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Edinburgh Road Bus Gate, Jarrow, Bus Gate PCN advice requested
Scotchy84
post Mon, 29 Nov 2021 - 17:57
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Hi, I’m in need of some advice and help regarding a bus gate at Edinburgh Road, Jarrow. This is a council money-spinner and has been subject to a number of challenges. It follows the same pattern of pulling the motorist along a straight road into the bus gate rather than leading them off via road markings along the correct route (there are quite a few of these in the north). It is a contraflow restriction allowing traffic to enter from the opposite end.

I have read the McGinty case and obtained the judgment (thank you cp8759) and the TRO associated with that. I’ll need to check to see if it’s been amended.
McGinty

TRO drive.google.com/file/d/1Vwde3ouDcb9Hz6maUSYukuSmN0QCSXXS/view

A friend has gone through the signed bus gate on 12/11/21 but realised their mistake and reversed back out. The council has issued a PCN dated 25/11/21, although they did not include a picture of the reg plate, it is on the website. The council has put in place an advanced warning sign to warn of a bus gate 500yds ahead and another about 70yds from the restriction, although there are numerous side roads along that road. Bus gate is painted on the road before the signs.

I know Boris Johnson said last year, first time offenders would get a warning but that doesn’t seem to have happened.

The signs are clear and the intention of the council is to allow a certain class of vehicle through, as the prohibition of driving exempts PSVs and cycles. A PSV can be a vehicle having less than 8 seats.

However, I have noticed that the signs (953.1 (variant)) are associated with use on bus lanes (TSM chapter 3 p.100) not bus gates. I also noticed that the TRO does not define a ‘bus gate’ (other councils usually define ‘bus gate’ as having the same meaning as a ‘bus lane’) and neither does the TRO identify any roads as being a bus gate or bus lane. I think that the TRO merely imposes a restriction to that section of road and, therefore, not enforceable as a bus lane infringement since they are not specified as being a bus lane or gate? As it stands, buses can use the road legally as the order does not specify local buses and the sign is conveying wrong information on top of being used incorrectly.

In my view there are errors and omissions in the TRO but I’m uncertain if I’m interpreting them right or how the adjudicator would view them. I feel sure that the council will reject any appeal made to them, but I will make the appeal as my friend has nothing to lose at the moment and it will stop the clock. I’d be grateful for your views on this. I've got 14 days to submit the first appeal and see how they respond.
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This post has been edited by Scotchy84: Mon, 29 Nov 2021 - 22:59
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post Mon, 29 Nov 2021 - 17:57
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cp8759
post Sun, 12 Dec 2021 - 16:20
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QUOTE (Scotchy84 @ Fri, 10 Dec 2021 - 20:36) *
Yes, the keeper was the driver.

Then the current draft lacks credibility, why would the driver say "In this case, I’m informed that the driver saw the signs..."? He wouldn't, he would say "I saw the signs quite late..."

While there might be some benefit in hiding the identity of the drive for private parking tickets, it's counter-productive in council cases because it simply means that the information is 2nd hand i.e. hearsay rather than first hand evidence. An adjudicator might also look at is as a form of playing games and trying to be clever. I would recommend you re-draft the representation in the first person and post a new draft.


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Scotchy84
post Sun, 12 Dec 2021 - 20:59
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I'd taken the 'I'm informed..' bit out since posting the draft and sent it to the owner to submit to the council in order to retain the 50% discount. They still haven't replied to the request for stills or video and the TRO. I expect there to be a newer TRO than the 2017 version or at least some amendment as there's been a few changes to the bus lanes in recent years. I think there are a few things for the Council to consider though and mitigation is one of them so I'll see how they respond.
What is noticeable in these dodgy bus gate cases is the fact that few follow the guidance in TSM ch 3 in their construct. The bus gate on John Dobson St in Newcastle, following the Chief Adjudicator's review, has resulted in a design more reflective of the guidance and there is some useful information in the decision that I need to examine further.



This post has been edited by Scotchy84: Sun, 12 Dec 2021 - 21:02
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cp8759
post Mon, 13 Dec 2021 - 11:20
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QUOTE (Scotchy84 @ Sun, 12 Dec 2021 - 20:59) *
I'd taken the 'I'm informed..' bit out...

I hope you re-wrote the whole thing in the first person rather than just taking that bit out?

Anyway, it's been sent so if they reject let's see what they say. You never know they might make a fatal mistake in the rejection.


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Scotchy84
post Fri, 17 Dec 2021 - 14:56
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So we requested stills and the video plus the TRO two weeks ago and got an auto response to say, "If your contact is relating to an Informal challenge or Representation (Appeal) – Please note that we require your full address and postcode in order to respond to your case. If you have not included this information with your initial email, please reply with the required information, quoting the Penalty Charge Notice number (TY reference)." We never responded with address etc. as the email was about send me stills and video or how do you go about viewing it rather than making an appeal. We have still had no contact from that email.

