London Motorists Action Group

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HANDLING PENALTY CHARGE NOTICES (PCNs) FOR
ALLEGED CONTRAVENTIONS OF PARKING REGULATIONS (first version – 16/11/05)[1]

PCNs for parking contraventions

1. Five million PCNs were issued in London between 1/4/2004 and 31/3/2005 for “illegal” parking[2]. The steps in the normal procedure for handling parking PCNs are:-

· Issue PCN which has a penalty of £50 if paid within 14 days

· You may appeal at this stage to the council in which a good mannered council will put sending the Notice to Owner on hold until it has considered the appeal

· If no payment by 28 days or no appeal, the council issues a “Notice to Owner” which doubles the penalty to £100. It offers you eight – and only eight – reasons why you should not pay[3]. Those eight reasons are:-

* you did not own the vehicle at the time when the PCN was given

* the contravention did not take place

* the vehicle had been taken without your permission when the PCN was given

* the traffic order was not valid

* you are a hire firm and have given the name of the hirer

* the PCN was for more than you legally have to pay

* the parking attendant was not prevented from issuing the PCN

* the Notice to Owner was served out of time

· In response to an appeal, the council is legally obliged to send a “Notice of Rejection”

· If the council rejects your representation it will issue a “Notice of Rejection” and provide a Notice to Appeal that can be forwarded to the Parking And Traffic Appeals Service (PATAS)

· PATAS will consider the appeal either by correspondence or by a hearing at New Zealand House, Haymarket Street, London SW1. PATAS can only consider the eight reasons. PATAS will issue its decision

· If the council has not received money in response to the Notice to Appeal and either there was no Appeal to PATAS or PATAS rejected the appeal, the council will issue a Charge Certificate with a penalty of £150

· If the council still receives no payment it will issue an “Order for recovery of unpaid penalty charge” at the Traffic Enforcement Centre at the County Court Bulk Centre Northampton demanding either payment or the filing of a “Statutory Declaration - unpaid penalty charge” within 21days[4]

· A well mannered council will advise the motorist before concluding the process of issuing a warrant of execution

· The council will then issue a warrant and the bailiffs move into action,

2. To be valid a PCN has to be placed on a vehicle. If you see a parking attendant preparing a PCN you can legally drive away (carefully and calmly – if necessary sound the horn to indicate your intention to the parking attendant who may be attempting to book your tax disc details and try to obstruct you) before (s)he can put the ticket on the vehicle. This PCN would be invalid and should be recorded by the parking attendant as a drive away[5].

3. In many circumstances parking attendants are supposed to observe a vehicle for 5 minutes before ticketing, see Parking Attendants Handbook. The section describing each code defining the type of contravention (National Parking Adjudication Service guide to Codes) has a sub-section “observation period”. Thus under Code 01, “parked in a restricted street during prescribed hours” and Code 04 “parked in a meter bay when penalty time is indicated” the observation period is “minimum 5 minutes”. But for Code 21, “parking in a suspended bay/space”, there is no minimum observation period. If a parking attendant is ticketing before the minimum observation period is up, ask him or her to stop ticketing. (Note, some parking attendants pretend they cannot stop the ticketing process once they start – that is false).

4. On receiving a PCN the first step is to scrutinise it to see whether there are any errors – wrong licence plate, wrong location, out of controlled hours, some foot fault by the parking attendant.

· Is the parking attendant’s hand held computer recording the time correctly? (The first PCN of the day should be a test PCN to ensure the device is displaying the correct time[6]), and is the pay and display meter recording time accurately. (Pay & Display machines should all have a fault log system which should be referred to by local authorities when dealing with representations & should also be supplied to PATAS as evidence)

· 'De minimis non curat lex' ('the law does not concern itself with trifles') was one adjudicator’s reply to a motorist who claimed that the yellow bar at the end of a single yellow line was missing making the penalty unenforceable. The defence was not allowed. To be in with a chance, there needs to be more than one 'trifle'

The City of Westminster is exemplary in publishing its Enforcement Protocols, September 2005, which is a document for the aficionados.

5. Several councils have had PCNs “nullified” due to defects in the wording of the PCN itself, see PATAS Annual Report 2002 2003. Many motorists can claim back on such PCNs[7]. If you are going to be really serious request a copy of the Traffic Management Order and the Traffic Regulation Order (the first is a legal document which regulates the use of highways and off-street parking in a borough; the second is a legal document that creates a local traffic rule). Do not be fobbed off if the council merely sends a summary. Armed with these you can research whether the council actually does have the right to enforce the regulations. Also available are various clauses (called articles) which describe loading restrictions / exemptions across each borough, or “manner of waiting in parking place” articles[8]. The Local Government Ombudsman recently found Scarborough Borough Council had caused “maladministration causing injustice” and that the Council “acted unlawfully in using the civil court system” Local Government Ombudsman report on Scarborough Council.

