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Bus Lane / Gate PCN Romney Avenue Bristol, Inadequate signage/markings?
Morrowitz
post Thu, 20 Jul 2017 - 09:59
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Hi all

Hoping someone will be able to help with this PCN case

My wife went through a bus gate on 12/7/2017 at midday at this location in Bristol
https://goo.gl/maps/DgZjj4LDZLK2
Notice was posted on 18/7/2017
Date of Service is taken as 20/7/2017
Deadline for reduced charge is 3/8/2017
Deadline for Reps is 17/8/2017

It’s a new lane so the street view only has a 20mph sign and the road ends at a dead end. This is how it looks on 19/7/2017
http://i65.tinypic.com/jqkg9c.jpg
There is a warning sign further back the road at this location
https://goo.gl/maps/pHwJDLNscSQ2
http://i67.tinypic.com/1670ak2.jpg

This is the PCN




http://i67.tinypic.com/24lv66r.jpg
http://i64.tinypic.com/2cpxojd.jpg
http://i68.tinypic.com/2ynld7a.jpg

Here’s what happened
On the morning of 12/7/2017 my wife took our pre-schooler and young baby to a forest school on Romney Avenue, Bristol.
https://goo.gl/maps/HeEfApueioM2
It was the first time she had ever been along this road and was approaching from the south. The warning sign is situated just prior to the school on the right. My wife does not recall seeing this sign, probably as she had seen the school and was scanning for parking.
Parking was limited so she drove on and parked here https://goo.gl/maps/DgZjj4LDZLK2
She parked at around 10 am, approximately 20 yds from the bus gate.

At 12:00 she returned to the car, loaded the children into and set off for home. She knew she had to take a left after the school to bring her back towards home but had already driven past the turning while looking for a parking space and not realised it. She set off down the road and almost immediately crossed the red painted section of road. She registered the sign but the lack of red painted road ahead and the lack of Bus Lane markings fooled her in to thinking the lane was either not in force yet (it’s a new development) or further ahead.

There was absolutely nothing for her to gain in using this bus lane and it turned a 1 mile journey in to 4 mile journey.

So my question is probably the same as many others: Are there grounds for a challenge?

  1. The initial warning is ~ 220ft from the bus gate (not sure if this has any bearing)
  2. According to the TSRGD table 36 item 13 “The road marking “BUS GATE” means a road or part of a road indicated by the sign shown in Table 6 item 10, 11, 12 or 18 when varied to include at least an exception for buses.” These are all red circle signs and not the blue sign used.
  3. Referencing the blue signage the Traffic Signs Manual - 15.29 states “Where either a one-way or two-way road is reserved for buses and cycles, the entry points should be indicated by signs to diagram 953. The other end of a one-way road must have “no entry” signs to diagram 616 in accordance with paras 4.39 to 4.41. Where the order permits taxis to use the road or excludes cycles, the sign to diagram 953 shall be varied accordingly. As with contra-flow bus lanes, this sign must be used in combination with the “Only” plate to diagram 953.2. Where the road is for the exclusive use of buses, the sign to diagram 953 is varied to show only the bus symbol.” The “Only” sign is missing from both signs and is required. I understand there may be an exception if the council has secured DfT authorisation to allow them to use a variant sign.
  4. Also referencing the blue signage (953) figure 15-8 of the traffic signs manual states “Direction 20(1) does not permit diagram 953 to be used without the “Only” plate to diagram 953.2”. I’m not sure what Direction 20 is though.
  5. The PCN is for Code: 34J Being in a bus lane but she was never in a bus lane and there were no markings to suggest there was a bus lane. This was an argument suggested in this thread (among others) http://forums.pepipoo.com/index.php?showtopic=97756



Sorry for the long initial post but I thought I’d get as much down as possible.

Is anyone able to suggest the best way to take this forward?

Many thanks in hope

This post has been edited by Morrowitz: Fri, 21 Jul 2017 - 09:36
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Morrowitz
post Wed, 18 Oct 2017 - 08:41
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Got this email this morning.
Seems the hearing option will come later in the process.

Your appeal has been registered and the authority has confirmed the details.

They will now decide whether to contest your appeal. We have asked them to do this within 14 days.

