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FightBack Forums _ Council Tickets & Clamping and Decriminalised Notices _ Box junction Richmond (Castelnau junction). Appeal rejected
Posted by: chuck990 Thu, 11 Jan 2018 - 20:14
Post #1346312
Hi all,
On the 18/11/17, it is alleged that I "entered and stopped in a box junction where prohibited".
The junction in question contains 2 lanes, me and a queue of traffic in the right, and nothing in the left, either at the entrance, nor the exit. Just after traffic stops, stranding me in the box, a BMW behind me pulls out into the left lane, VERY narrowly avoiding a collision with a cyclist.
A copy of the video evidence can be seen here:
http://sendvid.com/ocdubrjq
In my appeal, I reasoned that I was unaware that traffic ahead of me was coming to a stop, but that even though I stopped, I could have left the box via the left hand lane - choosing not to do so to avoid a collision with the cyclist.
It's not the strongest of appeals, but what annoys me the most about the rejection of the appeal, is that it doesn't appear to have taken into account anything that I said - it is merely a template letter that copies and pastes "Rule 174 of the highway code" and a quote from a "recent judgement in a similar case" - which just says stopping in a box junction is prohibited.
The rejection gives me until the 23rd to pay the reduced amount (which is less time then I think I am actually due!) but I was wondering if anyone could provide any further advice/insight before I cough up.
Thanks in advance
Posted by: chuck990 Thu, 11 Jan 2018 - 20:30
Post #1346322
Hi again,
Having read this thread http://forums.pepipoo.com/lofiversion/index.php/t114838.html, it appears that Richmond council are pulling the same trick, cutting two days off their deadlines. Also, similarly, the rejection of the initial appeal failed to address the points of appeal.The linked case won because the council failed to provide evidence, but are these two points likely to form a valid/winning appeal?
Many thanks
Posted by: Neil B Thu, 11 Jan 2018 - 20:31
Post #1346323
You are talking about something we can't see?
Posted by: Neil B Thu, 11 Jan 2018 - 20:45
Post #1346330
Can we see the rejection please.
Posted by: chuck990 Thu, 11 Jan 2018 - 20:50
Post #1346331
You are talking about something we can't see?
good point, my bad see below, issued 9th, delivered today (despite supposedly being sent 1st class). Also, no real reference to my appeal:
Posted by: PASTMYBEST Thu, 11 Jan 2018 - 21:25
Post #1346337
The last day by which you can lodge an appeal is mis-stated . You have 28 days beginning with the date of service of the notice. This is two working days after posting so the 11th.
The 28th day would be the 7th
They must consider your representation, nothing in the rejection suggests they have
Post up all pages of the PCN lets check that out
Posted by: chuck990 Thu, 11 Jan 2018 - 22:48
Post #1346359
Thanks guys, here's the original PCN:
Posted by: PASTMYBEST Thu, 11 Jan 2018 - 23:01
Post #1346361
Page 1 of the PCN?
Posted by: chuck990 Thu, 11 Jan 2018 - 23:03
Post #1346363
edited ^^
Posted by: PASTMYBEST Thu, 11 Jan 2018 - 23:15
Post #1346369
The relevant section of the regs
http://www.legislation.gov.uk/uksi/2016/362/schedule/9/made
schedule 9 part 7 (11)(6)
6) For the purposes of this paragraph “box junction” means an area of the carriageway where the marking has been placed and which is—
(a) at a junction between two or more roads;
A case re this
2170285940
The Appellant attended his personal hearings.
I have heard the Appellant's explanation as to why he had to stop in the junction. I have also noted his evidence3 that the stoppage was brief and no construction was caused. I do not think that these factors offer him a defence.
The Appellant did point out further the length of the junction and I note that the exit of the box junction exceeded the junction by at least one car length.
The prohibition applies to a box junction. A “box junction” means an area of the carriageway where the marking has been placed and which is at a junction between two or more roads. Markings which extends beyond the junction of two or more roads do not therefore mark out a box junction covered by the prohibition. I am in no way suggesting that the Authority has to be inch perfect but, in my view, extending the box junction by a car length or more beyond the actual junction is neither compliant nor substantially compliant with requirements.
I allow the appeal.
The junction
https://www.google.co.uk/maps/@51.4849532,-0.2337571,3a,90y,6.97h,64.47t/data=!3m6!1e1!3m4!1stkhLJfApNDhY5Mowd4Qmgg!2e0!7i13312!8i6656
Posted by: chuck990 Fri, 12 Jan 2018 - 09:20
Post #1346411
A case re this
2170285940
...
Another good point, thanks!
Posted by: PASTMYBEST Fri, 12 Jan 2018 - 09:39
Post #1346415
A case re this
2170285940
...
Another good point, thanks!
The first page of the PCn states if payment or representations are not made before the end of the 28 day period beginning with the date of notice, a charge cert may be issued.
