Civil Enforcement Discretion and PCN Cancellation Policy

Reviewed October 2023

Introduction

This Civil Enforcement Discretion, and Penalty Charge Notice (PCN) Cancellation Policy amalgamates and supersedes the previously known Enforcement and Discretion Policy and the Penalty Charge Notice Cancellation Policy. This policy should be read in conjunction with all other NEPP and Council policies relating to Civil Parking Enforcement (CPE) including the Parking Operational Protocol.

This policy aims to inform the public and guide Council Officers and Members on the enforcement of parking regulations and notice processing of Penalty Charge Notices; this is consistent with current best practice and aims to provide clarity, consistency and transparency within the enforcement process and compliance with the aspirations of the Traffic Penalty Tribunal and the Local Government Ombudsman.

This policy represents a foundation upon which fairness and discretion can be applied, recognising that discretion may often be best applied retrospectively in the presence of all available evidence. The importance of flexibility in these matters has been recognised by the courts and, consequently, decisions made by councils must not be fettered by being unduly formulaic.

This policy addresses the following:

The required and recommended PCN information
The statutory grounds upon which representations may be made
When cancellation of a PCN is necessary
The mitigating circumstances that may warrant a PCN being waived

It is important to recognise each case will be considered on its own merits, matters of proportionality, objectivity, fairness, and reasonableness should be paramount.

The following is therefore a guide for information and non-prescriptive.

This policy will be frequently reviewed to ensure it reflects current local and national legislation, regulation, statutory guidance, and best practices. However, if this policy does contradict, then the appropriate legislation, regulation, or statutory guidance must be followed first.

PCN Cancellation

A PCN will be cancelled if the issuing CEO fails to record, or incorrectly records, any information required by the following regulations:

S.I. 2022/71, Schedule 2, Paragraphs 1 and 2
S.I. 2022/576, Regulation 3

The statutory guidance also recommends additional information be recorded. An extract of the appropriate information from each regulation and guidance can be read in Appendix 1.

Where a cancellation is to be made in accordance with this policy, that decision will be made by the appropriate Officer. The decision will be final as far as the Council is concerned in respect of upholding or cancelling a PCN where the circumstances are clearly in accordance with this policy. The decision will be explained in writing (by email or other digital means where possible) to the person who has contested the ticket and will aim to do so within 20 working days for informal challenges and within the statutory 56 days for formal representations.

PCN Waiving

In instances where mitigation, by way of evidence or other statement provided by the appellant is sufficient, a PCN may be waived. This differs in nature to instances where cancellation is necessary, as it relies on the submission of mitigation by the appellant.

The circumstances contained in the following table highlight exemplar mitigations where discretion might be applied. Discretion could be cited as a ground for challenge by motorists. The full facts of any case would be taken into consideration as it is an underlying principle of CPE that no case is binding on any other and each case shall be considered on the balance of its own merits. This is to be read in conjunction with the Operational Guidance issued by the Department for Transport.

Therefore, the mitigations and actions in Appendix 2 serve as an indication and must be treated as guidance only, both to appellants and council officers alike.

Where a PCN is to be waived in accordance with this policy, that decision will be made by the appropriate Officer. The decision will be final as far as the Council is concerned in respect of upholding or waiving a PCN where the circumstances are clearly in accordance with this policy. The decision will be explained in writing (by email or other digital means where possible) to the person who has contested the ticket and with the aim to do so within 20 working days for informal challenges and within the statutory 56 days for formal representations.

Important note:

The mitigations in Appendix 2 are in addition to the Statutory Grounds to make a formal representation, which is afforded only once a Notice to Owner letter has been sent to the DVLA registered owner/keeper of the vehicle. These Statutory Grounds are listed in Appendix 3. In accordance with a directive issued by the Local Government Ombudsman, full consideration will be given, and account taken of all formal representations received, whether they fall within the description of “Statutory Grounds” or not. Any other information the motorist or owner/keeper would like the Council to consider, has been included.

