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fight4rights
Hi all,

Received PCN from Brent council today about alleged contravention code 31 for entering and stopping in a box junction when prohibited at Ealing Road / Alperton Lane. There was a heavy traffic and it looked like the van was going to clear the junction so I went ahead but soon realised he was stopping so I stopped with front wheel in the box, stayed in a few seconds not sure for how long exactly but it was not long and continued and passed through the box, but still received the PCN.
Please see the PCN details and advise if it's worth contesting and what should I write to the council.

Many thanks!




MrChips
Please could you post up a link to the video, or else provide the PCN number and vehicle registration so we can check for ourselves.

Thanks.
fight4rights
Thank you.

https://brent.tarantoportal.com/PCN/PCN/Get...D642B6E0CCC48B6
MrChips
I don't think that link will work for anyone other than you.

We will need the PCN and vehicle reg. You can send them to me by private message if you would prefer not to post on here.
fight4rights
BT1755
KP19
stamfordman
About as bang to rights as it gets in yellow boxes. Unless there is a PCN fault then pay the discount.

Incandescent
QUOTE
here was a heavy traffic and it looked like the van was going to clear the junction so I went ahead but soon realised he was stopping so I stopped with front wheel in the box, stayed in a few seconds

I make it 11 seconds stationary in the box. This is well outside any de minimis considerations, and some adjudicators don't even consider small stop times. The video shows you charged into the box at a fair old speed, no hesitation at all, right behind the van, which then stopped, leaving you in the box. As SFM says, this is a classic case of a YBJ contravention. Best pay the discount in my opinion, and be more careful in future.
MrChips
Afraid to say I can't see any viable means of appeal here.

Fully agree with previous two posters.
fight4rights
Thanks all, but these boxes are money grabbing machines period! This road was fairly busy and the traffic was moving fairly fast, I did not even see there was a traffic light because the van in front was obstructing my view. Lesson learned I guess so I should obstruct / delay the traffic behind me in the future...I know my money will be well spent by the government if there is any left of it by tomorrow.
stamfordman
Have to say it was a very normal box situation and you just blindly allowed the van. And you obstructed the traffic turning out of the side road so the box is rightly sited.

Give it a a day or so in case others spot something with the PCN.
fight4rights
Thanks. Can anyone from the law experts spot anything on the PCN to make it challengeable?
cp8759
One angle that has recently been discussed is whether a PCN is complaint when it conflates the 28 day payment deadline and the 28 day representation deadline. Really the PCN should say that a charge certificate may be issued if you don't either pay before the end of the period of 28 days starting with the date of the notice or don't make representations before the end of the period of 28 days beginning with the date of service.

As technical arguments go I think it's weak, but it's the only thing I can think of.

Schofeldt might wish to comment.
Incandescent
Any appeal based on a technical anomaly means the matter will end up at London Tribunals with the full PCN penalty in play, the discount option is lost.
Schofeldt
QUOTE (cp8759 @ Thu, 7 Jul 2022 - 13:26) *
One angle that has recently been discussed is whether a PCN is complaint when it conflates the 28 day payment deadline and the 28 day representation deadline. Really the PCN should say that a charge certificate may be issued if you don't either pay before the end of the period of 28 days starting with the date of the notice or don't make representations before the end of the period of 28 days beginning with the date of service.

As technical arguments go I think it's weak, but it's the only thing I can think of.

Schofeldt might wish to comment.

As tempted!: http://forums.pepipoo.com/index.php?showtopic=145051

It used to win depending on the lottery of course.

QUOTE (Incandescent @ Thu, 7 Jul 2022 - 22:58) *
Any appeal based on a technical anomaly means the matter will end up at London Tribunals with the full PCN penalty in play, the discount option is lost.

Of course.
cp8759
If this is to be taken forward you'd need Schofeldt to draft something for you, this is not suitable for a DIY appeal.
Schofeldt
QUOTE (fight4rights @ Thu, 7 Jul 2022 - 11:37) *
Thanks. Can anyone from the law experts spot anything on the PCN to make it challengeable?

If you look at the link provided, http://forums.pepipoo.com/index.php?showtopic=145051 it is arguable that the PCN conflates the two distinct time periods. I have listed several cases which have won on this point. However, it depends on the adjudicator. Having said all that, it is worthwhile to make a representation in any case as they must consider along the lines of:

Dear Council

Ref: PCN

I make these representations as follows:

The wording on the Penalty Charge Notice produced does not comply with the legal requirements since there is a clear, and incorrect, confluence/conflation of the two provisions regarding payment and making representations.

"If you fail to pay the penalty charge notice or make representations before the end of the period of 28 days beginning with the date of service of this notice, an increased charge of £195 may be payable ."


