PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

Bank 52M PCN - no motorised vehicles
bribri
post Fri, 3 Nov 2017 - 23:29
Post #1


Member


Group: Members
Posts: 159
Joined: 12 Oct 2007
Member No.: 14,419



I am following the main thread of this topic regarding signage/TMO etc but have specific questions for my case.

1 - any flaws in PCN
2. The date issued was 27th October but not received until 01 November
3. the photos and video (to follow) do not show the vehicle passing a sign


Firstly
PCN and accompanying info

Page 1


Page 2


Page 3


Page 4


Page 5


Page 6






Go to the top of the page
 
+Quote Post
 
Start new topic
Replies (1 - 11)
Advertisement
post Fri, 3 Nov 2017 - 23:29
Post #


Advertise here!









Go to the top of the page
 
Quote Post
PASTMYBEST
post Sat, 4 Nov 2017 - 11:11
Post #2


Member


Group: Members
Posts: 13,494
Joined: 6 Nov 2014
Member No.: 74,048



in answer to your questions

1// Page 1 of the PCN the paragraph in bold under the photo. They state that they may issue a charge certificate if not paid by the end of the 28 day period. This is wrong they cannot serve a charge certificate until the expiry of the representation period
This is 28 day beginning with the date of service (unless it can be proved otherwise 2 working days after posting) so the are telling you they will issue a demand for more money two or more days before they are allowed.

Page two re the representation period the tell you reps can be disregarded if received after this date of service but qualify what this is with the word (received) in brackets Post not being universally reliable received could mean anytime after posting. You could also be away from home so would not receive until your return

2// date of notice or service are the applicable dates so the actual date of receipt is irrelevant

3// no one has yet produced any evidence of the signs in situ only the plan nor have we to see a video of passing signs
Go to the top of the page
 
+Quote Post
bribri
post Sat, 11 Nov 2017 - 09:16
Post #3


Member


Group: Members
Posts: 159
Joined: 12 Oct 2007
Member No.: 14,419



I am trying to put my appeal together with reference to the comments on the various other conversations: such as PCN Code 52M Princes Street



As I understand it I will appeal on the basis that:

1) I didn't see the sign - the PCN video does not show me passing a sign - surely for a moving contravention (is it?) like a box junction or no right turn, the contravention has to be shown not deemed to have taken place. What the video does show is a bus on my inside which is why if there was a sign, I missed it. - does anyone have photos of the exact point with the signs in place?

2) The PCN states that the CC is issued if payment is not received from a period beginning 28 days after issuing, this fails to inform me that if I appeal then it is 28 days from service?? is that right?

3) there is the issue of correct signage but I am unclear if this has been successfully argues - I believe from reading here that it is up for review. I would state that in a previous adjudication the EA stated that they "have the option of using the description which best matches the sign (code 33) or the description which best matches the order (code 52). The TMO says that vehicles cannot enter (prohibition) and proceed (route). The traffic order for Bank on Safety is both a restricted route and vehicle prohibition order. ... to use code 52M was chosen as it best matches the order though we accept code 33C could also be used due to the signs."
I would argue that the sign should match the order then as the signs do not properly tell me the restriction - perhaps akin to giving a footballer a red card indicating serious foul play when it should have been a second yellow for taking a shirt off - the outcome is teh same but wrong.
Go to the top of the page
 
+Quote Post
bribri
post Tue, 14 Nov 2017 - 23:06
Post #4


Member


Group: Members
Posts: 159
Joined: 12 Oct 2007
Member No.: 14,419



I have read the london tribunals website London tribunals which states:

The enforcement authority may issue a charge certificate where the penalty charge has not been paid and after:

A Penalty Charge Notice was served by post or a Notice to Owner has been served and the Authority did not receive representations within 28 days, beginning with the date of service of that notice;


To my mind the PCN as PMB states is clearly mis-stating the position when it has , "the penalty chargemust be paid before the end of the period of 28 days" and "failure to pay the charge by the end of the 28 day period may lead to a charge certificate" without mentioning reps.

I'll add other bits about signage.

