Unusual process error in Barnet

 

The above is Claverley Villas in Finchley Central. It has a single yellow line restricted from 2 to 3pm to stop all day parking and local business people park on it a lot and maybe move to avoid the hour or just take a chance. One such local professional person spotted the warden at 2:05pm on 16 February got his keys and scarpered rapidly. A PCN was not placed on the car or in his hand.

Let us call him Mr Bolt. The next thing he knew of a PCN having been issued was the receipt of a Charge Certificate dated 27 April. He had not received a Notice to Owner.

It was open to the council to send a PCN in the post due to the driving away but it seems the 'traffic warden' (CEO) must have recorded it as served at the scene.

If you want to fight there is nothing to do with a Charge Certificate except to wait for the Order for Recovery. That arrived at the end of May. The door is opened at that point to filing a witness statement that the Notice to Owner (or postal PCN) was not received. A signed witness statement was duly filed on 29 May that a Notice to Owner was not received. 

The Traffic Enforcement centre cancels the Charge Certificate and authorises the council to serve a fresh Notice to Owner. It duly arrived dated 16 June 26. Mr Mustard looked at it and was confused. It alleged that the vehicle in question was parked in a restricted street (i.e. one with a yellow line) being Claverley Villas but on 6 March 2026 at 09:51

There were two errors there, the council had no photos taken on 6 March and it isn't a contravention to park on that single yellow at 09:51

Someone had used some fancy footwork at the council and got two different processes mixed together. Mr Mustard was pushing at an open door when he made the representation denying the date and time. Barnet Council rapidly caved in.

Funny stuff, detail, it has to be correct. This was a new error which Mr Mustard had not seen in his 17 years of fighting PCNs. 

 

A load of nonsense in Bexley

Mr Mustard is going to take you step by step through a Regulation 10 PCN - one sent by post as the service of a PCN at the roadside was either prevented by violence (or the threat of) or by driving away (which is more common and is the case here. Mr Mustard advocates saying nothing to the 'traffic warden' give them a smile and a wave and get out of there as often councils get these situations wrong.

 

9 November 2023: a heavy parcel needs dropping off at the post office. The driver stops on a single yellow line just around the corner from the post office and on his way back from his mission sees the traffic warden, hurries to the car and drives away. The return and drive away is captured on the body worn camera of the traffic warden.

 

14 November 2023: A PCN is posted to the registered keeper who is the wife of the driver. The contravention time is given as 16:36

The notes of the traffic warden include 'VDA. Announced to driver it will be sent to his house'. It will but it won't be sent to him as it isn't his car.

 

24 November 2023: The driver makes a representation which is an error as he has no right to, his name not being on the face of the PCN. It was a well constructed challenge as he had taken advice on a forum of PCN experts who can't have been told of the fact of who was going to challenge:

You are absolutely entitled to wait for a reasonably short period on a single yellow line in order to load or unload provided that there aren't kerb marks across the kerb which prohibit such an activity some or all of the time.

 

This was a representation which the council should have accepted. They didn't.

 

12 January 2024: A Notice of Rejection is issued. Assuming it was posted the same day it would be deemed served two working days later which is 16 January. Thus the council had taken 54 days in which to serve their Notice of Rejection. 

 

They were only 2 days within the 56 day deadline.

 

Only one paragraph of the Notice of Rejection responded directly to the representation, viz:

Just because you express sympathy doesn't mean you have any and clearly the council didn't otherwise they would have cancelled the PCN. What is more, the rejection is based on the false premise that the car was not legally parked, when it clearly was.

 

22 January 2024: Mr Mustard stepped in and started an Appeal to London Tribunals, the home of the independent adjudicators. Mr Mustard hasn't shown you ground #2 as it was unlikely to succeed and he doesn't want you to rely on it alone.

At this point Bexley Council have a choice to make. Cancel the PCN because the Grounds of Appeal are likely to succeed or spend at least a couple of hours in producing the evidence pack which gives the adjudicator both sides of the story. 

6 February 2024: Bexley opted to contest the Appeal and duly produced the evidence pack.

14 February 2024: Mr Mustard went carefully through the evidence and filed a skeleton argument. The relevant parts follow (The motorist is not called Smith):

Now Mr Mustard has seen the Traffic Order which sets the council's rules for parking he has absolute proof that the parking was not unlawful (provided that the adjudicator accepts that the time taken to unload was not unreasonable) and so pokes Bexley Council firmly in the eye with their own rules.

