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bus lane infringement
Mcginty
post Tue, 4 Dec 2018 - 20:48
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Hi there
I am a bit of a novice with computers and I am really not sure how this forum works but here goes! I got a bus gate infringement ticket a few weeks ago at Edinburgh Road in Jarrow-one of the top earning bus lanes in the country so I have read. It has apparently raked in over £400k in about 15 months. I freely admit I went through the 'gate' but I think there is a total lack of signage and advance warnings. I wrote an informal appeal to the council but this has been rejected saying is adequate and complies with the current regulations. Whether this is true or not I don't know. If I post some detailed Photoes on here could someone give me an opinion please? I just think the council are using it as a cash cow and I know there has been many many complaints but obviously if more signage is erected the money flow will cease. Apologies if I am in the wrong place with this post but if I am could Admin move to the correct area please?
Mc
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post Tue, 4 Dec 2018 - 20:48
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Mad Mick V
post Mon, 24 Dec 2018 - 09:23
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Returning to my point on the camera approval ("the approved device") if an appeal is to be submitted I would include the following.

I would argue that the Council does not have approval for the camera used in this instance. As can be seen from the following document, approval has been sought by and given to a third party (APCOA)which is not a public authority.

https://tro.trafficpenaltytribunal.gov.uk/T...eside/TY31B.pdf

With respect, I would draw the adjudicators attention to paragraphs 23/24 of case GD 05067G in which the public law duties of a Council are detailed. In that case APCOA was ruled to be an outside contractor to whom public law responsibilities could not be delegated. Therefore APCOA cannot seek Secretary of State approval for a bus lane camera ("the approved device") since it is not a public authority and VCA have issued this approval incorrectly.

This being so, the camera used in my case was not an approved device and therefore the PCN based on camera evidence is a nullity.

http://forums.pepipoo.com/index.php?act=at...st&id=30363

OP---of course that approval was for a smart car but the fact that the Council is playing coy and asking you to send in a FOI request suggests that other Bus Lane cameras have the APCOA imprimatur.

Mick

This post has been edited by Mad Mick V: Mon, 24 Dec 2018 - 09:30
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Mcginty
post Mon, 24 Dec 2018 - 09:51
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Would it be prudent to ask for a FOI as the camera approval is crucial to my case? Depending on how long they take to send this it could be prejudicial to my appeal as I presume the appeal itself is time limited once lodged?

Just a question on this bus gate, what is the required distance in a 20mph zone from the warning sign to the start of the actual bus gate. Does the bus gate start with the continuous white line or does it start once entering this part of the road? The reason I ask is that I looked at it yesterday again and if the bus gate starts once you enter the road then there is only a few metres distance but if measured to the beginning of the white line then I would estimate it to be over 30 metres. The diversion sign is just a few metres from the road you have to divert into (Stirling Avenue). Is there a required distance for this sign to give a motorist suitable notification of the diversion?
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cp8759
post Mon, 24 Dec 2018 - 11:22
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QUOTE (PASTMYBEST @ Sun, 23 Dec 2018 - 22:50) *
QUOTE (cp8759 @ Sun, 23 Dec 2018 - 18:33) *
PASTMYBEST I can't see the will/may, but it looks like the NoR doesn't comply with regulation 10(4)(g) which I have to say seems very odd, I'm not sure I've seen this sort of flaw before.


Underneath the TPT web code box on the last page

Ah yes, seems clear cut.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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PASTMYBEST
post Mon, 24 Dec 2018 - 11:25
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QUOTE (Mcginty @ Mon, 24 Dec 2018 - 09:51) *
Would it be prudent to ask for a FOI as the camera approval is crucial to my case? Depending on how long they take to send this it could be prejudicial to my appeal as I presume the appeal itself is time limited once lodged?

Just a question on this bus gate, what is the required distance in a 20mph zone from the warning sign to the start of the actual bus gate. Does the bus gate start with the continuous white line or does it start once entering this part of the road? The reason I ask is that I looked at it yesterday again and if the bus gate starts once you enter the road then there is only a few metres distance but if measured to the beginning of the white line then I would estimate it to be over 30 metres. The diversion sign is just a few metres from the road you have to divert into (Stirling Avenue). Is there a required distance for this sign to give a motorist suitable notification of the diversion?


