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#Post#: 18707--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: ivanleo
Date: March 31, 2024, 4:05 pm
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--- Quote from: kingsy link ---
>
> Have you got any advice? I'm assuming I should probably do the
hearing?
>
--- End Quote ---
Undoubtedly, but I may be able to do the hearing for you, I'll
drop you a PM.
#Post#: 19797--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: April 16, 2024, 1:39 pm
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Rough skeleton argument:
--- Quote ---
> I am appealing the PCN BM40615144 with the following main
points:
>
> 1. There are compelling reasons why with the particular
circumstances of the case that the authority should cancel the
penalty charge according to Regulation 5 (2)(b)(ii)
> 2. The NoR served did not inform me of the capacity of the
adjudicator to permit appeals after the 28 day period under
Regulation 7(1)(b)
> 3. The NoR served did not indicate the nature of an
adjudicator’s power to award costs according to Regulation 6
(6)(a)(ii).
> 4. NoR does not state that in addition to the grounds outlined
in Regulation 5 (4) that a ‘compelling reasons’ argument can be
made to cancel the penalty as stated in Regulation 5 (2)(b)(ii).
>
> 1.
> The compelling reasons as to why this particular charge should
be canceled are as follows. On the night of the alleged
contravention:
> The one and only ticket machine for dispensing pay and display
tickets was out of order (see Figure 2).
> To the driver’s best knowledge there were no other methods of
payment available at the time of the alleged contravention as it
was almost pitch black in the area around the machine and sign
due to the lighting being faulty and/or off.
>
> In response the local authority argued that the details for
the ‘pay by phone’ facility was printed on the machine and so
there was an available method to pay and that I had examined the
machine. I had never said I inspected the machine in any of my
representations.
>
> They also stated that the lighting was sufficient because in
the enforcement officers photographs of the parked car, it shows
that specific area where my car was lit. What they fail to
mention is that the location of where the car was parked and the
machine are not the same nor were there any machines located
near where the car was parked, this has not been disputed by the
local authority. It is quite possible for the car to be lit and
the main parking machine and signage to be in darkness. This is
backed up by the enforcement officer’s own image of the main
sign (Figure 1.) and it shows that a strong flash was used when
the picture was taken. If you also look at the image taken at
the time when an attempt to purchase a ticket was made by the
driver, it is clear that none of the machine’s features are
visible at all except the backlit screen, clearly showing how
dark it was in the area surrounding the machine.
>
> It should be noted that the driver noted that the car park was
more lit when they returned to their vehicle than when they
initially first parked at around 1945. One reason for this is
that at the time of parking, it was dusk and the automatic
detectors for the lighting may not have turned the lighting on
yet. This is important as the enforcement officer’s images were
taken much later in the evening after 9 pm.
>
> In addition to this, there is nothing on the sign itself to
indicate that there are alternative methods to pay for a pay and
display ticket nor has the authority given and proof that such
information is on the pay and display ticket machine itself
which they allege is present in the NoR.
>
>
> 2.
> According to Schedule 2 part 2 para. 13 of Civil Enforcement
of Road Traffic Contraventions (Representations and Appeals)
Regulations 2022 an adjudicator is able to make costs under
specific circumstances outlined here. According to Regulation 6
(6)(a)(ii) an authority, if it does not accept representations,
its decision notice must “indicate the nature of an
adjudicator’s power to award costs”. In the NoR that the
authority, under section 4 the only references to the
adjudicator’s power for awarding costs are the sentence “..costs
are not normally awarded. Details about when an order for costs
can be made can be found on the website”. A reasonable person
would not be able to discern the nature of the adjudicator’s
power to award costs and referring the reader to a website is
not sufficient to meet Regulation 6 (6)(a)(ii) as it must be
within the NoR.
>
> 3.
> The NoR it does not state that an adjudicator may extend the
28 days provided for lodging an appeal as provided by Regulation
7(1)(b) and while not required by any Regulation, existing
Tribunal cases have accepted appeals on this point (see S.
Sinclair vs London Borough of Lewisham, Case Ref 218033612A, 21
May 2018).
