PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

PCN - 34-Being in a Bus Lane - A5 The Hyde
Kneidel
post Fri, 15 Mar 2019 - 16:31
Post #1


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



My mother received a PCN from Barnet Council for a traffic contravention: 34 - Being in a Bus Lane. The contravention took place on A5 The Hyde/20m North of J/W Hyde Estate Road NW9. Here's the street view of the area.

I have attached the PCN, images and video provided by the council.

Does she have any grounds of appeal?

Many thanks.








Go to the top of the page
 
+Quote Post
 
Start new topic
Replies (1 - 14)
Advertisement
post Fri, 15 Mar 2019 - 16:31
Post #


Advertise here!









Go to the top of the page
 
Quote Post
PASTMYBEST
post Fri, 15 Mar 2019 - 16:54
Post #2


Member


Group: Members
Posts: 15,598
Joined: 6 Nov 2014
Member No.: 74,048



The signs are ok (looking at GSV)


https://www.google.co.uk/maps/@51.5834011,-...6384!8i8192

You could argue that the road markings were particularly obscured due to the weather and the PCN states the council will serve an enforcement notice. The law only prescribes that they MAY. This fetters their common law duty and if it was a statement given in a NTO or a formal notice of rejection I would say it would win, but on a bus lane PCN where you get another chance to make representations it is not quite as solid


--------------------
All advice is given freely. It is given without guarantee and responsibility for its use rests with the user
Go to the top of the page
 
+Quote Post
Kneidel
post Fri, 15 Mar 2019 - 17:19
Post #3


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



QUOTE (PASTMYBEST @ Fri, 15 Mar 2019 - 16:54) *
The signs are ok (looking at GSV)


https://www.google.co.uk/maps/@51.5834011,-...6384!8i8192

You could argue that the road markings were particularly obscured due to the weather and the PCN states the council will serve an enforcement notice. The law only prescribes that they MAY. This fetters their common law duty and if it was a statement given in a NTO or a formal notice of rejection I would say it would win, but on a bus lane PCN where you get another chance to make representations it is not quite as solid


1) The bus lane markings in the images provided by the council are very faint and difficult to discern. Are there any cases I can refer to on for this point?

2) Could she argue that the broken bus lane marking shown in the GSV confused her into thinking she could move into the left lane at that point?



This post has been edited by Kneidel: Fri, 15 Mar 2019 - 18:35
Go to the top of the page
 
+Quote Post
Kneidel
post Fri, 15 Mar 2019 - 18:40
Post #4


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



3) I do not understand this part of the PCN about how to challenge:

If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge.

i) How can the time for making formal representations be 28 days from the date of this PCN? I can only make formal representations after informal representations have been rejected and an Enforcement Notice has been served which could be way after 28 days from the date of the PCN. Surely, it's nonsensical for the time to appeal an Enforcement Notice to retroactively start from the date of the PCN?
ii) Is the statutory time for making representations for this type of PCN 28 days from the date of the PCN or its service?

The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 Part 3 says: 7. In this Part— “the 28 day period”, in relation to a penalty charge notice, means the period of 28 days beginning with the date of service of the notice.

(5) A penalty charge notice must state—

(e)that the penalty charge must be paid before the end of the 28 day period;
(f)that if the penalty charge is paid before the end of the period of 14 days beginning with the date of service of the notice, the penalty charge will be reduced by one half;
(g)that representations may be made, on any of the statutory grounds of appeal, to the authority against the imposition of the penalty charge but that representations made outside the 28 day period may be disregarded;

Doesn't that contradict the PCN?

This post has been edited by Kneidel: Fri, 15 Mar 2019 - 18:51
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Fri, 15 Mar 2019 - 19:24
Post #5


Member


Group: Members
Posts: 15,598
Joined: 6 Nov 2014
Member No.: 74,048



You can pull your hair out about it if you want to. The regs do not allow for a challenge against the PCN but it has become custom and practice for councils to allow you to do so, and even to re offer the discount.