This is wrong representations may be made up to the end of the period beginning with date of service, some two days later. A charge cert cannot be issued until that time either.
This is another error that has won on its own
Posted by: hcandersen Fri, 12 Jan 2018 - 21:20
Post #1346620
'...- choosing not to do so to avoid a collision with the cyclist.'
C'mon OP, I know we all like to think that we're good drivers but you didn't stop until after the cyclist had passed you: you didn't see them. Luckily the video only shows a potential contravention and not a cyclist wrapped around a tree. The cyclist was shocked and can be seen stopping further on.
But this is not the point.
Rather than look at this subjectively, can we just look at the objective info, which unfortunately is incomplete.
You stopped twice. The first time for less than 2 seconds, you then moved on and stopped again, this time when the cyclist came past. Unfortunately the video is incomplete, but that's the authority's problem, not yours. It's their task to show that you stopped contrary to law for more than a trivial period, and IMO the video does not, it leaves the issue hanging
There are no appeal grounds of procedural impropriety with LLATFL Act contraventions, so where do you go with the improper drafting of the NOR?
Posted by: PASTMYBEST Fri, 12 Jan 2018 - 21:33
Post #1346622
C'mon OP, I know we all like to think that we're good drivers but you didn't stop until after the cyclist had passed you: you didn't see them. Luckily the video only shows a potential contravention and not a cyclist wrapped around a tree. The cyclist was shocked and can be seen stopping further on.
But this is not the point.
Rather than look at this subjectively, can we just look at the objective info, which unfortunately is incomplete.
You stopped twice. The first time for less than 2 seconds, you then moved on and stopped again, this time when the cyclist came past. Unfortunately the video is incomplete, but that's the authority's problem, not yours. It's their task to show that you stopped contrary to law for more than a trivial period, and IMO the video does not, it leaves the issue hanging
There are no appeal grounds of procedural impropriety with LLATFL Act contraventions, so where do you go with the improper drafting of the NOR?
@ HCA.
Is that a question for the OP or a general one coz I think you know the answer Have you got the right car the first silver car not the one that almost collides with the cyclist?
Posted by: Incandescent Fri, 12 Jan 2018 - 21:38
Post #1346626
C'mon OP, I know we all like to think that we're good drivers but you didn't stop until after the cyclist had passed you: you didn't see them. Luckily the video only shows a potential contravention and not a cyclist wrapped around a tree. The cyclist was shocked and can be seen stopping further on.
But this is not the point.
Rather than look at this subjectively, can we just look at the objective info, which unfortunately is incomplete.
You stopped twice. The first time for less than 2 seconds, you then moved on and stopped again, this time when the cyclist came past. Unfortunately the video is incomplete, but that's the authority's problem, not yours. It's their task to show that you stopped contrary to law for more than a trivial period, and IMO the video does not, it leaves the issue hanging
There are no appeal grounds of procedural impropriety with LLATFL Act contraventions, so where do you go with the improper drafting of the NOR?
@ HCA.
Is that a question for the OP or a general one coz I think you know the answer
"The penalty exceeded the relevant amount in the circumstances of the case". This was used for parking maladministration before the TMA 2004 added Procedural Impropriety".
Posted by: hcandersen Fri, 12 Jan 2018 - 22:05
Post #1346630
My confusion and apologies to the OP. By the way, I think it's a Volvo.
Anyway, the OP was stopped for more than a trivial period having entered the junction without having a clear exit or (and I keep going on about the driver's as opposed to the camera's view) any idea about the traffic conditions ahead.
The contravention is clearly established IMO.
Which leaves us with the NOR.
Why does the 'penalty exceed' NOW, it doesn't. It's a prospective not current issue. The OP's appeal would be registered after the date in the letter because this is standard practice for ETA. So, what's left?
And I'll answer my own question: playing brinkmanship with the authority regarding a CC at which point 'the penalty exceeds' might kick in.
Given the absolute clarity of the contravention, what's the smart play? IMO, paying the discount.
Posted by: PASTMYBEST Fri, 12 Jan 2018 - 22:45
Post #1346645
Indeed the contravention is made out To continue to argue otherwise would risk alienating any adjudicator But to my mind the authority must serve valid documents to enforce a penalty. This is the case in the courts and is so at tribunal.
The PCN, last paragraph of page 1 makes the same error as in this case.
2170531457
The Appellant is represented by Mr Dishman.
The third paragraph of the PCN states that the penalty of £130 must be paid before the end of the period of 28 days beginning with the date of the notice. This is as provided by law. The next paragraph then states that "If the Penalty harge is not paid before the end of the 28 day period and no representations have been made an increased charge of 50% to £195 may be payable."
The time allowed for making representations is 28 days from the service of the PCN, not the date of the PCN. The PCN has therefore mis-described what it is required to state. It cannot be upheld. I allow the appeal.
