His answers reveal the following:
- Rochdale Council have issued 28,260 unlawful Penalty Charge Notices which did not contain the mandatory wording as required by the Road Traffic Act 1991. As a result, income totalling £660,052 has been unlawfully derived.
- 409 cases have been referred to the bailiffs.
- NPAS even adjudicated in favour of the Council on 18 occasions and failed to spot the unlawful PCN. Their competence must be called into question.
- When the illegal wording was brought to the attention of the Council in NPAS case number 58 the PCNs were immediately changed. You do not change correctly worded PCNs
- The Department for Transport did not have sight of Rochdale's PCN in their DPE application
- The Council have no proposals to refund the money.
Well, I am sure that there will be 28,260 who beg to differ.The full list of questions and Mr. Mayor's responses are listed below: (Herron / Mayor)
14th October 2005
Mr. Kevin Mayor, Parking Enforcement, Rochdale Metropolitan Borough Council, PO Box 39, Municipal Offices, Smith Street, Rochdale OL16 1LQ
Dear Mr. Mayor
1. You stated that (regarding the incorrect wording on the Penalty Charge Notices) that you had taken advice from consultants, Argonaut on the matter and that there was nothing wrong with the PCNs which contained the wording 'To the Driver of the Vehicle'. You then stated that it was not a written opinion on the legality of the PCNs but an informal opinion. When questioned further you stated that the opinion was not from Argonaut but from someone whose name you refused to disclose.Can you please advise as to whose informal opinion you were referring to regarding the legality of the PCNs and under the Freedom of Information Act 2000 can you please provide any records of that opinion?Or can you confirm that no such opinion exists? If it is the latter, I would be grateful for a written apology for making a misleading statement.
Dear Mr Herron
ROCHDALE MBC – DECRIMINALISATION PARKING ENFORCEMENT REGIME
I refer to your letter of 14 October 2005 regarding the above and have the following comments to make on the points you raise.
1. The informal opinion was from Peter Lowe of RTA Associates (copy email of 5 October 2005 attached).
NB. This is in the form of an e-mail from Peter Lowe (firstname.lastname@example.org) to Kevin Mayor and cc'd to Gill Shore (Parking Services) dated 5th October 2005.
I have tried to ring but you are engaged!! surprise. Gerald is on holiday. roger Shwartz rang me back to say the response on the phone is basically, "all PCNS were issued legally in the eyes of RMBC and if anyone wants to take it further they have to write in." then let them go to court if necessary as you have done nothing wrong operationally and it is only a play on words that is causing the problem. the fact that numerous adjudicators have let them through prior to one making a fuss would weigh heavily in your favour he thinks. I know it is not much but he does not see too much of a problem defending it.
best of luck
2. You inform me that you have no website informing the public as to the nature, location and extent of Rochdale Council's DPE regime, and it will not be in place for possibly another six months. Can you please advise as to why this was not considered necessary prior to the commencement of DPE and confirm that this is an unacceptable state of affairs?
2. Whilst a website concerning D.P.E. is desirable It is by no means mandatory. Any member of the public receiving a Penalty Charge Notice will be advised of the process If they enquire. The documentation of the DPE system In Itself Informs the motorists of their rights at all stages.
3. Can you please supply a copy of the Audit Report you referred to detailing this failure to provide information?I would be grateful for the answers to a number of further questions (please treat as a request under the Freedom of Information Act 2000 wherever necessary):
3. Enclosed Is a copy of the Council's internal audit report on the introduction of DPE in the Borough.
4. Can you please advise as to the exact date when Rochdale Metropolitan Borough Council began their Decriminalised Parking Enforcement Regime?
4. Rochdale MBC began its DPE regime on 4th July, 2004.
5. Can you please advise as to when and how it was brought to your attention that Rochdale Borough Council's Penalty Charge Notices were incorrectly worded?
5. In an adjudication case no., RE58 dated 27th July, 2005 It was pointed out that the Council's PCN's varied from the Department of Transport Model Notice.
6. How many Penalty Charge Notices have been issued from the inception to date?
6. A total of 32,288 PCN's were issued between 4 July, 2004 and 30 September 2005.
7. How many PCNs were issued with the incorrect wording:"TO: THE DRIVER OF THE VEHICLE SHOWN BELOW"and can you please confirm the amount of income derived from these unlawful PCNs?
7. Between 4th July 2004 and 1 August 2005 a total of 28.260 PCN's were issued, the income from which was £660,052.
8. How many of these incorrectly worded PCNs have ended with enforcement action by bailiffs?
8. To date a total of 409 cases have been referred for action by Bailiffs.
(No point 9)
10. Have you now changed the wording? If so, can you please advise as to when and please supply a copy of both pre and post decision PCNs?
