Bus Gate - Capitol Way - Brent Options

[SneakyRussian]

Hi everyone,

Long time lurker (mostly of sheer interest) but first time poster.

Found a redirected PCN from my leasing company. So I only have today and tomorrow to try and build an informal challenge and see how that goes. Apart from pleading to the goodness of Brent council's heart, is there anything else I can try and use here? I am still waiting to get access to the video but I am guessing there is no chance to try and argue that pictures do not clearly show a black mini with a clear number plate across all photos?

In terms of why I drove through the bus gate: Probably an excuse you heard so many times: I was on my way to the 5th store after 12 hours of work (prior to commute back to Oxford) trying to find gluten free flapjacks for my lil boy. Just too tired and I guess I was just too plain lazy to realise that I was going through a bus gate on autopilot in an area I never been before (there is a roundabout right after the gate and I needed to turn right according to satnav). I was also naive to think that it doesn't matter as it was 7pm. Funny enough after I saw the camera and realised what I just done, I punished myself by going through the actual car gates there and back... But clearly it doesn't matter to the camera operator.

Below is the album with pictures of the letter and the car:
https://photos.app.goo.gl/7j1RTVBLBTwNt92c7


Google view:
https://www.google.com/maps/place/Capitol+W...33;4d-0.2641922

Thank you so much!

This post has been edited by SneakyRussian: Tue, 21 Jan 2020 - 16:17

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[stamfordman]

This is similar to our often seen Camrose Avenue in Harrow.

Looking at this again the usual way of enforcing these is for a failure to keep left and go through the width restriction. Instead they've made it into a bus gate where a bus is actually allowed to ignore the keep left? Except the PCN doesn't specify which vehicles the route is for, whereas the PCNs from Camrose do (buses, taxis, cycles).

The upshot is that a Mini is of course OK to proceed through this feature as it is narrower than 6ft 6inches.

Also there is only one blue sign and not two across the gate.

Just thinking aloud.

Also see the cases I posted in:

http://forums.pepipoo.com/index.php?showto...t=#entry1542911

This post has been edited by stamfordman: Tue, 21 Jan 2020 - 17:16

[SneakyRussian]

@Stamfordman

Ah thank you so much. Reading from comments and past appeals, there is only a slim chance that Brent will let me off on this. Bearing in mind that Leasing company will charge me £40 for each notice/letter that was sent to them instead of myself, I won't have the extra pennies right now to take it to the Adjudicator.

Thanks again
I.

This post has been edited by SneakyRussian: Tue, 21 Jan 2020 - 19:54

[Incandescent]

Surely this layout is unlawful, because the Keep Left arrow must be obeyed by all traffic even buses. If they want to allow buses down the middle they should not have the keep left arrow, and put up two of the signs for the bus lane, one each side. The question is then - if the layout is unlawful, can they enforce it ? The legal basis for decrim. enforcement as laid out by a High Court judge some years ago is that a penalty is payable if certain statutory conditions are met. If they aren't, even one of those conditions, then the liability to the penalty does not arise. Just my view !

[cp8759]

I think the layout is unlawful, but I don't think the tribunal would necessarily allow an appeal. This is because the illegality impacts vehicles that the councils thinks are allowed to go through the bus gate, but it doesn't really impact vehicles that are not allowed through the bus gate.

The tribunals have held that the PCN need not spell out the type of vehicle if the signage is visible in the photos, in this instance you can read "bus only" in the photo on the PCN so I don't think the lack of suffix wording will help at this location.

[Mad Mick V]

hmmm! Thinking aloud.

Leased vehicle and a bus lane/gate (and clearly marked as such) and yet we have a Code 33.

I wonder if something can be made of this. There is no legislative provision that allows liability for a bus lane penalty charge to be transferred.

I cannot see how the Council can impose a Code 33 in the circumstances.

"Liability cannot be transferred for bus lane contraventions. Section 4(2) of the London Local Authorities Act 1996, as amended by the London Local Authorities Act 2000 and the Transport for London (Bus Lanes) Order 2001, provides that the owner of a vehicle, not the driver or person in charge of the vehicle, is liable for a penalty charge in respect of any contravention of a bus lane restriction. The 1996 Act does not make provision for transfer of liability in the case of a vehicle which is on hire at the time and the Act provides no ground of appeal in such cases"


Wriggle room?

