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Ealing Currey Road PCN 51J
creative123
post Sat, 13 Jan 2018 - 00:01
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Hello,

Arrived home to this PCN letter from Ealing council.

I remember struggling with the narrowness of the road and being worried about kerbing the wheels, decided it was better to cross the mini bus lane and come back in. I knew I was asking for trouble when I did that dry.gif

Anything in the no entry signage perhaps? I read that no entry signs are generally used at the end of a road, not when there is two way traffic?

GSV: https://goo.gl/maps/QcUgCuwYLgp



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post Sat, 13 Jan 2018 - 00:01
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cp8759
post Wed, 21 Mar 2018 - 17:16
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TRO attached. It has many problems. Send it, together with the text below, to the Tribunal:

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Further to my original grounds of appeal, I would like to submit the following additional grounds of appeal to the tribunal, and I submit a copy of the relevant TRO in evidence:

4) There has been no contravention of a prescribed order or failure to comply with an indication given by a No Entry sign: My car did not pass between the two No Entry signs, therefore, on the council's own evidence, no contravention of the No Entry signs has occurred.

5) There was no contravention of a valid traffic order (The Traffic Management Order is invalid): Further to the submissions already made under ground two, I add that section 4 of the TRO purports to disapply the requirement of the keep left sign, which is a scheduled 36 sign, from local buses. Needless to say there is no provision of law that allows the authority to disapply the legal effect of a diagram 610 sign from a particular class of vehicle. This shows that in making the order the council acted ultra-vires. If section 4 of the TRO is outwith the power of the authority, because this section goes to the heart of what the TRO is trying to achieve, the whole TRO must be held to be invalid.

6) The penalty charge exceeded the amount applicable in the circumstances of the case: In my representations to the authority, I pointed out that "the vehicle did not drive between the two no entry signs places on Currey Road", in the Notice of Rejection the authority simply stated that "Drivers are not allowed to drive through a No Entry restriction". The authority has ignored the fact that I did not drive through the No Entry signs and it has not provided any explanation of how it has established that, despite of what can be seen in the council's own photographs, my car did in fact pass between the signs.

I further submitted the substance of what is now ground 5 of this appeal (Namely that the council has acted ultra-vires by purporting to dis-apply the legal effect of a diagram 610 sign from a certain class of vehicle), however those representations were completely ignored and are not mentioned at all in the Notice of Rejection.

I submit that the decision of adjudicator Edward Houghton in appeal number 2170256432 is relevant in this instance. In that decision, adjudicator Houghton stated, in so far as is relevant:

The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed”.

In this case the Notice of Rejection should have included words to the effect that the the authority was satisfied that my vehicle had passed through the No Entry signs, or that it was satisfied that (for whatever reason) a contravention of the No Entry signs had been established notwithstanding that my vehicle did not pass between them. The Notice of Rejection should have also contained words to convey that the council does, contrary to my understanding, have a power to dis-apply the effect of a diagram 610 sign from certain classes of vehicles, or else that (for whatever reason) the TRO and the signs are valid notwithstanding that the council does not have such a power. However niether of these issues were given any consideration, in fact they are not mentioned at all in the Notice of Rejection. It follows that the council could not have properly considered the representations made, and this failure to consider means that the amount of the penalty which is payable in the circumstances of this case is now zero. It follows that even if this appeal fails on all other grounds, the Penalty Charge Notice should now be cancelled.
-----------------------------------------



I would add that, if you win on any given ground, you can ask the adjudicator to rule on the other grounds as well, on the basis that any decision he makes as to the validity of the signs or the TRO will impact any other motorist who has been issued a PCN at this location.
EDIT: Updated for The Traffic Signs (Amendment) (England and Wales) Regulations and General Directions 2017

This post has been edited by cp8759: Fri, 23 Mar 2018 - 16:59
Attached File(s)
Attached File  2005_No._50_Currey_Road_bus_lane_and_wdth_restriction.pdf ( 277.29K ) Number of downloads: 17
 


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
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Mad Mick V
post Wed, 21 Mar 2018 - 17:40
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Hang fire on Paras 4 &5----a 616 has been restated as a Sect 36 sign after not being quoted as such in the TSRGDs 2016---- someone will quote the legislation amendment.

Mick


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PASTMYBEST
post Wed, 21 Mar 2018 - 17:41
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Like it CP except that (616) was reinstated as a schedule 36 sign by the Dec amendments


http://www.legislation.gov.uk/uksi/2017/10...gulation/6/made
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cp8759
post Wed, 21 Mar 2018 - 17:46
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I've updated the wording in post 41 to reflect the updated legislation.


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Mr Meldrew
post Thu, 22 Mar 2018 - 02:06
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cp8759, would the following line not benefit from a stronger tone of certitude as proposed below? Authorisation to dis-apply the effect of a S.36, diagram 610 sign, from local buses could be ultra vires even at the highest level of the Secretary of State for Transport.

https://www.londontribunals.gov.uk/sites/de...tra%20vires.doc

QUOTE
The Notice of Rejection should have also contained words to convey how the council, contrary to my understanding, has power to dis-apply the effect of a diagram 610 sign from local buses, or else how the TRO and the signs are valid notwithstanding that no such power exists.


