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Contravention 47 - Stopped in bus stop (BUT NO ROAD MARKINGS!), colchester special
geordiemike
post Sun, 4 Feb 2018 - 20:29
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Contravention 47 - Stopped in bus stop (BUT NO ROAD MARKINGS!)


Hi all I wonder if you could help please?

This is another Colchester special! , and is pretty well much the same as :

previous Colch Code 47

Incandescent and PeterUK kindly suggested its better to start a new thread

Colchester High Street, I stopped at a bus stop to let my girlfriend out, got snapped by the Spy Car going past. There are no yellow marking (or any markings) but there is a yellow "no stopping at Any Time except buses" plate. (my PCN and links to the google streetview are below)

I know that people have put work into this in the other post (DancingDad, MAd Mick V, PASTMYBEST) I summarised what I understood your comments are here:

1) ITs a Restricted Parking Zone so cannot have different styles of waiting and parking and bus stops throughout (in particular bus stop/stand):
"13.2 Waiting and loading restrictions, which must be uniform throughout the zone, are indicated by zone entry signs and time plates within the zone, but without yellow lines or kerb marks. Restricted parking zones are therefore suitable only for single streets or clearly defined small areas. They are not suitable for through routes with heavy traffic or facilities which create a demand for parking greater than can be accommodated in the on-street bays (unless convenient off-street parking is available). Unlike a pedestrian zone, there is no restriction on entry into a restricted parking zone."

2) The definition of a bus stop clearway in the TRO requires there to be road markings. No markings means the TRO has not been contravened.

3) The TSRGD also has not been contravened since Part 6 schedule 7 also requires there to be road markings (and there are no Variants to allow no road markings).


I tried to PM cserki (the OP ) directly to see if he had any luck , but no reply, so I dont know if he succeeded or not!

MIck had suggested in previous post a line of appeal as indicated further down this post - which looks great - unless there is anything different about my situation which i havent spotted?

I have a couple of newbie questions. (which have probably answered so many times before but cant find in FAQ)
1) do I do this using Informal Appeal first or is that just a waste of time - should I go straight to formal appeal
2) Will the penalty stay at 50% discount (£35) while I appeal ? I seem to remember they used to use this as a way to encourage not appealing as people weree happy to accept 50% . (letter is dated 30 Jan)
3) Can I send the appeal on the website, or legally must it be by post?


Thanks for helping , I am always amazed that this website has people this generous with their time!


Micks suggested letter is :
<<
Dear Sirs,

I wish to appeal against PCN number ????? which alleges I stopped on a bus stand.

This contravention cannot be sustained for the following reasons:-

1) There are no road markings or traffic signs denoting a bus stop/clearway as required by your traffic order and the traffic signs legislation;

2) The yellow plate which indicates a no stopping restriction except buses cannot constitute a bus stand situation;

3) If the Council regards this as a bus clearway, then the contravention given is incorrect it should be Code 46 "Stopped where prohibited (on a red route or clearway)";

4) The yellow plate denotes a stopping restriction, not a bus stand, therefore the use of camera enforcement is not permitted.

The signage at this location is totally inadequate and does not properly inform a motorist of whichever restriction is relevant. Had there been road markings I would not have stopped for less than a minute to drop someone off.

Overall the Council have failed in their duty not to confuse or mislead under Reg 18 The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.

Yours ....

---------------
See if others want to add anything.

>>>
















Image from Google maps:

https://www.google.co.uk/maps/@51.8896569,0...3312!8i6656


Its a restricted parking zone:
https://www.google.co.uk/maps/@51.8896933,0...3312!8i6656

Colchesters TRO:
colchester TRO

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post Sun, 4 Feb 2018 - 20:29
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geordiemike
post Thu, 13 Dec 2018 - 18:46
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Thank you.
On the second point, sorry my mistake. Because the no-stopping sign was on the diagrams accompanying the SoS auth, I mistakenly thought it was a special sign not mentioned in the TSRGD2016 itself. But it is in the TSRGD
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geordiemike
post Thu, 13 Dec 2018 - 23:08
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Is this too much ? (text as follows)

<<

I have submitted Evidence17 - A copy of TPT Adjudicators decision PCN KU88295323 (Mr Anthony Hall - v - Kent County Council withTunbridge Wells BC)
This is in support of my Ground 6, Ground 7 and Ground 8 assertions in my Grounds for Appeal (Evidence 12).

