Wednesday, November 30, 2005

Rochdale Council given 7 day ultimatum...Give the motorists their money back!

Letter to Rochdale's Chief Executive...7 day notice

Roger Ellis
Chief Executive
Rochdale Metropolitan Borough Council,
PO Box 39,
Municipal Offices,
Smith Street,
OL16 1LQ
30th November 2005

Dear Mr. Ellis,

The response from Kevin Mayor, Parking and Business Development Manager, Rochdale Metropolitan Borough Council of 15th November 2005 is far from satisfactory.

In the letter Mr. Mayor confirmed that 28,260 Penalty Charge Notices (totalling £660,052) had been issued by Rochdale Metropolitan Borough Council between 4th July 2004 and 27th July 2005 under the Council's Decriminalised Parking Enforcement regime.

These PCNs contained the wording 'TO THE DRIVER' which render the PCNs 'void and unenforceable' under the mandatory requirements of the 1991 Road Traffic Act.

I have provided details of case law in communications previously, but for clarity have again included it below.1.

It is apparent that RMBC became aware of the fact that the PCNs were unlawful because the PCNs were immediately altered as a result of NPAS case number RE58 on 27th July 2005. The newly worded PCNs were used from 2nd August 2005 onwards.

The fact that NPAS failed to bring the matter to your attention at an earlier stage is an irrelevance as their incompetence is a separate matter and one which is to be challenged with a separate legal action.

It is Rochdale Council who have the legal responsibility and requirements to act within the law and that includes understanding the requirements of the legislation. The wording of the PCN is mandatory and not open to interpretation. The legislation is quite explicit in that regard...Section 66(3) 1991 Road Traffic Act.

The fact that you 'believed' that you were acting lawfully does not excuse the fact that you were not and the PCNs contained unlawful wording.

It is not possible for the driver to make any representations and there is no reference to the driver in the legislation. It is the owner / keeper who is responsible for any 1991 RTA contraventions. To make reference to the driver on the PCN is a fundamental and glaring error.

Mr. Mayor states that there are no proposals to refund the PCN income.I wish to put you on notice and have the matter placed on record that this money has been derived unlawfully and we wish for the monies to be refunded to everyone of the 28,260 motorists who have been unlawfully penalised.

I would be grateful for a response within 7 days confirming that you have raised the matter with Mr. Mayor, and confirmed the facts of the case.

I would be grateful if you would confirm that you will initiate proposals to repay the monies unlawfully derived to avoid costly litigation.

Should you fail to do so we reserve the right to pursue the Rochdale Metropolitan Borough Council on either an individual or a class action basis for the recovery of the money, damages and costs.

We will also pursue the matter with regard to Misfeasance in Public Office by various Council Officers and matters arising from the receipt, by a public authority of unlawfully derived income.

I would also be grateful if you could confirm that a copy of this e-mail will be made available to all elected members and the District Auditor.

It is my intention to bring the matter to the attention of Paul Rowen, MP for Rochdale who we expect to raise the matter in the House of Commons as well as the Rochdale general public at large via the press and media.

Adherence to the law is paramount for any local authority and for an authority such as Rochdale to act in such a cavalier and dismissive fashion with regard to their legal requirements and responsibilities, especially when they employ highly paid officials who should not be making such fundamental errors, is one which I am sure will solicit a very angry response from the ratepaying public.

I am sure that you will carefully consider your response which I will await with eager anticipation.

Yours sincerely,

Neil Herron
The People's No Campaign
12 Frederick Street
SunderlandSR1 1NA
0191 565 7143
07776 202045

1. 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 that 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.

2. For reference: questions to / and Responses from Mr. Kevin Mayor can be viewed here

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