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PCN - Barking & Dagenham - Station Parade, Failing to comply with a restriction on vehicles entering a pedestrian zone, Stopped near the road sign did a three point turn and left
sir.liegelord
post Fri, 20 Apr 2018 - 16:43
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Hope you folks help me out here with another PCN!

I was ticketed for "failing to comply with a restriction on vehicle entering and waiting in a pedestrian zone." on Station Parade - Barking

PCN

GSV

I approached Station Parade road from Barking Station, stopped at the side of the road when i saw the road sign with restrictions, did a three point turn and left the Station parade.

I've trawled through previous posts on this contravention at the same location;

http://forums.pepipoo.com/index.php?showtopic=59070
http://forums.pepipoo.com/index.php?showtopic=82081

Should I appeal as per the template in the above links or should I just state that "I made a three point turn" and left?

Best regards
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Neil B
post Wed, 25 Apr 2018 - 20:01
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This is the problem with copying from other cases, especially old ones.
You are factually incorrect in a number of parts and closing in such a condescending manner doesn't help.
You have a case but you're overcooking it imho.

I guess we'll have to see what response you get.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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sir.liegelord
post Thu, 31 May 2018 - 16:02
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Greetings!

I've received a Notice of Rejection letter;

https://imgur.com/qUEMWWQ
https://imgur.com/dnKvQVi

A PATAS verification code has been provided. I would appreciate if someone, could guide me to appeal at the london tribunals.

Neil B, has indicated that my approach was wrong and number of points were factually incorrect.

Should I appeal on the following basis?
1) No video footage shared, only still images provided. The evidence that the vehicle entered the pedestrian zone is not presented in the rejection notice.
2) Signage is not clear, in the rejection letter specified times are available, these times are not displayed on the signage.
3) The driver made a 3 poin turn
4) De minimis exception

Please let me know.

regards

This post has been edited by sir.liegelord: Thu, 31 May 2018 - 16:04
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cp8759
post Thu, 31 May 2018 - 16:55
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Permise: There is no PATAS, it's now the London Tribunals.

None of the arguments you put in your representations are properly or fully argued, so the council were bound to reject. Some of the grounds argued are hopeless or are not made out (grounds 1 and 7 to say the least) and for several, the adjudications quoted don't support the point that is being made.

However there is an arguable case. Firstly, the exception plate is not a permitted variation and the sign attempts to achieve a traffic management objective which is not contemplated by the Traffic Signs Regulations and General Directions 2016 (IMO substantial compliance cannot save the council here); secondly, the council only applied its mind to the 2002 regulations, which are no longer in force. A council which acts in utter ignorance of the regulations in force cannot have given any proper consideration to the representations made, this is a procedural impropriety. Also the council has failed to provide the CCTV evidence which is obviously prejudicial to the motorist. Grounds 6 is arguable but it needs to be argued properly.

sir.liegelord, I suggest that for the appeal to the tribunal, you draft something and post it here for comment before submitting. Your chances of success will be greatly increased if you do this.

QUOTE (sir.liegelord @ Thu, 31 May 2018 - 17:02) *
2) Signage is not clear, in the rejection letter specified times are available, these times are not displayed on the signage.
3) The driver made a 3 poin turn
4) De minimis exception

I think the signage is clear, you need to argue it doesn't comply with the regulations.

The fact that the driver made a 3 point turn is utterly irrelevant, I wouldn't mention it.

I think you'll really struggle with de-minimis here as the driver fully passed the signs, I would concentrate on the other issues.


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Neil B
post Thu, 31 May 2018 - 21:16
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Neither of the PCN flaws were used?


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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sir.liegelord
post Tue, 5 Jun 2018 - 15:21
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QUOTE (cp8759 @ Thu, 31 May 2018 - 17:55) *
sir.liegelord, I suggest that for the appeal to the tribunal, you draft something and post it here for comment before submitting. Your chances of success will be greatly increased if you do this.


cp8759, sorry I had been travelling and couldn’t reply earlier.

Is the following information sufficient, please let me know.

1, The exception plate is not a permitted variant, the sign attempts to achieve a traffic management objective which is not contemplated by the "The Traffic Signs Regulations and General Directions 2016 No. 362 Schedule 8 Part 1" Legislation <http://www.legislation.gov.uk/uksi/2016/362/schedule/8/made>.