However, when I sent an email requesting a copy of the TRO, this was the reply, "Good Morning. Thank you for your email. In order to view a Traffic Regulation Order, you must make an appointment with our Legal Team. This can be done via our Contact Centre on 0191-4277000.
Kind regards.
Parking Team

Are they for real? They got a snotty email by return! I'll see what the FOI have to say when they respond.

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Scotchy84
post Thu, 27 Jan 2022 - 14:32
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Just by way of an update, it's been just about 7 weeks since I put in the representations and I've had nothing back from the council, other than a automated reply.
The case is still showing as open and a charge outstanding of £30. I know that there is not a time limit on them replying unlike the parking PCNs of 56 days. They have not responded to the request for pictures or where to view the video, which was asked for prior to submitting the representations and later in the representations.
The questions I have are, do I sit tight for the next 5-6 weeks (I understand that after 3 months it could be considered an unreasonable delay)? Or do
I challenge the council to make a decision?

I'd be grateful for your thoughts on this.
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cp8759
post Thu, 27 Jan 2022 - 16:18
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The longer the delay the better. There is no statutory limit, but if they take more than 2 - 3 months the tribunal will allow the appeal on the basis that the delay is unfair.

You can get a copy of the TRO by making a request under the Environmental Information Regulations 2004 (which for all practical purposes in this context work in the same was as the Freedom of Information Act 2000), just ask foi@southtyneside.gov.uk


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Scotchy84
post Thu, 27 Jan 2022 - 16:54
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Thanks for the advice, I'll sit tight.
I put in a FOI request for the TRO and they repeated what the parking team had said, "to make an appointment to view it." After I pointed it out to them that I had asked for a copy by email, they had an internal review and, presumably reluctantly, sent it out as the parking team leader was present but took no part.
The TRO for the bus gate hasn't changed much since McGinty. In 2010, PATROL produced recommendations for bus lane orders and provided examples of specimen orders. I think most councils follow these. However, in the TRO for Edinburgh Road, it has not been reserved as a bus lane (they use the TSRGD 2016 definition) and bus gate/street is neither defined nor even mentioned. The effect of the order as far as I can tell is to create a prohibition of driving except buses and cycles and local councils haven't been given that power to enforce MTO. They did not change the signs from local buses to buses when they amended the order in 2021 either.
The bit of road is a one way bus gate but signed as a bus only street (signs 953 either side instead of 953 and 616 (No entry)) and I have the benefit of the Chief Adjudicator's Review of the John Dobson bus gate, which points out for the need of adequate signage not just at the restriction but at various junctions and roads leading towards the restriction.


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cp8759
post Thu, 27 Jan 2022 - 18:12
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If you got the TRO let's see it please.


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Scotchy84
post Thu, 27 Jan 2022 - 21:30
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I've put the TRO up on one drive together with the highways engineering plan for the signs. Plenty of signs around the restriction and only one further up. None on the side roads or on entry to the estate, which goes against the Chief Adjudicator's decision (also attached) in the John Dobson case. In the TRO page 9 item 4 and page 129 refers to the restriction, definitions are on page 2.

I have also included a draft order in the making, which I have just received and suggests I may have touched a nerve when I pointed out the fact that there is no definition for bus street and bus gate.

Call me suspicious if you like but that could explain why they tried to prevent the TRO being sent out.

I've also just noticed that the PCN refers to a bus lane defined by s144(5), whereas the TRO defines a bus lane in accordance with Sch. 1 TSRGD 2016.

TRO 2021 Movement Restriction
Highways Sign Plan
Draft Order 2022
John Dobson St Chief Adujicator's Review

This post has been edited by Scotchy84: Sun, 30 Jan 2022 - 11:48
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Scotchy84
post Fri, 11 Mar 2022 - 17:58
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So it's now 3 months since the representations were made to the Council and the only thing that's changed is the outstanding amount on the PCN portal from £30 to £60. The Council have still not had the decency to reply or to respond to any of the emails sent and the last one was about two weeks ago to question the increase in the outstanding amount. It seems to be a council tactic to blank legitimate concerns, as this has happened to me previously when I questioned the legitimacy of unauthorised signage.
The council have now made an order to amend the current TRO to designate certain roads as bus lanes, bus only streets and bus gates. Edinburgh Road is now designated as a bus lane not a bus gate, although the signage is that of a bus only street. In other words it's still a dog's dinner.
I think it is now time to complain to the Council and to get them to jump through hoops.
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cp8759
post Sun, 13 Mar 2022 - 23:37
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QUOTE (Scotchy84 @ Fri, 11 Mar 2022 - 17:58) *
So it's now 3 months since the representations were made to the Council and the only thing that's changed is the outstanding amount on the PCN portal from £30 to £60.

