This is one of the most damming cases I have ever read.
Case Reference: 2130028115
Appellant: Asif Nazir
Authority: Newham
VRM: Y288KAP
PCN: PN05576918
Contravention Date: 06 Jan 2012
Contravention Time: 11:37
Contravention Location: Outram Road
Penalty Amount: £130.00
Contravention: Parked in a restricted street
Decision Date: 20 Feb 2013
Adjudicator: Neeti Dhanani
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and refund the penalty charge and the release charges paid.
Reasons: The appellant appeared before me at the hearing. His vehicle had received a Penalty Charge Notice for parking in Outram Road and it was subsequently removed. The vehicle has not been recovered by the appellant and it has been incurring storage charges at a daily rate since its removal. The charges currently stand at £5720.00.
The appellant admitted his vehicle was parked in Outram Road but states that when he parked his vehicle there was no sign detailing any restriction. He produced two witness statements in support. He stated that he had left his vehicle at the location on the 5 th January and returned on the 9 th January to find his vehicle had disappeared.
The appellant challenges the issue of the Penalty Charge Notice and has raised two points. Firstly the time of issue shown on the Penalty Charge Notice is 11:37 but the photographs timed at 10:19 show a Penalty Charge Notice affixed to the vehicle. If the Penalty Charge Notice was not issued until 11:37 it seems strange that a photograph taken over an hour prior to the issue of the Penalty Charge Notice shows a Penalty Charge Notice affixed to the vehicle.
Secondly the appellant states that the restriction was not adequately indicated by any visible signs.
The Authority has produced a copy of the Penalty Charge Notice as well as photographs and a copy of the notes recorded by the civil enforcement officer as well as other evidence in support of the contravention and the further enforcement action.
It is their case that the vehicle was parked outside 67 Outram Road contravening a temporary waiting restriction which was in force on 6 th January 2012 from 08:00 to 16:30.
The Authority is under a duty to provide reasonable signing so as to give the motorist fair warning of any restrictions, which are in force. Once an Appellant has raised the issue of inadequate signing, the burden of proving to the Adjudicator that the necessary standard has been reached falls on the Authority.
The Authority claims that warning signs were erected in the road did warn motorists that "offending" vehicles were subject to removal. The Authority has produced a copy of an email dated 8 February 2012 from David Goulding stating that "Outram Road was leafleted on 28 December and signs erected on 31 st December". The photographs timed at 13:20 show that there is a sign in place. The sign is at low level and not at the height at which most sign plates are usually erected. On the evidence before me on a balance of probabilities I am satisfied that a sign was in place on the date of the contravention. Although the sign is not placed at a height that one would normally expect to see such signs given the size of the sign I find that in this case the sign was adequate.
The Authority states the vehicle was removed at 13:22. They have produced a copy of the notes made by the civil enforcement officer who issued the Penalty Charge Notice as well as the notes made upon removal of the vehicle. The notes regarding the removal of the vehicle are time at 13:28 and they record that the vehicle was lifted at 13:22. The photographs produced show that in fact the vehicle was lifted at 13:20.
The discrepancies in the time of issue of the Penalty Charge Notice and the time the vehicle was lifted throw doubt on the reliability of the notes recorded by the civil enforcement officers.
The appellant claimed that he did not collect his vehicle as soon as he became aware that it had been removed as when he had received a Penalty Charge Notice on his vehicle in the past, he was prevented from challenging the Penalty Charge Notice as he had paid the penalty at the discounted rate. As result he was of the view that he was not able to pay the penalty and still challenge the enforcement action.
He produced a copy of a letter dated 17 January 2012 from the authority stating that "...unless collected within 7 days of the date of service of this letter, the vehicle will be disposed of by Newham Council.............Before your vehicle can be released you will have to pay £65 for the Penalty Charge Notice, a release fee of £200.00 and £40.00 storage charges for each day that the car spent in the pound.....". He states he wrote to the Authority and he received a letter dated 8 th February 2012 which stated on the last page third paragraph form the end "If payment is not received as detailed, I shall assume that you wish to pursue the matter and shall arrange for a notice to owner to be sent after the period of 14 days to the registered keeper of the vehicle so that formal representations may be made." He states he was waiting for the Notice to Owner in order to make representations but he did not receive a Notice to Owner until October 2012.
The letter of the 8 th February 2012 contains contradictory information as in addition to stating that the appellant should wait for a Notice to Owner it also states on the first page:
"The procedure to make representations against the removal can be done within 28 days of recovering the vehicle from the vehicle pound."
He states that whilst he was waiting for the Notice to Owner he received a letter dated 15 February 2012 which contradicted the letter of the 8 th February as it stated:
" Failure to respond to this notice within 7 days of the date of this letter will result in the disposal of the vehicle. You will remain liable for any of the outstanding Penalty Charge Notices..." He stated that the letter showed he was liable for a total of £1,890. He states he wrote to the Authority in March and in May but heard no more from them he states he wrote to the subcontractors Greenspace for information but did not receive any reply.