They cannot issue an EN until after the 28 day period but they can wait until they have rejected informal challenges there is no time limit on this


IMO it is certainly worth a challenge on the state of the lines and confusion as to where they end


--------------------
All advice is given freely. It is given without guarantee and responsibility for its use rests with the user
Go to the top of the page
 
+Quote Post
Kneidel
post Fri, 15 Mar 2019 - 22:35
Post #6


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



Is it the London Local Authorities Act 1996 Part II and Schedule 1 or The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 that applies to my PCN as they seem to set out slightly different enforcement and appeal procedures.
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Fri, 15 Mar 2019 - 22:49
Post #7


Member


Group: Members
Posts: 15,598
Joined: 6 Nov 2014
Member No.: 74,048



QUOTE (Kneidel @ Fri, 15 Mar 2019 - 22:35) *
Is it the London Local Authorities Act 1996 Part II and Schedule 1 or The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 that applies to my PCN as they seem to set out slightly different enforcement and appeal procedures.


part II regulation 4 sets out service of a PCN

Schedule 1 the service of an EN and how you can appeal against it . As I said you have no right of appeal against a PCN


--------------------
All advice is given freely. It is given without guarantee and responsibility for its use rests with the user
Go to the top of the page
 
+Quote Post
Kneidel
post Sat, 16 Mar 2019 - 00:25
Post #8


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



QUOTE (PASTMYBEST @ Fri, 15 Mar 2019 - 22:49) *
As I said you have no right of appeal against a PCN


Why do you say that? Schedule I provides for Representations against penalty charge notice or enforcement notice and Adjudication by traffic adjudicator.
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Sat, 16 Mar 2019 - 11:57
Post #9


Member


Group: Members
Posts: 15,598
Joined: 6 Nov 2014
Member No.: 74,048



QUOTE (Kneidel @ Sat, 16 Mar 2019 - 00:25) *
QUOTE (PASTMYBEST @ Fri, 15 Mar 2019 - 22:49) *
As I said you have no right of appeal against a PCN


Why do you say that? Schedule I provides for Representations against penalty charge notice or enforcement notice and Adjudication by traffic adjudicator.


does it ? Where ?


--------------------
All advice is given freely. It is given without guarantee and responsibility for its use rests with the user
Go to the top of the page
 
+Quote Post
Kneidel
post Sat, 16 Mar 2019 - 13:08
Post #10


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



QUOTE (PASTMYBEST @ Sat, 16 Mar 2019 - 11:57) *
QUOTE (Kneidel @ Sat, 16 Mar 2019 - 00:25) *
QUOTE (PASTMYBEST @ Fri, 15 Mar 2019 - 22:49) *
As I said you have no right of appeal against a PCN


Why do you say that? Schedule I provides for Representations against penalty charge notice or enforcement notice and Adjudication by traffic adjudicator.


does it ? Where ?


Schedule I Section 1(1)©, Section 2 and 6.
Go to the top of the page
 
+Quote Post
cp8759
post Sun, 17 Mar 2019 - 18:21
Post #11


Member


Group: Members
Posts: 9,349
Joined: 3 Dec 2010
Member No.: 42,618



QUOTE (Kneidel @ Sat, 16 Mar 2019 - 13:08) *
Schedule I Section 1(1)©, Section 2 and 6.