Mick

This post has been edited by Mad Mick V: Sat, 25 Jan 2020 - 14:46

[Mr Meldrew]

I think the layout is unlawful, but I don't think the tribunal would necessarily allow an appeal. This is because the illegality impacts vehicles that the councils thinks are allowed to go through the bus gate, but it doesn't really impact vehicles that are not allowed through the bus gate.

I am confident that because the Council’s powers cannot extend to creating the illegal exception that ‘bus only’ (any old bus) may pass to the right of a s.36 sign, Brent has been careful in avoiding the allegation failure to keep left, but without a quotable source I am less confident about whether the width restriction can legally be enforced in the face of this ultra vires behaviour, however I have no issue with your well considered view.

[cp8759]

Mr Meldrew I think ultimately the issue here is that a High Court judge might strike down the whole layout as unlawful, but I don't see much chance of an adjudicator doing so, not even Jack Walsh.

[Mr Meldrew]

You mean Jack Walsh who believes that a vehicle that has turned into Salter’s Hill road should be given priority by vehicles approaching sign 615. 2180432633, 2190034874

I thought he’d retired.

[Mad Mick V]

My view is that the OP must suffer prejudice and unfairness if there is a 953 sign,bus gate markings and the Order relates to a bus gate. Those are absolute indicators of the restriction the Council must impose.

If the Council tries to impose a permitted route restriction instead it unilaterally withdraws the right of motorists in leased vehicles to the statutory exemption.

Mick

[cp8759]

Well I've raised a complaint to have the keep left sign removed. Arguably it's entirely pointless, but still it shouldn't be there.

Mick, I'm not sure which statutory exemption you're referring to?

[Mad Mick V]

@cp8759

The 1996 Act I mentioned in post 6 gives a driver exemption:-

"Liability cannot be transferred for bus lane contraventions. Section 4(2) of the London Local Authorities Act 1996, as amended by the London Local Authorities Act 2000 and the Transport for London (Bus Lanes) Order 2001, provides that the owner of a vehicle, not the driver or person in charge of the vehicle, is liable for a penalty charge in respect of any contravention of a bus lane restriction. The 1996 Act does not make provision for transfer of liability in the case of a vehicle which is on hire at the time and the Act provides no ground of appeal in such cases".

So, even though the lines, signs and Order denote a bus gate, by using a different contravention the OP is in my view deprived of a protection provided by law as follows:-

In R v Derby Crown Court ex p Brooks Lord Chief Justice Ormrod stated:
“ It may be an abuse of process if the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality".

Perhaps not the process of the court but certainly the process/actions of the Council have disadvantaged the OP. Or put it another way, does the choice of contravention offer prejudice or potential for prejudice in the circumstances of the case?


If this restriction had the flying motorbike sign I would suspect the above would fall and the Council could get away with a permitted route restriction. However there is a blue 953 sign on its own which means only a bus is allowed to use the bus gate.

Mick

This post has been edited by Mad Mick V: Fri, 31 Jan 2020 - 11:10

[PASTMYBEST]

Theres at least one Bank junction case where the bus gate sign was found to be the wrong sign for the restricted vehicle contravention.

2190454778

This PCN was issued for the alleged contravention of failing to comply with a prohibition on motor vehicles in Cornhill at 11.24am on 23 September 2019.
The signage in the library images submitted by City of London is for a route restricted to buses and cycles between the hours of 7am and 7pm Mondays to Fridays. This PCN was not, however, issued for the alleged contravention of using a route restricted to buses and cycles. A prohibition on motor vehicles must be signed with a No Entry to motor vehicles sign. The bus and cycle route signs in the City of London's library images are not No Entry to motor vehicle signs. I do not accept the City of London's submission that a code 52 PCN can be used for what is clearly a code 33 contravention. The signage for the restriction must correspond with the alleged contravention on the PCN and I find for this reason that the alleged contravention did not occur.

[cp8759]

That could work, two more decided on the same point:

Samson Dufegha v City of London (2180439224, 06 December 2018) http://bit.ly/2QPpUZl
Sunday Kehinde Ajifowowe v City of London (2170474681, 18 November 2017) http://bit.ly/34hqSl9

This post has been edited by cp8759: Sat, 1 Feb 2020 - 14:49

[cp8759]

As some might know I can be like a dog with a bone when councils get things wrong, well today I have finally had the following response to my stage 2 complaint and I have to give credit where credit is due, Brent made many mistakes in this whole saga but they're correctly identified all their failings and confirmed that the layout has now been fixed. I'll circulate the full details off-forum.

[cp8759]

I've decided to publish the council's full response to this: