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PCN Bristol Code 34J Being in a bus lane
Wrongway
post Tue, 20 Aug 2019 - 09:38
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Good Morning,

I received a PCN from Bristol City Council for Being in a Bus lane (Colston Avenue Bus Lane 2C), I was expecting it and I am bang to rights as far as I can see, but I figured it's worth posting incase there is something I have missed.

On the 12th August I dropped my son at the bus station then had to make my way to Baldwin Street to pick something up, having not driven in the city centre for several years I was unaware of yet another new road layout.

I have since had someone check the signage leading up to the bus gate.

Coming up to the bus gate I was along side a bus, blocking my view the prior warning signs, I moved in behind the bus at the traffic lights and I was unable to see the traffic lights to the left which showed buses only. The first warning I had of it being a Bus gate was the writing on the floor. As soon as I saw this I attempted to rejoin the main road but due to the volume of traffic it was not possible or safe to do this without causing an accident, so had no option but to continue forward.

Thanks in advance for any advice you can give me






This post has been edited by Wrongway: Tue, 20 Aug 2019 - 11:25
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post Tue, 20 Aug 2019 - 09:38
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PASTMYBEST
post Tue, 20 Aug 2019 - 11:00
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This would give you a start for representations

1:- The penalty charge exceeded the amount applicable in the circumstances of the case.

Bristol city council allow payment of a penalty charge to be made by debit or credit card, either by telephone, online or in person, you may also pay by post using cheque or postal order.

The statutory ground for appeal is actuated by the telephone payment method. Bristol city council use for this service a premium rate 0870 telephone number that requires a user to pay an access charge to their service provider and a service charge that is set and for the benefit of Bristol city council. The rate set by the council being 2p per minute This is revenue raised by the council in addition to the penalty that a user must pay in order to discharge the penalty. Thus the total to be paid is 100%+ of the amount set by statute.

It should be noted that the service charge is not disputed by the council.

The issue of a council requiring payment of a surcharge came before parking adjudicators at PATAS in 2009 the London borough of Camden for a period in 2008 and 2009 required that in order to make payment by credit card a surcharge of 1.3% would need also to be paid. Four cases were taken before the parking adjudicators who found that the penalty charge exceeded the amount applicable in the circumstances of the case. Because more than 100% of the penalty set by statute was required to be paid in order to satisfy the debt.

Camden applied for judicial review and this was heard by THE HON. MR. JUSTICE BURNETT
Neutral Citation Number: [2011] EWHC 295 (Admin)

The judge in his ruling summarises Camden's case thus

Did the Penalty Amount Exceed the Amount Applicable?
27. Mr Coppel's argument on behalf of the Council embarks from the legal nature of a credit card transaction. That involves the credit card company having separate contracts with the cardholder and the supplier of goods or services. Under the arrangement the supplier of goods or services agrees to accept payment by credit card in discharge of the cardholder's liability to him. The credit card holder agrees to pay the full price of the goods to the card company, albeit at a later date and subject to interest if not paid promptly. The supplier of goods or services agrees to pay to the card provider a percentage of the total cost of the goods or services provided. In this instance the percentage agreed was 1.3% so that for every £100 paid by motorists via credit card, the Council received £98.70.[1] The Council point out that the motorist in these circumstances secures a valuable benefit, namely the delay in having to pay the credit card company albeit that there are substantial benefits to the Council in addition. The general convenience (and thus reduction in administrative overheads) is obvious and importantly the credit card company assumes the risk of non-payment. That is not altogether altruistic, since very high interest is generally charged in the event that a credit card bill is not settled in full at the first opportunity. However, the Council is freed of the problem of chasing bad debts or dealing with bouncing cheques.
28. Mr Coppel submits that the only form of payment that the Council are obliged to accept as a matter of law is cash in legal tender, unless they agree otherwise. As a matter of strict theory that may be right, although I venture to suggest that a Council which required parking contraveners to pay cash in notes, or coins of £1 or higher value (current legal tender) would be vulnerable to a challenge on grounds of rationality. Nobody is forced to pay by credit card. The Council suggest that it is not increasing the penalty charge but rather recovering an external cost associated with making a convenient method of payment available to those guilty of parking contraventions. Mr Coppel accepts that if this argument were right (and subject always to the vires to make any charge), then so far as the parking enforcement regime was concerned, the Council could recover by way of administrative fee the cost of dealing with any mechanism of payment except cash presented in denominations which were legal tender. There was no evidence before me of any external costs to a merchant associated with payment by debit card or cheque but such facilities are rarely free. There is clearly a significant cost in staff time and systems administration involved in accepting any form of payment. Cheques are especially labour intensive and costly. No doubt any enforcing authority could easily identify the global costs of collecting penalty charges by category and then attempt to divide those costs by the number of penalty charges they expect to recover to determine an administration fee appropriate to each. Yet that is far from the limit of the administrative charges that an inventive enforcing authority might seek to add to the penalty charge authorised by law. Civil enforcement officers must be employed, paid and equipped. There will, in addition, be an administrative superstructure which costs money. It is, submits Mr Coppel, only because the Parking Adjudicators failed to understand that there is a critical difference between the penalty charge and the costs of recovering that charge that they fell into the error of concluding that the penalty charge exceeded the amount prescribed by the statutory scheme. Mr Rogers, who appears for the Parking Adjudicators, submits that whatever label the Council attempt to attach to the 1.3% fee, it is in substance a surcharge that results in a demand for payment of a sum which exceeds that authorised under the statutory scheme.