Yes ask for it but don't be late registering while waiting for it


--------------------
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Mcginty
post Wed, 26 Dec 2018 - 14:52
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The compulsory right turn that takes the motorist into Stirling Avenue is signed just 5-6 metres from the actual turn. Please see the pic here. https://imgur.com/a/E5L12sB

Is there a required distance stipulated for a compulsory right turn sign in the traffic act? I have tried to get some info on this but not been able to. The sign in the photo is the only notice on the full length of Edinburgh that both notifies the motorist of a compulsory right turn and of the bus gate.
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Mcginty
post Thu, 27 Dec 2018 - 11:46
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I have lodged my appeal this morning and i have also emailed South Tyneside under FOI to ask for a copy of the camera approval for the location. Returning to Mad Micks point, posted on the 24th December, would that affect all PCN's to date if approval has been sought from APCOA?
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Mad Mick V
post Thu, 27 Dec 2018 - 16:18
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Yes----if an adjudicator rules that the approval is unsound and they have used the same camera throughout.

It could go either way-----my opinion is that only a public authority can seek and gain SoS approval but someone else might take the view that delegation to agents is acceptable. A lot will depend on how the document you have requested is laid out.

In any case, if you use the words I suggested for your appeal the Council would have to produce the document for adjudication. This would also counter any delay in getting the FOI stuff back before you have to submit an appeal.

Mick
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Mcginty
post Thu, 27 Dec 2018 - 18:20
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Spoke with the tribunal service today and were very helpful saying exactly what you have just said. Cheers and fingers x'd

I was hoping someone would have advised on the required distance for the compulsory right turn signage into Stirling Avenue as in my previous post. The divert sign is almost level with the road you are being diverted into which in my opinion does not give sufficient warning of the compulsory right turn.
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PASTMYBEST
post Thu, 27 Dec 2018 - 18:39
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QUOTE (Mcginty @ Thu, 27 Dec 2018 - 18:20) *
Spoke with the tribunal service today and were very helpful saying exactly what you have just said. Cheers and fingers x'd

I was hoping someone would have advised on the required distance for the compulsory right turn signage into Stirling Avenue as in my previous post. The divert sign is almost level with the road you are being diverted into which in my opinion does not give sufficient warning of the compulsory right turn.


There is no statutory distance but the signage must be adequate to warn of the restriction


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Mcginty
post Fri, 28 Dec 2018 - 16:40
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Thank you. Do you consider this sign is adequate?

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cp8759
post Fri, 28 Dec 2018 - 16:46
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QUOTE (Mcginty @ Fri, 28 Dec 2018 - 16:40) *
Thank you. Do you consider this sign is adequate?

Personally I do, there's very clear bus & bicycle only signs and you must have driven straight through them. But the will / may flaw identified by PASTMYBEST will win on its own if argued correctly.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Mcginty
post Fri, 28 Dec 2018 - 19:52
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Thanks for all your help. Once I hear back from the Tribunal I will seek advice on the best defence. I still think there is something lacking with the signage as there are at least 40 people a day driving through. This is just an average size council estate. I think very few are driving through deliberately.
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cp8759
post Fri, 28 Dec 2018 - 23:45
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QUOTE (Mcginty @ Fri, 28 Dec 2018 - 19:52) *
I still think there is something lacking with the signage as there are at least 40 people a day driving through. This is just an average size council estate. I think very few are driving through deliberately.

I think that's likely because people don't understand the significance of those signs. If those were no entry signs, I suspect far fewer people would drive through them. But not understanding a sign is obviously no defence.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Mcginty
post Tue, 8 Jan 2019 - 18:08
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The council have lodged their proof with the Tribunal today and I have seven days to upload my evidence. I haven't had a response on my FOI re the camera location approval. The FOI request was acknowledged on 27th December 2018 so by my reconing that only leaves seven days for the council to supply this information.
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cp8759
post Tue, 8 Jan 2019 - 18:49
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Upload the council case summary so we can have a look.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Mcginty
post Wed, 9 Jan 2019 - 08:40
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There is no summary as such. There is a few copy letters from me, a map, pics of the bus lane and the actual video where I drove through. There is a schedule and TRO that seems to cover the whole borough which is in the below link. Let me know if you need more information.


https://drive.google.com/file/d/1Vwde3ouDcb...iew?usp=sharing
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Mad Mick V
post Wed, 9 Jan 2019 - 10:54
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The TRO seems to comply with the contravention--see Part VIII para 4 on page 10. The road is specified on page 109 at item 1.