If they contest your appeal they will upload their evidence into your case file. We will send you an email when this happens and you will be able to log on, view their evidence and comment on it.

You will also be able to ask for a hearing at that stage.

If the authority decides not to contest your appeal you will be notified.


Guess I just wait to hear.
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Morrowitz
post Tue, 31 Oct 2017 - 22:06
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The council have uploaded their evidence and I now have 7 days t decide if I want a hearing.

Evidence consists of 6 items:
  1. Video evidence
  2. PCN, Reps, Rejection, Photos (endless photos)
  3. TSRGD 2016
  4. TSRGD section on bus lane road markings
  5. TSRGD section on blue bus and cycle signs
  6. Screen shot of the council payment website showing the 2p per minute charge


1 - 5 were not appealed so they don't seem particularly relevant. Interestingly though there are two photos of a car in Cheltenham completely unrelated to my case (a car parked on zigzag lines by a crossing). There's also a list of hand written car registrations that went through the bus gate on the same day (looks like a log).

6 is the only point that addresses the appeal in any way
This is the picture attached as evidence


And this is their summary on the main page.
Bristol City Council considers that correct signage and markings are in place as they comply with the requirements of the Traffic Signs Regulations and General Directions (current legislation). The Council would also like to add it is the Owner of the vehicle and not the driver who is liable for the penalty charge notice. The Council also issue rejection notices to both the owner and driver. The Council will also like to state that the Council does inform driver that there is a cost of £2 on payment over the telephone but there are other alternative way to pay without the charge. Theere is no charge on the penalty charge notice.


The case in the appeal (Neutral citation Number [2011] EWHC 295 (admin) case No CO/13317/2009) covers the point about there being other options and dismisses it.It seems they have uploaded very little in the way of evidence to counter the appeal.

I can't attach the pdf they supplied as it's 4.8MB. I can get pics of each page if required (though it does run to 32 pages). Or this is a link to the file on OneDrive https://1drv.ms/b/s!AjnFsqtmkQjVhd149DwpKT4dH9l6mA

Am I missing something important here?
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PASTMYBEST
post Tue, 31 Oct 2017 - 22:16
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IMO the council have handed you a silver bullet. The state clearly that there is a surcharge of £2.00 and that there are other ways to pay.

Both ruled on by a high court judge

Cant remember if I linked but give it a read particularly the conclusions

http://www.bailii.org/cgi-bin/format.cgi?d...)+AND+(parking)
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Morrowitz
post Tue, 31 Oct 2017 - 23:20
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Thanks PMB

Yes you did send me that link. I used it in the appeal and have just been through it in greater detail.

The cases referred to are for parking (and one box junction I think) but I assume the PCN and NoR fall under the same regulations as far as the content goes.

The £2 charge for paying by phone that they mention in their comment is the first time I have heard of such an amount. All other correspondence refers to a 2p/min charge (including the screenshot they attached).

I can now add comments to their evidence and have options to:
  1. Let an adjudicator decide based on the evidence
  2. Request a telephone hearing
  3. Request face to face hearing


This seems relatively cut and dry to me but I'm aware I may be suffering from confirmation bias.

Based on what you see would you still recommend a face to face?
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PASTMYBEST
post Tue, 31 Oct 2017 - 23:41
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QUOTE (Morrowitz @ Tue, 31 Oct 2017 - 23:20) *
Thanks PMB

Yes you did send me that link. I used it in the appeal and have just been through it in greater detail.

The cases referred to are for parking (and one box junction I think) but I assume the PCN and NoR fall under the same regulations as far as the content goes.

The £2 charge for paying by phone that they mention in their comment is the first time I have heard of such an amount. All other correspondence refers to a 2p/min charge (including the screenshot they attached).

I can now add comments to their evidence and have options to:
  1. Let an adjudicator decide based on the evidence
  2. Request a telephone hearing
  3. Request face to face hearing


This seems relatively cut and dry to me but I'm aware I may be suffering from confirmation bias.

Based on what you see would you still recommend a face to face?


Always if your confident. Read up and understand para 29 and 30. they make it plain as day the council can only demand the statutory penalty not a penny more.


