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#Post#: 12367--------------------------------------------------
Birmingham City Council, code 83 parked without displaying valid
ticket, Moseley Village Car Park
DIR By: kingsy
Date: December 13, 2023, 12:25 pm
---------------------------------------------------------
Hi,
Parked in Mosely Village Car Park one evening, machine was
broken, took a photo and could not find another in the car park.
The car park was also pitch black as the lights didn't appear to
be working. A couple of guys who were at the machine said the
'app' wasn't working also so I didn't even bother trying to pay
via that. I couldn't even see the signage so I had no idea what
app I had to get to pay for the parking.
Anyway, got a ticket, appealed through their appeals thing which
was confusing because it never actually said appeal, it just
said "comment".
Initial PCN:
HTML https://i.imgur.com/U8XbucG.jpg
This was my initial appeal to them:
I am writing to you to appeal the PCN issued on 10/11/2023
against MF19 WDP in Moseley Village Car park.
The contravention was for parking without a valid pay and
display ticket on display (83) - this was because the only
ticket machine in the car park was out of order. No other
parking machines in the car park were able to be located so it
was therefore assumed that this was the only ticket machine in
the car park. According to your discretion policy (under MC14)
this appears to be a valid reason to have the PCN rescinded
which I respectfully request given the reasoning above.
rejection letter:
HTML https://i.imgur.com/wFYWMXQ.png
HTML https://i.imgur.com/Q9NWy0r.png
HTML https://i.imgur.com/PYR7km8.png
I'm confused now as I think I have 28 days to appeal but cannot
appeal again until I get an NTO? I've had a brief search of the
forum and found this very similar case:
HTML https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/contravention-83-pay-and-display-machine-not-working-ealing-council/msg3400/#msg3400
Any help / recommendations on how to get this revoked would be
helpful
PS sorry for the formatting.
#Post#: 12379--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: fraser.mitchell
Date: December 13, 2023, 4:00 pm
---------------------------------------------------------
The PCN gives you 28 days to pay or submit representations. You
submittedwhat is called an "informal challenge" and this was
rejected, and they re-offered the discount provided you pay by
the date in their letter. If you want to submit a formal
representation, you have to wait for the Notice to Owner, which
cannot be sent out until the 28 day period on the PCN has
expired. At the Notice to Owner stage the discount option is
lost. Your reps will again be considered, and either rejected or
accepted. Some councils re-offer the discount at this stage, but
it is not a legal obligation. However, if they reject, it is
then a no-brainer to appeal to the adjudicators at the Traffic
Penalty Tribunal because the penalty remains the same and there
are no additional costs.
#Post#: 12440--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: December 14, 2023, 11:37 am
---------------------------------------------------------
Ah that makes sense, from searching cases similar to mine it
appears that formal representation is also just rejected
normally. Is it worth wasting the effort in actually writing a
defence or should I submit a token formal rep just to get access
to the adjudication?
#Post#: 12450--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: fraser.mitchell
Date: December 14, 2023, 2:11 pm
---------------------------------------------------------
Just refer them to your informal reps as the basis for your
case.
#Post#: 16575--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: March 1, 2024, 1:41 am
---------------------------------------------------------
Reviving an old thread here now - Just got my response back from
the council after my formal reps, obviously they rejected it.
Formal rep sent:
--- Quote ---
> As stated in my initial appeal, there was no machine present
that could have been used to purchase a pay & display ticket.
The rejection letter dated 10/11/23 stated that payment for the
parking should have been obtained via the ‘RingGo’ facility
using a telephone - while this facility may have existed the
driver was unaware of this fact due to the car park being pitch
black as there was no lighting in the car park. Any signs that
indicate other methods to pay for parking were not visible at
all. The driver cannot possibly be held accountable if there are
no clear instructions on other methods to provide payment for
the car park and the only obvious method for payment (the
machine) was not available. Evidence for the lack of lighting
can be seen in the image I originally submitted with the initial
appeal - it shows that the machine was not lit at all except for
the backlit display. I have reattached the same picture at the
bottom.
>
> In addition to this, the alleged contravention code (83) which
was given as “Parked in a car park without clearly displaying a
valid pay & display ticket or voucher or parking clock.” also
appears to be incorrect. If there was the option to pay by
phone, that contravention code would still apply as nothing
would be ‘displayed’ as it is all handled virtually. Therefore
it appears to me the wrong contravention code has been used on
the PCN itself - a quick search reveals contravention code 73 as
“Parked without payment of the parking charge.” would be the
correct contravention code.
>
> Given these points, I respectfully ask you to rescind the PCN
given the reasons outlined above.
--- End Quote ---
Response from them:
HTML https://i.imgur.com/mjPkXuo.jpeg
HTML https://i.imgur.com/2CDa6Et.jpeg
HTML https://i.imgur.com/KudIOL7.jpeg
HTML https://i.imgur.com/jwrFxPF.jpg
HTML https://i.imgur.com/XDvdrY6.jpeg
I'm pretty annoyed about this because there were a tonne of
other cars with PCNs given on the same night - probably for the
same reason as me. Any advice / help for going to the
adjudicator? I also note that my time limit is coming up so I
need to submit it soon.
I do not know why they think I examined the machine, as I said
in my original rep, it was pitch black. The only thing I could
see was the backlit display saying the machine was out of order.
As for the CEO evidence, it does show the area where my car was
lit but this photo was taken ~2 hours after I parked, the
machine was not near where I parked and from memory when I came
back to the car park the lighting had come back on.