Appendices

Appendix 1 – Required and Recommended PCN Information

S.I. 2022/71, Schedule 2, Paragraphs 1 and 2

“Meaning of “regulatory matters”

In this Schedule “the regulatory matters”, in relation to an alleged relevant road traffic contravention, means—
1. the name of the enforcement authority,
2. the registration mark of the vehicle involved in the alleged contravention,
3. the date on and the time at which the alleged contravention occurred,
4. the amount of the penalty charge, and
5. the manner in which the penalty charge must be paid.”

“Particulars to be included in a penalty charge notice given under regulation 9

2. The information to be included in a penalty charge notice served under regulation 9 is—

the date on which the notice is served,
the regulatory matters,
the grounds on which the civil enforcement officer issuing the notice believes that a penalty charge is payable,
that the penalty charge must be paid within the period of 28 days beginning with the date on which the alleged contravention occurred,
that if the penalty charge is paid no later than the applicable date, the penalty charge will be reduced by the amount of any applicable discount, and
that if the penalty charge is not paid within the period of 28 days referred to in sub-paragraph (d), a notice to owner may be served by the enforcement authority on the owner of the vehicle.”

S.I. 2022/576, Regulation 3

“Information about right to make representations or appeal to be included in regulation 9 penalty charge notices and enforcement notices

3. —

A regulation 9 penalty charge notice must include the following information—
1. that a person on whom a notice to owner is served may, in accordance with these Regulations, make representations to the enforcement authority against the penalty charge and, if those representations are rejected, appeal to an adjudicator;
2. that if, before a notice to owner is served, representations against the penalty charge are received at such address as may be specified in the notice for the purpose those representations will be considered by the enforcement authority;
3. that if a notice to owner is served despite the representations mentioned in sub-paragraph (b), representations against the penalty charge must be made to the enforcement authority in the form and manner and at the time specified in the notice to owner.
An enforcement notice must include the following information—
1. that—
  1. the recipient may make representations against the penalty charge in accordance with regulation 5 of these Regulations, but
  2. any such representations made outside the period of 28 days beginning with the date on which the notice is served (“the payment period”) may be disregarded;
2. the nature of the representations which may be made under regulation 5;
3. the form in which representations must be made;
4. the address to which representations must be sent, including, as appropriate—
  1. an email address,
  2. a FAX telephone number,
  3. the address of any website where representations may be submitted online (and the place on that website where the relevant facility may be accessed),
    as well as a postal address;
5. that the recipient may appeal to an adjudicator against any decision of the enforcement authority not to accept representations which are made—
  1. within the payment period, or
  2. outside that period but not disregarded by the authority;
6. the form and manner in which an appeal may be made;
7. where the enforcement notice is a regulation 10 penalty charge notice served under regulation 10(2)(a) of the 2022 General Regulations (an “approved device notice”), the effect of paragraphs (3) and (4).
The recipient (“R”) of an approved device notice may, by notice in writing, request that the enforcement authority—
1. makes available, at one of its offices specified by R, free of charge and at a time during normal office hours so specified, for viewing by R or R’s representative the record of the alleged relevant road traffic contravention produced by the approved device pursuant to which the penalty charge was imposed, or
2. provides R, free of charge, with such still images from that record as, in the authority’s opinion, establish the alleged relevant road traffic contravention.
The enforcement authority must comply with any request under paragraph (3) within a reasonable time.”

Statutory Guidance

“It is recommended that it also gives:

detailed location of the vehicle (full street name)
the contravention code
observation start and finish times
penalty charge notice number (all should be uniquely identifiable)
CEO identification number”

Appendix 2 – Mitigating Circumstances

Mitigating Circumstance (MC)	May Accept Representations	May Reject Representations	Other Evidence or Notes
MC01 where the motorist claims to have become unwell while driving.	If the motorist provides proof of a medical condition, temporary or permanent, that is consistent with the conditions described. When the notes made by the Civil Enforcement Officer support the motorist’s representations. Medical conditions which affect a person’s ability to drive must be reported to DVLA.	If the motorist cannot provide some proof of a medical condition, temporary or permanent, consistent with the conditions described. Or Where other evidence contradicts the motorist’s claims.	Written medical evidence: The keeper should provide a letter from his/ her doctor or the passenger’s doctor either confirming that he/ she has a medical condition that can result in the need for urgent stops or that such an incident is known to have occurred on the time & date in question.
MC02 where the motorist claims to be a doctor, nurse, health visitor, or carer attending a patient in an emergency.	If the motorist concerned possesses a Medical Dispensation badge (BMA, HEBS) that the Council concerned recognises and approves and/or is exempt under the relevant Order. Or If the motorist produces evidence that they were responding to an emergency and there was no nearby legal parking place.	If the motorist was not attending a patient in urgent circumstances or if there was legal parking spaces nearby. If motorist was parked outside their practice or other place of work for any reason other than to collect supplies for an urgent call. If motorist was parked in an area which does not correspond with claims made in representations, i.e. far from patients property, say, in a car park.
MC03 where the motorist stopped the vehicle so they, or any vulnerable adult or child passenger, could use the toilet.	On production of medical evidence confirming a relevant medical condition and in support of the circumstances described in a representation.	In all other circumstances.	The keeper should provide a letter from their doctor, or their vulnerable adult or child passenger’s doctor, confirming either: They a medical condition that can result in the need for urgent stops, or Such an incident is known to have occurred on the time and date in question.
MC04 where the motorist was delayed in returning to their vehicle and parking time purchased had expired.	Only in exceptional circumstances such as a medical emergency.	If the delay described by the motorist was entirely avoidable, e.g. queuing in a shop. If the motorist simply underestimated the time needed and could have reasonably purchased more time, i.e. when conducting business, shopping or commuting. If the motorist was unable to drive since parking due to excess alcohol in the body or had been detained and charged by the police.
MC05 where the motorist “fed” a meter or pay & display machine by buying subsequent time to park in the same place or returned to the same place within a specified and prohibited time period.	In no circumstances.	If the motorist overstays initial period of time purchased or returns within a period of ‘No return’.
MC06 where the motorist left the vehicle parked unattended in a pay and display location without a valid pay and ticket, season ticket, or voucher to obtain change for the pay and display machine and purchase a valid pay and ticket, season ticket, or voucher.	If the motorist returns to the vehicle with a valid pay and ticket, season ticket, or voucher (physical or digital) and the Civil Enforcement Officer is still at the vehicle.	If the Civil Enforcement Officer’s notes indicate that the motorist returned to their vehicle, having completed their purpose for parking, while the PCN was being issued, i.e. carrying shopping, or had left vehicle in car park, or on-street pay and display area, while obtaining change.
MC07 where the motorist claims to have been unaware of charges or restrictions on the highway or in the off-street car park relating to vehicle’s class or weight.	If reference to restrictions on adjacent signage or tariff board(s) are incorrect.	In all other circumstances.
MC08 where the motorist claims to have been unaware of recent rise in tariff.	If statutory notices were not erected in accordance with procedural regulations.	If statutory notices were erected in accordance with procedural regulations and tariff board(s) were correct
MC09 where the motorist had parked with one or more wheels outside of a marked bay in a car park.	Only in the most exceptional of circumstances that were outside the motorists control. Otherwise in no circumstances.	When clear and incontrovertible supporting evidence (authentic photographs/Sketch plan of the actual parking event, and not a later pose) is available. Note that civil Enforcement Officers generally take photographs of the actual position of the vehicle.
MC10 where the motorist is a Blue Badge holder, or transporting a Blue Badge holder, and they did not have their Blue Badge and clock clearly on display.	In no circumstances.	If the motorist has previously had a PCN cancelled for the same contravention and has been warned to display a valid badge /time clock correctly in the future (prior warning). If the Blue Badge holder was not present in the vehicle at the time it was parked.
MC11 where the motorist is a Blue Badge holder, or transporting a Blue Badge holder, and their Blue Badge and/or clock on display could not be read or had expired.	Only in exceptional circumstances.	If the motorist has previously had a PCN cancelled for the same contravention and has been warned to display a valid badge /time clock correctly in the future (prior warning). If the motorist was parked on a waiting restriction beyond the 3 hour time limit permitted by the Blue Badge Scheme, or on another restriction for which the Blue Badge does not provide an exemption. If the Blue Badge holder was not present in the vehicle at the time it was parked. If the badge was not authentic, was out of date, or otherwise invalid.
MC12 where the motorist claims to have been unaware of the existence of a controlled parking zone.	If it can be established that the signing and marking of the CPZ is at fault.	In all other circumstances.
MC13 where the motorist is parked with an expired authorisation, whether digital or on physical display. i.e. dispensation / waiver, parking place suspension, season ticket, or resident’s, business, or visitor’s permit.	If the renewal of the authorisation was delayed by the Council’s administrative processes. If it can be established that other reasonably unforeseen circumstances delayed the renewal of an authorisation to park, e.g. sickness on the part of the applicant (supported by appropriate evidence).	In all other circumstances. In the event of more than one vehicle registration included on season ticket or permit, subsequent production of the season ticket will not necessarily cause automatic cancellation of the PCN as the season ticket or permit may have been used on some other vehicle.
MC14 where the motorist is parked in contravention of a waiting / parking prohibition with an active resident, business, or visitor permit, whether digital or on physical display.	In no circumstances.	In all circumstances.
MC15 where the motorist is a new resident or business within a controlled parking zone and is parked in a permit bay/zone without a valid permit, whether digital or on physical display.	In no circumstances.	In no circumstances.
MC16 where the motorist assumed they were entitled to “a period of grace” before the PCN was issued.	The only grace period is in a paid for or limited waiting bay when 10 minutes additional time is to be given.	In all other circumstances.
MC17 where the motorist claims that snow, foliage, fallen leaves or flooding covered the signs or markings.	If it can be established that such conditions prevailed and it is likely that signs and markings were obscured as claimed (at the time of the alleged contravention, and not some later time) and there was no alternative indication of the restriction.	If it can be established that such conditions did not cause lines and signs to be obscured as claimed. If the Civil Enforcement Officer’s notes, photographic evidence etc. directly contradict the motorist’s version of events. If any reasonable alternative indication of the restriction was available to the motorist. If the location of the contravention was unlikely to be subject to the natural conditions described by the motorist, i.e. it was under cover.
MC18 where the motorist claims that their vehicle had broken down.	If the motorist is able to provide evidence of a breakdown and the vehicle could not be driven further. i.e. proof of vehicle recovery (e.g. VAT receipt from a garage or recovery note from a recognised roadside assistance service) or a bill of sale for repair or parts (e.g. VAT receipt for appropriate parts).	If the motorist is unable to provide evidence of any kind that their vehicle had broken down. If the cause of the vehicle “breaking down” was due to negligence on the part of the motorist, i.e. the vehicle had not been properly maintained, had run out of petrol or water or a similar reason If the Civil Enforcement Officer’s notes contradict the motorist’s version of events.
MC19 where the motorist claims that they were attending an emergency or another vehicle that had broken down.	If the motorist is able to provide reasonable proof of the emergency, i.e. a credible report of an accident or incident, or that they were attending to another vehicle that had broken down.	If the motorist is unable to provide evidence of any kind that they were attending an emergency or another vehicle which had broken down. If the Civil Enforcement Officer’s notes photographic evidence etc. contradict the motorist’s version of events, i.e. the motorist was not seen attending an emergency or another vehicle which was broken down.
MC20 where the motorist has purchased a P&D ticket but claims to have used the wrong P&D machine or, if a digital purchase, location.	If it is agreed that the position of the ticket machine or, if a digital purchase, signage used by the motorist is likely to cause confusion.	If the ticket machine or, if a digital purchase, signage used by the motorist is positioned in such a place that confusion is not likely. If the motorist has had representations accepted for a similar contravention previously.
MC21 where the vehicle in question was on police, fire brigade or ambulance duties.	If a senior officer of the service concerned supports the representations and there is no reason to doubt that the vehicle was engaged on operational activities.	In all other circumstances.
MC22 where the motorist claims to have been collecting or depositing monies at a bank.	In no circumstances.	In all circumstances.