No, this is not correct. The reason is that the 1996 Act has been amended by the following:

• Transport Act 2000
• London Local Authorities Act 2000
• The Transport for London (Bus Lanes) Order 2001
• The Transport for London (Consequential Provisions) Order 2005 which amends section 7 of The London Local Authorities Act 2000 to create a six month limitation period for enforcement notices under Part 2 of the 1996 Act (not a textual amendment)
• The Traffic Management Act 2004 (Commencement No. 5 and Transitional Provisions) (England) Order 2007 as modified by The Traffic Management Act 2004 (Commencement No. 5 and Transitional Provisions) (England) (Amendment) Order 2008
• The Crime and Courts Act 2013 which amends paragraph 10 of Schedule 1 to the London Local Authorities Act 1996
• The Road Safety Act 2006 (Consequential Amendments) Order 2015 which amends section 9(a) of the 1996 Act

Unfortunately as the 1996 Act is a local Act, the editorial team at legislation.gov.uk does not produce a consolidated version, this is why it says at the top of each page

Status:This is the original version (as it was originally enacted). This item of legislation is currently only available in its original format.

You could go through all the amending legislation to work out what the Act says now. Alternatively, there's a consolidation version available on row 14 here http://bit.ly/2FVwsAp and this includes all of the above amendments.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Sun, 17 Mar 2019 - 19:29
Post #12


Member


Group: Members
Posts: 15,598
Joined: 6 Nov 2014
Member No.: 74,048



I read it differently, but as the council accept challenges against the PCN the point is mute. Post your draft for review before sending


--------------------
All advice is given freely. It is given without guarantee and responsibility for its use rests with the user
Go to the top of the page
 
+Quote Post
Kneidel
post Sun, 17 Mar 2019 - 22:27
Post #13


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



I request that you consider cancelling this Penalty Charge Notice on the following grounds:

Inadequate Road Markings

1) It is apparent when looking at the photos and video provided by the council that the bus lane markings are faded and difficult to discern. They are significantly fainter than the other road markings.

2) The Traffic Signs Manual Chapter 5, Road Markings, 2003 stipulates that:

1.10 For road markings to be effective, they must be clearly visible both by day and by night.
23.21 Road markings, including reflecting road studs, must be well maintained if they are to fulfil their purpose.
23.23 Traffic authorities should keep their carriageway markings under review (particularly on heavily-trafficked roads) to ensure that their effectiveness is maintained at all times.


3) Because the bus lane road markings have not been maintained, they were not clearly visible, especially for a motorist driving in dark and rainy conditions (evidenced by the shimmering on the road and the weather forecast for the day ) with car lights reflecting off the surface water.

4) In such conditions, a motorist might wrongly assume they could move over to the left lane in preparation of an imminent left-turn ahead, especially on catching sight of the arrows on the road ahead.

PCN - Incorrect time period for making representations

5) The PCN states:

If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge.

6) This is not compliant with The London Local Authorities Act 1996.

The London Local Authorities Act 1996, Part II, Section 4 (3) states:

A penalty charge notice under this Part of this Act must state—

(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement notice may be served by the council on the person appearing to them to be the owner of the vehicle;

(g) the effect of paragraph 2 of Schedule 1 to this Act.


Paragraph 2 of Schedule 1 states:

(1) Where it appears to a person on whom an enforcement notice has been served under paragraph 1 above (in this Schedule referred to as “the recipient”) that one or other of the grounds mentioned in sub-paragraph (4) below is satisfied, he may make representations to that effect to the enforcing authority.

(2) The council may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the enforcement notice in question was served.

(10) It shall be the duty of the council to whom representations are duly made under this paragraph—
(a) to consider them and any supporting evidence which the person making them provides.


7) It is clear that where an Enforcement Notice is served, the council is statutorily bound to consider representations for a period of 28 days beginning when the Enforcement Notice has been served; not from the date of the PCN as misstated within this putative PCN.

The effect of this misrepresentation is the curtailment or total elimination of the time period during which the motorist has the statutory right to appeal on receipt of an Enforcement Notice and for their appeal to be considered.

8) Accordingly, the PCN is invalid as it: a) not only fails to state the information required by S.4(3)(g) but materially misrepresents it; b) prejudices the motorists’ statutory rights. In these circumstances, no lawful PCN has been served and thus no liability can arise.