I have others on the same ground, as i am sure does Mr M who won a few on this only this week.
The NOR tells you, you must appeal by a certain date. IT tells you the wrong date, and also fails to tell you that the adjudicator may extend the time
Your choice. If you appeal you will get help
Posted by: Neil B Fri, 12 Jan 2018 - 23:21
Post #1346652
If mine, on all three tech points, I would fight without hesitation.
I would argue this is not relevant because the recipient of such an NoR cannot know that they may still submit an appeal
and, indeed, then may not. This because they are clearly misinformed.
There is further potential to prejudice the OP because they may need that very day (or indeed, such longer
period as an adjudicator may allow) to compile a suitable appeal.
We sometimes have to forget that we know procedures inside out and what we know.
i.e. Joe Public simply doesn't know and can't readily discover, that all he need do is to 'register'
an appeal and detail later.
Posted by: hcandersen Sat, 13 Jan 2018 - 07:45
Post #1346670
Which is true.
But there aren't grounds of PI in these cases.
PMB has quoted from a case where the statutory PCN, the fundamental notice in all these proceedings, was defective. But this is not the case here, it's the NOR whose faults IMO will not weigh as much with an adjudicator given that PI cannot be applied.
Posted by: PASTMYBEST Sat, 13 Jan 2018 - 10:28
Post #1346697
But there aren't grounds of PI in these cases.
PMB has quoted from a case where the statutory PCN, the fundamental notice in all these proceedings, was defective. But this is not the case here, it's the NOR whose faults IMO will not weigh as much with an adjudicator given that PI cannot be applied.
No ,HCA this is a case where the PCN is flawed first, the NOR i believe could well be fatal. It gives the wrong Date not period
Posted by: chuck990 Sun, 14 Jan 2018 - 14:09
Post #1346978
I'm about to draft my appeal to the tribunal. is it generally accepted then that I would be better off not mentioning the possibility of pulling into the second lane, and accepting the breach was as described?
Should I instead refer just to the technicalities wrt the paperwork provided by the council discussed above - namely;
1. The timelines and dates on both the original PCN and subsequent NOR start the countdown from the date of the letter, not the date of delivery 2 days later
a) The PCN repeatedly refers to "the date of this notice" rather than the date of delivery, expected to be (and in reality) 2 days later
b) The NOR lists actual dates, where the 14 and 28 day periods have been calculated from the letter's date, again removing 2 days from the statutory limit
c) The NOR does not describe the period in which you must pay or appeal - legally required content. It instead uses (incorrect) fixed dates
d) These inaccuracies apply to both dates for payments/representations, plus the threat of a charge certificate
e) The issuing body should be aware of these issues, as they have lost tribunal cases (e.g. 2170462092) where they were used as grounds for appeal.
2. The box junction is invalid
As in case 2170285940 above, "the exit of the box junction exceeded the junction by at least one car length"
3. The case was given no fair appeal
Having submitted an appeal in November, I had to wait until mid-January to receive a template rejection letter, which made no reference to any specifics of the case. This therefore doesn't show that the appeal was given due attention, and has not dealt with the grounds of the appeal. I have been shown nothing to suggest they have duly considered the appeal as required.
EDIT:
Personally (and speaking with 0 experience) I still think that the contravention is worth contesting in the 1st place. As in 2160386657 2160389724 2160310225 etc. I was not prevented from leaving the junction at any time by stationary vehicles. I could have used the second lane (to the left). I chose not to pull out in front of a cyclist, but could at any time have left the box junction if required to do so.
Posted by: chuck990 Sun, 14 Jan 2018 - 15:22
Post #1346991
Hi,
I have written a first/working draft.
Any advice on wording/structure would be greatly appreciated
Contravention did not occur
When I entered the box, and for the duration of the supplied footage, there is a clear exit in the left hand lane. The video evidence confirms an empty space in the left hand lane throughout. As, at no point was exit from the box prevented by stationary traffic, no contravention occurred.
I could have switched lanes to clear the box, and indeed, would have done so, but as stated in my initial appeal, I chose not to, so as to avoid pulling out in front of a cyclist (unlike the car behind, who very nearly hits said cyclist). I was not forced to stop in the box because of stationary traffic therefore no contravention occurred.
I seek support from the following cases: 2160264616, 2160449586, 2160386657, 2160389724.
I would like to specifically highlight case 2160310225:
“I have heard the appellant in person who I find an honest and credible witness. The Authority did not appear and was not represented.
The Authority has produced the details of a link to their website on which I have viewed CCTV footage. The footage shows that the exit lane of the box junction was clear when the appellant’s vehicle entered it. Further, it shows that the vehicle stopped only briefly in the box junction when there was sufficient space to move forward. The vehicle was not forced to stop in the box because of stationary traffic.