If the OP goes to adjudication he should ask why the camera certificate isn't in the Council's evidence pack.

Mick

This post has been edited by Mad Mick V: Wed, 9 Jan 2019 - 10:55
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cp8759
post Wed, 9 Jan 2019 - 18:22
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I'm not going to comment on the signage as I think it's adequate, but you can certainly submit the following, which should win on its own. I recommend you put the appeal into this template http://bit.ly/2CSDROS; you can then export it to PDF and upload it to the tribunal as an attachment, make sure you use all the formatting in bold and italics exactly as I have done below. Also upload the cases quoted, you'll find the London cases on https://londontribunals.org.uk and the two TPT cases here:

Mrs H v Worthing Borough Council (case reference UW 05060M): https://www.scribd.com/document/392993032/M...rence-UW-05060M
Anthony Hall v Kent County Council (with Tunbridge Wells BC) (case reference JU-00042-1810): https://www.scribd.com/document/395140820/A...bridge-Wells-BC

-------------

The amount demanded exceeds the amount due in the circumstances of the case:

Regulation 10(4) of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 provides, insofar as is relevant, that:

(4) A notice of rejection shall—
...
(g) state that unless, before the end of the appeal period—
(i) the penalty charge is paid; or
(ii) an appeal is made to an adjudicator against the imposition of the penalty charge,the authority may increase the penalty charge by 50 per cent and take steps to enforce payment.


Therefore Parliament has mandated that a Notice of Rejection must state that the enforcement authority may increase the penalty charge. While I accept the wording of the regulation does not need to be followed verbatim, the NOR, when read as a whole, must convey the meaning intended by Parliament.

The Notice of Rejection issued by the enforcement authority in this instance asserts that (my emphasis):

Failure to pay, or to lodge an Appeal, will result in a Charge Certificate being issued which will increase the original charge by 50% to (£90) If this is not paid, legal proceedings will be commenced to recover the money

The fact that the charge will increase to £90 is therefore unequivocal and for all practical purposes a foregone conclusion, the discretionary power of the council to increase (or not to increase) the penalty is not conveyed by the Notice of Rejection.

While previous tribunal decision are not binding they can be persuasive and I submit there is now an established line of persuasive authorities to support the view that in such circumstances, the penalty must be cancelled. The Traffic Penalty Tribunal found as follows in Mrs H v Worthing Borough Council (case reference UW 05060M):

"The point clearly made by Mrs H is that the council are saying they will issue a charge certificate, rather than considering whether to do so under their discretionary power.

Regulation 6 of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 prescribed the minimum content of a Notice of Rejection:

6.—(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

(a) state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—
(i) the penalty charge is paid; or
(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge;

The use of the "shall" means that these requirements are mandatory.
...
This may appear to the council to be something of a technicality, but the law is quite clear and must be applied as described above. The council will see that it is imperative that their Notice of Rejection is amended immediately to avoid this situation occurring again in the future

Appeal Allowed
"

I aver that the same situation arises here, where the use of the word "shall" in the bus lane regulations means these requirements are mandatory. This principle is further illustrated in the case of David Greenberg v London Borough of Barnet (case reference 216022028A):

"The Notice of Rejection in this matter states that the Enforcement Authority will serve a charge certificate.
Again the inclusion of the word 'will' imports a fixed and persistent intent, as distinguished from 'may' which expresses a possibility.
The legislature chose the word may, to my mind, to reflect the fact that the Enforcement Authority is bestowed with discretion which may be invoked at any stage, thus the issue of a charge certificate cannot be taken as a foregone conclusion.
"

It is no answer to say that the council would not in practice exercise its discretion not to increase the charge, as found in James Demery v London Borough of Bexley (case reference 2180251300) (my emphasis):

"The Authority also submits that while it has discretionary powers to review a PCN at any point, in reality such reviews occur largely as a result of "statutory exchanges". It is uncommon for there to be a non-statutory review. The Authority went on to say that its policy is not to interfere with the statutory progression of a PCN.

One might disagree with this position in terms of parking law as well as administrative law but that is not the point. The point is not about whether the Authority is entitled to or likely to issue a Charge Certificate, it is whether it is permitted to say in the PCN that a Charge Certificate will be issued.

