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PCN for contravention 21 parked on Suspended bay, PCN for contravention 21 parked on Suspended bay Wandsworth council
pcnvictims
post Fri, 31 May 2019 - 11:15
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Hi Guys

This is my first post and was hoping someone can help and advise me on the ticket I received. I parked in a suspended lane which I did not notice as the suspended sign was located a couple of metres from my car in the other direction I walked away from my car. I arrived around 11 pm and Parked the car to go to my house. The suspended sign was located down the road not in the nearest sign from my car and not the in travel direction to any of the houses on my road. So I did not notice the sign and I have a parking permit. I drive the car the following morning at 8:30 am and to my surprise the PCN was on my car and I was surprised as firstly- before 9:30am where any restriction on my road is even enforced. Then I notice the suspended parking sign as travelling in that direction back to my car and not dark. I read this and the suspended bay starts at 00:01 to my horror, and half of my car was indeed parked in front of 1/3 Woodbury street. However the signage in front of 5/7 Woodbury street did not have any suspended sign which was nearest my car and on the direction I travelled after parking my car to get to my house on the same road few doors up. Surely there should be more notices of suspended bays especially on both of the parking restriction notices on either side of my car i.e. 1/3 Woodbury and 5/7 Woodbury post. please also note the 5/7 Woodbury restriction post is the wrong way round. I will try to demonstrate where the posts are located in the photos attached. I found many cars got this ticket later on as there was only one sign and was located down the road and quite ambiguous wording ' from outside 1/3 woodbury street and last 3 spaces' and no signage to nearest restriction post to the property which was outside 5/7 Woodbury street.

Please can someone advise if I have a case to appeal this and help me with what I should write as have only 2 days to appeal to pay the 50% reduced PCN so until 2nd June 2019.

Many thanks in advance and will be forever grateful and will add as many photos as I can.
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post Fri, 31 May 2019 - 11:15
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pcnvictims
post Sun, 2 Jun 2019 - 22:54
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I therefore wrote the following and sent to Wandsworth Council this appeal:

Dear to whom it may concern, I am appealing against PCN WA81234677 on the grounds that Wandsworth Council's published procedure for notice of suspension of parking bays was not followed. The traffic order was therefore invalid and as such a contravention did not occur.

As a permit holder I parked my car in a bay near my property, 19 Woodbury street at approximately 11pm, the night before the suspension came into force. It was dark, wet and the sign was not illuminated and therefore I did not notice that any parking suspension would be enforced the following day at 00:01am. Also I walked towards the sign I could see in the direction my car was facing to the direction of my property as I was returning home, which I have attached the photo showing this sign. As you can see from the photo attached, I did not pass any road marking which would indicate that the parking place in which I was parked had in any way terminated or suspended. I glanced at the sign - I don't need to check in detail as I'm a permit holder for this area and know the signs well. Nothing on the sign or the post on which it was situated alerted to me to the authority's claim that where I was parked was suspended. When I returned the following morning I saw the PCN and then noticed the sign behind my car which clearly covers where I was parked, but without the other sign (which was the one I consulted within the same parking place) bearing the same suspension notice the authority have clearly failed to sign the suspension correctly i.e. it needed to be book-ended.

I also looked again at the road markings to see if I had made a mistake, but on closer inspection it is clear that what used to be a terminating marking - effectively creating two contiguous bays -has in fact been blacked-out i.e. it has not deteriorated, it has been blacked-out. I must therefore suggest that the authority's consideration of my challenge can only be made if the officer concerned makes a personal visit to the site to see the state of the road markings which, for whatever reason, are not shown in the CEO's photos.

Also by virtue of the RTRA and regulations and their own traffic order, the authority are required to place clear signs in sufficient numbers to indicate to users of a parking place that the whole or part of it is to be suspended. As a minimum, this requires the authority to place suspensions signs on each post in the parking bay and certainly the one situated within the suspended area and the nearest one on either side. In this case the authority did not because only one sign was placed. Consequently, the suspension was not lawfully conveyed and by virtue of its traffic order no suspension was in effect and the contravention did not occur. Therefore the council has failed in their statutory duty to sign the restriction in accordance with the law. The council operate traffic enforcement under the provisions of the Traffic Management Act 2004. This act under section 92 advises;

“traffic sign” has the meaning given by section 64 of the Road Traffic Regulation Act 1984.

Section 64(1) of the Road Traffic Regulation Act 1984 defines a traffic sign as either being.