I find as fact that the exit lane was clear when the vehicle in question entered the box junction. I find as fact that the vehicle was not forced to stop because of stationary traffic. The components for the contravention have not been met. I am not satisfied that the contravention occurred.
I allow the appeal.”
Misleading Information
The Notice of rejection is dated the 9th of January 2017, however it was received in the post on the 11th. Indeed, the presumed date of service should be two days after that of the letter itself – the 11th as in reality. However, the NOR fails to describe either the 14 day early payment window, or the 28 day period to lodge an appeal with yourselves (details I believe it is legally required to note). It instead provides fixed dates of the 23rd and 6th (Feb) respectively. These dates are incorrectly calculated from the date of the notice, rather than the date of its service.
The 28 day period in which to register an appeal should expire the 8th of February, but
the notice of rejection states quite clearly that I “MUST” lodge my appeal by the 6th of February. This truncates the period allowed by the relevant regulation by 2 days.
A subsequent paragraph goes on to say that if payment is not made or an appeal registered by the 6th of February then a charge certificate may be issued. This again would be 2 days before allowed by regulation.
I contend that alone, these errors in conveying the requirements of the regulations render the NOR a nullity and disbar further enforcement of the PCN.
The original PCN is similarly unlawful in that it states a Charge Certificate may be served prematurely, i.e. before the end of the period
allowed in the relevant legislation: It says -
"If neither payment nor representations have been received before the end of the period of 28 days
beginning with the date of this notice, a Charge Certificate may be sent ---"
The Act says, in Sch. 1
'5(1)Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;'
The dating inaccuracies are in my opinion, exacerbated by the fact that this is a continued failing of Richmond council. For example, the same complaint has been put forward in October 2017 (2170462092) and March 2017 (2170063530), yet the council continues to (at this point, seemingly intentionally) miss-lead those served with a PCN.
Failure to properly consider the initial appeal
The NoR fails completely to address the points made in my representations, indicating a failure to consider those representations, as required by schedule 1(7)(a)
Having submitted an appeal in November, I had to wait until mid-January to receive a template rejection letter, which made no reference to any specifics of the case. This therefore doesn't show that the appeal was given due attention, and has not dealt with the grounds of the appeal. I have been shown nothing to suggest they have duly considered the appeal as required.
Having submitted an appeal in November, I had to wait until mid-January to receive a template rejection letter, which made no reference to any specifics of the case. This therefore doesn't show that the appeal was given due attention, and has not dealt with the grounds of the appeal. I have been shown nothing to suggest they have duly considered the appeal as required.
Posted by: PASTMYBEST Sun, 14 Jan 2018 - 15:27
Post #1346992
Should I instead refer just to the technicalities wrt the paperwork provided by the council discussed above - namely;
1. The timelines and dates on both the original PCN and subsequent NOR start the countdown from the date of the letter, not the date of delivery 2 days later
a) The PCN repeatedly refers to "the date of this notice" rather than the date of delivery, expected to be (and in reality) 2 days later
b) The NOR lists actual dates, where the 14 and 28 day periods have been calculated from the letter's date, again removing 2 days from the statutory limit
c) The NOR does not describe the period in which you must pay or appeal - legally required content. It instead uses (incorrect) fixed dates
d) These inaccuracies apply to both dates for payments/representations, plus the threat of a charge certificate
e) The issuing body should be aware of these issues, as they have lost tribunal cases (e.g. 2170462092) where they were used as grounds for appeal.
2. The box junction is invalid
As in case 2170285940 above, "the exit of the box junction exceeded the junction by at least one car length"
3. The case was given no fair appeal
Having submitted an appeal in November, I had to wait until mid-January to receive a template rejection letter, which made no reference to any specifics of the case. This therefore doesn't show that the appeal was given due attention, and has not dealt with the grounds of the appeal. I have been shown nothing to suggest they have duly considered the appeal as required.
EDIT:
Personally (and speaking with 0 experience) I still think that the contravention is worth contesting in the 1st place. As in 2160386657 2160389724 2160310225 etc. I was not prevented from leaving the junction at any time by stationary vehicles. I could have used the second lane (to the left). I chose not to pull out in front of a cyclist, but could at any time have left the box junction if required to do so.
You got things mixed up a bit. Not surprising as so does the legislation
http://www.legislation.gov.uk/ukla/2003/3/section/4/enacted
Start with 4(8)
The regs require the 14 day period begins with date of notice. The PCN reflects this
The 28 day period begins with date of notice, PCN correct
Date by which regs must be made 28 days beginning with date of service. The PCN say s date of notice so this is where the PCN is wrong
According to the PCN you would need to submit reps by the 19th of December the regulations allow you until the 21st. same with the time by which they are allowed to issue a CC
If you want to include the bit about the contravention its your choice I wouldn't, the key case re this is here
http://www.londontribunals.gov.uk/sites/default/files/keycases/Gillingham%20v%20Newham%3B%20Essoo%20v%20Enfield%3B%20Khan%20v%20TfL.doc
It make much of the chosen lane. Adjudicators are not bound by each others decisions and there are exceptions.
