, Charlotte Axelson, and her staff for their efficient and enthusiastic support throughout the year.

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INTRODUCTION We have decided this year that we should highlight two core principles. First, we return to the topic of fairness. In our reports we deal with a range of issues. However, in commenting on particular matters, it is important not to lose sight of the overriding principle that Local Authorities are under a general duty to act fairly in exercising their powers of enforcement. We also comment on enforcement as a legal process. There still appears to be a lack of understanding that enforcement is a legal, not merely an administrative, process and of the consequences of that for the enforcing authority. Cases decided this year referred to in the report are set out more fully in the Digest of Cases at the end. FAIRNESS The fact that the Local Authority is under a legal duty to act fairly was first highlighted in Davis v Kensington & Chelsea (PATAS Case Number 1970198981). The Adjudicator said that where an Adjudicator finds that an authority has acted ultra vires in failing to comply with this duty, it is open to him to uphold a collateral challenge and find that the authority cannot pursue a penalty based upon its own unlawful act. That case was particularly concerned with the obligation to enforce a parking penalty within a reasonable time. However, there are many aspects to the duty, which applies to all stages of the enforcement process. But irrespective of the legal duty to act fairly, we would hope that Local Authorities would aspire to the highest standards in carrying out enforcement and wish to deal with the motoring public in a way that is fair and is seen to be fair. This is what Central Government expects of them. ‘Traffic Management and Parking Guidance for London’ issued by the Government Office for London states that ‘Local authorities should operate the system fairly’ and contains commentary on what this should mean in practice. The message is echoed in ‘Guidance on Decriminalised Parking Enforcement Outside London’ issued by the Department of Transport and the Welsh Office. This contains extensive practical guidance based on the operation of decriminalised enforcement in London. We will now look at some topical issue relating to fairness. Camera Enforcement Last year we recommended that Local Authorities should consider sending copies of video stills with the Penalty Charge Notice as a matter of routine in camera enforcement cases. We were pleased to note the positive response of the Committee to this recommendation (and indeed to all our recommendations) in asking the Policy Section’s Camera Enforcement Team to consult the boroughs on the implications of putting it in to practice with a view to incorporating such a recommendation into the Code of Practice on Camera Enforcement. The recommendation was made in the interests of encouraging early resolution of disputes as to liability or, indeed, avoiding them altogether. However, the provision of this evidence is also consistent with fair treatment. Where a Penalty Charge Notice is issued through the post rather than on the street, as is invariably the case with bus lane enforcement, it will reach the recipient at least some days after the incident, and no doubt in some cases longer than that. Because of this,the motorist may have little if any recollection of what, to them, is likely to have been an

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unmemorable event. Seeing the stills enables them to make an early, properly informed decision as to whether to contest liability or pay the penalty – and take advantage of payment at the reduced rate. We welcome the fact that, following our concerns expressed in our report last year, Local Authorities have, we understand, abandoned the practice of charging for stills. We are aware that bus lane Penalty Charge Notices issued by Camden now incorporate both a video still and a unique web code to allow viewing on its website of other stills of the incident. We congratulate Camden on this initiative, which we commend to others. We understand that Transport for London is considering introducing a similar practice. The value of the stills is that they are powerful evidence and are likely to reduce the scope for argument on factual issues. This, of course, applies to any photographic evidence. We therefore welcome the fact that some Local Authorities are supporting on street enforcement by providing their parking attendants with cameras to take photographs as evidence of contraventions. Acting Within a Reasonable Time • Responding to Representations In the Davis Case the Adjudicator said that, without suggesting there is any rigid time limit, in a case without extraordinary features an authority should respond to representations to a Notice to Owner within 2-3 months from receipt; but that after that it is still open to an authority to show that the delay in considering the representations was not unreasonable in all the circumstances. It became apparent during the year that one Local Authority had been issuing Notices of Rejection many months, or even longer, after receiving the representations. In one extreme case, it received the representations on 23 March 2001 and issued the Notice of Rejection on 12 March 2003. Not surprisingly, the Adjudicator allowed the appeal for failure to respond within a reasonable time. The Notice of Rejection contained no expression of regret for the delay or even an acknowledgement of it. Apart from the question of its legal duty, it is lamentable that a Local Authority could apparently think that delays of such magnitude were acceptable, simply in terms of general principles of good administration if for no other reason. We are pleased to say that it appears this Authority has now resolved its difficulties. • Referring Statutory Declarations It sometimes happens that the Notice to Owner or Notice of Rejection does not reach the intended recipient; or that the motorist appeals to the Adjudicator but receives no response, perhaps because the Notice of Appeal sent to the Appeals Service is lost in the post. In such cases, the first the motorist hears of the enforcement action is when they receive the Charge Certificate issued by the Local Authority. Where there has been such a breakdown in the enforcement process, the motorist may lodge with the County Court a statutory declaration explaining the circumstances. The Court will then make an order the effect of which is to put the clock back to the point where the process went wrong. Once this order is made, the Local Authority may serve another Notice to Owner in those cases where it was that Notice that went astray. In the other two cases the Local Authority must refer the statutory declaration to the Adjudicator, who may then give such directions as to how the matter should proceed

