10 January 2018

Barnet Council not considering discretionary cancellation

Mr Mustard has long suspected that the parking department at Barnet Council just say 'no' to the public as most give up when faced with an obdurate opponent. Mr Mustard ignores such game playing and just plods through the process until the moment of real truth, when arguments are properly tested, by an independent adjudicator at London Tribunals.

Here is a tribunal decision where Barnet Council get put straight.

Ms Y did not attend the hearing listed today. I decide the appeal on the written evidence of both parties.

The Penalty Charge Notice was issued when the appellant’s car was parked in a parking bay in Golders Green Road. The car was parked in a bay with location 5882. No payment had been made to park the car in that bay. Ms Y had inadvertently paid to park the car at location 5879 a parking bay on the opposite side of Golders Green Road. Ms Y argues that she did pay to park the car in Golders Green Road and that the London Borough of Barnet has received £4.30. In representation made in response to the Notice to Owner Ms Y stated ‘ it does not seem fair or equitable to punish me for making an innocent mistake, especially when the LB of Barnet has suffered no loss.‘

The Notice of Rejection states ‘it has been noted ..that you had made payment for a different bay at the same location and I do empathise (like hell do they - Mr M) however I must advise although you stated that the incorrect bay was paid for it is up to the motorist to make sure the correct details are entered and as such no exemption to the outstanding charge can be made

Regulation 4 (2) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 allows a representation against a Notice to Owner to be made either on the basis of specific grounds set out in Regulation 4(4) or under Regulation 4(2)(b) ii ‘that whether or not any of those grounds apply there are compelling reasons why in the particular circumstances of the case the enforcement authority should cancel the Penalty Charge Notice and refund any sum paid to it on account of the penalty charge.’

Regulation 5 clearly states that the local authority is under a duty to consider representations made under Regulation 4(2)(b) ii.

In the case summary the local authority states that it considered the mitigating circumstances. This is not apparent from the Notice of Rejection. The Notice of Rejection clearly states that no exemption to the outstanding charge can be made. This is not correct. The local authority always has a discretion to cancel a Penalty Charge Notice. If Robin Moorwood who wrote the Notice of Rejection believes that there is no exemption to the outstanding charge it follows from this that discretion not to enforce the Penalty Charge Notice cannot have been considered.

One of the grounds of appeal set out in Regulation 4(4) is that there has been a procedural impropriety on the part of the enforcement authority. Procedural impropriety is defined as a failure by the enforcement authority to observe any requirement imposed by the Traffic Management Act 2004 and the Regulations issued under that Act.

I find that the local authority has failed in its duty to consider representations made under Regulation 4(2)(b) ii. Therefore I find that there has been a procedural impropriety and I allow this appeal.

The council like to make out that once a PCN has been issued they are powerless to do anything other than pursue it. Nothing could be further from the truth. The council can cancel any PCN, even one which has been correctly issued, as it is their PCN as the issuing enforcement authority.

Mr Mustard likes what Ms Y wrote about being punished when Barnet Council have their money for parking. If the council wanted the PCN paid and to ignore the payment for parking they should, in Mr Mustard's fair opinion, refund it automatically. Anything else is trying to have your cake and eat it.

The council are greedy like that. They want cake and lots of it. Don't let them have yours, fight over it.

Yours frugally

Mr Mustard

For experts: case 2170548427

1 comment:

  1. Mr Mustard, you're being very busy for somebody who told us all they were going to wind things down a bit in 2018 !! If you can manage it, please keep going !


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