I also note that the rejection letter does not note that the
adjudicator can extend the period given to appeal the PCN (as
shown here
HTML https://drive.google.com/file/d/1_vkg5vinbDUe1XU7LDo42IuNsgR4Kxc1/view)
#Post#: 16581--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: fraser.mitchell
Date: March 1, 2024, 4:00 am
---------------------------------------------------------
When did you submit the representations against the Notice to
Owner, and how did you submit them ? Under the Traffic
Management Act 2004, they have 56 days to respond. If this is
exceeded, you win by default. The 56 days is counted from the
date the council receive the reps.
#Post#: 16586--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: H C Andersen
Date: March 1, 2024, 5:55 am
---------------------------------------------------------
Part of the council's reasons for rejecting your reps was that
the alternative of paying by phone was available and should have
been used. IMO, it is therefore totally contradictory to insist
that a pay and display ticket or voucher was required to be
displayed. IMO, their own statement supports your claim and I
would start your appeal with this. IMO, the correct grounds of
appeal are 'tne penalty demanded.....circumstances of the case'.
I would also add another point which is procedural impropriety.
The NOR must, among other matters:
ii)indicate the nature of an adjudicator’s power to award costs,
and
(iii)describe the form and manner in which an appeal to an
adjudicator must be made, and
The NOR states:
'There is no charge for appealing and costs are not normally
awarded. Details about when an order for costs can be made can
be found on the website..'
The regs provide at para. 13 of Schedule 1 to the Appeals regs:
3), an adjudicator may make an order awarding costs and
expenses—
(a)against a party (including an appellant who has withdrawn an
appeal or an enforcement authority which has consented to an
appeal being allowed), if the adjudicator considers that—
(i)the party has acted frivolously or vexatiously, or
(ii)the party’s conduct in making, pursuing or resisting an
appeal was wholly unreasonable;
(b)against an enforcement authority, where the adjudicator
considers that the disputed decision was wholly unreasonable.
IMO, 'costs are not normally awarded' does not meet the
requirement for what the NOR must 'indicate'. What the authority
have done is to signpost where, outside of the NOR, the
mandatory info may be found.
cp has experience of this issue i.e. the distinction which the
courts draw between whether something is presented e.g.
evidence, as opposed to simply being referred to in another
place e.g. a link.
I would add that this point is fundamental to the way most
authorities outside London structure their NORs and therefore
might be finessed by an adjudicator if they're minded to allow
an appeal on the first grounds.
WaIt for others.
#Post#: 16636--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: March 1, 2024, 1:33 pm
---------------------------------------------------------
--- Quote from: Incandescent link ---
>
> When did you submit the representations against the Notice to
Owner, and how did you submit them ? Under the Traffic
Management Act 2004, they have 56 days to respond. If this is
exceeded, you win by default. The 56 days is counted from the
date the council receive the reps.
>
--- End Quote ---
Unfortunately, it has been less than 56 days :( I think it has
been around 30ish days since submission.
--- Quote from: H C Andersen link ---
>
> Part of the council's reasons for rejecting your reps was that
the alternative of paying by phone was available and should have
been used. IMO, it is therefore totally contradictory to insist
that a pay and display ticket or voucher was required to be
displayed. IMO, their own statement supports your claim and I
would start your appeal with this. IMO, the correct grounds of
appeal are 'tne penalty demanded.....circumstances of the case'.
>
> I would also add another point which is procedural
impropriety. The NOR must, among other matters:
>
> ii)indicate the nature of an adjudicator’s power to award
costs, and
>
> (iii)describe the form and manner in which an appeal to an
adjudicator must be made, and
>
> The NOR states:
> 'There is no charge for appealing and costs are not normally
awarded. Details about when an order for costs can be made can
be found on the website..'
>
> The regs provide at para. 13 of Schedule 1 to the Appeals
regs:
> 3), an adjudicator may make an order awarding costs and
expenses—
>
> (a)against a party (including an appellant who has withdrawn
an appeal or an enforcement authority which has consented to an
appeal being allowed), if the adjudicator considers that—
>
> (i)the party has acted frivolously or vexatiously, or
>
> (ii)the party’s conduct in making, pursuing or resisting an
appeal was wholly unreasonable;
>
> (b)against an enforcement authority, where the adjudicator
considers that the disputed decision was wholly unreasonable.
>
> IMO, 'costs are not normally awarded' does not meet the
requirement for what the NOR must 'indicate'. What the authority
have done is to signpost where, outside of the NOR, the
mandatory info may be found.
>
> cp has experience of this issue i.e. the distinction which the
courts draw between whether something is presented e.g.
evidence, as opposed to simply being referred to in another
place e.g. a link.
>
> I would add that this point is fundamental to the way most
authorities outside London structure their NORs and therefore
might be finessed by an adjudicator if they're minded to allow
an appeal on the first grounds.
>
> WaIt for others.
>
--- End Quote ---
Thanks for your thoughts - yes I agree with you. I have also
seen previous adjudicators allow the appeal based upon other
procedural matters where the Authority does not explicitly say
that the Tribunal has the power to extend the time permitted to
submit an appeal to the IPT.
Has anyone gone to the tribunal lately? is it all done via
written correspondence or do I need to orate my case over the
phone to someone?
#Post#: 16642--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: fraser.mitchell
Date: March 1, 2024, 4:37 pm
---------------------------------------------------------
If you take the matter to the Traffic Penalty Tribunal, you have
the choice of papers-based, telephone, or video adjudication.
We strongly recommend OPs never opt for papers-based, as it
means no questions or clarifications can be dealt with.
HTML https://www.trafficpenaltytribunal.gov.uk/
#Post#: 16822--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: March 5, 2024, 7:00 am
---------------------------------------------------------
Ok thanks. Anyone have any tips/advice on going through the
process apart from not going the paper-only route.
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