As it happens Mr Oliver no longer sits as an adjudicator, his decisions were often followed by other adjudicators. Mr Chan is now the Chief Adjudicator and therefore his decisions are likely to garner respect. The adjudicator in this case is not bound by either of them as their decisions are not precedents but are legally persuasive. Here we had decisions in opposite directions on the same facts. That is the adjudicator lottery which sometimes faces Mr Mustard and why even having won before he cannot guarantee the outcome on an identical set of facts in another case. Mr Mustard is also obliged to point out cases both before and against his argument and his duty is to assist the adjudicator, not to be partisan.

The skeleton said that he would deal with the 'merely observing' argument on the day as he thought he would get a win on the other grounds so didn't need to spend further time in formulating and typing up his arguments.

In this case the bodycam footage was really useful to show exactly what happened at the time. Bear this in mind if you are thinking of exaggerating the truth in your representations.

14 February 2024: With the hearing set to take place on 22 February Mr Mustard emailed the skeleton argument to Bexley Council so that they were on immediate notice of it.

19 February 2024: Bexley Council emailed him to say they cannot disclose the case with me as I am not the registered keeper. The council had missed Mr Mustard's authority letter on file. It didn't notice the lack of authority when Mr Smith wrote in and wasn't authorised.

What happened next was unusual, the penny dropped with someone at Bexley Council, they have already done all the work but were perhaps concerned there might be a costs application for wholly unreasonable behaviour on their part.

Mr Mustard hasn't made a note of it but he probably received a phone call from the tribunal to tell him that the hearing on 22 February 2024 would not go ahead.

21 February 2024: the tribunal sent an email confirming the hearing would not go ahead.

What you can learn from this is that if you have a good argument a council will reject it regardless of merit and that you may have to go to an independent adjudicator to obtain justice. It costs you nothing and costs the council c. £30 which they never see again. Bexley Council have met Mr Mustard a time or two before and should have realised sooner that they were up against it.

Be persistent, forget about the 50% discount, you are aiming for a 100% discount. The odd loss is the price of learning.

The end.

When 'traffic wardens' meet

A funny story from the tribunal in Saturday's decisions. Here it is in full.

What is clear is that the Hounslow Council traffic warden who issued the PCN did so in a great hurry, as per usual, even though the motorist was in the frame from the very beginning.

Mr Mustard's advice is to calmly drive off in such a case as the notes made will often be deficient or the warden will make a false note as in this case. Mr Mustard has known the notes of the traffic warden to be destroyed by dashcam or doorbell footage.

If a traffic warden cheats you, please make a complaint to the council as otherwise they will continue.

The end.

Jump in - drive off

It seems to happen quite a lot that the traffic warden will be at or near your car when you return to it. With up to 50 of the little devils out there prowling the streets looking for victims you'll come across one sooner or later. Here is what happened to one man in September, as reported by the independent adjudicator at PATAS:

The Penalty Charge Notice was served through the post because a civil enforcement officer attempted to serve a penalty charge notice by affixing it to the vehicle or giving it to the person in charge of the vehicle but was prevented from doing so by some person.

The notes made by the civil enforcement officer merely state that the driver refused to accept the Penalty Charge Notice when offered to him; there is no evidence that the officer was prevented from issuing the Penalty Charge Notice. Even if a driver refusing to accept a Penalty Charge Notice is preventing it being handed to him, it is not preventing the officer affixing it to the vehicle; there is no suggestion or evidence that he was prevented from so doing.

In these circumstances the Penalty Charge Notice was not properly issued by being sent through the post. (The PCN was then cancelled)

So, a PCN cannot be served by post on the grounds that you refused to accept it. In that circumstance it's a race between you getting into your car and moving off and the traffic warden getting the PCN printed out, put into a yellow plastic envelope and shoved under your windscreen wipers or stuck to the car windscreen. You can make that more difficult by putting the wipers on and the washer jets if your screen happens to be a bit dusty. After that all you have to do is appeal the postal PCN and if that is rejected by Barnet Council / NSL off you go to PATAS and refer to case 2130541295 and the facts of your case. It is a quicker process with postal PCN, the informal appeal stage is omitted.

You can get a copy of the PATAS adjudication here.

You don't need to say anything to the traffic warden, cheerfully say "cheerio" if you want, or "not today thank you". Whatever your feelings please don't be rude to the traffic warden for two reasons, one, it's not necessary and two, he/she will put in their notes that you were aggressive or abusive and that will set the adjudicator against you.

If a traffic warden asks you to wait whilst they finish off the PCN do not do so. Politely say "no thank you" and leave; a traffic warden has no power to detain you and would be compounding any contravention you might be making.

Yours frugally

Mr Mustard