Any other thoughts?
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Tue, 14 Nov 2017 - 23:32
Post #5


Member


Group: Members
Posts: 13,494
Joined: 6 Nov 2014
Member No.: 74,048



QUOTE (bribri @ Tue, 14 Nov 2017 - 23:06) *
I have read the london tribunals website London tribunals which states:

The enforcement authority may issue a charge certificate where the penalty charge has not been paid and after:

A Penalty Charge Notice was served by post or a Notice to Owner has been served and the Authority did not receive representations within 28 days, beginning with the date of service of that notice;


To my mind the PCN as PMB states is clearly mis-stating the position when it has , "the penalty chargemust be paid before the end of the period of 28 days" and "failure to pay the charge by the end of the 28 day period may lead to a charge certificate" without mentioning reps.

I'll add other bits about signage.

Any other thoughts?


Your not there yey draft your reps to council and post here for review
Go to the top of the page
 
+Quote Post
bribri
post Sat, 18 Nov 2017 - 17:19
Post #6


Member


Group: Members
Posts: 159
Joined: 12 Oct 2007
Member No.: 14,419



The contravention occurred on 23 Oct 2017 so I think 19/11/2017 is the 28th day. therefore I want to send the reps off today/tomorrow.

I will appeal as follows:

1 - The council have provided no evidence in video or photo form that my vehicle passed any notices announcing the restriction under consideration. The map of the signs shows no detail as to their location. Even if a sign was in place at the time of the contravention, the presence of the bus on my left hand side as clearly shown in the video evidence would have eliminated it from view. The report in the Daily Mail (http://www.dailymail.co.uk/news/article-5094259/London-junction-sees-drivers-fined-7m-just-four-months.html) of over 100,000 fines being issued between May 2017 and September 2017 would support my contention that there is insufficient signage.

2 - From the advice literature sent by the council, the signage I would have seen if visible was a bus and cycle only sign. The Traffic Signs Manual (P137 and others) clearly calls this a route for use by bus and cycle- which requires a different contravention code and one would have expected appropriate road markings which would have alleviated the issue in point 1 above. the traffic signs manual also suggests other signs should have been used to indicate access restricted to buses and cycles.

3) The contravention description states a prohibition on motor vehicles except buses - yet this restriction does not apply to cash-in transit vehicles and local authority vehicles. Therefore this it is wrong to use this contravention.

4) the information on the PCN states in red that the penalty charge MUST be paid before the end of the period of 28 days beginning with the date of notice. Also on the front page the PCN states a charge certificate may be issued if there is a failure to pay the charge before the end of the 28 day period. These two points misstate the legal position that the charge certificate cannot be issued until after 28 days after date of service of the PCN if no representations received. Indded the use of red and must in bold appear designed to discourage representations.

i respectfully ask you to cancel the PCN for the above reasons
Go to the top of the page
 
+Quote Post
PASTMYBEST
post Sat, 18 Nov 2017 - 19:03
Post #7


Member


Group: Members
Posts: 13,494
Joined: 6 Nov 2014
Member No.: 74,048



QUOTE (bribri @ Sat, 18 Nov 2017 - 17:19) *
The contravention occurred on 23 Oct 2017 so I think 19/11/2017 is the 28th day. therefore I want to send the reps off today/tomorrow.

I will appeal as follows:

1 - The council have provided no evidence in video or photo form that my vehicle passed any notices announcing the restriction under consideration. The map of the signs shows no detail as to their location. Even if a sign was in place at the time of the contravention, the presence of the bus on my left hand side as clearly shown in the video evidence would have eliminated it from view. The report in the Daily Mail (http://www.dailymail.co.uk/news/article-5094259/London-junction-sees-drivers-fined-7m-just-four-months.html) of over 100,000 fines being issued between May 2017 and September 2017 would support my contention that there is insufficient signage.

2 - From the advice literature sent by the council, the signage I would have seen if visible was a bus and cycle only sign. The Traffic Signs Manual (P137 and others) clearly calls this a route for use by bus and cycle- which requires a different contravention code and one would have expected appropriate road markings which would have alleviated the issue in point 1 above. the traffic signs manual also suggests other signs should have been used to indicate access restricted to buses and cycles.