THE HON. MR. JUSTICE BURNETT did not accept this argument he said

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

I submit that in making this ruling and specifically the findings at paragraph 29” It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge” That a council cannot add any charge that would be to their benefit. This service charge being just such a charge, set by the council and paid to the council raising the penalty demanded to more than 100% of that allowed by statute.
Bristol city council did not in the notice of rejection argue that this service charge be anything other than I have described, their contention being that as they allow other methods of payment then it is allowed for them to make this charge for the one method.
The last 3 sentences in the ruling, disabuse this belief “It makes no difference that the Council identified four mechanisms of payment, only one of which included the surcharge. Having offered that method all motorists were freely entitled to use it and were exposed to the potential demand for 101.3% of the appropriate penalty charge. In these circumstances the Council was demanding a sum to discharge the motorist's liability which was greater than that prescribed by law.”
I respectfully submit that this service charge falls within the scope of additional sums to be paid ruled upon by THE HON. MR. JUSTICE BURNETT as being a charge the council are not permitted to make



If this is the location you could also make an argument against the signage. If it is not pleas give us a GSV link

https://www.google.co.uk/maps/@51.4543891,-...6384!8i8192




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Wrongway
post Tue, 20 Aug 2019 - 11:33
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Thank you ever so much for your response. I shall start writing my representation on that basis.

The location is just around the corner, here is the GSV https://www.google.com/maps/@51.4549864,-2....6384!8i8192

GSV shows to signs prior to the lights, so I don't think I have any grounds on lack of signage. I moved into the lane after the last sign due to the bus on my inside

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PASTMYBEST
post Tue, 20 Aug 2019 - 11:51
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Look at the stills on the PCN that is not the same location, unless there has been a drastic change in the last year or so.

This opens up a ground of vague location as well.

The ground I gave you is still nor one adjudicators like to find on and we have to keep modifying our argument to rebut their objections but some of us more regular posters believe in it and feel sure we will get it accepted soon. What I have given you is out of date, but it does relate to Bristol and when it went to adjudication the adjudicator instructed Bristol to make an argument as to why it did not apply. They failed to do so Bristol are tardy with there responses so my plan would be to put any ground for which an argument can be made even if its not that strong and make them work a bit ( they undertake to reoffer the discount if you make reps within the 14 day period) So any thing the consider properly we can drop for adjudication and if they do not consider all points that is a failure to comply with the regs and another ground of appeal


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cp8759
post Tue, 20 Aug 2019 - 12:20
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If this goes to the tribunal you will likely need one of us to represent you, as the 0870 argument is highly technical. I'd be happy to do that for you.

This post has been edited by cp8759: Tue, 20 Aug 2019 - 12:21


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Incandescent
post Tue, 20 Aug 2019 - 12:46
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QUOTE (cp8759 @ Tue, 20 Aug 2019 - 13:20) *
If this goes to the tribunal you will likely need one of us to represent you, as the 0870 argument is highly technical. I'd be happy to do that for you.

Indeed !
Basically the charge is unlawful, but some adjudicators have posited that it is just the normal charge for using a payment method other than cash. However this is a false argument. Yes. people paying other than in cash can get charged by the organisation providing the payment service, but here we have the organisation giving part of their fee to the enforcement authority. Therefore the council are receiving more money than the penalty defined in law. I don't see what prestidigitation an adjudicator can employ to get around the High Court ruling. That was also for a trivial amount, being a fee of about 1.5% of the penalty. The 2p per minute passed to the council is probably less than that, but the principle is there.
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PASTMYBEST
post Tue, 20 Aug 2019 - 13:00
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I have a couple of paragraphs in mind to rebut that point and get the adjudicator thinking along the right lines and will post them in the next few days ( I don't think we have any 0845 case ready for tribunal ATM


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Wrongway
post Tue, 20 Aug 2019 - 14:39
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Thank you, I think I am understanding everything!

Sorry I am not sure about the Quote feature.

PASTMYBEST - Re Location - the Bus gate is left at the traffic lights (hidden by the bus), so the camera is somewhere after you turn into the road. I have attempted to clear up the location below. Blue line shows my route, Black cross is GSV and Red cross is approx location of my car in the photo. Had to use Photobucket instead of Tinypic because since I uploaded photos this morning the website has shut down...!

[/URL]

The layout of the road hasn't long changed according to this article, https://www.bristolpost.co.uk/news/bristol-...-avenue-2954377 .

cp8759 - Thank you ever so much for the offer, it is much appreciated

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PASTMYBEST
post Tue, 20 Aug 2019 - 15:48
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If you are going to allow CP to represent you and I would advise it. I will draft an argument re vague location or the signs being inadequate ( the regulations that the road legend BUS GATE is painted on the road.

I think what I have posted re the0845 is fine for representations but would want a major upgrade for tribunal. As I say got a couple of ideas and will liaise with CP on any appeal


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