10. The PCN's were changed on 2 August, 2005, copies of both are enclosed.
11. Can you please confirm that all of the PCNs issued with the above incorrect wording are 'void and unenforceable'?
In order to assist you with this I have copied below an NPAS decision from 25th May 2000
Mr. C v Hastings Borough Council
Case Number: HS0013
The effect of a Council disregarding the statutory provisions set down in the Road Traffic Act 1991 for notices and time limits was considered in Moulder v Sutton London Borough Council (1994 LPAS 1940113243). The Adjudicator, G.R. Hickinbottom, following Sedley J.'s (as he then was) judgment in R -v- The London Borough of Tower Hamlets and the Tower Hamlets Combined Traders Association, (1993 unreported) determined where the Road Traffic Act 1991 stipulated that (in the Moulder case) a Penalty Charge Notice "must state certain requirements (Section 66(3)), those requirements are mandatory. Therefore a Penalty Charge Notice failing to contain each of the requirements set down in section 66(3) is void and unenforceable. Since Paragraph 1(2) of Schedule 6 of the Acts sets out the requirements to be contained in a Notice to Owner in the identical words, namely,"A notice to owner must state",it follows that the requirements are mandatory. Any Notice to Owner that does not comply with those requirements is void and unenforceable.
11. The Council do not accept that the PCN's are void and unenforceable
12. In the Rochdale Observer (4th October 2005) you were quoted as saying, "Since DPE was introduced in Rochdale, the ultimate liability has always been with the registered keeper of the vehicle. There has never been a fixed legal wording of notices." (my emphasis).Can you confirm that this statement in bold type is incorrect?
13. You then go on to say, "Penalty Charge Notices issued before this time have been accepted by the National Parking Adjudication Service."Can you please provide details of the following:(i) The number of PCNs which have been appealed to NPAS and their outcomes?(ii) Whether the incorrect PCN was included in the evidence bundle from Rochdale Metropolitan Borough Council(iii) Can you please confirm that Rochdale Metropolitan Borough Council received the 'Recommendations/Guidelines’ that NPAS have issued to all local authorities since the inception of NPAS, and can you please provide a copy?(iv) Can you please confirm how many tickets have been refunded to date and the amount?
13 (i) Prior to NPAS case RE58 the outcomes were as follows:
29 cases not contested 18 Appeals refused
9 Appeals allowed
2 Appeals withdrawn.
(ii) Copies of the PCN's are always included in the evidence pack. Two copies of the PCN are printed at the time of issue. The duplicate is sent to NPAS.
(iii) NPAS Circulars can be accessed on the NPAS website; accordingly copies are not enclosed because they are reasonably accessible by other means (i.e. Via the NPAS website).
(iv) No PCN payments have been refunded as a result of NPAS decisions. No payment is made prior to an NPAS appeal.
14. Can you confirm that steps will now be taken to immediately refund all the money obtained unlawfully by contacting the motorists directly and issuing notices to the press and media?
14. There are no proposals to refund PCN income.
15. Can you please confirm that Rochdale Metropolitan Borough's Treasurer will be informed that there are unlawful items of income contained in the Council's accounts, and confirm the amount, and provision will be made to ring-fence this unlawful income in order to protect the monies to be refunded?
15. There are no proposals to ring-fence income in the Council's Accounts.
16. Can you please advise as to whether the DPE application made to the Department for Transport to create Statutory Instrument 2004 No. 1402 'The Road Traffic (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Rochdale) Order 2004' included a copy of the proposed PCN?
16. No PCN was submitted with the DPE application to the Department of Transport. None was requested, only information on the proposed PCN level.
17. Can you confirm whether there was an inspection carried out of all the relevant Traffic Regulation Orders, signs lines and plates and proposed PCNs prior to the implementation of Decriminalised Parking Enforcement? If so by whom, and were all the recommendations acted upon?
17. There was an independent inspection made of all the lines and signs in Rochdale MBC by the Greater Manchester Transportation Unit acting on behalf of the Council.
Recommendations arising from the inspection were dealt with by a new Consolidation Order with amendments which was advertised and made prior to the commencement of DPE.
18. Can you please confirm receipt of this e-mail and confirm that you will provide the Chief Executive, Treasurer, Head of Legal Services and the Leader of the Council with a copy along with all of Rochdale Metropolitan Borough Council's councillors?I hope that Rochdale Metropolitan Borough Council accepts full responsibility for its actions without the need for a protracted internal or external investigation involving the expenditure of more public money and look forward to Rochdale Metropolitan Borough Council doing 'the decent thing.'
18. The content of your letter has been circulated to all relevant Council officers and appropriate Council Members briefed.
I apologise for not replying earlier, please confirm that you are now withdrawing your complaint under the Freedom of Information Act 2000.
I hope this letter is helpful.
J K Mayor
Parking and Business Development Manager