Regarding Ground 8 "The authority has unlawfully fettered its discretion".
In Hall v Kent, the TPT considered The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England )Regulations 2005 , Regulation 8(5)
The Adjudicator stated in 6g) “The wording of the regulation makes it clear that the word ‘ may’ applies both to the increase in the penalty charge and to the taking of further steps in enforcement, however, the PCN sent by the council does not reflect this and I therefore find that the wording used does not correctly convey the meaning of the regulation.”

Regarding Ground 6 “The council completely ignored my representations about the lawfulnesses of a postal PCN”
In 7c) the Adjudicator stated “As the council did not deal with the issue which was actually raised, I find that they did not comply with the requirements of Regulation 10 set out above. As already stated, there is no ground of procedural impropriety, but the council have a public duty to act fairly in the exercise of their statutory powers. See R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 Lord Mustill, ‘Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances’ . In my view the Council’s failure to properly consider Mr Hall’s representations and to explain why they were rejected, was a breach of this common law duty to act fairly”

Regarding Ground 7 “The authority considered the wrong legislation when considering my representations”.
In 7b) the Adjudicator stated “I appreciate that the members of the council staff who deal with representations are unlikely to be legally trained and that the point raised by Mr Hall is of a technical nature. However, my view is that the essence of the issue should have been understood if the representations had been considered with any care. If the writer was unable to understand and respond to them, he should have sought advice from a more experienced officer.”

>>


Is it overegging the pudding? Also the mention of buslane, might restrict the breadth of the meaning

This post has been edited by geordiemike: Thu, 13 Dec 2018 - 23:10
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cp8759
post Thu, 13 Dec 2018 - 23:12
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Let me have a think, I'll look at it over the weekend.


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geordiemike
post Fri, 14 Dec 2018 - 12:36
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youre the best!
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geordiemike
post Fri, 14 Dec 2018 - 13:48
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OK , Adjudicator made a decision - penalty charge cancelled! But only on one ground :
Ground 2: The alleged contravention did not occur: Motorists are entitled to stop for a brief but reasonable amount of time to read signs and understand any applicable restrictions before driving away

Maybe once they had got to that point , and decided to cancel, there was no point in considering the rest. I wonder if this sets a precedent for the council?


In this case Mr XXXXX's car was recorded by a CCTV enforcement car. The use of such a car is permitted when enforcing a 'no stopping' restriction for a bus stop or stand. It seems that formal representations were made as required, and a Notice of Rejection was sent out - at least a copy of it can be produced in evidence. However Mr XXXXX states that he did not receive the Notice of Rejection, which is why no formal appeal to the Tribunal was made. It is always difficult to make a reliable finding about whether documents have been served, but judging by the correspondence in this case, Mr XXXXX Does appear to be a person who places importance on formal procedures and proper communication, so his claim not to have received the Notice of Rejection is a credible one. I therefore turn to look at the facts of the case and arguments made.

Mr XXXXX has submitted detailed written arguments in relation to the legality and adequacy of the signage and road markings. I will not repeat the detail here, safe to say that the most important point relates to the omission of the solid yellow line usually employed at a bus stop to alert drivers to the 'no stopping' restriction. This is accompanied by the required signage. The Council have responded by uploading the Secretary of State for Transport's Authorisation to omit the use of such yellow lines at this location. I am satisfied that it is more likely than not that the required signage has been erected at the locations indicated by the map.