Therefore, this PCN appears to me to conflate the 28 period for payment, which begins with the date of the penalty charge notice, with the 28 days with the making of representation, which begins with the date of the service of the notice. It also is ambiguous. It may easily be read as a threat of a charge certificate being issued for failure to pay or in the circumstances where representations have been made. The notice would more appropriately "if you fail to pay the penalty charge notice and do not make representations within 28 days beginning with the date of service of this notice…".


In my view there is a serious possibility of real prejudice here. The fact that I may not have been prejudiced by this is not a "cure" to the substantive defect. The defect renders the penalty unenforceable. The decision in R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin) make clear the importance of complying with the requirements of the legislation. Mr Justice Jackson said in that case "Prejudice is irrelevant and does not have to be established. The 1991 Act created a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."

In view of the above, I request that the PCN be cancelled.


Yours faithfully


You can mention the cases if you like. This is a quickie I am afraid and taken from some decisions! And it is only a guide, not a template!

Alternative:

Dear Council

Ref: PCN

I make these representations as follows:


The PCN is a nullity and unenforceable because of its wording defects. According to the relevant legislation, there are two distinct periods in which the recipient may either pay the penalty charge or make representations; however, on page 1 of the said PCN, the two periods are conflated which results in confusion and prejudice, at least, and culminating in illegal confluence. I refer to the following citation verbatim :-

"If you fail to pay the penalty charge notice or make representations before the end of the period of 28 days beginning with the date of service of this notice an increased of £195 may be payable."

While there have been numerous decisions upon this issue, I do believe it to be a simple matter of syntax in that the conditional phrase "if you fail to pay the penalty charge notice or make representations...." clearly refers to and governs grammatically both periods and I contend that any other interpretation would fall under Wednesbury unreasonableness. In this regard, further support for this view is contained in Case Number 2110335439 in the first instance; however, I also refer to the Barnet case at the High Court, which set a legal precedent, of course, in terms of the statutory obligations placed upon an Authority in its production of penalty charge notices, what they must contain in order to justify their legal enforcement and, lastly, that prejudice does not need to be proven i.e. R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin):

"Prejudice is irrelevant and does not have 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 if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."

While I accept that the period is correctly stated on page 1 of the said PCN, the fact remains that the conflation of the two periods in the statement on page 1 creates ambiguity, confusion and could even be interpreted that a charge certificate may be served even if representations have been made. I refer you to Case No 2120618382 in this regard from which I seek further support.

In view of the above, I request that the PCN be cancelled.


Yours faithfully


They will, of course, reject this but it would be interesting to see what their response will be. You could always mix and match the two versions: true conflation and pun intended! wink.gif

Afterthought, it is arguable that the Taken Without Consent ground limits to theft. See what others think. Here is a case:

Case Reference: 2110212199
Appellant: Mr Chidi Egenti
Authority: Islington
VRM: EA02WFR
PCN: IS2284987A
Contravention Date: 12 Feb 2011
Contravention Time: 12:06
Contravention Location: Drayton Park/Horsell Road N5
Penalty Amount: £120.00
Contravention: Entering and stopping in a box junction when prohibited
Decision Date: 07 Jul 2011
Adjudicator: Teresa Brennan
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice.
Reasons: Mr Egenti appeals and raises a number of issues both in his initial representations and in the Notice of Appeal.

One of the issues that Mr Egenti raised was wither the Penalty Charge Notice was enforceable as he states that the third ground of appeal, box C on the Penalty Charge Notice inaccurately reflects the statutory ground. Further he says that by stating that the insurance claim or crime report be provided that this fetters the basis on which a representation on this basis can be made. In his initial representations Mr Egenti specifically raised the issue of circumstances in which a relative might have taken the keys to the car without his consent.

In the Notice of Rejection issued on 30 th March 2011 the local authority stated: 'If relative takes the car without permission the registered keeper of the vehicle is still liable for the charge unless they report the matter to the police' Whilst it may be that a local authority would not accept a representation made on this basis without a crime report there is no obligation on a registered keeper to provide a crime report and it is incorrect in law to state that a registered keeper must provide a crime report when relying on this ground of appeal. I find that the Notice of Rejection wrongly states the law and that it is therefore misleading.

The London Local Authorities Act 2003 imposes a duty on an enforcement authority to consider representations made and to then serve a notice indicating the decision that has been made. In this case I find that the London Borough of Islington has failed to properly consider the representations because the Notice of Rejection inaccurately states the law. As this could have misled the appellant into not putting forward a particular basis of appeal I find that the local authority failed in its duty to consider the representations. Therefore I find that the local authority cannot enforce this Penalty Charge Notice and I allow this appeal.



Tactically, do not cite this case. Rather, try to engineer the situation in which they reply with a similar notice of rejection!
Schofeldt
Any update on this case please?
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