2x PCNs served! London Borough Of Havering - Contravention Code 33J Options

[mike.green.86]

Hi,

Thanks for this forum and thanks to everyone who really helps out here. You guys are heroes!

So we have received 2x PCNs for Moving Traffic Contravention. The driver was unfamiliar with the area and had accidentally driven in and out of so marked 'Bus Gates'. With the entry and exit within 18 minutes of each other and a PCN issued for the entry and the exit!

I agree that the contraventions occurred, but are multiple PCNs really allowed for the same contravention? I mean its the contravention on the same signs on the same day within minutes of each other. Do we have any chance of winning an appeal here?

I reviewed similar cases for the same hospital road:
http://forums.pepipoo.com/index.php?showto...121566&st=0, http://forums.pepipoo.com/lofiversion/inde.../t118709-0.html,

Only this case seems that there might be something that can be appealed against, but I am not sure if the OP on that thread followed through and whether an appeal was won?

http://forums.pepipoo.com/index.php?showtopic=125154



PCNs uploaded here:

PCN-1-page-1: https://ibb.co/x2HZRj0
PCN-1-page-2: https://ibb.co/YpcDFJd
PCN-1-page-3: https://ibb.co/rbn0nbP

PCN-2-page-1: https://ibb.co/ypn80Kc
PCN-2-page-2: https://ibb.co/86MttWc
PCN-2-page-3: https://ibb.co/rbn0nbP

Any advice?

This post has been edited by mike.green.86: Sun, 26 May 2019 - 19:24

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[Mad Mick V]

Like I said in an earlier post I didn't want to gainsay Neil--but, with his permission, I would go for the full TMO v Sect 36 defence because the signage does not reflect the TMO anyway (it misses emergency vehicles). Here goes, (fit it in the appeal as appropriate):-
The signage leading up to this bottleneck is wholly inadequate and the Enforcement Authority has failed to sign it properly.
This leads back to the PCN which is deficient. A PCN is required to state the grounds on which the enforcement authority believes that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to properly understand the nature of the alleged contravention.

The Council says that this is a route restricted to buses and cycles only. This is not, however, clear on the face of the PCN which states simply that the vehicle used a route restricted to certain vehicles.

A motorist reading the PCN would not understand from the wording the nature of the alleged contravention because there is nothing to explain that the route was restricted to buses and cycles.
The PCN needs to explain, whether by wording or images, exactly what the prohibition is.

This confusion is compounded, in that the TMO allows emergency vehicles and authorised vehicles through this chicane, but this is not evident from the signage in place. Therefore the contravention using a route restricted to certain vehicles becomes a nullity. Because the signage does not reflect the terms of the TMO in relation to authorised vehicles I would argue that the Enforcement Authority has failed in its duty to comply with Reg 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.

My second point on the signage is that an Enforcement Authority cannot serve a PCN which relates to a conditional contravention relating to certain vehicles whilst using a Section 36 sign which is unconditional. Ergo the contravention given is untenable.

The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).

With respect, I would refer the adjudicator ETA 2170058483 and the Review of that Decision.

In that case the adjudicator ruled as follows:-

Extract

“Mrs Imeybore does not dispute that she did indeed drive through a “bus gate” along a section of Rye Lane reserved for buses and cycles. However Mr Dishman has put forward a number of arguments on her behalf. Although I went through these in some detail with him at the hearing, I confine this decision to only one of them, on the basis of which I will allow both appeals. It relates to the wording of the allegation contained in each of the PCNs, as follows.

“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.

Section 4 of the 2003 Act provides, so far as is material to this case,

“(1) This section applies where

(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or

(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.

(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice

(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and

(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following

(i) the person appearing to them to be the operator of the vehicle; and

(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.

…

(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign.

(6) No penalty charge shall be payable under subsection (5)(a) above where

(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.

Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)

I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.

------------------------------

This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.

The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:

An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong

It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.

Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .

"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign."

Section 4 (6) goes on to provide:

" No penalty charge shall be payable under subsection (5)(a) above where

the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)

It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.

The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.

The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.

The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.”


Since my case is predicated on the same basis the contravention given on the PCN must be incorrect and that document thereby invalid and a nullity.

Mick

This post has been edited by Mad Mick V: Thu, 4 Jul 2019 - 15:11

[Neil B]

Yeah I think you clairfied that the reason for flaw is that the time periods are wrong on the PCNs and that it can't be from the date of the PCN, but should be after the date the PCN was served.

I'll quote the prep brief I gave this week's appellant. It includes a link to the relevant

I meant, had you read the legislation, to be satisfied yourself.

What do I need to do now? Do I wait for the 28 days to expire, or can I begin to lodge an appeal?

You can 'register' your appeal, online, with 'details to follow', as soon as you like.
We can then decide exactly what to submit and what not.

Like I said in an earlier post I didn't want to gainsay Neil--but, with his permission,

Mick, I've just as good as invited you to do so, as you know I respect your expertise. Your point is important and
deserves another airing at tribunal.