Post up your draft for review, and I will check my files and find some cases that support
For the NoR it should tell you that an appeal must be made before the end of 28 days beginning with the date of service of the NoR or any such time as an adjudicator may allow.
It attempts for the first part to calculate this for you but gets ir wrong the correct date should be the 7th They omit totally the second part
Posted by: chuck990 Sun, 14 Jan 2018 - 17:48
Post #1347027
.....
Post up your draft for review, and I will check my files and find some cases that support
Think I posted my draft above as you were typing this - having read your post, it already needs some editing (which I shall start to make)
Posted by: chuck990 Mon, 15 Jan 2018 - 20:12
Post #1347380
Hi all,
Please let me know what you think of the response below:
I am writing to you to appeal against the Penalty Charge Notice (PCN) xxx issued by Richmond council. On the 18/11/17, it is alleged that I "entered and stopped in a box junction where prohibited".
I contest the validity of this PCN on four grounds, each of which on their own I believe enough to warrant cancellation of the PCN;
1) The contravention did not occur as described.
I was not prevented from leaving the box by stationary traffic, and therefore did not fall foul of the rules.
2) The box junction in question does not comply with requirements.
The markings for this box junction extend more than a car’s length from the junction in my direction of travel.
3) The council knowingly provided misleading/incorrect information.
Despite multiple previous appeals pointing out errors in the wording of the PCN and Notice of Rejection (NOR), Richmond council inaccurately portrayed the time allowed to submit appeals and make payments. This appears to be an attempt to coerce payments.
4) The PCN was not afforded a fair appeal.
Richmond council’s rejection of the initial appeal was a stock template letter that failed to address any specifics of this alleged contravention. This suggests that the appeal was not properly viewed, and that a rejection was sent as a matter of course.
More details of each of these points (and relevant similar cases) are provided as follows:
Contravention did not occur
When I entered the box, and for the duration of the supplied footage, there is a clear exit in the left hand lane. The video evidence confirms an empty space in the left hand lane throughout. As, at no point was exit from the box prevented by stationary traffic, no contravention occurred.
I could have switched lanes to clear the box, and indeed, would have done so, but as stated in my initial appeal, I chose not to as that would have led to me pulling out in front of a cyclist (a point nicely proven by the car behind, who very nearly hits said cyclist). I was not forced to stop in the box because of stationary traffic and therefore no contravention occurred.
I seek support from the following cases: 2160264616, 2160449586, 2160386657, 2160389724.
I would like to specifically highlight case 2160310225:
“I have heard the appellant in person who I find an honest and credible witness. The Authority did not appear and was not represented.
The Authority has produced the details of a link to their website on which I have viewed CCTV footage. The footage shows that the exit lane of the box junction was clear when the appellant’s vehicle entered it. Further, it shows that the vehicle stopped only briefly in the box junction when there was sufficient space to move forward. The vehicle was not forced to stop in the box because of stationary traffic.
I find as fact that the exit lane was clear when the vehicle in question entered the box junction. I find as fact that the vehicle was not forced to stop because of stationary traffic. The components for the contravention have not been met. I am not satisfied that the contravention occurred.
I allow the appeal.”
Non-compliant road markings
The junction at which this PCN was issued does not correctly comply with the requirements as set out in Schedule 9 part 7 (11)(6). The markings have been extended well past the junction, in the direction I was travelling at the time of the alleged contravention. This introduces a greater likelihood of contraventions, and from the viewpoint of a driver in traffic, it is not necessarily obvious that the markings will extend past the end of the junction – where they are to be expected.
Case 2170285940 states:
“A “box junction” means an area of the carriageway where the marking has been placed and which is at a junction between two or more roads. Markings which extends beyond the junction of two or more roads do not therefore mark out a box junction covered by the prohibition. I am in no way suggesting that the Authority has to be inch perfect but, in my view, extending the box junction by a car length or more beyond the actual junction is neither compliant nor substantially compliant with requirements.
I allow the appeal.”
Misleading Information
The Notice of rejection is dated the 9th of January 2017, however it was received in the post on the 11th. Indeed, the presumed date of service should be two days after that of the letter itself – the 11th as in reality. However, the NOR fails to describe either the 14 day early payment window, or the 28 day period to lodge an appeal with yourselves (details I believe it is legally required to note). It instead provides fixed dates of the 23rd and 6th (Feb) respectively. These dates are incorrectly calculated from the date of the notice, rather than the date of its service.
The 28 day period in which to register an appeal should expire the 8th of February, but
the notice of rejection states quite clearly that I “MUST” lodge my appeal by the 6th of February. This truncates the period allowed by the relevant regulation by 2 days.