(a) specified by regulations made by the Ministers acting jointly, or
(b)authorised by the Secretary of State,
Section 64(2) of the RTRA 1984 adds further that;
(2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character.

The regulations referred to in section 64(1)(a) of the RTRA 1984 are known as the Traffic Signs Regulations and General Directives 2002. DfT circular 02/2003 informs about their purpose;

The TSRGD 2002 prescribe the designs and conditions of use for traffic signs to be
lawfully placed on or near roads in England, Scotland and Wales.

Regulation 11 within the TSRGD 2002 reiterates this circular and section 64(2) of the RTRA 1984.

11. — (1) Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, Part II of Schedule 10 and Schedule 12 to traffic on roads shall be of the size, colour and type shown in the diagram.

Further to the TSRGD 2002 the DfT has compiled and published numerous manuals known as the “Traffic Signs Manuals” to provide deliberate and extensive detail and information on how Local Authorities are to apply and interpret the plethora of regulations and directions given within the TSRGD 2002. These manuals contain no confusion as to how the DfT expect Local Authorities to interpret the law on traffic signs.

The TSM Chapter 1 advises;

1.15 Authorities may only use signs– including carriageway markings–of a size, colour and type prescribed or specially authorised by the Secretary of State, The prescribed signs are included
in The Traffic Signs Regulations and General Directions 2002.

1.18 The use on Public highways of non-prescribed signs which have notbeen authorised by, or on behalf of,the Secretary of State, is illegal and Authorities who so use unauthorised signs act beyond their powers. Additionally, an unauthorised sign in the highway is an obstruction.

The TSM Chapter 3 advises;

2.1 All traffic signs placed on a highway or on a road to which the public has access (right of passage
in Scotland), as defined in section 142 of the Road Traffic Regulation Act 1984 and amended by the
New Roads and Street Works Act 1991, must be either prescribed by Regulations or authorised by the Secretary of State for Transport……. and that no non-prescribed sign is used unless it has been formally authorised in writing. Failure to do so may leave an authority open to litigation, or make a traffic regulation order unenforceable.

The TSM Chapter 5 advises;

2.1 All road markings placed on a highway or road to which the public have access must be either
prescribed by Regulations or authorised by the Secretary of State for Transport.

2.5 Care should be taken to ensure that markings are used only in the manner prescribed in the
Regulations, and that no non-prescribed marking is used unless it has been authorised in writing. Failure to do so may leave an authority open to litigation, or make a traffic regulation order unenforceable.

In addition the DfT has compiled and published more than 14 series of extensive detailed works known as “Working Drawings” to assist Local Authorities in ensuring that they get the design of traffic signs correct. It is nonsensical that the DfT would go to such extreme lengths of detail and precision if they believed legislators intended Local Authorities to be allowed freedom of action or any degree of autonomy in traffic sign design.

Although both the RTRA 1984 and the TSRGD 2002 were enacted prior to the Traffic Management Act 2004 they are both still active and form the legal foundation for traffic enforcement under the TMA 2004. Section 87 of the TMA 2004 made provision for the Secretary of State to issue statutory guidance to Local Authorities in which they must have regard to when implementing and administering their traffic enforcement. It is clear from the extracts below that the Secretary of State expects Local Authorities to use traffic signs that comply with the law.

12. Enforcement authorities should aim to increase compliance with parking restrictions through clear, well designed, legal and enforced parking controls.

17. all Traffic Regulation Orders (TROs), traffic signs and road markings are in compliance with legal requirements

25. Unclear restrictions, or restrictions that do not comply with regulations or with the Secretary of State’s Guidance, will confuse people and ultimately undermine the operation and enforcement of the scheme overall.

33. Once a solid foundation of policies, legitimate TROs, and clear and lawful signs and lines are in place, the success of CPE will depend on the dedication and quality of the staff that deliver it.

38. CEO duties will also include related activities such as the following:
• checking and reporting defective traffic signs and road markings.

In addition to the Secretary of State’s statutory guidance the DfT published further guidance for the benefit of Local Authorities. This publication is known as the “Operational Guidance to Local Authorities” and this gives further clarification in regard to traffic signs.

8.35 Authorities should not issue PCNs when traffic signs or road markings are incorrect, missing or not in accordance with the TRO. These circumstances may make the Order unenforceable. If a representation against a PCN shows that a traffic sign or road marking was defective, the authority should accept the representation because the adjudicator is likely to uphold any appeal.
An enforcement authority may be acting unlawfully and may damage its reputation if it continues to issue PCNs that it knows to be unenforceable.

