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Ealing - Alighting in a bus stop, Ticketed by CCTV for dropping off in a bus stop
TigerRob
post Mon, 21 May 2018 - 13:31
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A week ago my wife received a PCN for dropping off her mother in a bus stop near Ealing Broadway Station. I was just going to pay up (having chastised her as she knows she shouldn't do this). However, before I pay up, I'd like to check in with the collective knowledge here as to whether there's a chance of a challenge. I'll post more details tonight, but specifically I'm interested if the missing yellow lines in this bus stop (GSV: https://goo.gl/maps/RvG88H5XhbE2 ) give her a get-out-of-jail card? I.e. are the yellow lines essential to enforcing the no stopping regulation? I believe that without the 'no stopping' rule then alighting in a bus stop is OK?

Thoughts?

Thanks, and more details later,
Rob.
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post Mon, 21 May 2018 - 13:31
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DancingDad
post Mon, 2 Jul 2018 - 16:12
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I don't think that you will find any examples of non clearway markings in TSRGD or any other official documents.
Simple reason is that they are not enforceable and hence not a proper traffic sign, simply guidance... should not stop/wait/park.
But there are plenty around, around here they are mixed, some clearway, some not.
As that does happen, it is not enough for any council to get close but forget the broad line, it is a vital part to adequately inform the motorist that this is a must not stop bus stand/stop.
Cannot rely on anything else, not even the little yellow post sign.
While that has to be there, they are often not readily visible or readable before stopping.
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TigerRob
post Tue, 3 Jul 2018 - 09:47
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Does it make any difference when I make the application for appeal? The documentation received with the NoR suggests that they will give at least 28 days notice, and I'd like to avoid most of August as I'm away and would like to attend in person. So I'm thinking of waiting until near the ned of the 28 day period I have to lodge the appeal, whcih should put hthe hearing out towards the end of August. Any issue with this approach (other than not missing the deadline)?

Here's an initial outline of a challenge for LT. Some embedded questions, and some areas that will likely need changing once we see Council's evidence pack. Needs details/references fleshing out, but I though I'd get this down while it's fresh in my mind:

QUOTE
To Whom it may concern,

I make this appeal against PCN: XXXXXXXX VRM:XXXXXXX on the following grounds.

The burden of proof falls upon the EA to prove that a contravention has occurred. In this case to establish the contravention the EA must
1. Establish a valid TMO that allows the creation of the clearway bus stop in question
2. Establish that lines on the bus stop are to diagram 1025.1
3. Establish that there is an upright sign to diagram 974 or 975
4. Establish the contravention itself.

Addressing each of the 4 points:

Ground (1): The Contravention did not occur.
The EA has failed to establish the existence of a valid TMO on which they rely. In my formal challenge I requested a copy of the relevant TMO(s). Although not mentioned in the Notice of Rejection letter the council supplied a copy of a TMO (Attached: LBE TMO 2014 No. 41) in the same envelope as the notice of rejection, which I assume they provided as the TMO(s) on which they rely. This TMO establishes bus lanes and bus-only routes in the borough but does not establish any bus stops, let alone the bus stop in question.

Ground (2): The Contravention did not occur.
The EA has failed to establish that the lines are compliant with diagram 1025.1. In my formal challenge I made the observations that the broad yellow line parallel to the curb, as required by diagram 1025.1 was missing. This is a mandatory part of the required lines, and without it a driver cannot be expected to know that a no stopping enforcement exists. From the traffic sign manual, chapter 5, section 17.20 " The yellow prohibition of stopping line in the marking prevents vehicles from stopping for at least part of the day, but must be used in conjunction with signs to diagram 974 or 975". Absence of the yellow prohibition line can only indicate to a driver that no prohibition of stopping is in place. [Add evidence that line does not exist- council pics, my pics, council video, GSV. Use GSV to show lines used to exist in 2016(?) and make the case that the authority have a obligation to maintain clear lines/signs throughout the life of any restriction][Should we address the council's spurious references to the highway code, or just ignore?]