Can I see exactly what you sent or intend to send by way of appeal.
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Morrowitz
post Wed, 1 Nov 2017 - 09:36
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This was the text I sent in the appeal. It’s pretty much word for word from your post.


Appeal against the imposition and enforcement of PCN number OB
Vehicle registration mark
My name

I make this appeal having made representations to the authority and received an unsatisfactory response that failed to deal with all but one of the points raised. This being the case, I undertook some fairly extensive research. Having done so I would concede that the signage is adequate and I understand that the adjudicator cannot consider the mitigating factors. However, I have discovered that the authority has failed in the duty imposed on it by The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 and would submit that for a number of reasons I will outline below, appeal under regulation 9(2)(f) that the penalty charge exceeded the amount applicable in the circumstances of the case.

First and foremost, I make a submission that the enforcement of the PCN must fail because the statutory ground has been met. The authority demand by way of surcharge a penalty that exceeds that allowed by statute.

Both the PCN and NOR in the “How to pay” section give the option to make payment by telephone. Both of these legally mandated documents include a statement that calls cost 2p per minute plus your phone companies access charge.

The imposition of surcharges to cover cost incurred by the authority (or for any other reason) has been the subject of judicial review. Neutral citation Number [2011] EWHC 295 (admin) case No CO/13317/2009

Please see appendix 1

B e f o r e :
THE HON. MR. JUSTICE BURNETT
____________________
Between:
LONDON BOROUGH OF CAMDEN - Claimant
- and -
THE PARKING ADJUDICATOR - Defendant
-and-
(1) BFS GROUP 03568 t/a FIRST FOR FOOD SERVICE
(2) LEE SUGDEN
(3) AIDAN BRADY - Interested Parties

Paragraph 18 line 7
The substance of what [the notice] is saying is that to discharge the penalty the motorist will have to pay a sum greater than the penalty prescribed by law.'

Paragraphs 27 and 288
These set out arguments for and against

Paragraph 29 gives the ruling
“I am unable to accept Mr Coppel's argument that for the purposes of regulation 4(4)(e) the 1.3% fee can be separated from the penalty charge. As is common ground, an enforcing authority is not at liberty to set its own penalty charges but is limited to the sums set under the statutory scheme. The substance of what the Council did was to increase their penalty charge if payment were to be made by credit card to 101.3% of the sum authorised under that scheme. On Mr Coppel's argument the Council might just as well have introduced other administrative charges and added those too. It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge. It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law.”

That the amount is relatively small does not detract from the fact that it is a surcharge. Indeed a person would not know at the time of making the payment exactly what this surcharge would be.

It is my contention that this ruling at JR leaves no doubt that the authority is demanding a payment in excess of that proscribed thus invalidating the enforcement of the PCN.

I further submit by way of collateral challenge, under the same statutory ground, that the authority fail at 10(1)(b) of the regulations. This being a failure of a statutory duty, I made the claim in my representations that the PCN was invalid as it demanded a penalty higher than that set by statute. The reason for not accepting this was not given, as required by the above regulation.
http://www.legislation.gov.uk/uksi/2005/2757/contents/made
“in relation to each ground on which representations are made, to serve on the person by whom the representations are made notice of their decision as to whether or not they accept that the ground has been established.”

Again I submit that this invalidates the PCN and enforcement.

A further collateral challenge under this ground.
Registration 8(5)(e)(f) and (g) deal with the relevant periods for making payment. The 14 day and 28 day periods for payment at the relevant amount and the period for making representations. The 14 day period is described at (f) The 28 day period and the period in which representations can be made are set out in registration 7. The periods all are periods beginning with the date of service of the PCN.

In the case of this PCN:
The 14 day period would be the PCN posted on the 18th July, deemed served on the 20th July. The last day of 14 day period would be 2nd August.
For the 28 day period for payment and to file representations it would be the 16th of August.

Page two, however, confuses this period. It uses the term within 28 days of the date the notice was served. The term “beginning with” is clear, unambiguous and it allows for easy calculation of the date by which action is required. The term “within” does not, by legal convention, mean the same; the calculation must start the next day, adding one day to the period.

Although it could be said that the correct period is shown, this is not so as two things occur. 1 - Ambiguity is created by showing two conflicting periods by which an action should be taken, and secondly.
2 - Any ambiguity must by legal convention be found in favour of the disadvantaged party. In this case the appellant, from whom a penalty is demanded.