A subsequent paragraph goes on to say that if payment is not made or an appeal registered by the 6th of February then a charge certificate may be issued. This again would be 2 days before allowed by regulation.
I contend that alone, these errors in conveying the requirements of the regulations render the NOR a nullity and disbar further enforcement of the PCN.
The original PCN is similarly unlawful in that it states a Charge Certificate may be served prematurely, i.e. before the end of the period
allowed in the relevant legislation: It says -
"If neither payment nor representations have been received before the end of the period of 28 days
beginning with the date of this notice, a Charge Certificate may be sent ---"
The Act says, in Sch. 1
'5(1)Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;'
The dating inaccuracies are in my opinion, exacerbated by the fact that this is a continued failing of Richmond council. For example, the same complaint has been put forward in October 2017 (2170462092) and March 2017 (2170063530), yet the council continues to (at this point, seemingly intentionally) miss-lead those served with a PCN.
Failure to properly consider the initial appeal
The NOR fails completely to address the points made in my representations, indicating a failure to consider those representations, as required by schedule 1(7)(a).
Having submitted an appeal in November, I had to wait until mid-January to receive a template rejection letter, which made no reference to any specifics of the case. This therefore appears to show that the appeal was not given due attention, and did not contest the grounds of the appeal. I have been shown nothing to suggest they have duly considered the appeal as required.
This is very similar to cases: 2140086060, PATAS Case Number SQ 05085G and in particular PATAS Case Number WG 05182D which states
“These words look rather like they are “standard” or formulaic words“
“It is required that each case is considered on its individual merits, and a “standard” approach, without reference to the particular circumstances, is not sufficient.”
I mentioned in my initial appeal that I am not a resident of Richmond, nor do I regularly drive through the area where the PCN was issued. The council could have shown some discretion and cancelled the charge, but their stock, inaccurate NOR makes the PCN look more like a revenue stream rather than serving a valid purpose in easing traffic flow (indeed the “offence” had no effect on traffic).
Posted by: PASTMYBEST Mon, 15 Jan 2018 - 20:24
Post #1347384
Please let me know what you think of the response below:
I am writing to you to appeal against the Penalty Charge Notice (PCN) xxx issued by Richmond council. On the 18/11/17, it is alleged that I "entered and stopped in a box junction where prohibited".
I contest the validity of this PCN on four grounds, each of which on their own I believe enough to warrant cancellation of the PCN;
1) The contravention did not occur as described.
I was not prevented from leaving the box by stationary traffic, and therefore did not fall foul of the rules.
2) The box junction in question does not comply with requirements.
The markings for this box junction extend more than a car’s length from the junction in my direction of travel.
3) The council knowingly provided misleading/incorrect information.
Despite multiple previous appeals pointing out errors in the wording of the PCN and Notice of Rejection (NOR), Richmond council inaccurately portrayed the time allowed to submit appeals and make payments. This appears to be an attempt to coerce payments.
4) The PCN was not afforded a fair appeal.
Richmond council’s rejection of the initial appeal was a stock template letter that failed to address any specifics of this alleged contravention. This suggests that the appeal was not properly viewed, and that a rejection was sent as a matter of course.
More details of each of these points (and relevant similar cases) are provided as follows:
Contravention did not occur
When I entered the box, and for the duration of the supplied footage, there is a clear exit in the left hand lane. The video evidence confirms an empty space in the left hand lane throughout. As, at no point was exit from the box prevented by stationary traffic, no contravention occurred.
I could have switched lanes to clear the box, and indeed, would have done so, but as stated in my initial appeal, I chose not to as that would have led to me pulling out in front of a cyclist (a point nicely proven by the car behind, who very nearly hits said cyclist). I was not forced to stop in the box because of stationary traffic and therefore no contravention occurred.
I seek support from the following cases: 2160264616, 2160449586, 2160386657, 2160389724.
I would like to specifically highlight case 2160310225:
“I have heard the appellant in person who I find an honest and credible witness. The Authority did not appear and was not represented.
The Authority has produced the details of a link to their website on which I have viewed CCTV footage. The footage shows that the exit lane of the box junction was clear when the appellant’s vehicle entered it. Further, it shows that the vehicle stopped only briefly in the box junction when there was sufficient space to move forward. The vehicle was not forced to stop in the box because of stationary traffic.
I find as fact that the exit lane was clear when the vehicle in question entered the box junction. I find as fact that the vehicle was not forced to stop because of stationary traffic. The components for the contravention have not been met. I am not satisfied that the contravention occurred.
I allow the appeal.”
Non-compliant road markings
The junction at which this PCN was issued does not correctly comply with the requirements as set out in Schedule 9 part 7 (11)(6). The markings have been extended well past the junction, in the direction I was travelling at the time of the alleged contravention. This introduces a greater likelihood of contraventions, and from the viewpoint of a driver in traffic, it is not necessarily obvious that the markings will extend past the end of the junction – where they are to be expected.