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as he considers appropriate. The Adjudicator may, for example, direct that the case proceed as an appeal. The Road Traffic Act 1991 lays down no specific time limit within which the Local Authority must refer the statutory declaration. There have been numerous instances in the last year of considerable delay by Local Authorities in doing so; as much as a year or more in some cases. The fact that there is no statutory time limit does not mean that Local Authorities may delay referring statutory declarations with impunity. The reference of a statutory declaration is a statutory duty, which as a matter both of general principle and in line with Davis should be performed with due expedition. Where this has not been the case, it is open to an Adjudicator to direct that the matter should not proceed further and that the Local Authority should cancel the Penalty Charge Notice and Notice to Owner. What is due expedition in this context is a matter for the Adjudicator; again, there is no hard and fast rule. However, Adjudicators will have in mind that the reference of a statutory declaration is merely an administrative act. In contrast to considering representations, it does not require the Local Authority to apply its mind to any arguments put forward by the motorist. There is therefore no real reason why the reference should not be made promptly. It should also be borne in mind that it is in the nature of statutory declaration cases that there will already have been unusual delay because of the breakdown in the enforcement process. Whilst this will not be the fault of the Local Authority, it might nevertheless be prejudicial to the motorist’s position. Any further lapse of time caused by delay in the reference of the statutory declaration would be likely to exacerbate the prejudice. The motorist is subject to statutory time limits at every stage of the process: 14 days to pay at the reduced rate, 28 days to respond to the Notice to Owner and so on. The legislation is less rigid in terms of imposing time limits on Local Authorities, and where it does it is more generous to Local Authorities than to the motorist. Nevertheless, fairness and a level playing field require that where there is no statutory time limit they should act with reasonable expedition. We believe they will recognise that this must be the case. The Notice of Rejection It is this notice that informs the motorist that the Local Authority does not accept his representations and triggers his right to appeal to the Adjudicator. As the ‘Guidance on Decriminalised Parking Enforcement Outside London’ says (paragraph 14.25), The notice of rejection should also contain the authority’s reasons for rejecting the representation. This is not just a courtesy to the motorist. Experience in London suggests that it also reduces the number of cases taken to adjudication by frustrated motorists. We endorse these comments, but would add that giving a specific response to the points raised in the representations is more than just a courtesy, important though that is; it is also an element in fair dealing. For if the motorist does not receive an explicit, reasoned response to his points, how is he to make an informed judgement whether to appeal? • MitigationA particular aspect of dealing with representations that causes continued problems is that of mitigation. The case of Westminster v The Parking Adjudicator, which we reported last year, made clear that the Adjudicator has no power to take into account mitigating circumstances in deciding an appeal. It also highlighted the responsibility

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of the Local Authority to consider whether to waive a penalty because of mitigation. On occasions, the Adjudicator will adjourn an appeal to refer back to the Local Authority with a request that it consider exercising its discretion to waive a penalty because of what the Adjudicator considers is compelling mitigation. In such cases it is, of course, entirely a matter for the Local Authority whether to do so and if it decides to pursue enforcement the Adjudicator must decide the appeal on its legal merits. This practice is long established and is referred to in the ‘Guide to the Parking Appeals Service’. Even so, Local Authorities do sometimes query why the Adjudicator adopts this practice when mitigation is a matter for the Local Authority. As the Guide explains, one situation when Adjudicators do this is where it is not clear from the Local Authority’s evidence that the mitigating circumstances have been considered by the Local Authority’s officers. Local Authorities often say that they have considered the mitigation, but this is of little use if the fact that they have is not apparent from the Notice of Rejection by the point being addressed expressly. The reason Adjudicators refer such cases back is to ensure that the Local Authority’s responsibility to consider representations, including about mitigating circumstances, is carried out and that the motorist receives fair treatment. If it is apparent from the Notice of Rejection that the mitigation had been considered, it is far less likely that the Adjudicator will not feel it necessary to refer the case back. Whilst some Local Authorities do comply with the desired standard, there are still many whose responses are inadequate and must leave the motorist in a quandary as to what to do. Some rejections amount to no more than a cursory ‘Your representations have been rejected’. Others go into some detail about uncontested elements of the incident without addressing the particular issue, often mitigation, raised by the motorist. Local Authority officers should try to put themselves in the shoes of the motorist and ask themselves how they would feel if they had written the representations and received that response. And Local Authorities may wish to consider that every appeal that would have been avoided had an adequate reply been given is an expense to the Local Authority both in terms of the fee paid to the Appeals Service and the administrative time of preparing the appeal. So a proper reply is as much in the Local Authority’s own interests as it is fair to the motorist. We recommend that all Local Authorities should review the adequacy of the training their staff receives in this respect. Issuing an Appeal Form with the Notice of Rejection The legislation requires the Notice of Rejection to describe in general terms the form and manner in which an appeal to an Adjudicator must be made. It is the long-established and agreed practice that Local Authorities will issue an Appeal Form with the Notice of Rejection. Whilst this is not required by the legislation, it has been universally accepted as consistent with dealing fairly with the motorist. It is also consistent with the ‘Guidance on Decriminalised Parking Enforcement Outside London’ which includes as one of the minimum or common standards with which the Secretary of State expects all Local Authorities to comply that ‘Local authorities should include within the notice of rejection an appeal form on which the recipient can make his or her appeal’.We were therefore surprised and concerned to discover that one Local Authority had ceased complying with this standard. Instead, it was requiring recipients of rejections to telephone it to obtain a form. Apparently a Best Value Review saw not issuing the Appeal Form and bringing the appeals process to potential appellants’ notice as a more efficient way of managing the process. In our view, the practice impeded access to justice both by making it more difficult for the motorist to appeal and by eating into the 28 days within which an appeal must be made (although the Adjudicator may extend that