I'd also like to add a new point; the duff NoR but my concerns are the same as I think you originally
expressed; that it all gets a bit wordy.

I guess it will be up to Mike, not me, to decide.
I suggest we first wait to see how Dingdongdan gets on this week?

[mike.green.86]

So is this the Dingdongdan's post that you are referring to @NeilB ?

http://forums.pepipoo.com/index.php?showto...p;#entry1498341

On the face of it, the decision doesn't look like it has the same arguments vis-a-vis wrong dates/wording. Maybe I am missing something here?

This post has been edited by mike.green.86: Tue, 9 Jul 2019 - 10:51

[Neil B]

It did have the same issues but Mr Chan chose to rule on a single point.

You are right that it's of no use to you but my advice stands.



This post has been edited by Neil B: Tue, 9 Jul 2019 - 12:57

[PASTMYBEST]

Just typed two lengthy paragraphs on this and my internet bombed I have a few ideas will draft tomorrow

[Neil B]

Just typed two lengthy paragraphs on this and my internet bombed I have a few ideas will draft tomorrow

Just to let you know, PMB has not forgotten but is not able to respond right now.

[mike.green.86]

Thanks @PastMyBest, @NeilB. I would like to put together the appeal hopefully by the end of the week.

[Neil B]

Thanks @PastMyBest, @NeilB. I would like to put together the appeal hopefully by the end of the week.

What do I need to do now? Do I wait for the 28 days to expire, or can I begin to lodge an appeal?

You can 'register' your appeal, online, with 'details to follow', as soon as you like.

Have you done this?

If not, YOU MUST DO SO BY THURSDAY 18th.

This post has been edited by Neil B: Tue, 16 Jul 2019 - 13:07

[mike.green.86]

You can 'register' your appeal, online, with 'details to follow', as soon as you like.
Have you done this?

If not, YOU MUST DO SO BY THURSDAY 18th.

Oops...

Thanks for the heads up! I have just registered my appeal online, and have gone for the postal hearing. I haven't uploaded any evidence, but have ticked that further evidence to follow.

Now at least I can get the appeal written while the hearing gets scheduled. Aiming to get all of that sorted by end of the week and uploaded online.

Can I use the text of the appeal that I sent to Havering council verbatim?

Any rough indication of how long it takes to get the hearing scheduled? Is it a few weeks?

This post has been edited by mike.green.86: Tue, 16 Jul 2019 - 15:41

[PASTMYBEST]

You can 'register' your appeal, online, with 'details to follow', as soon as you like.
Have you done this?

If not, YOU MUST DO SO BY THURSDAY 18th.

Oops...

Thanks for the heads up! I have just registered my appeal online, and have gone for the postal hearing. I haven't uploaded any evidence, but have ticked that further evidence to follow.

Now at least I can get the appeal written while the hearing gets scheduled. Aiming to get all of that sorted by end of the week and uploaded online.

Can I use the text of the appeal that I sent to Havering council verbatim?

Any rough indication of how long it takes to get the hearing scheduled? Is it a few weeks?

No do not do that. I have been a bit unwell so have not had time to draft something for you but have been planning to do so and will have it done by tomorrow night.

[PASTMYBEST]

Can you reload the rejection letters again I cant open them and want to get the ground right and would rather not rely on memory

[PASTMYBEST]

Some might disagree but I think this is a fair appeal that will give you a good chance

https://1drv.ms/f/s!AtBHPhdJdppVtzQXvhU8dka-bCHQ

[mike.green.86]

Can you reload the rejection letters again I cant open them and want to get the ground right and would rather not rely on memory

Uploaded here:

https://ibb.co/ZdM5WGB
https://ibb.co/rFCtRGw
https://ibb.co/8d42ZSr
https://ibb.co/7yghDp9

Some might disagree but I think this is a fair appeal that will give you a good chance

https://1drv.ms/f/s!AtBHPhdJdppVtzQXvhU8dka-bCHQ

Sorry to hear that you had been unwell @PastMyBest and I do hope that you are recovering. Thanks so much for drafting the appeal. I will read and draft the final appeal as per your recommendations, will post back here once done.

Thanks very much!

[mike.green.86]

Hi,

I have updated the appeals and have attached it to this post.

 PCN_1_Appeal_censored.pdf ( 359.78K ) Number of downloads: 99

 PCN_2_Appeal_censored.pdf ( 363.07K ) Number of downloads: 123


Have barely needed to make any changes. If the above is ok, then I will be uploading these two docs. What else do you recommend I should upload as evidence for the tribunal?

The case hearing is on 14th August 2019.

Thanks,
Mike

This post has been edited by mike.green.86: Mon, 29 Jul 2019 - 00:50

[hcandersen]

Having received this PCN on the 22nd of May 2019 some seven days after the date of the alleged contravention I was unable to remember what I was accused of doing wrong.