Signage "to Vicarage Fields" is not a permitted variant of the road sign and it breaches the permitted variant. Therefore, the sign does not comply with the regulations.

Also, the council in its Notice of Rejection of Representation, states that "vehicles making deliveries can enter the pedestrian zone to deliver in marked bays during specified times (Mon-Sat 6.00am-10.30am and 5pm-7pm)". The time duration mentioned in the Notice of Rejection of Representation is not displayed on the exception plate. Therefore, the sign does not comply with the regulations.

Therefore, I would request London Tribunals to allow the appeal based on the evidence that the sign does not comply with the regulations.

2, The council has failed to provide the CCTV evidence to the appellant, which is prejudicial to the appellant. There is no video evidence provided by the council, only still images are provided on the web link for PCN.

The appellant contacted council to request that the case should be put on hold until after the video had been provided as stated on page 2 of the original PCN sent to the appellant from the council. Based on this the appellants rights to representation had been fettered as the appellant had not been given an opportunity to represent themselves.

The council has a legal duty to provide all evidence at the earliest opportunity to an appellant. An appellant requesting access to the evidence when an allegation is made against them is a reasonable act and not to provide the evidence when asked is an unreasonable act, since any failure by the council to provide any evidence will prejudice an appellant’s ability to consider whether they have reasonable grounds to continue to adjudication.

As the contravention is that of “failing to comply with a restriction on vehicles entering a pedestrian zone”, to prove this contravention, the onus falls on the enforcing authority to show the vehicle in question passing the sign during restricted hours and subsequent movement by the vehicle including whether it parks, stops or traverses the restricted length/area. It is not sufficient to simply show the vehicle in or entering a pedestrian zone. A photo of the appellants vehicle against the backdrop of a traffic sign is not proof of a contravention.

3, The number of grounds on which to make a representation is limited to just one ground which contradicts Schedule 1 of the legislation:

http://www.legislation.gov.uk/ukla/2003/3/schedule/1/enacted

The law states clearly states, “one or other of the grounds”.

On the second page of the penalty notice there are instructions to the recipient how to make representations and the grounds of appeal available. The penalty notice invites the recipient to select one ground whereas the legislation states that representations may be made on "one or other of the grounds"


QUOTE (Neil B @ Thu, 31 May 2018 - 22:16) *
Neither of the PCN flaws were used?


Hi Neil B, sorry I had been travelling and could not reply earlier.

I don’t understand your point, I would appreciate if you can guide me.

If you are referring to the flaw with the payment times, then I appealed using the following point as well;

The time for payment of the discount as beginning with "date of service" is incorrect. The following statement is also objectionable: "You must make representations before the end of 28 days beginning with the date on which this Notice was served on you."
The legislation clearly states: "The enforcing authority 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 penalty charge notice in question was served." Further support is sought from PATAS Case No: 2130012319 in which Adjudicator Mr Chan allowed the appeal


If there is anything else, please do let me know.
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cp8759
post Tue, 5 Jun 2018 - 15:41
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sir.liegelord, your grounds of appeal need some serious work and I don't have time right now. You've also obliterated the dates from the Notice of Rejection so I have no what the timeshares are. I suggest you just register an appeal with the tribunal and put "grounds to follow in due course", that gives us a bit of time to work on your appeal. Bump at the weekend and I'll draft something.


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sir.liegelord
post Wed, 6 Jun 2018 - 08:39
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QUOTE (cp8759 @ Tue, 5 Jun 2018 - 16:41) *
sir.liegelord, your grounds of appeal need some serious work and I don't have time right now. You've also obliterated the dates from the Notice of Rejection so I have no what the timeshares are. I suggest you just register an appeal with the tribunal and put "grounds to follow in due course", that gives us a bit of time to work on your appeal. Bump at the weekend and I'll draft something.