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cp8759
post Thu, 22 Mar 2018 - 02:45
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QUOTE (Mr Meldrew @ Thu, 22 Mar 2018 - 02:06) *
cp8759, would the following line not benefit from a stronger tone of certitude as proposed below? Authorisation to dis-apply the effect of a S.36, diagram 610 sign, from local buses could be ultra vires even at the highest level of the Secretary of State for Transport.

https://www.londontribunals.gov.uk/sites/de...tra%20vires.doc

QUOTE
The Notice of Rejection should have also contained words to convey how the council, contrary to my understanding, has power to dis-apply the effect of a diagram 610 sign from local buses, or else how the TRO and the signs are valid notwithstanding that no such power exists.


Not really, the logic behind ground 6 is that, even if none of the other grounds have any merits, the failure to consider your representations means the penalty charge must be cancelled. Going back to the merits of the ultra-vires point in ground 6 would actually weaken the argument, it's better to keep each ground of appeal compartmentalised .

However, the case you have referenced above could be used to bolster ground 5 (that the TRO is invalid), as it illustrates that where a traffic authority acts beyond its powers, the restrictions are invalid.

This post has been edited by cp8759: Thu, 22 Mar 2018 - 02:45


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creative123
post Thu, 22 Mar 2018 - 16:27
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Council response below:




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creative123
post Thu, 22 Mar 2018 - 16:37
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Council seem a little confused what the contravention is - perhaps talking about the keep left signage has confused them.

cp8759, I haven't submitted the additional appeal yet. Is there anything else you would suggest adding before going ahead with what you wrote?

Could another avenue of procedural impropriety be the council only disclosing the full TMO upon appeal, whereas in the NoR, they gave me a copy of the traffic order that only mentioned a width restriction on Currey Rd. However, the TMO talks about the width restriction AND vehicles having to pass to the left of the traffic island - this was a materially significant point in my initial appeal.

Should I work this into my additional reps?

Thanks again!

This post has been edited by creative123: Thu, 22 Mar 2018 - 16:53
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Mad Mick V
post Thu, 22 Mar 2018 - 18:39
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OP--I doubt you need submit any other grounds at this stage.

I am intrigued by the two camera admission which might be explored if the case implodes. They are supposed to have a camera shot of the VRM and a wider camera shot of the general location but whether they can use two cameras is debatable no matter if they are in sync.

Mick
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cp8759
post Thu, 22 Mar 2018 - 23:35
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They've got themselves into a right muddle, their response is nothing short of embarrassing. I would submit the additional reps as per post 41, I don't think you need anything more.

QUOTE (Mad Mick V @ Thu, 22 Mar 2018 - 18:39) *
I am intrigued by the two camera admission which might be explored if the case implodes. They are supposed to have a camera shot of the VRM and a wider camera shot of the general location but whether they can use two cameras is debatable no matter if they are in sync.

I doubt that, most councils use a pair of cameras, one "normal" camera to capture the contravention, and an infrared ANPR camera to capture the plates. This is why the number plate shot is often a very dark image where the only thing that is visible is the number plate (which is retro-reflective so it sends all the infra-red light straight back to the camera).


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Mr Meldrew
post Fri, 23 Mar 2018 - 09:49
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Creative, the adjudicator will see that the Council has obviously not rebutted, among others, your claims that they have no authority to except local buses from the requirement to keep to the left of a keep left sign, that they have no power to effectively redefine the keep left requirement in that way, and that they have manifestly failed to accord requisite consideration to your clear argument that this is why the traffic order is not enforceable. All this, together with the additional reps in post #41, and you want to explore another avenue of procedural impropriety! C’mon show the Council some mercy. smile.gif


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creative123
post Mon, 23 Apr 2018 - 15:34
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Hi guys,

I wanted to update this thread with the decision from the adjudicator.

It was always going to be bit of a long shot and unfortunately, this particular decision did not go in my favour (Mad Mick V was right tongue.gif )

I think it is wise now to put closure on this matter, so will be paying shortly. However, I would like to thank all those who contributed and in particular, Mr Meldrew for helping me tremendously via PM and drafting that appeal letter. I really do appreciate all the views given! smile.gif

So without further ado, here's the response:



Thanks
Creative

This post has been edited by creative123: Mon, 23 Apr 2018 - 15:35
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cp8759
post Mon, 23 Apr 2018 - 15:49
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I think quoting the wrong regulations was fatal to this appeal, maybe I should have made it clearer but you really should have removed all reference to the parking regulations. To be honest this is a clear example of why decriminalised enforcement is a terrible idea, had this been pursued criminally, even if the magistrates had been misguided enough to convict, there's no way the High Court would have allowed a conviction for a no entry offence to stand based on the evidence available.