This is often a clue that a Notice of Rejection has been issued but has been lost in the post. I would call the council and find out, if a rejection has been issued ask them to email you a copy.


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Scotchy84
post Sun, 10 Apr 2022 - 22:38
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Update and recap (previous links no longer work except photos). On 12/11/21 a friend drove past some bus signs on Edinburgh Rd, Jarrow but reversed back out after realising that perhaps they should not be going that way. The PCN was issued on 25/11/21 but the PCN did not state the time of the contravention: a requirement in the regulations https://www.legislation.gov.uk/uksi/2005/27...gulation/8/made
PCN pg1 is here https://drive.google.com/file/d/1f40hv9Hqth...iew?usp=sharing, PCN pg2 is here https://drive.google.com/file/d/1xVdPQ8oebh...iew?usp=sharing
I might be a bit picky on this one, but the PCN refers to regulation 3(5) for service; there is no regulation 3(5) in the Bus Lane Contraventions and in the Transport Act it refers to air traffic services. (I think it is referring to the wrong item in The Civil Enforcement of Parking Contraventions (England) General Regulations 2007.) On the rear of the PCN it refers to appeals to the bus lane adjudicator on the grounds listed below, not the required statutory grounds. The grounds listed below are not all of the statutory grounds; this would be confusing to the layperson.
The PCN must state; 8(5) (m) that if the representations are rejected an appeal may be made on any of the statutory grounds of appeal may be made to an adjudicator in respect of a penalty charge; …

The images supplied did not show the registration mark of the car with the PCN.
On 3/12/21 a request was made by email for the still photograph identifying the car to be sent and also to send a copy of the video. Failing the sending of the video, a request was made for the supply of still photographs to be sent as well as a copy of the TRO. Not all browsers play the video as it turns out, but still a reasonable request. No images have been received.
On 11/12/21 formal representations were made via email. Just for clarity, the automated email response states in red please note that we require your full address and postcode to respond to your case. The address was not provided on the first email, but this email did and was titled Representations against PCN TY09782705.

Representations are here;
https://docs.google.com/document/d/1HagFU1D...rue&sd=true

Apparently, a letter was sent, responding to the first email sent on 3/12/21, dated 27/1/22 directing my friend to a web page, but no photographs have been sent. Again, the wording on the PCN differs from the requirement at 8(5)(n)(ii) as the PCN implies that any requested still image would be sent. When in fact it is down to a council opinion as to whether the image establishes the contravention.

As there was no response from the council and the fine had increased to £60 they were emailed for an update on 24/2/22 with the earlier representations.
There was still no reply, so on 21/3/22 a complaint was submitted to the council to complain of the lack of communication.

This has resulted in a NoR issued on 4/4/22 some 114 days after the representations were submitted. Typically, the council claim they have responded within the time frames but they refer to the email sent on 24/2/22, not the representations made on 11/12/21.

NoR is here; https://drive.google.com/file/d/1WVzIOrtSZp...iew?usp=sharing

As can be seen, the images are for reference.
There is no comment or investigation into the mitigation reasons.
There was no initial representation on 3/12/21 it was a request for a photograph i.e. the number plate picture.
They have not responded to the representations made on 11/12/21.
The author has skimmed over the fact that the PCN did not contain the time, referring to the photographs as evidence sent with the notice and which were previously referred to as a reference. The author has failed to grasp the requirements of s8 (5), (5)(m) and (5)(n)(ii) of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005.
https://www.legislation.gov.uk/uksi/2005/27...gulation/8/made

The author states that TSM gives guidance but seems to be saying we can do what we want but fails to mention anything about the TRO. The author does not refer to The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 https://www.legislation.gov.uk/uksi/1996/2489/note/made

The NoR does not specify the statutory grounds of appeal but I’m not sure if they have stated that the Adjudicator can award costs as they do not state the circumstances required by Reg 10 (4)(e) and (f), I also don’t think that the NoR complies with sub-section (g) and it does not say in the NoR that the £30 will go up to £60 after 14 days.

The relevant pages of the TRO are here with the recent amendments written in pen https://drive.google.com/file/d/1LKVYB9kfgL...iew?usp=sharing

Basically, a Bus Gate is not defined in the TRO and Edinburgh Road is not a road reserved for buses, TSRGD 2016 has a narrower definition for a bus lane than the Transport Act 2000 s.144, therefore the TRO has a prohibition order and not a bus lane order and the council cannot enforce the TRO. For information, the council have used the prohibition orders prior to the Bus Lane enforcement having an effect. They have not altered them. This is a lift from a Patrol document advising on Bus Lane TROs, “If the terms “bus only streets” and “bus gates” are to be used in a TRO, in order to ensure that they are enforceable, they would need to be defined as bus lanes in accordance with the Transport Act 2000.” The fact is neither is included in the TRO and the author refers to Edinburgh Road as a bus gate.