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period). We received a number of appeals in which the appellant referred to their difficulty in obtaining an appeal form. The practice also had knock on consequences that cause unnecessary complication.For example, the economical and efficient administration of appeals is assisted by the established standard processes being followed. One element of this is encouraging appellants to use the printed Appeal Form. This facilitates instant recognition of an appeal when lodged and includes all the necessary information for registering an appeal. Where an appellant has difficulty in obtaining an Appeal Form they may appeal by letter, as they are entitled to do. This can create difficulties if the letter is not immediately identified as an appeal or does not contain all the required information. This causes unnecessary work, the cost of which ultimately falls on the Local Authorities. We are pleased to say that it does now seem that this Local Authority has now reverted to issuing the Appeal Form with the Notice of Rejection. Whilst the issue does appear to have been resolved in this case, the Adjudicators do regard this matter as going to the heart of the commitment of Local Authorities to carry out their enforcement powers fairly. The Adjudicators therefore recommend that the Committee reaffirm that it supports the practice of issuing the appeal form with the Notice of Rejection and considers that all Local Authorities should comply with it. Multiple Tickets We referred last year to our concerns relating to cases where a motorist has received a succession of Penalty Charge Notices for a single incident in circumstances where the motorist was not in a position to forestall repeated enforcement action, usually because they are away. As we said, the issue for the Local Authority is whether having regard to all the circumstances it is appropriate to pursue enforcement of all the penalties. We are pleased to say that there does seem to be an increasing acceptance amongst Local Authorities that this is the right approach and hope this trend will continue. To conclude our report on fairness, we would emphasise that not only is fair treatment of the motorist the right thing to do; in our view it will also pay dividends for the Local Authorities themselves in terms of greater respect for the enforcement process, quicker resolution of disputed penalties, fewer appeals and consequent savings in costs. This is not to say that we believe that Local Authorities do not aspire to fair treatment. But there is still a good deal that needs to be done to ensure that it is apparent to the motorist that they have been treated fairly. ENFORCEMENT - A LEGAL PROCESS Most of the cases summarised in the Digest of Cases concern this topic. Wilkinson v LB Southwark related to the Local Authority’s failure to comply with the statutory duty to inform a motorist who has obtained the release of their vehicle from a clamp of their right to make representations against liability. In Lauezzari v LB Islington, the Local Authority issued a letter headed ‘Notice of Rejection of Representations’ which did not contain all the statutory requirements for such a notice. The letter also requested further information, but the person who prepared it clearly did not understand the consequences of attempting to combine that step with the formal process of rejecting representations.

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Skelton v LB Camden raised an important issue about the legal responsibility of the Local Authorities for enforcement. In deciding whether to refund penalties, the Local Authority had taken into account the financial consequences for itself arising from its contractual arrangements with the private contractors to whom it had outsourced on- street enforcement. The Adjudicator found that this was an improper consideration to take into account. The fact that a Local Authority chooses to contract out on street enforcement does not affect the fact that the legal responsibility for the enforcement regime rests with the Authority. This point has also arisen in relation to the operation of TRACE. This is the organisation established by the Local Authorities to enable motorists to locate vehicles that have been towed away. It sometimes happens that for one reason or another TRACE informs a motorist that they have no record of the vehicle when in fact it has been towed away and is in a vehicle pound. When this happens, it can be some time before the error comes to light and the motorist is able to recover the vehicle. On these occasions Local Authorities are apt to say that they are not to blame and that the responsibility rests with TRACE. This demonstrates a misunderstanding of the status of TRACE. It is no more than a body established by the Local Authorities, for reasons of administrative and practical convenience, to enable them to comply with their statutory duty to release vehicles claimed by owners. In carrying out its activities, TRACE is no more than the agent of the Authorities. As such, the consequences of and responsibility for its failings remain with the Authorities. We have seen a number of cases where the Notice to Owner has been served outside the time limit prescribed by section 7 of the London Local Authorities Act 2000. - six months, subject to certain exceptions where longer is allowed. In some cases the notice has been sent within that time, but very close to the end of it. The requirement is not that the notice must be sent within the six months but served. Under section 7 of the Interpretation Act 1978, a document is deemed to have been served when it would reach the addressee in the ordinary course of post. Therefore, notices sent very close to the end of the six months will not have been served within that time. We assume that in these cases there has been a misunderstanding of the statutory requirement. However, in other cases, the notice has not even been sent within the six months. A Local Authority is not entitled to pursue enforcement where the Notice to Owner is not served within the statutory time limit. We imagine that most appellants are likely to be unaware of the time limit and are concerned that some may pay a penalty in response to what is an unlawful demand. The mandatory requirements of section 66(3) of the Road Traffic Act 1991 and the effect of non-compliance were the issue in Al’s Bar and Restaurant Ltd v LB Wandsworth. The Adjudicator found that the Penalty Charge Notice in question did not comply in a number of respects and that these rendered the Penalty Charge Notice invalid. He went on to consider whether he should find the Penalty Charge Notice to be a nullity and decided that he should. He considered that the balance was heavily in favour of his doing so. He pointed out that this was not the first occasion this issue has come before a Parking Adjudicator. In the case of Moulder v Sutton LBC (PATAS Case No. 1940113243 24 May 1995) an Adjudicator found the PCN in that case to be a nullity because of non-compliance with section 66. Yet it seemed that invalid PCNs were still being issued. The drafting of a compliant PCN is, he said, a simple drafting task and it is difficult to understand why these difficulties have arisen and continue to do so. He went on to say: These sentiments apply to every stage of the enforcement process, not just the issue of a valid PCN. The Parking Adjudicators have had cause in their annual report on more than one occasion to comment on procedural irregularities that have come to their attention in appeals. The motoring public deserves nothing less than that the public