Ground (3): The contravention did not occur.
The EA have failed to establish the presence of the mandatory vertical sign to diagram 974 or 975. [NOTE: I do not dispute it being there (it is), but the EA must establish this as fact - they may do in their evidence pack]

Ground (4): The contravention did not occur.
The EA have failed to establish that the contravention specified in the PCN took place. The observation time for the offence on the PCN is stated as 08:37:03 to 08:37:04. It is clear from the EA's video evidence that no contravention occurs during this stated 1 second observation period. If a contravention occurs, it does so at a later time, but that is not what the PCN alleges. It would have been trivially easy for the EA to pick an observation period that did show the contravention, but they chose not to.

Further to failing to establish the contravention, the EA has also committed a number of procedural improprieties, which I add here in case the grounds above are not considered sufficient cancel the PCN.

Ground (5): There has been a procedural impropriety on the part of the Enforcement Authority
The EA has failed in its duty to consider my formal representations. In my representations I clearly outline the missing parts of diagram 1025.1 and ask they to explain how that missing line can leave the lines compliant. In their response the EA simply state that they believe the lines to be compliant, but fail to address the crux of the argument, i.e. how the lines are compliant. This is a failure to consider.

Ground (6): There has been a procedural impropriety on the part of the Enforcement Authority
The EA has failed in its duty to consider my formal representations. In my representations I clearly outline the discrepancy between the observation times in the PCN and the timing of the alleged offence in the video. The council have failed to address this in their response. This is a failure to consider.

Ground (7): There has been a procedural impropriety on the part of the Enforcement Authority
The EA has failed in its duty to consider my formal representations. In my representations I clearly request the CEO notes and other evidence on which they will rely. This was so that in the case that they decided to reject my challenge I would have the evidence I needed to make a decision on whether to forgo the reduced charge and take the case to appeal. The EA failed to provide the requested information, or to address why they would/could not supply it. This is a failure to consider.

Hugs,
/Registered Keeper/


Any comments at this stage?
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cp8759
post Tue, 3 Jul 2018 - 10:35
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QUOTE (TigerRob @ Tue, 3 Jul 2018 - 10:47) *
Ground (2): The Contravention did not occur.
The EA has failed to establish that the lines are compliant with diagram 1025.1. In my formal challenge I made the observations that the broad yellow line parallel to the curb, as required by diagram 1025.1 was missing. This is a mandatory part of the required lines, and without it a driver cannot be expected to know that a no stopping restriction exists. From the traffic sign manual, chapter 5, section 17.20 " The yellow prohibition of stopping line in the marking prevents vehicles from stopping for at least part of the day, but must be used in conjunction with signs to diagram 974 or 975". Absence of the yellow prohibition line can only indicate to a driver that no prohibition of stopping is in place. [Add evidence that line does not exist- council pics, my pics, council video, GSV. Use GSV to show lines used to exist in 2016(?) and make the case that the authority have a obligation to maintain clear lines/signs throughout the life of any restriction][Should we address the council's spurious references to the highway code, or just ignore?]

Ground (3): The contravention did not occur.
The EA have failed to establish the presence of the mandatory vertical sign to diagram 974 or 975. [NOTE: I do not dispute it being there (it is), but the EA must establish this as fact - they may do in their evidence pack]

Ground (4): The contravention did not occur.
The EA have failed to establish that the contravention specified in the PCN took place. The observation time for the offence on the PCN is stated as 08:37:03 to 08:37:04. It is clear from the EA's video evidence that no contravention occurs during this stated 1 second observation period. If a contravention occurs, it does so at a later time, but that is not what the PCN alleges. It would have been trivially easy for the EA to pick an observation period that did show the contravention, but they chose not to.

Further to failing to establish the contravention, the EA has also committed a number of procedural improprieties, which I add here in case the grounds above are not considered sufficient cancel the PCN.

The amendment to ground 2 should be self-explanatory. Amend ground 3 because, if you tell the adjudicator that the sign was there, it is proven on the evidence available to the adjudicator that the sign was there, thus negating this point. Don't admit anything, leave it to the council to prove the sign was there. The same logic applies to ground 4: you are not accepting any contravention occurred, so you wouldn't accept there is any part of the video that shows a contravention. If the adjudicator decides a contravention occurred but wasn't alleged on the PCN, so be it, but that's not a reason to concede that the video shows a contravention.