It therefore appears to be the case that this series of bus stops has been signed in a lawful manner, given the Secretary of State's Authorisation. However that is not an end of the matter. Mr XXXXX, in his written submissions, Ground 2, states as follows: 'The alleged contravention did not occur: Motorists are entitled to stop for a brief but reasonable amount of time to read signs and understand any applicable restrictions before driving away. The authority avers that the sign with the words “No stopping at any time except buses” is capable, on its own, of creating a no stopping restriction. Even if this were true, it is trite law that a motorist is entitled to a brief but reasonable amount of time to read the restriction on any such sign in order to understand the restriction. Where the restriction is imposed by a sign, rather than by road markings, there is no generally no expectation that a motorist will be able to read, understand and comply with the sign while in moving traffic. Similarly to the situation which might occur when reading the time-plate used in conjunction with a single yellow line, motorists are entitled to stop for a few seconds to read the sign, understand the restriction, and drive away if a restriction is in force. Those who do so without delay are deemed not to be in contravention of the sign. The only signs which do not allow for such brief stopping time are signs which, by their very nature and design, are meant to be read and understood my motorists in moving traffic. This is the case, for example, for clearway signs, urban clearway signs, double red lines and so on. An obvious example of such a sign is diagram 1025.1, which is designed to be seen and understood by a motorist without the need to stop.

The sign relied on by the council is not designed to be seen, read, understood and complied with by motorists without stopping. As I stopped for no longer than necessary to read the sign before driving off, the alleged contravention did not occur.' This argument has clear merit, because I agree that motorists cannot be expected to read and comply with signs whilst in a moving vehicle in the same way that they can be expected to understand simple, clear road markings such as the usual solid yellow line normally found at bus stops. I therefore agree that a motorist must be allowed a very short time to pause his vehicle at the location to understand and comply with signage.

The question is therefore whether Mr XXXXX was only stopped temporarily in order to understand whether he could park, or whether he was waiting for longer than was necessary for that purpose. I have looked carefully at the CCTV footage uploaded by the Council. This appears to show the vehicle stationary with brake lights on, which strongly implies that the driver was in the vehicle with the engine running. This evidence supports Mr XXXXX's contention that he was only paused temporarily at the location, and I see no particular reason to doubt the account he has given. It is unusual for bus stops or stands to be without the solid yellow line, and so I am satisfied that it will not be uncommon for motorists to pull up at this location briefly before realising that the signage has in fact imposed a restriction, causing them to drive away. Doubtless the yellow line was omitted for entirely valid environmental reasons, by the Council being concerned to retain the town centre's character. However they must also accept that, Secretary of State's Authorisation notwithstanding, some drivers will pause temporarily at this location while the signage is read and complied with. It may be difficult to identify which vehicles are paused lawfully and which are waiting in breach of the restriction when simply viewing CCTV footage obtained by a moving vehicle.

However it should not be impossible to gather sufficient evidence to make such distinctions, for instance if the CCTV car drives slowly enough to identify whether a driver is in the car, or whether brake lights are on. Since I am satisfied that no contravention occurred, it follows that I will direct enforcement must cease.
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geordiemike
post Fri, 14 Dec 2018 - 18:13
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Many thanks especilally to CP, wish I could buy you a pint! And big regards to Mad Mick
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cp8759
post Fri, 14 Dec 2018 - 21:26
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As a general rule once the adjudicator has decided to allow an appeal, they won't bother considering the remaining grounds as doing so would be academic. If you think about it, if he considered everything in detail the adjudication would be six times as long as it is. On the whole I think it's an excellent result.

It's not a binding precedent but it is a persuasive authority that can be referred to in future cases.


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geordiemike
post Sat, 15 Dec 2018 - 16:40
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Yes absolutely brilliant result! I cant work out how to add pdf in a message. You can PM email maybe?
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cp8759
post Mon, 17 Dec 2018 - 21:13
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QUOTE (geordiemike @ Sat, 15 Dec 2018 - 16:40) *
Yes absolutely brilliant result! I cant work out how to add pdf in a message. You can PM email maybe?

I've sent you a PM


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