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authorities exercising penal powers understand the importance of their complying with the conditions attached to their powers and are scrupulous about having in place administrative processes that do so.We would commend these comments to Local Authorities. All these cases seem to be evidence of a lack of understanding of the Authorities legal obligations or insufficient rigour in applying them. We wonder whether Local Authorities take advice from their lawyers in establishing their processes and systems. It would be wise for them to do so. We recommend that all Local Authorities should have in place procedures, including taking appropriate advice, to ensure that their enforcement processes are legally compliant. ADJUDICATOR’S POWERS In Flannery v RB Kensington & Chelsea the appellant raised an interesting legal issue concerning the jurisdiction of the Adjudicator. The factual issue in dispute was one that commonly arises: had the Penalty Charge Notice had been served in the required manner? The appellant argued that in such a case the Adjudicator had no jurisdiction because the basis of the challenge did not fall within any of the prescribed grounds for contesting liability. He contended that the County Court was the appropriate forum for determining such a case. The Adjudicator rejected this argument. He found that the circumstances fell within ground (f): that the penalty charge exceeded the amount applicable in the circumstances of the case. Even if this were not so, he said, the issue would be a collateral challenge and therefore justiciable by the Adjudicator. The Adjudicator referred to the complications and undesirable consequences that would arise from this dual jurisdiction if the appellant’s argument were right. They would, he said, be highly disadvantageous to the ordinary member of the public and undermine Parliament's clear aim in the 1991 Act of providing a simple means of challenging liability. SUMMARY OF RECOMMENDATIONS • Local Authorities should review the adequacy of the training their staff receive in considering and replying to representations.• The Committee reaffirms that it supports the practice of issuing an Appeal Form with the Notice of Rejection and considers that all Local Authorities should comply with it.• Local Authorities should have in place procedures, including taking appropriate advice, to ensure that their enforcement processes are legally compliant. Martin Wood Chief Parking Adjudicator September 2003

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DIGEST OF CASES Enforcement - a Legal Process Wilkinson v LB Southwark (PATAS Case Number 2010209765) The appellant's vehicle was clamped. The issue was whether the Council had complied with its statutory duty under section 71 of the Road Traffic Act 1991. Section 71 (1) which provides that the person who obtains the release of a vehicle following either its removal or clamping 'shall thereupon be informed of his right under this section to make representations to the relevant authority and of the effect of section 72 of this Act [the right to appeal].' Section 71 (2) provides that 'The relevant authority shall give that information, or shall cause it to be given, in writing.' The Adjudicator said that the Penalty Charge Notice was designed primarily to comply with the requirements as to form set out in section 66 of the Act and the enforcement procedure where there has been no removal or clamping. It referred to the making of representations after the Notice to Owner and went on 'except when you have been clamped or removed, you must pay all fees then make a representation in writing within 28 days.' This was manifestly inadequate to comply with its statutory duty, in two respects. First, the content was wholly inadequate. It did not set out the grounds on which representations might be made, nor did it explain the effect of section 72. Secondly, it was defective as to timing. The requirement was 'thereupon' to inform a person who obtains release. 'Thereupon' means 'soon, immediately, after that' (Oxford Dictionary). The scheme was that the person should be told what their rights are at the point theyarise. Clearly this makes considerable sense. Prior notification therefore strictly does not comply with the statutory duty. The Adjudicator was mindful of the fact that the draftsman may well not have had in mind the convenient facility that is available for motorists to pay over the telephone by credit card, and it was highly desirable that this should continue. However, he could see no reason why the necessary written notification could not be given by the declamping operative. Since the Council had failed to comply with its statutory duty, the enforcement process was fundamentally defective. It was a matter of the gravest concern that a Council obtaining penalties from members of the public had apparently failed so conspicuously to comply with its legal duty to inform motorists of their right to challenge the imposition of those penalties. The Council must ensure that it put in place at once appropriate procedures to ensure it did comply with its duty and should not carry out any further enforcement by clamping until it had done so. Appeal Allowed Lauezzari v LB Islington (PATAS Case Number 2020145953) In response to the representations, the Council sent a letter headed 'Notice of Rejection of Representations'. It did not, however, contain all the statutory requirements of such a notice. In fact, the letter requested further information and said that if it was not received it would be assumed Mr Lauezzari no longer wished to make representations. It went on to say that he would then lose the opportunity to appeal to the adjudicator; and would be