I respectfully refer the adjudicator to the finding of Mr Justice Jackson in the high court neutral citation number [2006] EWHC 2357(admin) The queen on the application of London borough of Barnet council v the parking adjudicator.

Please see Appendix 2

Paragraph 39 (last sentence) “there must always be certainty of the date when the notice was issued and the dates when the various periods for payment expire.”

It was argued in this case that no prejudice was caused. Mr justice Jackson dealt with this as follows:

Paragraph 41 he says.
“Mr Lewis submits that even if there was non-compliance in this respect nevertheless no prejudice was caused, PCN's should not be regarded as invalid. I do not accept this submission prejudice is irrelevant and does not need to be established. The 1991 act creates a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties when certain specified statutory conditions are met If the statutory conditions are not met then the financial liability does not arise.”

The Notice of rejection contains an error so similar its effect is the same.

At page two paragraph 3 the statement “This notice of rejection will be taken to have been served on the second day after the day of posting (as shown above) unless you can show it was not.” The correct term should be Second working day.

Finally under the same ground.

The Notice of rejection in the final paragraph states. To paraphrase. If an appeal or payment is not made within the correct period then the authority WILL serve a charge certificate.

The regulations at10(4)(g) allow only that they MAY serve.

The words WILL and MAY have entirely different meanings, The word MAY being chosen by the draftsman to allow for the authorities absolute discretion not to continue on to this next stage in the enforcement process..

Common law dictates that the authority must not fetter this discretion.

In giving consideration to this head I would ask that the finding of adjudicator Mr Mackenzie Robinson in case number UW05060M (please see appendix 3) and also the views of the adjudicators listed in both that decision and the decisions below.

216022028A
Belinda Pearce
The second contention concerns wording in the Notice of Rejection letter which Mr Dishman maintains is not compliant with the governing legislation by dint of its employment (again) of the word will instead of may.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the Notice of Rejection contains certain information including that the Enforcement Authority may serve a charge certificate.
The Notice of Rejection in this matter states that the Enforcement Authority will serve a charge certificate.
Again the inclusion of the word 'will' imports a fixed and persistent intent, as distinguished from 'may' which expresses a possibility.
The legislature chose the word may, to my mind, to reflect the fact that the Enforcement Authority is bestowed with discretion which may be invoked at any stage, thus the issue of a charge certificate cannot be taken as a foregone conclusion.
I do not accept the theory that the word will reflects a greater warning element, since its meaning is distinctly at variance to that of the word may.
Mr Dishman cites previous PATAS/ETA Cases in support.
The Enforcement Authority quote from PATAS/ETA Case Decisions.
Each Case is determined upon its individual evidential merit and an Adjudicator's interpretation of the governing law; my finding in this Case is that the Notice of Rejection letter is substantially non-compliant since I consider that there to be manifest distinction between 'may' and 'will' which is substantial as opposed to semantics. Therefore I find the Notice of Rejection to be invalid, thus this Penalty Charge Notice cannot be enforced.
Accordingly, in light of my findings, I allow this Appeal.

2160211959
John Lane
Regulation 6 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection shall:
(a) state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection
(i) the penalty charge is paid; or
(ii) the person on whom the notice is served appeals to an Adjudicator against the penalty charge;
(b) indicate the nature of an Adjudicator’s power to award costs; and
© describe in general terms the form and manner in which an appeal to an Adjudicator must be made.
A notice of rejection duly served may contain such other information as the enforcement authority considers appropriate.
The local authority's notice of rejection states that they "Will" issue a charge certificate.
I accept that this is a fundamental error.
I will therefore allow the appeal.

2160210490
Sean Stanton-Dunn
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that a notice of rejection served by an enforcement authority shall state that a charge certificate may be served unless the penalty charge has been paid or an appeal to an adjudicator made before the end of the period of 28 days beginning with the date of service of the notice of rejection.
The notice of rejection served on Lexbow Limited stated that a charge certificate will be served and not that a charge certificate may be served. The use of the wording is mandatory and not optional. This means that the notice of rejection does not comply with the requirements of Regulation 6 so that there has been a procedural impropriety. The word will conveys an entirely different meaning to the motorist than the use of the word may.