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Mad Mick V
post Mon, 23 Apr 2018 - 16:28
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There is no "default" situation in legal terms as my favourite adjudicator states and I would ask for a Review. He (again) relies on the signage in place without considering the TMO in relation to the traffic management reasons for the restriction. Those traffic management reasons and the TMO seek to prevent vehicles over 6'6" using the central section of the carriageway. The OP was therefore not in contravention --end of.

Mick
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Mr Meldrew
post Tue, 24 Apr 2018 - 16:16
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Thank you for the compliment Creative. I respond to adjudicator Burke’s decision as follows.

The Council made the TMO in exercise of powers conferred under the Road Traffic Regulation Act 1984. From the Council’s preamble:

QUOTE
in exercise of the powers conferred by Section 6 of the Road Traffic Regulation Act 1984 as amended ... [Ealing Council] hereby make the following Order.

You asserted that by authorising and maintaining the road layout at issue, the Council’s actions were beyond the powers (ultra vires) conferred by the 1984 Act:

QUOTE
The Council had neither express nor implied authority under the Road Traffic Regulation Act 1984 to effectively redefine the keep left requirement prescribed by a scheduled section 36 sign…

London Tribunals’ key case Sam-Yorke v London Borough of Camden (2090257179) established that enforcement authorities have no power to authorise signs that effectively redefine the prohibition prescribed by law.

Adjudicator Burke understood the above principle and these principles established by the Court, derived from public law cases: The need to come to a decision in a procedurally ‘fair’ way by giving proper weight to representations received, taking relevant factors into account (or not taking into account irrelevant factors), and being clear that this has been done through the process of setting out material findings of fact regarding those relevant factors.

My opinion is that adjudicator Burke failed regarding the principles above. Your assertion was complete and detailed as documented, and your specific assertion was acknowledged. In spite of this, the adjudicator had nothing further to say beyond this on the matter of the 1984 Act, and whether the Council’s actions were ultra vires:

QUOTE
He also argues the Traffic Management Order is invalid and the attempt to enforce ultra vires.

You further asserted that the Council had failed to accord requisite consideration, as it is obliged so to do, to your representation that the Council’s actions were ultra vires. Adjudicator Burke did not give any weight to this or set out any material findings of fact on the matter because as a layperson, you referred to the wrong regulations, which did not change the underlying facts. I now consider that adjudicator Burke failed to come to a decision in a procedurally fair way as already described.


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cp8759
post Thu, 26 Apr 2018 - 11:37
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QUOTE (Mad Mick V @ Mon, 23 Apr 2018 - 17:28) *
There is no "default" situation in legal terms as my favourite adjudicator states and I would ask for a Review. He (again) relies on the signage in place without considering the TMO in relation to the traffic management reasons for the restriction. Those traffic management reasons and the TMO seek to prevent vehicles over 6'6" using the central section of the carriageway. The OP was therefore not in contravention --end of.

Mick

The adjudicator just ignored the law and decided that the OP should have known not to drive that way, with that sort of attitude, no amounts of legal arguments were going to sway him. It might be worth asking for a review but I doubt it would be accepted.


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creative123
post Mon, 30 Apr 2018 - 12:52
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QUOTE (cp8759 @ Thu, 26 Apr 2018 - 11:37) *
The adjudicator just ignored the law and decided that the OP should have known not to drive that way, with that sort of attitude, no amounts of legal arguments were going to sway him. It might be worth asking for a review but I doubt it would be accepted.


That's certainly how it felt. He even mentioned the council might have been better off pursuing the offence as not adhering to a keep left sign. I figured there was a low chance the review would change anything so paid up.

It's not the outcome I had hoped for but it's the risk you take when you appeal dry.gif
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Mad Mick V
post Mon, 30 Apr 2018 - 13:05
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You've paid--so what! Send in a Review request--see what happens.

Posts 129/130 here might help you decide:-

http://forums.pepipoo.com/index.php?showto...p;#entry1378382

Same type of situation--isolated consideration of the sign without a full appraisal of why it was erected and its traffic management purpose.

Mick
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Mr Meldrew
post Wed, 2 May 2018 - 15:34
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Perhaps I was naïve to expect the Environment and Traffic Adjudicator to make any finding of fact on a problematic point that if accepted had the potential for significant repercussions for the authority concerned. The adjudicator failed in particular to make any finding of fact that, contrary to the representations received, the authority had express or implied power conferred under the Road Traffic Regulation Act 1984 to authorise and maintain road markings and signs in Currey Rd that effectively redefine a prohibition prescribed by law.

My experience in circumstances of failure to consider at a similar level has been that after exhausting either the internal or so-called “independent” review” farce (personal view), a letter before action pursuant to the JR pre-action protocol never failed to result in at least one “fresh” consideration only for another decision maker to reach the same decision in a different way. I don’t know why I ever bothered really as I am not a wealthy man.

I take my hat off to the effort shown in the linked appeal above and sincerely wish all concerned a satisfactory outcome.

This post has been edited by Mr Meldrew: Wed, 2 May 2018 - 15:35


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