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given the right to appeal if he supplied additional evidence and the Council considered it insufficient. The letter gave 14 days for a reply. The Adjudicator said that this course of action adopted by the Council was highly irregular. The Council's duty on receiving representations was to accept or reject them. It had no power to vary the statutory procedure in the manner it had purported to do. Nor should it serve a document described as a Notice of Rejection of Representations when in fact it was apparently not intended to be any such thing. That was not to say that in some circumstances it would not be sensible for the Council to seek further information from a motorist to enable it to decide whether to accept or reject the representations; but it could not vest such an inquiry with consequences that in law it could not have. For example, it would have been unobjectionable in this case for the Council to have sent a letter (not described as a Notice of Rejection) seeking information to enable it to make a better informed decision whether to accept or reject, requesting a reply within 14 days, and saying it would in any event make a decision whether to accept or reject at the end of that period. The Council's procedure in this case was fundamentally flawed. It was over 6 months since it received the representations and it had never served a valid Notice of Rejection. It would not be in the interests of justice to allow it to pursue enforcement further. Appeal Allowed Skelton v LB Camden (PATAS Case Number 2020224357) This was an application for review by the Council. The Adjudicator said that the previous Adjudicator had sought clarification of a statement in the Council's Case Summary that: "The cost of the issue of the Penalty Charge Notice and the subsequent clamping cannot be borne by the Council where the fault is not theirs". The previous Adjudicator had been concerned as to what considerations had been taken into account by the Council when considering Mrs Skelton's correspondence. Parking enforcement was for the purpose of traffic management, not raising revenue. And such financial considerations would suggest that the Council had, in deciding whether to exercise a discretion, improperly fettered itself by taking into account something that it ought not to have taken into account. The Council stated: "As the Council employs contractors to issue penalty charge notices to illegally parked vehicles the full amount received from the fees paid is not kept by the Council. However when the Council has to refund a motorist no money is recovered from the contracted company even if the fault is theirs. The Council therefore loses money when it has to issue a refund. In this case the Appellant had not firmly affixed the P&D ticket to the windscreen and had allowed it to fall out of sight onto the floor. The Council is therefore not prepared to lose money by refunding the Appellant when the PCN has been correctly issued and the vehicle lawfully clamped". The Adjudicator said that the Council’s statutory duty is to consider representations and to consider them only in the light of those factors of which it ought to have taken account. The Council is not obliged to contract out any of its duties and, if it chooses to do so, the financial terms of its relationship with the contractor ought to be completely outside any thoughts of the officials dealing with the representations of motorists. The extent to which those thoughts had been improperly directed was clearly evidenced. Not only was there no guarantee of a fair view having been taken of the Appellant's description of events from the point of view of any discretion, but the officials responsible had failed to take account the exemption contained in Section 70 of the Road Traffic Act 1991. Less than 15 minutes had elapsed from the end of paid for time. Indeed the paid

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for time had not expired. Therefore the clamping was unlawful and the release fee ought to have been refunded even in the absence of a discretionary view. The Appellant was entitled to a complete refund as the contravention itself cannot be enforced where the Council has taken account of improper considerations. Appeal Allowed Al’s Bar and Restaurant Ltd v LB Wandsworth (PATAS Case Number 2020106430) The issue was the validity of the Penalty Charge Notice (PCN). The Appellant said that the PCN was invalid and unenforceable because it did not comply with section 66 (3) (c), (d) and (e) of the Road Traffic Act 1991 which requires a PCN to state (c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion; (e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle. The Adjudicator said the substantive issues were: 1. Did the PCN comply with section 66(3)? 2. If not, what was the effect of non-compliance with section 66(3)? 1. Did the PCN comply with section 66(3) (c), (d) and (e)?The Adjudicator said that substantial compliance would be sufficient; literal compliance was not essential. However, this should not be thought of as encouraging enthusiastic departure from the statutory language. Disciplined drafting dictated that where a statute required a document to contain particular statements, the starting point for drafting a compliant document ought always be that the statutory language should be carried across to the document unless there were very good reasons for doing otherwise. This was for the very obvious reason that using the statutory language eliminated the opportunities for challenging the document for non-compliance. The statutory requirements took precedence over the commendable aim of couching documents in plain English. Local Authorities must be aware that the language they used, however plain, must bear the same meaning in substance as that prescribed by the statute. As to paragraph (c), the PCN said: 'You are therefore required to pay the sum of £80 within 28 days.' This did not comply with paragraph (c) because: • The parking attendant effects service of the PCN by either fixing it to the vehicle or giving it to 'the person appearing to him to be in charge of the vehicle'. Under section66(2) the person legally liable for payment of a penalty charge is the owner. It may or may not be that the person in charge of the vehicle is the owner. Therefore, the person who receives the PCN may or may not be the person legally liable to pay the penalty charge. For the notice to say 'You are required to pay' would be an inaccurate statement of the legal position in a great many cases. • The prescribed period for payment is 'before the end of the period of 28 days beginning with the date of the notice'. The PCN said 'within 28 days'. The general