13.6 The Secretary of State will not sign an Order until a senior official of the authority has confirmed in writing that all existing and new TROs, traffic signs and road markings in the proposed CEA:
are in line with Government regulations and guidance in relevant chapters of
the Traffic Signs Manual or have special authorisation from DfT;

Considering all the above, what it is evidently clear, ever since the introduction of the RTRA 1984 up to the publication in 2008 of the DfT “Operational Guidance to Local Authorities”, is that there has been consistent and explicit direction by both the legal profession and Government, as to what is considered to be a lawful traffic sign. The courts have helped confirm this direction, such as in Davies v Heatley[1971] RTR45 where it was determined that the fact that a traffic sign may be clear does not make it legally correct. This finding of fact has been considered correct by numerous adjudicators but most notably in the key cases between Burnett v Buckinghamhire CC (PAS case HIW0003), Mr J Letts v London Borough of Lambeth (PA 1980151656) and Mr Keivan Jalali Bijari v Bolton Metropolitan Council (case no BO05375E).

The legislators did accept that a degree of flexibility would be required by Local Authorities and this is why the law not only prescribes numerous variations of traffic signs but permits a Local Authority to approach the Secretary of State to seek authorisation to use a non prescribed traffic sign. If you as a Local Authority chose not to follow the scope of the law then you must suffer the consequences without complaint rather than act ultra vires by attempting to enforce an unlawfully signed traffic restriction.

If the law intended only that a traffic sign must not mislead a motorist then the law would simply have stated as such and neither the legislators nor Government would have gone to such extreme and costly measures in drafting and publishing volumes of legislation and guidance to assist Local Authorities in regard to the specific design of traffic signs.

If you as a Local Authority ignore the overwhelming evidence that is in my favour and assert that, although the traffic sign fails to comply with the law, it is adequate to convey the restriction and that its non compliance with the law can be regarded as “de minimis” then I must strongly disagree. I have illustrated above that both the law and Government has gone to great trouble and effort to ensure that throughout the country motorists can be confident of finding identical traffic signs to the restrictions in force. This is not a case, where, for example, there is a very minor degree of wear to the lines or where one of the white lines is a millimetre or two out. The fact of the matter is that the council has simply used non prescribed signage without authorisation and it seems to me to be inappropriate to employ the “de minimis” principle to paper over the error. I certainly do not consider the amount of the penalty charge to be “de minimis” when compared to my disposable income.

If you do argue a case of “de minimis” then I too should be allowed, in the interest of justice and fairness, the same degree of flexibility and leniency when interpreting the traffic order bylaw. We are repeatedly informed that the purpose of traffic restrictions is to maintain traffic flow and to encourage road safety for all users of the public highway. My vehicle was not parked in such a manner that it interrupted the traffic flow nor did it endanger the safety of any person upon the public highway. Therefore, it is not unreasonable to apply the principle of “de minimis” to the alleged contravention just as equally as you may attempt to apply it in your defence of the unlawful traffic sign.

In addition, as a local resident I would have expected prior notification of any parking suspensions on my road. In previous instances we have received prior notification by post, this was not the case for this suspension. Considering all of the above and circumstances I request that this penalty be cancelled.

Photo I attached: https://ibb.co/sWYc2SV

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cp8759
post Mon, 3 Jun 2019 - 08:26
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Why did you write this rambling account, rather than the concise representation that hcandersen suggested? You do realise the TSRGD 2002 were abolished over 3 years ago, right?


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pcnvictims
post Mon, 3 Jun 2019 - 09:34
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Oh no I thought more is better but obviously not in this case. As long as I wrote what was suggested at the beginning it should still be fine right?
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cp8759
post Mon, 3 Jun 2019 - 12:12
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QUOTE (pcnvictims @ Mon, 3 Jun 2019 - 10:34) *
Oh no I thought more is better but obviously not in this case. As long as I wrote what was suggested at the beginning it should still be fine right?

I don't think you've helped your case but let's see what the council rejection letter says when you get it.


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pcnvictims
post Mon, 3 Jun 2019 - 12:29
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Will they definitely reject? it was hoping they wouldn’t smile.gif
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cp8759
post Mon, 3 Jun 2019 - 12:35
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QUOTE (pcnvictims @ Mon, 3 Jun 2019 - 13:29) *
Will they definitely reject? it was hoping they wouldn’t smile.gif

To be honest most informal representations are rejected no matter what you say. Council clerks are not legally trained and only have a half-baked understanding of the legislation they enforce. It's only at the tribunal that you really get a fair hearing.