Why, it's been served well within limits which means well within what the law considers that the average motorist should be capable of recalling as regards events. Your implied criticism of their practice says more about your memory than their procedures. It's an unnecessary and IMO counter-productive comment (particularly as you have no recollection anyway so even if the PCN had been issued earlier this would not have made a jot of difference) and gets your reps off to a poor start.

and as

I decided to undertake some research to ascertain what I had done wrong


which, after 'extensive research', led to you concluding that:

I have no memory of passing any road signs that create a restriction

So,

are you saying that the restriction in the TMO does not give rise to your contravention or that the actual sign in situ does not convey the restriction in the TMO or that it does but irrespective of either because the PCN is not specific then it is unenforceable. If the latter, then the TMO etc. is not the issue. IMO, these arguments should be ordered and logically extensive research would follow the path of sign; review of references as to meaning; discovery that it covers a wide range of possible meanings; imprecision as regards the grounds in the PCN; unenforceability, if this is what you're claiming.

IMO, stand back, re-read, think what you're trying to get across to the adjudicator - and when your refer to examples make sure they're produced because it's not the adjudicator's task to find evidence for you - and then put yourself in the adjudicator's shoes and think how you would expect the argument to be presented. Your narrative started well with 'no contravention' then leapt straight in with procedural issues regarding the minutiae of wording. If you think the contravention did not occur then IMO this must go front and centre. If this is found in your favour then you save the adj a great deal of time, but if it fails then what follows must be couched accordingly i.e. in the context of your main argument having failed.

..even if the adjudicator is not minded to allow the appeal on these grounds then I respectfully submit that there are significant additional errors which give rise to other grounds of appeal as follows...

As always with me, my advice is that your appeal must read as if it comes from you (what you did and why etc.) and not just a string of points - as if lifted from the internet!

[PASTMYBEST]

Having received this PCN on the 22nd of May 2019 some seven days after the date of the alleged contravention I was unable to remember what I was accused of doing wrong.

Why, it's been served well within limits which means well within what the law considers that the average motorist should be capable of recalling as regards events. Your implied criticism of their practice says more about your memory than their procedures. It's an unnecessary and IMO counter-productive comment (particularly as you have no recollection anyway so even if the PCN had been issued earlier this would not have made a jot of difference) and gets your reps off to a poor start.

and as

I decided to undertake some research to ascertain what I had done wrong


which, after 'extensive research', led to you concluding that:

I have no memory of passing any road signs that create a restriction

So,

are you saying that the restriction in the TMO does not give rise to your contravention or that the actual sign in situ does not convey the restriction in the TMO or that it does but irrespective of either because the PCN is not specific then it is unenforceable. If the latter, then the TMO etc. is not the issue. IMO, these arguments should be ordered and logically extensive research would follow the path of sign; review of references as to meaning; discovery that it covers a wide range of possible meanings; imprecision as regards the grounds in the PCN; unenforceability, if this is what you're claiming.

IMO, stand back, re-read, think what you're trying to get across to the adjudicator - and when your refer to examples make sure they're produced because it's not the adjudicator's task to find evidence for you - and then put yourself in the adjudicator's shoes and think how you would expect the argument to be presented. Your narrative started well with 'no contravention' then leapt straight in with procedural issues regarding the minutiae of wording. If you think the contravention did not occur then IMO this must go front and centre. If this is found in your favour then you save the adj a great deal of time, but if it fails then what follows must be couched accordingly i.e. in the context of your main argument having failed.

..even if the adjudicator is not minded to allow the appeal on these grounds then I respectfully submit that there are significant additional errors which give rise to other grounds of appeal as follows...

As always with me, my advice is that your appeal must read as if it comes from you (what you did and why etc.) and not just a string of points - as if lifted from the internet!

Whilst I do not disagree with the critique of the opening paragraph. It must be remembered that representations were made only on the technical points so it explains a little bit the reasoning behind researching the regs. I made the first point of appeal the same as that made in the representations because the reps and rejection are the first thing an adjudicator would look at IMO. There is no harm to be done by printing and sending all of the quoted cases but I venture that as they are all LT the adjudicator has easy access to them and would open the register if they wanted to.


But as HCA says stand back reread and make sure you are happy.

[mike.green.86]

So I got a letter from the Havering Council in the post over the weekend saying that they have uploaded their evidence on to the portal. I am not sure if I am allowed to discuss that evidence here prior to the case being determined at the tribunale...?

[PASTMYBEST]

So I got a letter from the Havering Council in the post over the weekend saying that they have uploaded their evidence on to the portal. I am not sure if I am allowed to discuss that evidence here prior to the case being determined at the tribunale...?

Of course you are. post the contents list and the case summery for now we may need to see more but will let you know

[mike.green.86]

Cool, attached the following:

• Evidence Checklist  Evidence_Checklist_censored.pdf ( 213.3K ) Number of downloads: 85
  
• Case Summary  Summary_censored.pdf ( 355.87K ) Number of downloads: 91
  

Interestingly I didn't receive the letter from Havering Council until yesterday (even though its dated 02/08/19) and now its too late to upload any further evidence...

[Mad Mick V]

Any postmarks on the envelope? Did you have to sign anything with the postie?

Very tight on the limit for service. I would certainly raise with the adjudicator first up.

Mick