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rule was that where a period is fixed for the taking of some step, the day of the act or event from which the period runs is excluded in calculating the period. Use of ‘beginning with’ excludes the general rule and the first day is included in the counting. • The PCN did not bear its date as paragraph (c) implicitly required. As to paragraph (d) The PCN said: 'The charge will be reduced to £40 if payment is received within 14 days'; and 'If payment of the Penalty Charge Notice is received within 14 days of the date of issue (as shown overleaf) the reduced charge will be accepted as settlement.' The PCN was did not comply for the same reasons as paragraph (c). The Adjudicator commented that a better way of stating the time limits would be for the hand-held computers carried by parking attendants to be programmed to print the relevant dates on the notice automatically. This would avoid the recipient having to work them out and any possibility of misunderstanding. As to paragraph (e): the PCN said: 'If no payment is received within 28 days of the date of issue, a Notice to Owner may be sent to the registered keeper of the vehicle requesting payment.' This did not comply because: • again, the relevant period was incorrectly stated.• the PCN referred to 'the registered keeper' rather than 'the person appearing to [the London authority] to be the owner of the vehicle'. The 1991 Act placed liability not on the registered keeper but on the owner; the owner was to be taken to be the keeper; and there was then merely a presumption that the owner was the registered keeper. That presumption was rebuttable. The local authority was empowered to serve a Notice to Owner on 'the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred'; not on the registered keeper. The power was clearly expressed in these terms because it might or might not be that the registered keeper was the owner at the relevant time; and it was possible that at the point of deciding on whom to serve the notice the Local Authority was in possession of information that the registered keeper was not the owner. The requirement in paragraph (e) was clearly deliberately formulated so as to inform the recipient of the Local Authority's power. That was the requirement; to instead inform the recipient of what generally happens did not fulfil the purpose of the requirement. Nor did 'may' have the meaning advocated by the Council. It was taken from paragraph (e) and the use of that word reflected the fact that the Local Authority had a power, not a duty, to serve a NTO. It had nothing to do with on whom the notice would be served. • the PCN did not state by whom the NTO may be served as required by the Act. What was the effect of non-compliance with section 66(3)? The requirements of section 66(3) were mandatory, not directory. However, this did not mean that non-compliance automatically rendered the PCN a nullity; it was effective until struck down by a competent authority: London & Clydesdale Estates Ltd v Aberdeen DC [1980] 1 WLR 182. Whether to do so was a matter of discretion. That the Appellant had not alleged any actual confusion or prejudice was a consideration to be taken into account, but not the only one. The Adjudicator referred to Lord Hailsham's comment in London & Clydesdale that 'I do not think we are entitled to play fast and loose with statutory requirements designed to inform the subject as to his legal rights against an authority possessed of compulsory powers. I do not think that prescriptions for the benefit of the subject are to be so disregarded’; and to Wade & Forsyth: Administrative Law (8th Edn.) page 230 where it stated 'In notices affecting private rights, particularly where the effect is penal, scrupulous observance of statutory