PCN - Missing grounds for making representations

9) The PCN lists various grounds for making representations but these are incomplete.

10) As stated in clause 6), the PCN must state the effect of paragraph 2 of Schedule 1.

11) Paragraph 2(1) states that representations can be made where it appears “that one or other of the grounds mentioned in sub-paragraph (4) below is satisfied.”

12) Sub-paragraph (4)(b) states the following ground: that there was no breach of an order or regulations of the type described in subsection (2) of the said section 4. The PCN omits this in its entirety.

13) The PCN also omits the ground for making representations stated in Section 9: (b) notification of an intention to prosecute the driver in respect of such an offence is given by the Commissioner of Police of the Metropolis or of the City of London to the council of the borough in which the alleged offence took place before the expiry of the period of 14 days, beginning with the day on which the alleged offence takes place.

14) Accordingly, the PCN is invalid as it does not include the requisite information and the motorist is prejudiced when making representations.

Fetters discretion

15) The PCN states that if the penalty charge remains unpaid, an Enforcement Notice will be sent; not may be sent.

16) This is contrary to The London Local Authorities Act 1996, S.4 (3)(e) which states:

A penalty charge notice under this Part of this Act must state—
(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement notice may be served by the council on the person appearing to them to be the owner of the vehicle;


Additionally, Schedule 1 (1)(1) states: The council concerned may serve a notice (in this Schedule referred to as an “enforcement notice”).

17) The PCN misstates what is legally required of it and in so doing, fetters any discretion the council may choose to exercise in the course of its dealing with this PCN.

18) The council cannot claim in mitigation that in practice, discretion would never be exercised in the motorist's favour - I refer to 2180251300 - James Demery v London Borough of Bexley as persuasive authority:

It seems to me that the Authority has been given a discretion to issue a Charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.

The PCN is non-compliant. It is invalid and cannot be enforced. It also amounts to a procedural impropriety. I allow the appeal.



2100649871 - Grace Elizabeth Wheatland vs Royal Borough of Kingston Upon Thames

Miss Wheatland asserts that the PCN is non-compliant in stating that in the event of failure to make representations or a payment 'an Enforcement Notice will be served' rather than 'may be served'. He refers to a PCN cancelled by this Local Authority on similar grounds.

It is an enduring mystery why Local Authorities seem unable simply to copy out the words of the statute or statutory instrument imposing formal requirements. It is not sufficient for the Local Authority to say as here that they have subsequently amended the wording. They have given no good reason for departing from the statutory wording in the first place … I allow the appeal.


2120448511 - Darius Asipauskas vs London Borough of Croydon

I agree with the Appellant that the Penalty Charge Notice is non-compliant with the statutory provisions in that it states an increased penalty will instead of may be payable … The Penalty Charge Notice must strictly comply with the statutory provisions and if it does not it cannot be enforced; it is not substantially compliant as the Enforcement Authority suggest.

2110072817 – Lulu Miah vs London Borough of Hackney

The wording the Council has employed in its rejection notice departs materially from this. "Will" appears instead of "may".

For the reasons outlined above, I request that you cancel the PCN. If you are not so minded, please provide the relevant Traffic Management Order in pdf with all schedules and amendments pertaining to the said bus lane.

Go to the top of the page
 
+Quote Post
cp8759
post Mon, 18 Mar 2019 - 10:15
Post #14


Member


Group: Members
Posts: 9,349
Joined: 3 Dec 2010
Member No.: 42,618



Very good effort, but your references to the legislation are out of date. I suggest you re-copy the quoted legislation from the consolidated version and update your draft above.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
Go to the top of the page
 
+Quote Post
Kneidel
post Today, 12:24
Post #15


Member


Group: Members
Posts: 33
Joined: 9 Jan 2017
Member No.: 89,516



Informal appeal rejected.

Go to the top of the page
 
+Quote Post

Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Monday, 25th March 2019 - 23:17
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.