2160211926
Christopher Rayner
Mrs Goldmeier’s car was unlawfully parked. The burden is therefore on her to establish an exemption. She submits that there is an error on Barnet’s notice to owner forms such that it amounts to a procedural impropriety, so that any penalty that reaches that stage of enforcement is unenforceable. Regulation 6(1) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 states that the notice to owner shall state that a charge certificate “may be served” if certain conditions are fulfilled. It is not disputed that Barnet’s notice to owner form states that “will serve” a charge certificate if those conditions are fulfilled.
Mrs Goldmeier references appeals before this Tribunal where adjudicators have found a procedural impropriety in these circumstances, and Barnet refer to another case where an adjudicator refused an appeal. The situation is unsatisfactory, particularly where there is no obvious prejudice to a motorist. However, enforcement authorities require full compliance with parking restrictions from motorists, and it is reasonable to expect the same of them. The wording on the notice to owner form does not comply with statutory requirements, and it would presumably be a relatively straightforward matter for Barnet to remedy that. On balance I follow what appears to be the majority view of adjudicators in this Tribunal and find that Barnet’s notice to owner form is not compliant with the Regulations, such that it amounts to a procedural impropriety and allow the appeal on that basis

2160422149
Michael Lawrence
The Appellant attended this hearing.
One of points raised by the Appellant concerned the wording of the Notice of Rejection letter (NOR) which he said was not compliant with the relevant legislation in that it used the word will instead of may.
Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 requires that the NOR contains certain information including that the Enforcement Authority may serve a charge certificate. This NOR states that the Enforcement Authority will serve a charge certificate if the recipient does not appeal or pay. Clearly there is a difference between may and will that is not just semantics, but substantial. The latter excludes the possibility that the Enforcement Authority have a discretion whether or not to proceed to the next stage of a charge certificate and an increased penalty charge.
The Notice of Rejection letter is substantially non compliant and invalid and therefore this Penalty Charge Notice cannot be enforced.

2150379790
Joanne Oxlade
The Appellant has raised a number of points in this appeal.
I allow the appeal on the basis that the notice of rejection does not substantially comply with Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, in that it says that if the Appellant neither appeals nor pays the PCN, the EA "will" serve a charge certificate, whereas the legislation requires that the NOR contains certain information, which is that the Notice of rejection "may" be served. "Will" and "may" are entirely different, and fails to recognise that the EA have discretion as to whether (and if so at what rate) they enforce the PCN subject to upper limits. There is something of a body of case law within the Tribunal, which the EA have not successfully challenged. The applicable case law is R (Hackney Drivers Association) v The Parking Adjudicator and Lancashire CC [2012] EWHC 3394, which provides that the question is whether or not a document is substantially compliant. For the above reasons, I find that it does not

2150479729
Neeti haria
In addition Mr Dishman contends that the Notice of Rejection misrepresents the position as it states that if the penalty charge is not paid or an appeal made the Authority will serve a Charge Certificate. Mr Dishman correctly points out that Regulation 6 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that under the circumstances specified a Charge Certificate may be served. The relevant parts of Regulation 6 provides:
“ Where representations are made under regulation 4 and the enforcement authority serves a Notice of Rejection …..that notice shall
(a) state that a Charge Certificate may be served unless…..”
Having considered the matter I agree with Mr Dishman that the Notice of Rejection fails to comply with a mandatory requirement of the legislation. I find that this amounts to a procedural impropriety on the part of the Authority.
Accordingly I allow the appeal.


I contend that this failing to follow the statutory wording, thus importing a different meaning is a failure to comply with the registrations and a further reason for cancelation of this PCN


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Morrowitz
post Thu, 11 Jan 2018 - 13:40
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SUCCESS

Thank you all so much for your help with this.

I had the hearing today and the appeal was allowed. This was the only section that the adjudicator upheld the appeal on (all others were rejected).