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conditions is normally required’. The requirements of section 66(3) were designed to inform the subject as to his legal rights in the context of the penal scheme. These considerations weighed in favour of finding the PCN a nullity, but were not conclusive on their own. The Adjudicator said that parking control was a necessary activity of considerable importance that affected the daily lives of millions of motorists. Over 4 million PCNs were issued every year. Only about 1 per cent resulted in an appeal. In relation to such a routine, everyday, prolific activity it was highly undesirable for non-compliant PCNs to be served in large numbers. His decision should provide every encouragement to Local Authorities to ensure that the PCNs they serve are compliant with the statutory requirements. The drafting of a compliant PCN was a simple task and it was difficult to understand why these difficulties had arisen and continued to do so. These sentiments applied to every stage of the enforcement process, not just the issue of a valid PCN. The motoring public deserved nothing less than that the public authorities exercising penal powers understood the importance of complying with the conditions attached to their powers and were scrupulous about having in place administrative processes that did so. It was also relevant that the penalties for parking contraventions were relatively low. It was very undesirable in those circumstances for their imposition to be attended by uncertainties about its legality for procedural reasons. What was required was simplicity, clarity and certainty. That aim was not assisted by a less than rigorous approach to procedures by Local Authorities. It was not acceptable for the Council to say, in effect, that it may not have complied with the statutory requirements but it really did not matter. That finding this PCN a nullity without finding prejudice would put in jeopardy many other PCNs did not tip the scales against finding it a nullity. The effect would be historical and time limited. Historical because it would affect only past invalid PCNs provided that the Council in future issues valid ones. Time limited because it would not mean all past invalid PCNs becoming nullities; it would be necessary for a challenge to the validity of each PCN to be brought before a competent judicial forum, and there were time limits for doing so. The Adjudicator found the PCN a nullity. Original decision to allow appeal upheld. Adjudicator’s Jurisdiction Flannery v RB Kensington & Chelsea (PATAS Case Number 2020400959) Having appealed to the Adjudicator, the Appellant gave notice of the withdrawal of his appeal. Accordingly the Adjudicator dismissed the proceedings under Regulation 14(1)(b) of the Road Traffic (Parking Adjudicators) (London) Regulations 1993. In doing so he dealt with the issue of his jurisdiction raised by the Appellant. The Appellant contended that the Penalty Charge Notice had not been served as required. He argued that the Adjudicator did not have jurisdiction because the basis of his challenge was not within any of the grounds prescribed by paragraph 2(4) of Schedule 6 to the 1991 Act, as amended. He had commenced proceedings in the West London County Court for a declaration that the PCN had not been validly issued.

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He argued that the 1991 Act enforcement process was triggered by the service of a PCN; and therefore if the PCN was not served that process, from which the right to appeal to the Adjudicator and so the Adjudicator's jurisdiction derived, did not apply. Therefore, the Adjudicator had no jurisdiction and the proper forum was the County Court. The Adjudicator rejected these arguments. He said that the circumstances fell within ground (f) in paragraph 2(4) of Schedule 6 to the 1991 Act: that the penalty charge exceeded the amount applicable in the circumstances of the case. If the PCN was not served, the penalty payable would be nil and therefore would exceed the penalty claimed by the Council. Even if this were not so, the issue raised by Mr Flannery would be a collateral challenge and therefore justiciable by the Adjudicator: R v Parking Adjudicator Ex p. Bexley LBC QBD 29 July 1997. If the position were as Mr Flannery contended, undesirable consequences would follow. Whenever the issue in this case arose, whether the Adjudicator or the County Court had jurisdiction would depend on whether the PCN was properly issued. If it was, the Adjudicator would be the proper forum, if not, the County Court. So in every case one or other would have to make a finding of fact as to whether the PCN had been properly issued and on the basis of that determine its competence. If it found it were not competent, then there would arise the question whether the appellant could mount proceedings in the other forum, and perhaps even have the issue of fact determined afresh there. There were also many cases in which an appellant contests liability on the basis that arises in this case and another; for example, that the contravention did not occur anyway. If Mr Flannery were right, the appellant would have to bring proceedings in the County Court for determination of the first issue and appeal to the Adjudicator for determination of the second. There was also the point that no fee is payable by the appellant for appealing to the Adjudicator. Furthermore, enabling an appellant to challenge liability in the County Court would undermine the intention encapsulated in regulation 12 of the 1993 Regulations that costs should be awarded against either party only where they had acted frivolously, vexatiously or wholly unreasonably. The complications and undesirable consequences that would arise from Mr Flannery's argument being right were obvious. They could only be highly disadvantageous to the ordinary member of the public who contested liability to a penalty charge and undermine Parliament's clear aim in the 1991 Act of providing a simple means of challenging liability. Proceedings Dismissed




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DISCLAIMER. please note that Logic Law does not have the resources to have this legally checked and so assumes no liability for the advice given by any contributors. The pages are intended to be read within the framework of the EU Convention on Human Rights Protocol 5 Article 10 Freedom to receive and impart information.

This is a background to the reasons for publishing with other comments.

Winter V London Borough of Camden; The mayor and Burgesses of the London borough of Camden.
Judges comments effectively were. Here..

The Three minimum rights under which this case is published. 1- The case is in the public domain as a result of an open hearing in court. 2 – The council code of conduct where IF IT WERE properly upheld, requires truthfulness, lawfulness, respect and Reporting Breaches, complaint handling procedures & sanctions Corrupt conduct, maladministration and waste of public resources. This claimant is assisting in that code! And 3 – The EU Human Rights convention Article 10 - Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

What Camden parking solutions do NOT tell you about their dismissals at PATAS, and they will take you to the limit and often at the last minute NOT challenge at all. This is harassment.

Inconsistencies and contradictory rulings

at PATAS, that allow Camden to advise appellant to them and PATAS, that their issues re “2 DATE”, “YOU”, and “28 Days from” are upheld, while suppressing the truth that others are dismissed, see right upheld at PATAS. The need to either argue in person, and or by very thorough appeal letter.

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Related pages of significant importance.
Camden appeals upheld at PATAS
Surprise Charge Certificates and Bailiffs
The Honest PATAS flowchart!
News Items

Surprise Charge Certificates, and Bailiff letters WHILE an APPEAL IS PENDING at PATAS. Breach of Human Rights law.