The Regulations provides that a postal PCN must state, inter alia, that if after the last day of the period referred to in subparagraph no representations have been made in accordance with Regulation 4 of the Representations and Appeals Regulations; and the penalty charge has not been paid, the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased.

It seems to me that the Authority has been given a discretion to issue a Charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.

The PCN is non-compliant. It is invalid and cannot be enforced. It also amounts to a procedural impropriety. I allow the appeal.
"

It is also no answer to say that no prejudice is caused to the recipient of such a PCN, the High Court ruled as follows in London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) at paragraph 41:

"Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

I submit that while bus lane PCNs are issued under a different scheme, it is nonetheless a scheme for the civil enforcement of bus lane control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met, and these statutory conditions include service of a PCN which complies with the mandatory requirements of the regulations. If the statutory conditions are not met, then the financial liability does not arise.

This position was recently confirmed by the Traffic Penalty Tribunal in the detailed and thoroughly reasoned decision of adjudicator Jill Yates in Anthony Hall v Kent County Council (with Tunbridge Wells BC) (case reference JU-00042-1810) which has been uploaded with this appeal, I draw the tribunal's attention to the fact that that appeal was also heard under the bus lane regulations.

In light of the above, because the Notice of Rejection does not convey the meaning required by the regulations, the conditions specified under the statutory scheme are not met, therefore the financial liability to pay the penalty does not arise in this instance. It is true that a procedural impropriety is not a ground of appeal under the bus lane regulations, but this was also the case under the Road Traffic Act 1991.

This is no answer to my submissions above because where the conditions of the statutory scheme are not met, the only penalty charge that may be demanded is nil. Therefore a demand for a penalty charge greater than zero is a demand for a penalty that exceeds the amount due in the circumstances of the case.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Mcginty
post Wed, 9 Jan 2019 - 18:32
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Thanks very much for that. On the point that Mick made in the previous post? Surely if the Council won't or don't want to supply the approval for the camera location then they shouldn't be permitted to supply any evidence as the lack of proof of approval nullifies everything?

This post has been edited by Mcginty: Wed, 9 Jan 2019 - 18:42
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cp8759
post Wed, 9 Jan 2019 - 20:12
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QUOTE (Mcginty @ Wed, 9 Jan 2019 - 18:32) *
Thanks very much for that. On the point that Mick made in the previous post? Surely if the Council won't or don't want to supply the approval for the camera location then they shouldn't be permitted to supply any evidence as the lack of proof of approval nullifies everything?

So add ground 2 (again make sure you preserve all formatting), the template I linked to caters for multiple grounds of appeal:

------------------

The Penalty demanded exceeds the amount due in the circumstances of the case:

Regulation 3(2) of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 provides that:

(2) A penalty charge may be imposed only on the basis of a record produced by an approved device.

The explanatory note to the regulations state that:

In Part 2, regulation 3 authorises the imposition of a penalty charge in respect of a bus lane contravention only on the basis of a record produced by an approved device. The devices that are approved for these purposes are described in the Bus Lane Contraventions (Approved Devices) (England) Order 2005 (S.I. 2005/2756).

The Bus Lanes (Approved Devices) (England) Order 2005 provides that:

Approved devices
2. A device is an approved device for the purposes of regulations under section 144 of the Transport Act 2000 (civil penalties for bus lane contraventions) if it is of a type which falls within any of the following descriptions—

(a) subject to article 2, a device which is of a description specified in an order made by the Secretary of State under section 20(9) of the Road Traffic Offenders Act 1988(2) (prescribed devices for the purposes of speeding and other offences);
(b) a device certified, by a person authorised in that behalf by the Secretary of State, as meeting the criteria specified in paragraphs 2 to 6 of the Schedule to this Order;
(с) a device that does not meet the criteria referred to in paragraph (b) but which was used before the coming into force of this Order for the purpose of bus lane enforcement under Part II (bus lanes) of the London Local Authorities Act 1996


There council has not submitted an order under section 2(a) in evidence, nor has it submitted a certificate under section 2(b), and section 2(с) is self-evidently inapplicable. As such, there is no evidence that the record adduced by the council was produced by an approved device. In light of this, the council has failed to discharge its evidential burden.

This post has been edited by cp8759: Wed, 9 Jan 2019 - 20:12


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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