Many thanks cp8759, I will do that now.
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sir.liegelord
post Fri, 8 Jun 2018 - 19:44
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Hi cp8759, sent you the dates. cheers!
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cp8759
post Sat, 9 Jun 2018 - 16:07
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This should do the trick, and with a bit of luck get them not to contest. Use all the italics and bold exactly as I have done below:
-------------------
Ground 1: there was no contravention of a prescribed order
Section 64 of the Road Traffic Regulation Act 1984 provides, in so far as is relevant, that

"(1)In this Act “traffic sign” means any object or device (whether fixed or portable) for conveying, to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description—
(a)specified by regulations made by the national authority, or
(b)authorised by the national authority, and any line or mark on a road for so conveying such warnings, information, requirements, restrictions or prohibitions.

(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 national authority authorises the erection or retention of a sign of another character; and for the purposes of this subsection illumination, whether by lighting or by the use of reflectors or reflecting material, or the absence of such illumination, shall be part of the type or character of a sign.
"

The council have installed signs based on diagram 618.3C of the The Traffic Signs Regulations and General Directions 2016 (See Schedule 8, Part 2), which is a regulation made under section 64(2) above. There are a number of expressions which the regulations authorise in the exception plate to be used in conjunction with this particular sign:

"2. The following symbols and legends may be included in the middle panel to provide for exceptions (including in any combination, provided there is an “and” or “&” before the last exception)—
(a) the legend “buses” or “local buses”
(b) the legend “taxis”
( c) the legend “for access”, “for loading”, or “for loading by” and the goods vehicle symbol
(d) the legend “permit holders”, “permit holder”, and, if appropriate, a permit identifier or identifiers
(e) the disabled badge holder symbol
"

The exception plate installed by the council states "Except Local Buses and for access to Vicarage Fields", the expression "access to Vicarage Fields" is not a permitted variant and is plainly not substantially compliant with the regulations. By installing this sign, the council is contending that it is a contravention to pass the sign in order to access premises that are not on Vicarage Fields, but it is not a contravention to pass the signs in order to access Vicarage Fields. While there may be legitimate traffic management purposes for introducing such a restriction, in order to create such a restriction the council will need to seek, and obtain, special authorisation from the Department for Transport (this being the relevant national authority for England). Absent any authorisation granted under section 64 of the Road Traffic Regulation Act 1984, the sign relied on by the council is not an authorised traffic sign and contravening it cannot be a contravention.

While the council is likely to put forward an argument of substantial compliance, the council in this instance is purporting to create a restriction which is not contemplated at all by the regulations, the restriction is therefore ultra vires and cannot stand. The council simply does not have a power to restrict traffic from entering the pedestrian area except where that traffic is accessing a specific road. It follows that the underlying Traffic Management Order must also be ultra vires and therefore invalid.

Ground 2: there was no contravention of a prescribed order
The council in its Notice of Rejection of Representation, states that "vehicles making deliveries can enter the pedestrian zone to deliver in marked bays during specified times (Mon-Sat 6.00am-10.30am and 5pm-7pm)". The time duration mentioned in the Notice of Rejection of Representation is not displayed on the exception plate. Assuming the Traffic Management Order allows vehicles to enter the zone during the times indicated in the Notice of Rejection, the sign does not comply with the council's own Traffic Management Order.

Regulation 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 provides, is so far as is relevant:

"18.—(1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—

(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;
(b)the maintenance of such signs for so long as the order remains in force
"

If the council's Traffic Management Order provides that vehicles may enter the zone to access marked bays during specified times, the restrictions cannot be enforced because the council has not secured that adequate information as to the effect of the order is made available to persons using the road.

Ground 3: The penalty charge exceeds the amount applicable in the circumstances of the case:
The council has failed to provide the CCTV evidence to the appellant, which is prejudicial. No video evidence had been disclosed, only still images have been provided by the authority.

I contacted the council to request that the case should be put on hold until after the video had been provided, as stated on page 2 of the PCN. Based on this my rights to examine the evidence against me have been fettered. The Notice of Rejection states that the council has reviewed the CCTV evidence, but as of yet I have not had the opportunity to see the video evidence which the council is relying on.

The council has a duty at common law to act fairly in discharging its statutory functions (see R v The Secretary of State for the Home Department ex parte Fayed [1997] 1 All ER 228 at 230 per Lord Woolf MR). Failure by the council to provide the evidence it relies on will prejudice an appellant’s ability to consider whether they have reasonable grounds to contest the alleged wrongdoing.

