titlepage/contents pg 1-16 - British Parking Association

Compliance and Enforcement 147● The vehicle had been parkedby someone who had taken itwithout the consent of theowner;● The (traffic regulation/management) order wasinvalid;● The vehicle had been hiredand the person who hired ithad signed a statement ofliability for penalty charges;● The penalty chargeexceeded the amountapplicable in thecircumstances of the case;and● (In London only) the parkingattendant had not beenprevented from serving aPenalty Charge Notice,where a Council believedthat this was the case and sohad served the Notice bypost.Where a vehicle has beenclamped or removed theownership ground does notapply, instead there are twofurther grounds:● That 15 minutes had notelapsed since the expiry ofpaid-for time; and● That a current disabledbadge was displayed in thevehicle.Consideration ofrepresentationsThe RTA places a duty onCouncils to considerrepresentations. While thestatutory duty is in respect ofrepresentations received inresponse to a NtO, they are alsounder a general duty to considerproperly the “informal”representations made before anNtO has been issued. The dutyto consider representations alsoextends to the duty to givereasons. These shouldspecifically deal with the issuesraised by the representationrather than be a standard letter.Experience has shown that, if thefirst representations areresponded to with a reasonedreply, there is a higher proportionof penalties settled at thediscount, and the numbers ofNtOs needing to be issued arereduced. It is recommended thatif a motorist writes in within 14days of the PCN then thediscount is extended by a further14 days in the reply letter.A common problem for Councilstaking on DPE is to underresourcethe administrativearrangements behind thescheme and consequentlybecome overwhelmed by thevolume of correspondence andtelephone calls they receive.However, if first roundrepresentations are dealt with ina cursory manner withinappropriate standard letters, itcan create dissatisfaction andlack of faith in the Council’s DPEoperations.Mitigation andextenuatingcircumstancesThere will be occasions wherethe motorist accepts that acontravention occurred and nostatutory ground of appealapplies, but he or she considersthat the imposition of a penaltycharge is neverthelessinappropriate and wishes tomake a plea of mitigation as towhy the penalty charge shouldnot be pursued.Councils have discretion not topursue a penalty charge at anystage of the procedure and have,as a matter of administrative law,a duty to act reasonably, fairlyand without fettering thatdiscretion. It would, therefore, bea breach of that duty if a Councilwere to act unreasonably orunfairly or to fetter its discretionwhen considering suchrepresentations.Care must be taken not to treatcases where a lawful exemptionapplied as mitigation. If a vehiclewas engaged in loading orunloading, or setting downpassengers, then there will nothave been a parkingcontravention, even though theparking attendant may havebeen correct to issue the PCN.The Council is under a statutoryduty to cancel the PCN in these