I further submit by way of collateral challenge, under the same statutory ground, that the authority fail at 10(1)(b) of the regulations. This being a failure of a statutory duty, I made the claim in my representations that the PCN was invalid as it demanded a penalty higher than that set by statute. The reason for not accepting this was not given, as required by the above regulation.
http://www.legislation.gov.uk/uksi/2005/2757/contents/made
“in relation to each ground on which representations are made, to serve on the person by whom the representations are made notice of their decision as to whether or not they accept that the ground has been established.”


The adjudicator agreed with this on the basis that common law dictates that the authority deals with each case fairly and that includes responding to all representations. She did say that there was not regulation covering procedural impropriety for bus lanes where there was for parking but that the common law was enough to allow the appeal.


FYI below is a summary of the other points raised and the reasons for not allowing them (apologies I did not make comprehensive notes)

2p/m telephone charge
Rejected on the grounds that this was a charge levied by the telephone company and not the council. She saw it as no different to having to pay for a stamp if you used the post. I argued that the charge would be paid to the council and amounts to the same thing as the credit card charge but she asked if I knew it would be paid to the council. Since I assumed it would be and did not know for sure it was rejected.
I think it came down to the fact that the credit card charge would be on the statement as part of the PCN charge in a single transaction and therefore could not be separated from the PCN charge.

Dates ("beginning" with and "within")
Rejected on the grounds that the regs state that the dates for each action (payment and reps) must be clear but not necessarily the same. The PCN uses the "beginning" term for the payment and the "within" term for the reps. Her contention was that these dates do not have to be the same so this point was rejected.
The additional point around "working days" on the NOR was also rejected on the basis that there are no regs around whether the NOR should use working days or just days. I argued that this meant a notice could be deemed to be served on a Sunday when there is no post which she thought was OK.

"WILL" versus "MAY" in the NOR
Cannot remember the exact wording she used but it was along the lines of "I'm not convinced by this". She noted that the cases provided as evidence were all adjudicator decisions which, she argued, did not set a precedent like a court case would (I think that was what was said).


Thanks once again for your help smile.gif smile.gif smile.gif
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PASTMYBEST
post Thu, 11 Jan 2018 - 14:03
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Well good that you won. She was totally wrong re the surcharge and would have had her bottie spanked at review. The high court judge. Who does set precedent that she is bound to follow ruled on the comparison to a CC charge and made it clear that the cost of doing business in effect is one that must be absorbed by the council

Still well done
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Neil B
post Fri, 12 Jan 2018 - 11:37
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QUOTE (Morrowitz @ Thu, 11 Jan 2018 - 13:40) *
Dates ("beginning" with and "within")
Rejected on the grounds that the regs state that the dates for each action (payment and reps) must be clear but not necessarily the same. The PCN uses the "beginning" term for the payment and the "within" term for the reps. Her contention was that these dates do not have to be the same so this point was rejected.

So if you have a dentist appointment on Monday, it's ok to turn up Monday or Tuesday? WTF.


--------------------
17/10/11.

Sme f yu may have nticed I dn't currently have a letter ' ' n my keybard!!!!

S if I appear t be talking mre gibberish than nrmal then that's the answer - the missing 'o' --<<<< Aha, clever eh!? (reserve on-screen keyboard)
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Morrowitz
post Tue, 23 Jan 2018 - 09:54
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Just one last update. The decision has been confirmed on the case log with the following from the adjudicator

  1. This is a personal hearing. Mr Wilson was present. The Council was not represented.
  2. Mr Wilson raised a number of issues in his appeal. These are detailed in his statement in Evidence 1.
  3. One of the issues he raises is that the Council failed to consider his representations.
  4. In his original representations Mr Wilson appealed on the basis that the penalty exceeded the relevant amount in the circumstances of the case. He said that the two pence service charge for the telephone payment was an unlawful demand for money over and beyond the amount defined in law.
  5. The Council failed to address this representation in its notice of rejection.
  6. The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 provide at Regulation 10 (1) (b) that it is the duty of the Authority ‘in relation to each ground on which representations are made, to serve on the person by whom the representations are made notice of their decision as to whether or not they accept that the ground has been established. Clearly in this case, the Council did not inform Mr Wilson whether they accepted that the ground of appeal on which he relied had been accepted.
  7. The Bus Lane regulations do not identify ‘procedural impropriety’ as a ground of appeal. However in addition to the duties set out in the regulations, the Council have a public duty to act fairly in the exercise of its statutory powers. See R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 Lord Mustill, ‘Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances’ .
  8. In my view the failure to respond to Mr Wilson’s representations in accordance with its duty under the Regulations was a breach of this common law duty to act fairly. I allow the appeal on this ground.
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PASTMYBEST
post Tue, 23 Jan 2018 - 13:18
Post #51