There is a burden of proof which falls on the council, to show that my vehicle passed the signs relied on by the council during their hours of operation, as well as and subsequent movement by the vehicle including whether it parks, stops or traverses the restricted area. It is not sufficient to simply show the vehicle in a pedestrian zone. A photo of the appellants vehicle against the backdrop of a traffic sign is not proof of a contravention and it does not allow the recipient of a PCN to evaluate whether he has grounds for contesting the alleged wrongdoing.

Ground 4: The penalty charge exceeds the amount applicable in the circumstances of the case:
On the second page of the penalty charge notice there are instructions to the recipient how to make representations and the grounds of appeal available. The penalty notice invites the recipient to select one ground, this contradicts paragraph 1 of schedule 1 of the London Local Authorities and Transport for London Act 2003, which provides that representations may be submitted on "one or other of the grounds". Therefore the PCN is not substantially compliant because it does not convey the meaning required by the legislation, and it purports to limit the number of grounds which may be put forward.

Ground 5: The penalty charge exceeds the amount applicable in the circumstances of the case:
Section 4 of the London Local Authorities and Transport for London Act 2003 provides, in so far as is relevant, that:

"A penalty charge notice under this section must—
(a)state—
...
(iii)that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(iv)that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(v)that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
"

The PCN served by the council wrongly states that the discounted penalty may be paid before the end of the period of 14 days beginning with the date of service of the PCN. As the PCN is dated 12 April 2018, which was a Thursday, the date of service would have been 16 April 2018, i.e. the following Monday. The last day that the discounted amount could have been paid is, therefore, 29 April 2018. However according to the London Local Authorities and Transport for London Act 2003, the discounted amount would need to be paid no later than 25 April 2018, some four days earlier. The Penalty Charge Notice cannot therefore be substantially compliant as it does not convey the meaning required by the Act.

Furthermore, paragraph 5 of schedule 1 to the London Local Authorities and Transport for London Act 2003 provides, in so far as is relevant:

"Charge certificates
5(1)Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.
(2)The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—
(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;
"

The PCN states served by the council states that "if the Penalty Charge is not paid before the end of the 28 day period, an increased charge of £195 may be payable. We may then send you a charge certificate seeking payment of this increased amount". The only 28 day period mentioned on the face of the PCN is "the period of 28 days beginning with the date of the notice". Given the PCN was dated 12 April 2018 and was deemed served on 16 April 2018, the wording on the PCN purports to empower the council to increase the charge to £195 on Thursday 10 May 2018, while as a matter of law the council could not increase the charge by 50% and issue a charge certificate any sooner than Tuesday 15 May 2018, effectively depriving the recipient of 5 days during which he would be entitled to either make representations, or indeed pay the £130 charge.

I submit case 2180111742 as persuasive authority in support of ground 5, and in particular the following passage:

"Notwithstanding the lack of prejudice in this case, and bearing in mind the principles as to the exercise of discretion in declaring a PCN a nullity as expressed in the Al’s Bar and Moulder cases, I am satisfied that the departures from the statutory requirements are such that I should declare the PCN a nullity in this case. As a result of its invalidity it is no longer enforceable. Put another way, given that the PCN is invalid, the amount payable is nil."

In the present case, not only has the authority departed from the statutory requirements of the legislation, but in doing so it has also acted prejudicially by depriving the recipient of a number of days during which the opportunity to make representations, or pay the standard £130, should have still been available. I therefore invite the tribunal to find that the PCN is invalid, and that the amount payable is therefore nil.

Ground 6: The penalty charge exceeds the amount applicable in the circumstances of the case:
In the Notice of Rejection, the authority has made reference to the Traffic Signs Regulations and General Directions 2002, which were repealed on 22 April 2016, before the alleged contravention is said to have occurred. While I accept that the decision of one adjudicator does not bind another, I submit case 2180132152 as persuasive authority. In the relevant passages, adjudicator Brownhill stated:

"The Appellant makes a relatively simple point: how can I be satisfied that the Respondent has properly considered her representations when they have made references to the incorrect law? Or perhaps properly, how can I be satisfied that they have met their statutory duty?
The Respondent made reference to the Traffic Signs Regulations and General Directions 2002, these were revoked by Traffic Signs Regulations and General Directions 2016/362 Sch.19(1) para.1 on 22 April 2016, before this contravention is said to have occurred.
The Respondent acknowledges the error but avers it matters not as the prohibition is identical. Whilst I do not demur from that as a statement of fact, it is not a sufficient rebuttal to the Appellant's point.
In my view, it would be wrong for this Tribunal to find that the Respondent has fulfilled its statutory duty to consider representations when it has referred to the incorrect statutory framework.
It follows that I allow the appeal.
"

I submit that in applying its mind to the wrong statutory framework, the authority cannot have discharged its public law duty to apply the relevant law to the facts of the case, and therefore the amount payable in the circumstances of the case is nil.

