Parking tickets at Shepway District Council could be disputed

J Edgar wrote:

To describe this as a loophole or a technicality is somewhat inaccurate, it is a clear statutory failure on the part of Shepway DC. The required content of a PCN and paper that flows from a PCN is clearly laid out in statute. This raises clear issues of the competence of both the parking enforcement and legal departments at Shepway DC. Do they not bother to check the compliance of paper that they issue against statute prior to its release.

Issues regarding compliance of CPE documentation have been decided in the High Court and legal precedent is set. One such notable case goes as far back as Aug 2006 and I refer to the binding High Court ruling of Jackson J in R v The Parking Adjudicator (ex p Barnet) , who at paragraph 41 states:

"Mr Lewis submits that even if there was non-compliance in this respect, nevertheless no prejudice was caused, PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

The pertinent points to this case being,

"Prejudice is irrelevant and does not need to be established." and "If the statutory conditions are not met, then the financial liability does not arise."

There have been numerous adjudications at both PATAS and TPT that apply this binding High Court ruling not only to the PCN but also to any paper that flows from the PCN such as the NTO and the NOR. A notable example of this is the PATAS case of Euroway v Kensington and Chelsea (Case No. 2070247503, Jan 2007), where the adjudicator, Martin Wood was quite scathing in his closing comments with regards to Local Authorities continuing failure to issue compliant documentation so long after the ruling of J Jakson in the Barnet Case, using words such as" astonishing" and "reprehensible". It is incredulous that now in 2010 Shepway DC, still fail to comply.

In closing the issues of legality raised here apply not only to the case in question and the outstanding unpaid cases, but also to all previously issued and paid NTOs that did not comply with the statutory requirements. Are Shepway DC willing just to sit back and benefit from this clear unlawful enrichment or will they be taking steps to refund all motorists that have received and paid Penalty Charges after receiving these unlawful NTOs?

The statutory conditions were not met, financial liability did not arise and therefore any monies collect were thus collected out-with the powers of Shepway DC.

"Local authorities are statutory creatures and can do nothing except that which is expressly or impliedly authorised by statute" -Lord Templeman in Hazell v. Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1

The actions of Shepway DC are unequivocally ultra vires.

Regards

J Edgar

26 Aug 2010 2:48 PM

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John Glacier wrote:

The Law says Councils can only do that which is expressly or implied allowed by statute.
Acting outside this means that those actions are unlawful - ultra vires.

This is not a loophole. It a failure by the trained, salaried and well pensioned council officers of the Parking Department, and possibly also the Legal Department as they surely approved the NTO as NTO are legal documents, to follow the parking legislation.
The same legislation that they enforce so vigorously for the smallest infraction by a motorist.

Beside the legislation the council, like every other one, has been given a superabundance of 'How To's, inter alia.
The council has been provided with sample NTOs to use - it didn't use them.
The council has to follow the Secretary of State's Statutory Guidance'- it didn't.

A loophole. Not at all.
A hole the council dug for themselves is more apt.
Could it be they had their eye too much on the revenue side and not enough on actually doing the job (they are paid to do) diligently properly and lawfully.

"It is the driver's responsibility to check the signs every time they park" is a favourite saying of councils when turning down parking appeals.
The council has a constant legal duty to make sure everything they do is expressly or impliedly allowed by statute.
They failed. They had a LOT of guidance and help to get it right but still they failed.

26 Aug 2010 2:08 PM

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