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Thanks for the update. If you could post the full letter it would be great. We get very few from the TPT as the do not publish on line. and a failing to consider win will help many others
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Poweranger
post Tue, 23 Jan 2018 - 19:19
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Hi

I made the same mistake as Morrowitz's wife did last Friday and I went back to the area this Friday to take photographs of the signage and road markings. I still think both of these are unclear and should have the words only underneath the blue signs and a clear indication and road markings to direct you left into the side road Hogarth Walk if approaching from Muller Road end. There is a priority over oncoming vehicles sign prior to the bus gate and right on the corner of the road you need to turn down to avoid driving into the bus gate. This sigh is confusing as it suggests you can continue along the road, but only to park and them you would have to make a three point turn in a traffic flow controlled area to avoid entering the bus gate. All of the side roads joining Romney Avenue have the words buses and cyclists only with an arrow I wish to appeal the PCN but if the council reject the appeal and it drags on for 6 months like this one did, I assume I will loose the chance to pay the reduced fine of £30 and I will have to take it to an adjudicator.
Did Morritz win on the Council not responding to the 2p service charge? Is there a way of determining if the Council actually charge this extra charge as the adjudicator said this was a charge levied by the phone company? Please can you advise if a similar appeal would be the best approach, including examples of cases?
I have been trying to find if the length of road does not fall within the definition of a bus lane contained in section 144(5) of the Traffic Act as mentioned in this report http://www.oxfordtimes.co.uk/news/4351853...._ruled_illegal/

The actual photographs taken were off a vehicle travelling along a road with a bus stop, no evidence of contravention of a bus gate or bus lane, but I guess video footage will show me crossing the gate leaving. I was going to mention all of the points you raised about signage, road markings, legislation and the 2p per minute levy for paying over the phone.

Thank you for any advice you can offer.
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PASTMYBEST
post Tue, 23 Jan 2018 - 19:26
Post #53


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Group: Members
Posts: 11,257
Joined: 6 Nov 2014
Member No.: 74,048



QUOTE (Poweranger @ Tue, 23 Jan 2018 - 19:19) *
Hi

I made the same mistake as Morrowitz's wife did last Friday and I went back to the area this Friday to take photographs of the signage and road markings. I still think both of these are unclear and should have the words only underneath the blue signs and a clear indication and road markings to direct you left into the side road Hogarth Walk if approaching from Muller Road end. There is a priority over oncoming vehicles sign prior to the bus gate and right on the corner of the road you need to turn down to avoid driving into the bus gate. This sigh is confusing as it suggests you can continue along the road, but only to park and them you would have to make a three point turn in a traffic flow controlled area to avoid entering the bus gate. All of the side roads joining Romney Avenue have the words buses and cyclists only with an arrow I wish to appeal the PCN but if the council reject the appeal and it drags on for 6 months like this one did, I assume I will loose the chance to pay the reduced fine of £30 and I will have to take it to an adjudicator.
Did Morritz win on the Council not responding to the 2p service charge? Is there a way of determining if the Council actually charge this extra charge as the adjudicator said this was a charge levied by the phone company? Please can you advise if a similar appeal would be the best approach, including examples of cases?
I have been trying to find if the length of road does not fall within the definition of a bus lane contained in section 144(5) of the Traffic Act as mentioned in this report http://www.oxfordtimes.co.uk/news/4351853...._ruled_illegal/

The actual photographs taken were off a vehicle travelling along a road with a bus stop, no evidence of contravention of a bus gate or bus lane, but I guess video footage will show me crossing the gate leaving. I was going to mention all of the points you raised about signage, road markings, legislation and the 2p per minute levy for paying over the phone.

Thank you for any advice you can offer.


You need to start your own thread and post the PCN

read this particularly paragraph 28

http://www.bailii.org/cgi-bin/format.cgi?d...)+AND+(parking)
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