Costs:
The grounds described above provide an overwhelming case as to why the Penalty Charge Notice should be cancelled. It would be wholly unreasonable for the council to contest this appeal, and should it chose to do so I reserve the right to make an application for costs. It would be obvious to any reasonable authority that to contest this appeal would be a hopeless endeavour, and therefore doing so can be nothing other than wholly unreasonable.

This post has been edited by cp8759: Sat, 9 Jun 2018 - 16:08


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sir.liegelord
post Sun, 10 Jun 2018 - 15:44
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Many thanks for your effort cp8759, I wouldn't have done 5% of that.

I shall update my appeal now.

Best regards
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sir.liegelord
post Thu, 26 Jul 2018 - 15:47
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Greetings!

Received a response form Barking and Dagenham Council after the appeal was logged with London Tribunals.

In the response a TRO is attached, can someone kindly validate whether there TRO is correct.

Traffic Management Order

Regards
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cp8759
post Fri, 27 Jul 2018 - 22:54
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The TMO appears to be in order, so unfortunately grounds 1 & 2 fall away. I've asked the DfT for a colour copy of the authorisation, but I doubt we'll get it back in time.

However when you attend the hearing I would highlight the following:

Ground 5 is your trump card, and I would really concentrate on the second part of ground 5, i.e. the PCN purports to deprive the recipient of 5 days during which he would be entitled to either make representations, or indeed pay the £130 charge. Make sure you take the adjudicator through the dates step by step, and makes sure he understands that the effect of this is to cut short the number of days you have to appeal. This is almost certainly a winning ground. Make sure you understand the issue in detail and are able to explain it.

Ground 3 still stands, the council has provided the video evidence to the tribunal but you are yet to receive it, this is clearly prejudicial as you've had no opportunity to consider the video evidence that the council wishes to adduce. Given the recent high profile disclosure issues that have afflicted the police and the CPS it is surprising that the council has taken such a lax approach. It is also arguably a breach of Article 6 of the European Convention on Human Rights: You've had no opportunity to consider the video evidence and the council is attempting to ambush you by only allowing you to see the video during the hearing.

Ground 6 won't work with most adjudicators, but it's still worth mentioning briefly. Unless it's adjudicator Brownhill who's hearing the case, in which case by all means point out that the case you're quoting is a previous decision of his.

I personally don't buy ground 4 and I suspect it would just annoy the adjudicator as it's somewhat frivolous, so unless he seems keen to hear more on it, I'd leave it to be honest.


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sir.liegelord
post Wed, 1 Aug 2018 - 17:34
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QUOTE (cp8759 @ Fri, 27 Jul 2018 - 23:54) *
However when you attend the hearing I would highlight the following:


Hi cp8759, I take your feedback on board, will follow your instructions in the hearing and will report back here after hearing.

Many thanks
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sir.liegelord
post Thu, 16 Aug 2018 - 18:34
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cp8759 and other members, my appeal was allowed. Once again, many thanks for providing guidance and helping the motorists seek justice. I can't thank you enough.

I will post the copy of adjudication shortly.

Best regards
biggrin.gif

Edit: attached below

This post has been edited by sir.liegelord: Thu, 16 Aug 2018 - 18:35
Attached File(s)
Attached File  Scan_16_08_2018_19_31.pdf ( 360.27K ) Number of downloads: 58
 
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cp8759
post Thu, 16 Aug 2018 - 18:49
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That's one hell of a cop out from the adjudicator, but a good result nonetheless.


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cp8759
post Tue, 28 Aug 2018 - 18:48
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For posterity, here's the colour copy of the DfT authorisation: https://www.scribd.com/document/387248282/C...ion-GT46-20-195


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