The signs have not been changed to reflect the fact that it is now buses and cycles that can pass rather than the previous local buses and cycles. South Tyneside council does not change signs when they create or alter their TROs. Now they have altered the TRO to make the bus gate a bus lane but I’ll need to check whether they have altered the signs and road markings. I doubt it.

This bus gate is similar to the controversial John Dobson St bus gate in Newcastle. The TPT Review of Adjudicators decision is here https://drive.google.com/file/d/1WtaDJ0BQ5I...iew?usp=sharing

The Chief Adjudicator stated that motorists are entitled to know of restriction on a road before they enter it. That means signage at each junction as the advanced signage before the restriction could easily be missed or obscured. Edinburgh Road and all it’s junctions do not have these signs in place. Neither does either of the two entrances to the estate. The estate was used as a rat run to avoid a busy roundabout and so signage at the entrance would warn of the restriction. The John Dobson bus gate was deemed as inadequately signed by the Chief Adjudicator and Newcastle had to refund the motorists.

I find it a bit suspicious that after at least 15yrs, the council has now decided to label the roads as bus lanes/streets/gates. I’ll need to do a FOI to get some more information on that.

I’d be grateful for advice/opinions. I'm happy to represent my friend at the appeal. The TRO information has not been disclosed so far as this was discovered after the representations. I'm keen to see want they produce to the Adjudicator.

This post has been edited by Scotchy84: Mon, 11 Apr 2022 - 21:11
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cp8759
post Mon, 11 Apr 2022 - 08:59
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To be honest there is an awful lot going on here, some would make for an easy win and some of it is utterly irrelevant.

I'd be happy to represent your friend at the tribunal, I think it would make things easier / less hassle for all involved. Let me know if your friend would like to take me up on this.


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Scotchy84
post Mon, 11 Apr 2022 - 23:50
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CP8759 you're not wrong there; there is a lot going on and just looking at the NoR I don't think that it even complies with Reg 10(3), (4) a), b), c), e), f) and g). I'm no expert but I can see that the council have made a mess with this one. I'm curious though as to what TRO they put up to the Adjudicator given that it has just been amended. My friend accepts that they went past the signs but did reverse back out, although the video does not show that, neither does it show the registration mark. The image of the registration mark is on the website as well, having discovered it works on a different web browser. I'm thinking of a request under SARs to try and obtain it, as they have stated that it was observed via real time pictures. If nothing else it'll p them off.

I don't have much experience with Adjudicators or their thought processes having copped a visit curtesy of my son, but I think that they can only make decisions based on what is presented to them, which is why I gather as much information as I can.

It is very kind of you to offer your time to represent my friend and I'll get back to you very soon on that.

One document I forgot to post was the letter dated 27/1/22 as, after re-reading the NoR, the author seems to be suggesting that they had responded to the representation https://drive.google.com/file/d/1zEuT1Fev9W...iew?usp=sharing
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cp8759
post Tue, 12 Apr 2022 - 15:45
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QUOTE (Scotchy84 @ Tue, 12 Apr 2022 - 00:50) *
One document I forgot to post was the letter dated 27/1/22 as, after re-reading the NoR, the author seems to be suggesting that they had responded to the representation https://drive.google.com/file/d/1zEuT1Fev9W...iew?usp=sharing

You need to set the link to public.


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Scotchy84
post Tue, 12 Apr 2022 - 19:07
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QUOTE (cp8759 @ Tue, 12 Apr 2022 - 16:45) *
QUOTE (Scotchy84 @ Tue, 12 Apr 2022 - 00:50) *
One document I forgot to post was the letter dated 27/1/22 as, after re-reading the NoR, the author seems to be suggesting that they had responded to the representation https://drive.google.com/file/d/1zEuT1Fev9W...iew?usp=sharing

You need to set the link to public.


Apologises, I thought I had. Hopefully it's set to public now
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cp8759
post Tue, 12 Apr 2022 - 20:21
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Yes it works now. Let me know if your friend would like representation.


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Scotchy84
post Tue, 12 Apr 2022 - 21:19
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QUOTE (cp8759 @ Tue, 12 Apr 2022 - 21:21) *
Yes it works now. Let me know if your friend would like representation.


I've sent you a PM
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cp8759
post Mon, 23 May 2022 - 15:07
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Rather surprising outcome: https://bit.ly/38fv4ZW


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Scotchy84
post Mon, 23 May 2022 - 15:44
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I'm very grateful for the assistance of cp8759 in dealing with this matter. It was fortunate that the adjudicator had dealt with others previously and had spoken with the Head Engineer about this location. Ultimately though, I think the arguments presented by cp8759 scared the council from attending, as their case was mired by incompetence. However, a win is a win as they say.
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