4 April 2018

Bought? / sold ? Just give us the money

The below is an extract of a recent tribunal hearing decision concerning Barnet council and their inability to read what was plainly in front of them. It was probably the result of either a sloppy error or the result of an overwhelming desire to reject representations as the penalty must be collected at all costs.

The Authority's case is that the Appellant's vehicle was parked in a restricted street during prescribed hours when in Rotherwick Road on 7 December 2017 at 11.07.

The Appellant's case is that he purchased the vehicle on the 7 December 2017 at approximately 3pm, which was after the time of the contravention.

I have considered the evidence and I find the Appellant's evidence to be credible and I find that at the time of the contravention on 7 December 2017 he was not the owner. I find that he had not purchased the vehicle until after the contravention had occurred and was at work at 11.07am that day.

Further, the Appellant made his position clear in his representations and informed the Authority that, 'I bought the car on the same day at around 3pm in the afternoon'.

In the Notice of Rejection the Authority has responded as follows, 'I note your correspondence which states that your vehicle was sold before the contravention occurred'.

This statement by the Authority is the opposite of what the Appellant had informed them, and I find the Authority's Notice of Rejection has not complied with its duty, under regulation 5(2)(a) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, which is to consider the representations and respond accordingly.

I find that the failure to accurately consider the representations of the Appellant to be a procedural impropriety.

Regulation 7(2) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that if the Adjudicator concludes that a ground specified in Regulation 4(4) above applies, "he shall allow the appeal".

An Appellant is entitled to have the points he raises properly considered by the enforcement authority pursuant to its duty under regulation 5(2)(a) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

Accordingly, taking these matters together or separately I find this Penalty Charge Notice cannot be upheld.

In light of my finding that the Appellant was not the owner at the time of the contravention I have cancelled the Notice to Owner but not the Penalty Charge Notice*.

The appeal is allowed.

*The PCN is not cancelled as that leaves the field clear, in this particular case, for the council to go back to the seller of the car, although they probably won't bother.

Mr Mustard has dealt with a similar case which turned on Newham Council  deciding that the buyer must have owned the car for the whole of the day as the DVLA registered him as the new keeper from the day of purchase. There will nearly always be two owners on the day of purchase with vehicles not usually changing hands at midnight.

This was the result from that case.

The Authority point out that neither the registration document nor the receipt show the time of the sale, and so their position is that because Mr L. was shown as the registered keeper of the vehicle on the material date, he was liable for this penalty charge.

It is perhaps surprising that the forms produced by DVLA for notifiying the transfer of a vehicle to a new keeper do not provide any field for the entry of a time of day, which clearly can be very important in cases like this. However I have had the advantage of hearing from Mr L. in person, and found him an entirely convincing and credible witness. I am quite satisfied that he has rebutted the presumption that as the person shown as the keeper of this vehicle on the date of this contravention he was the owner at the time of this contravention.

The appeal is therefore allowed.

If you aren't the liable party, take your fight to the tribunal, you will be listened to carefully.

Yours frugally

Mr Mustard

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