The problem stems form the fact that the Authority in its letters to the appellant made contradictory statements as to the appellant's rights to make representations. The relevant provisions are contained in the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, Regulation 11 of which requires that a person whose vehicle is removed should immediately be informed of his right to make representations to the Authority and of his right to appeal to the adjudicator if his representations are not accepted. The correspondence shows that the Authority did not inform the appellant of his rights in accordance with Regulation 11. This amounts to a procedural impropriety on the part of the Authority.
I am concerned that the enforcement action taken by the Authority in removing the vehicle to the pound was not in accordance with the Secretary of States Statutory Guidance issued under the Traffic Management Act 2004. Paragraphs 51 to 61 of the Guidance specifically deals with the Authority's powers of removal of vehicles. It states that the Secretary of State is of the view that power to immobilise should only be used in limited circumstances and should only take place where it gives clear traffic management benefits.
Section 87 of the Traffic Management Act 2004 states that the Authority must have regard to the Guidance.
The Authority may remove the vehicle to another road or another position on the road where the vehicle was found. The vehicle does not have to be removed to the pound.
In this case it appears that there was adequate space available on the road for the vehicle to have been moved to another part of the road. I fail to see what traffic management purpose has been served by removing the vehicle to the pound when it could have been removed and relocated to another position in the street or another nearby street. As a result of the action taken but the Authority and the subsequent confusion caused by the letters sent to the appellant the costs have risen and the charges stand at
The Guidance recommends that the Authority formulate and publish clear guidelines for Civil Enforcement Officer's on when it is appropriate to use it's power to immobilise and remove. The Authority has not produced any evidence as to whether it has such guidelines in place and whether they were followed in this case.
It is not clear from the evidence whether the Authority is still holding the vehicle or whether it has been disposed of.
Regulation 101 of The Removal and Disposal of Vehicles Regulations 1986 (as amended) provides for the ultimate disposal of vehicles. The relevant provisions are as follows:
"101. Ultimate disposal of vehicles abandoned and removable under this Act.
(1) Subject to subsections (3) to [(5A)] below, a competent authority may, in such manner as they think fit, dispose of a vehicle which appears to them to be abandoned and which has been, or could at any time be, removed ......................................................
(3) The time at which a competent authority may dispose of a vehicle under subsection (1) above is as follows, that is to say-
(a) in the case of a vehicle which in their opinion is in such a condition that it ought to be destroyed;
(b) in the case of a vehicle, not falling within paragraph (a), which-
(i) does not display a licence (whether current or otherwise and whether or not the vehicle is required to display a licence), and
(ii) does not display any registration mark (whether indicating registration within or outside the United Kingdom),
at any time after its removal;
(c) in any other case, any time after such steps as may be prescribed have been taken by a competent authority (or partly by one competent authority and partly by the other) to find a person appearing to the authority taking such steps to be the owner of the vehicle and either-
(i) they have failed to find such a person, or
(ii) he has failed to comply with a notice served on him in the prescribed manner by a competent authority requiring him to remove the vehicle from their custody within the prescribed period.
Basically under the provisions of Regulation 101(3) above the Authority may only dispose of a vehicle at any time after its removal where the vehicle does not display:
1. a vehicle excise licence, and
2. a vehicle registration mark
if in their opinion the vehicle is in such a condition that it ought to be destroyed.
In this case the vehicle did display a current and valid vehicle excise licence and a vehicle registration mark as recorded by the Civil Enforcement Officer so the Authority did not have the power to dispose of the vehicle at any time after its removal.
The Authority has sought to exercise power to dispose of the vehicle by serving notice on the appellant requiring him to remove the vehicle from their custody within the prescribed period. However the power to serve such a notice does not apply where the vehicle displays a vehicle excise licence and a vehicle registration mark.
The Human Rights Act 1998 Part 11 of the First Protocol Article 1 provides individuals with the right to the Protection of Property it states:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
I cannot be satisfied that the degree to which the Appellant was deprived of his entitlement to peaceful enjoyment of his property by its removal and disposal was "....necessary to control the use of property in accordance with the general interest...", after all it had been removed and was being stored in the Authority's pound so presumably it was not of general interest to anyone other than the Authority, and therefore it was not a proportionate interference with that entitlement.
I find the Authority has acted ultra vires its powers in seeking to dispose or in actually disposing of the Appellant's vehicle (as the case may be), as such it was an unlawful act coupled with a demand for money. For a public authority to act in such a manner is deplorable and utterly unacceptable. If the vehicle has been disposed of the Appellant will be left without a car due to the unlawful actions of the Authority. My powers under the Traffic Management Act 2004 are very limited and as a result I cannot order that the Authority compensate the Appellant for the loss of his vehicle, this is a matter that the Appellant may want to refer to the County Court and or the Local Government Ombudsman if it is found that the vehicle has been disposed of.
Accordingly, I allow the appeal.