Case 2170285940 states:
“A “box junction” means an area of the carriageway where the marking has been placed and which is at a junction between two or more roads. Markings which extends beyond the junction of two or more roads do not therefore mark out a box junction covered by the prohibition. I am in no way suggesting that the Authority has to be inch perfect but, in my view, extending the box junction by a car length or more beyond the actual junction is neither compliant nor substantially compliant with requirements.
I allow the appeal.”
Misleading Information
The Notice of rejection is dated the 9th of January 2017, however it was received in the post on the 11th. Indeed, the presumed date of service should be two days after that of the letter itself – the 11th as in reality. However, the NOR fails to describe either the 14 day early payment window, or the 28 day period to lodge an appeal with yourselves (details I believe it is legally required to note). It instead provides fixed dates of the 23rd and 6th (Feb) respectively. These dates are incorrectly calculated from the date of the notice, rather than the date of its service.
The 28 day period in which to register an appeal should expire the 8th of February, but
the notice of rejection states quite clearly that I “MUST” lodge my appeal by the 6th of February. This truncates the period allowed by the relevant regulation by 2 days.
A subsequent paragraph goes on to say that if payment is not made or an appeal registered by the 6th of February then a charge certificate may be issued. This again would be 2 days before allowed by regulation.
I contend that alone, these errors in conveying the requirements of the regulations render the NOR a nullity and disbar further enforcement of the PCN.
The original PCN is similarly unlawful in that it states a Charge Certificate may be served prematurely, i.e. before the end of the period
allowed in the relevant legislation: It says -
"If neither payment nor representations have been received before the end of the period of 28 days
beginning with the date of this notice, a Charge Certificate may be sent ---"
The Act says, in Sch. 1
'5(1)Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;'
The dating inaccuracies are in my opinion, exacerbated by the fact that this is a continued failing of Richmond council. For example, the same complaint has been put forward in October 2017 (2170462092) and March 2017 (2170063530), yet the council continues to (at this point, seemingly intentionally) miss-lead those served with a PCN.
Failure to properly consider the initial appeal
The NOR fails completely to address the points made in my representations, indicating a failure to consider those representations, as required by schedule 1(7)(a).
Having submitted an appeal in November, I had to wait until mid-January to receive a template rejection letter, which made no reference to any specifics of the case. This therefore appears to show that the appeal was not given due attention, and did not contest the grounds of the appeal. I have been shown nothing to suggest they have duly considered the appeal as required.
This is very similar to cases: 2140086060, PATAS Case Number SQ 05085G and in particular PATAS Case Number WG 05182D which states
“These words look rather like they are “standard” or formulaic words“
“It is required that each case is considered on its individual merits, and a “standard” approach, without reference to the particular circumstances, is not sufficient.”
I mentioned in my initial appeal that I am not a resident of Richmond, nor do I regularly drive through the area where the PCN was issued. The council could have shown some discretion and cancelled the charge, but their stock, inaccurate NOR makes the PCN look more like a revenue stream rather than serving a valid purpose in easing traffic flow (indeed the “offence” had no effect on traffic).
Take out the last paragraph, it is your opinion, but it will not impress an adjudicator otherwise looks good
Posted by: chuck990 Wed, 7 Feb 2018 - 12:26
Post #1355042
Hi,
An update here: the council have uploaded their "evidence pack". Hearing date set for "00:00 - 00:00 Thursday 22 February 2018"
Below is their "Case Summary and Traffic Management Order" - I contest that this is again, merely a template letter which makes reference to none of the points made in either of the appeals I made.
They state that "the appellant contends that: The penalty charge exceeds the amount applicable" but I ticked two boxes on the appeals form - I also stipulated that there was "No contravention" which is clearly listed on the appeal portal. Furthermore they re-use the dates which I have pointed out to be incorrect.
I still have time to submit further evidence - is a second note, highlighting that my appeal is still not being adequately considered going to help or hinder at this point?
Posted by: Neil B Wed, 7 Feb 2018 - 12:41
Post #1355051
They are not even trying.
As long as the adjudicator looks at your points, you win.
Presumably you are attending?
Posted by: chuck990 Wed, 7 Feb 2018 - 13:47
Post #1355083
I elected for a postal/remote type hearing so won't be able to directly voice concerns at the time. Would a second note therefore be more useful?
Posted by: chuck990 Mon, 19 Feb 2018 - 13:32
Post #1359424
I have written the below note to add to the tribunal's evidence before the hearing weds/thursday (midnight in-between). Any critique greatly appreciated:
Having received and read the evidence and other material provided by the enforcing authority (Richmond Council), I would like to further make my point that they have failed to properly consider my points of appeal and to take the case seriously.
Bearing in mind one of the headings in my submission to the tribunal [Box junction second appeal 2017.pdf] was: “Failure to properly consider the initial appeal”, I am similarly disappointed to see that the “Summary of Councils Representation” [B.pdf] also appears to be a stock template, which equally fails to talk about case specifics.