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TigerRob
post Tue, 3 Jul 2018 - 10:43
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QUOTE (cp8759 @ Tue, 3 Jul 2018 - 11:35) *
The amendment to ground 2 should be self-explanatory.

Yes, thank you.

QUOTE (cp8759 @ Tue, 3 Jul 2018 - 11:35) *
Amend ground 3 because, if you tell the adjudicator that the sign was there, it is proven on the evidence available to the adjudicator that the sign was there, thus negating this point. Don't admit anything, leave it to the council to prove the sign was there.

Yes. Apologies if it wasn't clear, but the NOTE in square brackets was for me, and not intended to left in ...

QUOTE (cp8759 @ Tue, 3 Jul 2018 - 11:35) *
The same logic applies to ground 4: you are not accepting any contravention occurred, so you wouldn't accept there is any part of the video that shows a contravention. If the adjudicator decides a contravention occurred but wasn't alleged on the PCN, so be it, but that's not a reason to concede that the video shows a contravention.

OK, understood, thank you.
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TigerRob
post Tue, 3 Jul 2018 - 14:45
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QUOTE (TigerRob @ Tue, 3 Jul 2018 - 10:47) *
make the case that the authority have a obligation to maintain clear lines/signs throughout the life of any restriction

For later: LATOR Provision 18
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DancingDad
post Tue, 3 Jul 2018 - 21:18
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I think you have grasped the key points
Do you intend going to the hearing?
You can request dates to be avoided when you appeal.
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TigerRob
post Mon, 9 Jul 2018 - 16:24
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Another non-consideration case for possible use later. Thanks CP

QUOTE
While previous adjudications are not binding, they can be persuasive and I submit that the decision of adjudicator Edward Houghton in Jaffer Husseyin v Royal Borough of Greenwich (case reference 2170256432) is relevant in this instance. In that decision, adjudicator Houghton stated, in so far as is relevant:

“The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed”.

In this case the Notice of Rejection should have included words to the effect that the exemption claimed under the Traffic Signs Regulations and General Directions 2016 was not made out, was not relevant or was not (for whatever reason) accepted by the council, but the issue is not even mentioned in the Notice of Rejection. It follows that the council could not have properly considered the representations made, and this failure to consider amounts to a further procedural impropriety. It follows that even if the contravention had occurred, the Penalty Charge Notice and the Notice to Owner should now be cancelled.
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TigerRob
post Tue, 24 Jul 2018 - 12:48
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Appeal submitted to, and acknowledged by, London Tribunals. Requested in person hearing, with myself as legal representative for OH. Requested hearing for 5th Sept, so plenty of time.

Grounds: The contravention did not occur, EA Procedural Impropriety
Evidence to follow (request for it to be uploaded at least 5 working days before hearing)

I'll try to flesh out my appeal in the next few days, and post here for comments/advise.
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DancingDad
post Tue, 24 Jul 2018 - 13:15
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Shouldn't be an issue but you cannot be a legal rep unless legally trained.... you are simply representing OH.
She will need to provide you with a note allowing you to in case asked at hearing.
Keep us posted
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TigerRob
post Tue, 24 Jul 2018 - 13:21
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QUOTE (DancingDad @ Tue, 24 Jul 2018 - 14:15) *
Shouldn't be an issue but you cannot be a legal rep unless legally trained.... you are simply representing OH.
Thank you. I will correct this with the Tribunal.

QUOTE (DancingDad @ Tue, 24 Jul 2018 - 14:15) *
She will need to provide you with a note allowing you to in case asked at hearing.
No problem

QUOTE (DancingDad @ Tue, 24 Jul 2018 - 14:15) *
Keep us posted
Will do.
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TigerRob
post Thu, 16 Aug 2018 - 14:41
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So it appears that I'm not going to get my day at the Tribunal. Just had a DNC response ...



Thanks to everyone for their help.
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cp8759
post Thu, 16 Aug 2018 - 21:24
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Given the status of the road markings it's hardly surprising they gave up.