MC23 where the motorist claims to have been unaware of a temporary parking restriction or special event restriction.	If the motorist claims that there was no indication of the restriction, and the Civil Enforcement Officer’s notes, photographic evidence etc. do not confirm that appropriate signing was in place. If the process followed to make the temporary order was defective in some way.	If the Civil Enforcement Officer’s notes, photographic evidence etc. confirm that the vehicle was parked in an area restricted by the Temporary Order or Notice, and that appropriate signing was in place and clearly visible.
MC24 where the registered keeper liable for payment of the PCN is expected to be absent for a long period of time, e.g. is living abroad or is in prison.	In no circumstances.	In all circumstances.
MC25 where the registered keeper liable for payment of the PCN is said to have died.	Where a copy of the death certificate is provided.	Where no supporting evidence is provided.
MC26 where the vehicle driven by the motorist is diplomatically registered.	In all circumstances. A Notice to Owner should never be sent to the keeper of a diplomatically registered vehicle. Essex CC should be informed of all penalty charges un-recovered from keepers of diplomatically registered vehicles. They will pass information concerning these debts onto the Foreign and Commonwealth Office[Source – Secretary of State’s Traffic Management and Parking Guidance, Vienna Convention on Diplomatic Relations, Diplomatic Privileges Act 1964 and Government Report on Review of Vienna Convention…]	In no circumstances.
MC27 where the motorist received a Fixed Penalty Notice (FPN) from a police officer when parked in the same location.	To prevent ‘double jeopardy’, if confirmation and evidence provided by the police that proceedings for a criminal offence in connection with the same parking/waiting incident have been instituted.	In all other circumstances.
MC28 where a Council officer or Member parked in contravention and claims to have been on Council business.	If the officer was carrying out emergency or other statutory work.	In all other circumstances.
MC29 where the motorist stopped to drop off someone.	If the circumstances are seen by the Civil Enforcement Officer and boarding and/or alighting are permitted. If, in exceptional circumstances and subject to observations times, the motorist had to escort a passenger (vulnerable adult or child) to home, or school.	If motorist was parked/stopped on school keep clear markings, pedestrian crossing, bus stop clearway.
MC30 where motorist was unaware of the Overnight Waiting Ban/Commercial Vehicle waiting restriction.	If motorist was instructed / authorised to park in contravention of the restriction by the police and evidence of such is provided.	In all other circumstances.
MC31 where motorist states they were in police custody when PCN issued.	If evidence from the Police has been provided that they had instructed the motorist to leave the vehicle. If evidence from the Police of the time of arrest provides confirmation the motorist was legally parked and was unable to move vehicle before the restriction started.	If no evidence is provided. If the vehicle could have been legally parked before arrest.
MC32 where motorist states they were visiting a friend or relative in urgent circumstances.	If due to an emergency the parking contravention could not be avoided due to the exceptional nature of the incident.	If motorist has already received a PCN, which has been cancelled for the same reason. If the Civil Enforcement Officer’s contemporaneous computer handheld notes provides significant reason to doubt the sincerity of the representation.
MC33 where the motorist claims they were parked on private property.	If land search maps confirm location is private property & not subject of the relevant Traffic Regulation Order. If there is insufficient evidence to establish location of vehicle.	In all other circumstances.
MC34 where the motorist was delayed in returning to their vehicle parked in a limited waiting parking place.	If supported by appropriate evidence, the motorist’s representations claim that the delay in returning to the vehicle was caused by circumstances that were entirely unforeseen, unavoidable, and exceptional. If the motorist’s vehicle had broken down, subject to concurrence with policy MC25, above). If the motorist was unable to drive, since parking the vehicle.	If the delay described by the motorist was not exceptional, i.e. queuing in a shop. If the motorist simply underestimated the time needed and could have reasonably purchased more time. If the motorist was unable to drive since parking due to excess alcohol in the body or had been detained by the police for any reason, unless subsequently released without charge or proven innocent.
MC35 where motorist had parked while asking directions / opening gates to private property.	If evidence provided by the Civil Enforcement Officer does not contradict representations.	In all other circumstances.
MC36 where the motorist stopped to answer mobile phone.	In no circumstances.	In all circumstances.
MC37 where the motorist states that the details on the PCN are incorrect, e.g. location.	If there is reason to doubt that the PCN was issued correctly, considering evidence provided by the Civil Enforcement Officer.	If the Penalty Charge Notice was fully and correctly completed.
MC38 where the motorist states they were unaware of enforcement on Bank/Public holidays.	In no circumstances.	In all circumstances.
MC39 where the motorist states that restriction was marked after the vehicle had been parked.	If records confirm that signing / lining / placement of cones or suspension notices was likely to have taken place after the vehicle parked.	If there is evidence to show that markings were already in place at the time of parking.