Again, rule 174 of the highway code is needlessly repeated, but the letter then goes on to say that “The appellant contends that: The penalty charge exceeded the amount applicable.”. The appeal info listed on your website [APPELLANT APPEAL INFO UPDATE_20180124222125_2180035473.pdf] clearly states “No contravention, Penalty exceeded the amount applicable”, but the template used is clearly designed for only one grounds of appeal and therefore makes no mention of either the procedural impropriety that I complained of, nor the fact that I contend that the contravention did not occur.
On the note of procedural impropriety, despite me having shown that the dates provided were incorrectly calculated, the council continue to use them. This either furthers my point that my appeals to this point have not been read properly or shows negligence on the part of the council in using dates that they know to be incorrect.
Posted by: chuck990 Fri, 2 Mar 2018 - 18:37
Post #1363365
The appeal is a win! Though only just by the sounds of it.
I'm slightly disappointed that the adjudicator found the third ground the "most unattractive", as I view that as one of my main grievances. However, a win is a win.
Many thanks to all who helped
This is an appeal against a penalty charge notice for entering and stopping in a box junction when prohibited. The Appellant relies on four grounds to make his appeal:
The contravention did not occur.
The box junction in question is non-compliant.
The Local Authority misled knowingly or unknowingly the Appellant during the enforcement process.
The Local Authority acted unfairly.
I shall take each in turn:
Ground one:
The Appellant submits in the first instance that when he entered the yellow box he had a clear exit route. However, he was not able to use the second lane because of a cyclist approaching from the rear. In particular, he seeks to apply the decision in Varsani v Barnet 2160310225. Of course, I am not bound by the decision in that case but am mindful of the principles contained therein. I have viewed the CCTV footage in the present case. I agree that there were two lanes after the junction (illustrated by the Royal Mail van). I am also clear that there was a cyclist coming from the rear. My difficulty in the present case is that, I am not clear that is why the Appellant did not use the left lane. I have not heard the Appellant in person and therefore am not convinced of this. Likewise, I am not assisted by the small image I have of the CCTV. Indeed, on first glance I was not sure that the Appellant had actually stopped at all. However, on reviewing the CCTV with the photographs I am satisfied he did indeed stop in the yellow box junction, likewise, I am satisfied that when he entered the yellow box junction his exit was not clear and he stopped due to stationery traffic. The Appellant's road positioning precludes any sustainable argument that he was going to drive into the left lane and was prevented by the cyclist. Indeed, this argument is undermined by his initial correspondence with the Respondent where he described using the other lane as a, 'technical' possibility.
Ground two:
The Appellant submits that the road markings are not compliant with the statutory framework, in particular he states 'the requirements as set out in Schedule 9 part 7(11)(6)', although he does not say what of. The simpler way of putting the point, is that the markings have been extended well beyond the boundaries of the junction and therefore a driver may be misled as to the extent of the junction. Considering the photographs which the Appellant has provided, this point is much more persuasive than the previous ground. The Respondent says that the requirements as to yellow box junctions have been relaxed by the Traffic Signs Regulations and General Directions 2016, although, again, they do not specify which part thereof. I am not clear (as the Respondent suggests) that the Appellant was making reference to the Traffic Signs Regulations and General Directions 2002, in particular regulation 7 of schedule 19. If he was, then he must understand that this was repealed on 22 April 2016. However, I have spent some time looking at the various legislation involved and did refer again to the Traffic Signs Manual and to the sign table in schedule 9 part 6 of the updated regulations. In particular referring to diagram 1043. After spending a great deal of time looking at the legal detail, I do take the point made by the Appellant as to whether or not the junction is truly complaint. As too, do I take the point that it is certainly of an unusual length. Yet, even if it is incorrect in some respect (and I am not certain it is), the true question for me is whether it is substantially compliant or misleading. I think I must conclude it is substantially compliant as one could see the markings clearly and it is in place in a junction. Likewise, I do not believe that a
motorist would be misled.
Ground three:
This is the Appellant's most unattractive submission. The argument appears to be that the date provided for when the appeal ought to be lodged was not correctly stated. Even if that is so, then I cannot see any prejudice to the Appellant whatsoever.
Ground four:
This is in fact the Appellant's most attractive submission. I agree that paragraph 1(7) of schedule 1 of London Local Authorities and Transport for London Act 2003 requires the Respondent to properly consider representations made by the Appellant. I agree that the notice of rejection dated 9 January 2018 appears generic and not case specific at all. Even if I disagree with the Appellant's point about the cyclist, the Respondent was duty bound to consider it and reply thereto. They did not do so. They were duty bound to do so.
The contravention did occur, but I agree that the appeal ought to be allowed on the basis of procedural impropriety.
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