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pcnvictims
post Mon, 3 Jun 2019 - 12:48
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Do you think I have a shot at winning in the tribunal?
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cp8759
post Mon, 3 Jun 2019 - 13:01
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QUOTE (pcnvictims @ Mon, 3 Jun 2019 - 13:48) *
Do you think I have a shot at winning in the tribunal?

Depends, if the council mess up the response then quite possibly. We need to see their reply before we can give a reliable indication.


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pcnvictims
post Mon, 3 Jun 2019 - 13:04
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Okay many thanks for the advice, will let you know once I get a response. They have a time limit of 56 days I think, what happens if they exceed that?
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cp8759
post Mon, 3 Jun 2019 - 13:25
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QUOTE (pcnvictims @ Mon, 3 Jun 2019 - 14:04) *
Okay many thanks for the advice, will let you know once I get a response. They have a time limit of 56 days I think, what happens if they exceed that?

They don't have a 56 day limit, that only applies to cases where you've made formal representations against a Notice to Owner, we're not at that stage yet. However if they don't answer within 70 to 100 days, that may amount to a procedural impropriety.


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pcnvictims
post Mon, 3 Jun 2019 - 14:16
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Okay many thanks, will keep you updated when and what the reply is. Let’s hope for the best! wink.gif
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stamfordman
post Mon, 3 Jun 2019 - 14:21
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I started to read your appeal and lost the will to live. Hopefully it will have the same effect on council and they'll cancel as a self-preservation measure.
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pcnvictims
post Mon, 3 Jun 2019 - 14:25
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Haha let’s hope so! biggrin.gif
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pcnvictims
post Tue, 20 Aug 2019 - 14:30
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I have finally received a reply after over 3 months which I have attached - and feel my questions are not really answered regarding enough signage as per: -

Also by virtue of the RTRA and regulations and their own traffic order, the authority are required to place clear signs in sufficient numbers to indicate to users of a parking place that the whole or part of it is to be suspended. As a minimum, this requires the authority to place suspensions signs on each post in the parking bay and certainly the one situated within the suspended area and the nearest one on either side. In this case the authority did not because only one sign was placed. Consequently, the suspension was not lawfully conveyed and by virtue of its traffic order no suspension was in effect and the contravention did not occur. Therefore the council has failed in their statutory duty to sign the restriction in accordance with the law. The council operate traffic enforcement under the provisions of the Traffic Management Act 2004.

Also my question regarding the faded road markings was not answered - do you think I can write to the council regarding not getting adequate reply on my challenge so try to get it cancelled or should I complain regarding the length of time I got a reply back from them? And do I pursue the to the parking adjudicator?

Please can some help as I wish to avoid paying this fine especially as this was a genuine error and pay my annual parking permit.

Many thanks in advance.
Attached File(s)
Attached File  00484184.pdf ( 271.56K ) Number of downloads: 34
 
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cp8759
post Tue, 20 Aug 2019 - 18:25
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Well most of your representation is nonsense, I'm not sure why you didn't use the representation HCA drafted for you. I'm not surprised the council rejected it and I still see no real reason to contest this. You could try arguing they took an unreasonably long time to reply, but it would be a big gamble to risk the discount just for that.

Just to make it clear, the fact that you have a permit and that it was a genuine error is not a defence.


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pcnvictims
post Tue, 20 Aug 2019 - 22:04
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So is it better to just pay the £55 and get it over with?
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hcandersen
post Wed, 21 Aug 2019 - 07:05
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Not for me.

The issue in law is simple:

Was there one bay or two?

And how would one tell?

The markings.

And these show?

A situation with what were two separate bays marked with terminating markings having become a single bay by virtue of the council having removed this division by overpainting the dividing line. In this situation the single bay was improperly marked as regards suspension.

That's it. OP, you must get clear photos of this line.
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pcnvictims
post Wed, 21 Aug 2019 - 09:11
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I can get a clearer picture of the road marking which I described in my challenge, which the council did not answer in their reply to my challenge. Also is there a case regarding the delay of the reply and not answering the challenge fully? Also can the council not use that the door number was used as reference of the suspension?

Should I send the council email before it goes to NTO?


Thanks in advance.
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hcandersen
post Wed, 21 Aug 2019 - 09:15
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The photos first and last pl.

Worry about subsequent actions when we've got the clear picture.
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