Other events

Circumstance	Evidence	Notes
MC80 – Representation accepted – keeper not owner at time new keeper not known.	Written proof of disposal &, if possible, new keeper’s details.	The alleged keeper must provide evidence that they were not the keeper at the time; e.g. bill of sale, DVLA confirmation or insurance confirmation. If there is no such evidence (e.g. the named keeper was never in fact the keeper) officers should ask him/her to swear an affidavit to this effect.
MC81 – Emergency services vehicle.	Written statement from the relevant organisation.	Officers should seek written confirmation from a senior officer of the service in question that the vehicle was on duty on the date & time in question.
MC82 -Police vehicle on duty.	Written statement from the relevant organisation.	Officers should seek written confirmation from a senior officer of the service in question that the vehicle was on duty on the date & time in question.
MC83 – Foreign vehicle.	Self-evident.	DVLA records do not include foreign vehicles. Whilst it is possible to make an enquiry to the national agency concerned (if known) this is unlikely to be pursued unless there are, for example, a large number of PCNs involved.
MC84 – DVLA information incorrect.	DVLA confirmation.	The information supplied by DVLA is that held on their databases at the time of the enquiry & may not be up to date. It is sensible to close the case (or to pursue a ‘new’ keeper) if the alleged keeper subsequently provides DVLA written confirmation that the information provided was incorrect as to his/ her ownership.
MC85 – DVLA information – keeper not known.	DVLA confirmation.	If the response to a DVLA enquiry provides such information the case should be closed since enforcement is clearly impossible if a keeper cannot be identified.
MC86 – DVLA information – vehicle scrapped.	DVLA confirmation.	Not applicable
MC90 – Keeper moved no trace.	Notices returned by Royal Mail.	Name/ address databases checked; Electoral Register checked. Officers need to exercise care before relying on this information since it is known for keepers to instigate the return. It is better perhaps to either check the information through proprietary address databases or to allow the case to progress through for bailiffs to visit the address, particularly if there are several PCNs for a specific keeper.
MC91 – CEO error – Other.	Depends on circumstances.	Examples are missing or wrong information; e.g. CEO has omitted to specify a contravention.
MC92 – CEO error – PCN defaced/ altered/illegible.	Sight of original PCN.	Depends on circumstances. Alterations may mean that the downloaded details do not tally with the document the motorist received. If the PCN is defaced & illegible the motorist may not have been aware of important details (e.g. the alleged contravention).