Main Index.

Claim particulars.

Appeal schedule before a hearing.

Claimant given possession of £multi million building.

Judges hearing comments.

One; of many letters, 5-10 contradictions in that single page, of at least 20.

Other letters with wholesale contradictions.

The witness statement; how to tell economic, economic truth.

Go to section 2.

A contradiction is incontrovertible culpability in the context provided.
Those contradictions represent a series of false representations that not alone are fraudulent, but gave the claimant an intolerable 6 months stress, three months of which caused a loss of three stones recorded at the hospital. During this time the claimant apprehended and recorded breaches of seventeen statutes in pursuit of ONE for trivia in 60 seconds.
Present violated rights are Magna Carta 40, Declaration of Rights, and EU HR Protocol 5 Article 6, along with the Charter of human rights articles on inviolability to any mental or physical compromising of integrity.
To follow
Chronological schedule
of all statutory breaches.
Chronological schedule of exhibits.
Part 1, case £300+ pages ,or best extracts.
Part 2, background & secondary focus. case here.
Part 3 bundle 2. psychological profiling, unseen to date.


Other cases in the Camden County Court,
showing highly questionable conduct, omissions and commissions, misdirections, and creating a new class ruling for ALL those who enter a court,, that are not prepared to admit something. Very interesting. All coming.

Why is this case being placed in the public Domain? It is an ongoing process whose causal determinants belong to the council, as former defendant. Many reasons are behind it, the primary three are -->
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The case material presented is NOT about a parking ticket, loitering, or dropping litter. It is about the fundamental freedoms of the individual being multiply violated unconscionably, remorselessly and without the slightest sign of duty of care enshrined in tort by a public body from whom we expect as their electorate, their OWN code of conduct to be rigorously adhered to, and not held as a mask to laws breached. Penal powers should be rigorously and scrupulously observed in accordance with principles of fairness and natural justice. Former Bill of Rights, Declaration of Rights, prerogatives abused, are now granted and usurped by governing bodies. When these powers were handed to the councils, unfettered by any constraints in modern day 'law keeping' Britain, they unleashed former 'mischief' in precise conformity with necessary and sufficient conditions in causation.

Being merely obdurate, is the beginning and thinnest edged of the wedge in the scales between obdurate and downright AImoral bankruptcy.

1 – On 11th Dec 2007 The council CEO and other leaders were invited to resolve all adversarial exchanges. In their reply this went unanswered.
2 – Early in 2006 The Acting Head lawyer; for the CEO, wrote that she would not expect the claimant to suffer harassment while and during his exercising his rights. A year later, on the above date they were invited to resolve this with their code of conduct and guarantee the claimant freedom from such duress ever again. Their reply did nothing of the kind.
3 – The claimant has not yet had his inviolable fundamental rights heard. Harassment, sudden weight loss, exacerbated conditions, threatened the life of the claimant late 2006, with health and safety in his disabilities, that persist this past year remaining a constant matter of concern, and observation. Physical reactions to stress in as short a time as 7-10 days , are precisely correlated with their causes, that is something for the council to be circumspect in the extreme. Therefore this shall be defended at any cost, and the council having been advised so, tacitly consenting to this disclosure. An injunction and claim are prepared for lodgement on apprehension of conditions re-surfacing.
A re-occurrence of anything similar to the treatment here will bring about immediate injunction and High Court action. Otherwise the claimant gave notice, that IF the council observes these conditions; arising from their own written terms; avoiding him, they and he may co-exist peaceably. The original claim was for no financial remedy, but shall be unlike a new one.

Seventeen breached statutes to uphold one.

Contradictions, contrarieties, and sub contrarieties.

Natural and final causes, where exactly the boundaries bleed.

A police investigation that has been done by the claimant, two case numbers were recorded at two stations, and the case may be handed in, under public scrutiny in adherence to the principles of transparency, fair and public.

Please return weekly and monthly, this story will unfold at leisure without time constraints, in all its complexities and detail to simplify what labyrinthine constructions exist in the dark recesses of minds whose mantras are,
“Ignorance of the law is no excuse,” A device to exercise power and abuse, and “admit NOTHING, and DENY everything.” The most untenable self inconsistent proposition used as legal arguments for centuries, in devising courses of conduct replete with 'mal fides', bad faith in evasion of culpability and palliating white wash.

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ALL options for the claimant's future course of conduct and action are open.These pages may be withdrawn subject to a respectful and considerate approach by the council to remedy their conduct.
This, first release is one of three or four portals into the deep heart of darkness that is at the centre of ruthless penal enforcement for trivia. The methodology examined. The underlying principle of the council's consent to this publication is from their own rules, when asking for restitution of an unlawful detriment in payment of a PCN, they argue payment; (leaving out, under duress), indicates consent, no refunds sent. The same applies, they were invited to remedy the adversarial conflict. Their reading and wilful omission to address, indicates consent & commission to print. All from their terms and rules!



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