6. If you find a mistake, then immediately appeal to the council. DO NOT WAIT FOR THE “Notice to Owner” TO ARRIVE on which the council says that if you appeal the penalty will double. You can make an informal representation, which also known as a challenge (see annex 1 and section 5 of Office Procedures Manual) on grounds which ‘mirror’ those at the formal post-Notice To Owner stage. It is considered good practice for the council to suspend enforcement proceedings so you preserve the right to pay at the initial rate of £50 subject to outcome of the informal appeal.

7. Councils have frequently been advised to exercise discretion[9]. As the Local Government Ombudsman special report "Parking Enforcement by Local Authorities" commented “Councils have discretion not to pursue a penalty charge at any stage of the procedure and have, as a matter of administrative law, a duty to act reasonably, fairly and without fettering that discretion. It would therefore be a breach of that duty if a council were to act unreasonably or unfairly or to fetter its discretion when considering such representations”. But if you appeal on any other than a technicality (e.g. stopped in a suspended bay to drop small children off in the rain, which is not a technicality but is merely considerate commonsense), hard line councils like Camden will rarely exercise discretion[10]. If it has to “perform” against targets, the contractor has no incentive to allow parking attendants to exercise discretion. Nor do the councils – they want the money, and some of their councillors are virulently anti-motorist.

8. If out of the blue you receive a Notice to Owner demanding £100 when you have no recollection of receiving a PCN, then the parking attendant may well have issued a “ghost” ticket, i.e. knowingly recorded a PCN which was not put on your vehicle. Object to the PCN first to the council and then on to the Parking And Traffic Appeals Service (PATAS). You may need another person to corroborate that no ticket was put on your vehicle. Barrie Segal of AppealNow.Com reported a case:-

“A motorist received 13 Notices to Owner in a period of approximately 6 weeks. The council initially cancelled 4 of the tickets but refused to cancel the remaining 9, notwithstanding the fact that we revealed to them that the parking attendants had, in their notebooks, shown the same road fund details for the vehicle although the motorist had in fact renewed and therefore changed his road fund licence during the period that the tickets were issued. We therefore took 8 of the parking tickets to PATAS who examined each case and held that the tickets had been issued illegally and that the parking attendants had used previous information to falsely issue these tickets. The case is shown at the parking adjudicator's office under "Ali v Newham Borough Council".

9. PATAS is set up supposedly as an independent dispute resolution service see Road Traffic (Parking Adjudicators) (London) Regulations 1993, Road Traffic (Parking Adjudicators)(London)(Amendment) Regulations 1999. It is a tribunal. In reality PATAS is a creature of London local authorities. The Association of London Government - Transport and Environment Committee chooses the adjudicators and funds the organisation from the revenue raised from the enforcement process. A motorist can only appeal to PATAS after a council has rejected an appeal, and can only appeal on the limited eight grounds set out in 1. A case, Westminster V Parking Adjudicator para 13 – 22 determined that PATAS has no discretion. One may seek adjudication either by correspondence, or asking for a personal hearing before an adjudicator at the main hearing centre at New Zealand House, 80 Haymarket Street, London SW1. (The advantage of the personal hearing is that one can make an oral argument; the disadvantage is the time it takes).

10. An appeal to PATAS is free so that if you have been clamped or towed (and so forced to pay) or received a Notice to Owner (and so are liable for £100), there is nothing to be lost from taking your appeal on to PATAS. If you have not received a Notice to Owner and are still at the £50 stage, you have to consider your chances of double or quits. It provides the opportunity to have the evidence more clearly presented (although you generally only get three days to look at it before the hearing). The council’s evidence (in accordance with the PATAS requirements, see annex 2) should contain copies of documents required by the 1991 Act, see annex 3, including the parking attendants notes from his/her book, photographs, witness statements, parking and display meters, fault report logs, case summary, and a summary of the relevant traffic management order. These documents may well provide a procedural error that can help you win the case. London councils did not contest a quarter of the cases in 2004-05; it would be interesting to know why. Perhaps the relevant Traffic Management Orders have errors or simply do not exist. In this case it would be criminal for councils to continue to enforce the regulations at that location knowing that the legal basis on which they base the right to do so are inadequate or non-existent.

11. One of the key aims of this website is to share knowledge on how the system works, and where its weaknesses lie. One way is to publicise PATAS cases which would otherwise pass unnoticed (although they are a matter of public record, and indeed there is a register of cases held by PATAS which can be requested in writing). Therefore if you win a case on procedural points, defective notices, road signs and lines missing or not as described – these all set precedents to the councils. We are also interested to hear of all cases the council does not contest at PATAS.

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