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TigerRob
post Thu, 23 Aug 2018 - 08:30
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So here's the DNC letter from the council:



As I hadn't submitted any evidence to the Tribunal yet, I can only assume that someone who knew what they were talking about reviewed my formal challenge and their response and decided it was indefensible. If only they had done that (as they should have done) at the formal challenge stage then I wouldn't have been forced to appeal. Just shows what a biased and self-interested system we have to deal with.

I don't suppose there's any hope of a costs award here?

Thanks once more to everyone for their help.

Rob.
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cp8759
post Thu, 23 Aug 2018 - 18:58
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You could make an application for costs on the basis that, due to the state of the signage, it was wholly unreasonable for the council to issue the PCN in the first place, and even more so when it refused your formal reps. It will almost certainly be refused, but it costs nothing to try.


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TigerRob
post Thu, 23 Aug 2018 - 21:25
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So, based on this template, something like this:

What is a reasonable hourly rate these days?

QUOTE
Head of Support Services
London Tribunals
PO Box 10598
Nottingham
NG6 6DR

[Date]

Dear Madam,

Application for Costs

Case number: XXXXXXXX
Penalty Charge Notice number: XXXXXXXX
Date of adjudicator’s decision: 16th August, 2018

Following the decision of the Adjudicator in which my appeal was allowed, I now wish to apply to the Adjudicator for an Order for costs under Paragraph 13 of the Schedule to the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001. I am making this application within 14 days of the date of the Adjudicator’s decision.

I consider that the other party to the appeal acted wholly unreasonably for the following reasons:

1. It was wholly unreasonable for the Authority to issue the PCN in the first place given the state of the lines in question.
2. It was wholly unreasonable for the Authority to fail to consider my formal representations fully and cancel the PCN when they had an opportunity to do so at that stage of the proceedings.
3. It was whole unreasonable for the authority to force me to appeal. This is evidenced by their DNC response "having fulling investigated the case and the evidence provided with the appeal". I would point out that I have not uploaded any new evidence for them to review, and so their DNC decision must be based wholly on teh evidence they already hold - i.e. my formal challenge and their inadequate response to it.

Details of my costs and expenses are set out as follows:

Time spent researching, reading legislation and preparing for appeal: 1 hour at £X per hour.

The total amount of my claim for costs is £X.

I attach the following evidence in support of the expenses I have incurred: The (unfinished) appeal documentation that I was preparing [Copy of details from upthread]

I would like my application to be considered by the adjudicator at a postal hearing.

Yours faithfully,

[Signature]

[Full Name]
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cp8759
post Fri, 24 Aug 2018 - 10:45
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Seems fine, the rate is £19 per hour.


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TigerRob
post Fri, 24 Aug 2018 - 11:46
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QUOTE (cp8759 @ Fri, 24 Aug 2018 - 11:45) *
Seems fine, the rate is £19 per hour.

Thank you. I've asked for 2 hours and posted it off first class (with certificate of posting) today. We'll see what happens.
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TigerRob
post Tue, 2 Oct 2018 - 12:00
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Slightly belatedly, but, as expected, application for costs was denied:

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TigerRob
post Tue, 2 Oct 2018 - 12:13
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One final ask of the collective knowledge here. During the period that I though this would end up at the Tribunal I made the following email request to Ealing council:
QUOTE
Dear Sir/Madam,

Please can you supply copies of the current Traffic Management Orders(s)
relevant to the provision of the Bus Stops on the East Side of Haven
Green/The Broadway, between Ealing Broadway station and Madeley Road

Many thanks, in advance, for your assistance.

Yours sincerely


And (eventually) received the following reply:
QUOTE
Dear Mr May

Apologies for the late response to your request for traffic orders for bus stops in Haven Green.

Since the Traffic Signs Regulations and General Directions 2002 were brought into force there has been no requirement for any traffic orders to be made restricting the stopping at any bus stop marked with a bus stop box and with a sign indicating no stopping at bus stop. The Traffic Signs Regulations and General Directions act as the “order” for any such bus stop marked in this fashion.

Kind regards


That sounds like a BS answer to me. Is it really the case that a council can put a bus stop wherever they want, or must it be backed by a TMO as other stopping restrictions should be? (I don't need to know for this case (which is closed) but would like to understand for future reference ...)

Thanks to all, once again, for all your assistance.
Rob.

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