>
> The only references to the 28-day limit are Page 2 of the NoR
under heading 1. The reasons for rejecting your representations
where it states in the last paragraph that “You have now 28 days
from the date of this Notice of Rejection being served to pay
the Penalty Charge or to appeal to an independent parking
adjudicator (see below).” Later under section 4. How to appeal
your decision, it states that “You should appeal before the end
of the 28-days beginning with the delivery of this Notice of
Rejection. Our website will explain this further.” Neither of
these points clearly state the power of the adjudicator to
extend this period.
>
> Sinclair v Lewisham goes on to say, “a reasonable reader of
the NoR would be unlikely to conclude that an adjudicator had
the power to extend the 28 day period. That discretionary power
is, in my view, an important component of appellate process and
a power of which a potential appellant should be made aware.” It
goes on to state in Miller v. London Borough of barnet
(2170241413, 21 June 2017) another adjudicator, Mr. Chan held
that “...it was essential that a Notice of Rejection describes
the power of potential extension to the 28 day limit.”. He went
on to say that a NoR that does not contain this detail does not
describe in general terms the form and manner in which an appeal
to an adjudicator must be made, in accordance with Regulation
6(1)(c).
>
>
>
>
> 4.
> The ability to be able to appeal to an independent third-party
is a fundamental component as highlighted in my previous point 3
by various previous adjudicators. Any reasonable person reading
those statutory grounds for appeal would not be able to deduce
that a ‘compelling reasons’ argument can be made for the penalty
to be canceled under Regulation 5 (2)(b)(ii). This would in turn
deter any potential appeals by appellants again penalty charges.
>
> It should also be noted that at the ‘informal’ appeal stage
this list of statutory grounds for appeal was also present in
the response received from the local authority, clearly stated
in a numbered list. I would assert that this list, without the
‘compelling reasons’ ground, stated at multiple stages of the
appeal process by the local authority only disincentivizes any
appellants to continue with the appeals process.
--- End Quote ---
#Post#: 19798--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: April 16, 2024, 1:50 pm
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TRO / New Charges evidence from the council for those concerned.
[attachment deleted by admin]
#Post#: 20023--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: ivanleo
Date: April 19, 2024, 3:36 pm
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Here are:
The Birmingham City Council (Off-Street Parking Places) Order
2018
HTML https://drive.google.com/file/d/1pA5QGCePrWH8z2-wbVQRiQNOlq-4GqCe/view
The Birmingham City Council (Birmingham City Council (Off-Street
Parking Places) Order 2018) (Variation) (No.1) Order 2023
HTML https://drive.google.com/file/d/1RctQxqh3Hq-42mVLg61QmbMXzE4FYCf7/view
I've run the first one through OCR software so it can be
searched, why local authorities don't do this with all their old
paper-based orders is beyond me.
[member=1078]kingsy[/member] how did your hearing go?
#Post#: 20660--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: kingsy
Date: April 25, 2024, 5:07 pm
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--- Quote from: cp8759 link ---
>
> Here are:
>
> The Birmingham City Council (Off-Street Parking Places) Order
2018
HTML https://drive.google.com/file/d/1pA5QGCePrWH8z2-wbVQRiQNOlq-4GqCe/view
> The Birmingham City Council (Birmingham City Council
(Off-Street Parking Places) Order 2018) (Variation) (No.1) Order
2023
HTML https://drive.google.com/file/d/1RctQxqh3Hq-42mVLg61QmbMXzE4FYCf7/view
>
> I've run the first one through OCR software so it can be
searched, why local authorities don't do this with all their old
paper-based orders is beyond me.
>
> [member=1078]kingsy[/member] how did your hearing go?
>
--- End Quote ---
yeah had the hearing, nowhere near as bad as I thought it would
be! He adjourned it as he wanted to consider whether he wanted
to give the council a chance to respond to the evidence I
uploaded at the last minute.
Either way he decided not to give council second chance and
allowed my appeal simply on my account of the contravention in
question and evidence I had of the ticket machine.
Thanks for your help!
#Post#: 20664--------------------------------------------------
Re: Birmingham City Council, code 83 parked without displaying
valid ticket, Moseley Village Car Park
DIR By: fraser.mitchell
Date: April 25, 2024, 6:32 pm
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Well done, your persistence paid off !
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