3) The contravention description states a prohibition on motor vehicles except buses - yet this restriction does not apply to cash-in transit vehicles and local authority vehicles. Therefore this it is wrong to use this contravention.

4) the information on the PCN states in red that the penalty charge MUST be paid before the end of the period of 28 days beginning with the date of notice. Also on the front page the PCN states a charge certificate may be issued if there is a failure to pay the charge before the end of the 28 day period. These two points misstate the legal position that the charge certificate cannot be issued until after 28 days after date of service of the PCN if no representations received. Indded the use of red and must in bold appear designed to discourage representations.

i respectfully ask you to cancel the PCN for the above reasons



You have until the 23rd.

Point 4 only the statement re the issue of a charge cert is wrong so change that

point 1 assert that you did not see any signs, not that they have no proof
Go to the top of the page
 
+Quote Post
bribri
post Tue, 21 Nov 2017 - 16:57
Post #8


Member


Group: Members
Posts: 159
Joined: 12 Oct 2007
Member No.: 14,419



Amended appeal

I will appeal as follows:

1 - The contravention is for travelling into a zone restricted to buses and cycles. I did not see any sign to inform me of that restriction. Furthermore, the council have provided no evidence in video or photo form that my vehicle passed any notices announcing the restriction under consideration. The map of the signs shows no detail as to their location. Even if a sign was in place at the time of the contravention, the presence of the bus on my left hand side as clearly shown in the video evidence would have eliminated it from view. The report in the Daily Mail (http://www.dailymail.co.uk/news/article-5094259/London-junction-sees-drivers-fined-7m-just-four-months.html) of over 100,000 fines being issued between May 2017 and September 2017 supports my contention that there is insufficient signage.

2 - From the advice literature sent by the council, the signage I would have seen if visible was a bus and cycle only sign. The Traffic Signs Manual (P137 and others) clearly calls this a route for use by bus and cycle- which requires a different contravention code and one would have expected appropriate road markings which would have alleviated the issue in point 1 above. the traffic signs manual also suggests other signs should have been used to indicate access restricted to buses and cycles.

3) The contravention description states a prohibition on motor vehicles except buses - yet this restriction does not apply to cash-in transit vehicles and local authority vehicles. Therefore this it is wrong to use this contravention.

4) On the front page the PCN it states that a charge certificate may be issued if there is a failure to pay the charge before the end of the 28 day period. This point misstates the legal position that the charge certificate cannot be issued until after 28 days after date of service of the PCN if no representations received. This fetters my ability to appeal within the allowed time limits.

i respectfully ask you to cancel the PCN for the above reasons

--------------------------------------------------------------------------------------------------
I am aware of the two appeals allowed at tribunal whihc appear o support points 1 and 2 above but I feel it is best to hold on to those until tribunal if required. Unless others disagree.
Go to the top of the page
 
+Quote Post
bribri
post Thu, 11 Jan 2018 - 15:11
Post #9


Member


Group: Members
Posts: 159
Joined: 12 Oct 2007
Member No.: 14,419



Success. Received cancellation letter today.

Thank you for your communication in relation to the … PCN

The PCN was issued to the … vehicle for failing to comply with a prohibition on certain types of vehicle (motor vehicles) - only buses and pedal cycles allowed Monday to Friday between 7am and 7pm. This is because the above vehicle has been seen to have passed through a sign prohibiting certain class of vehicle from accessing Bank Junction during the restricted time(s).

Since Monday 22 May 2017, the ‘Bank on Safety’ experimental traffic scheme, aimed at reducing collisions and improving road safety, became operational meaning that only buses and pedal cycles are able to cross Bank Junction, Monday to Friday, between the hours of 7am to 7pm. Other vehicles will be rerouted via advanced warning signs on the approaches to the area and the junction. The Bank Junction comprises the approaches of Princes Street, Threadneedle Street, Cornhill, Poultry, Lombard Street, King William Street and Queen Victoria Street. Blue bus and cycle only signs are displayed at the entry points of the restriction. Advanced directional signs are also in place to give advance warning to the restriction to further assist with alternative routes
A … selection of maps and information regarding the scheme including loading areas, vehicle length and access routes to each of the approach arms can be found at www.cityoflondon.gov.uk/bankonsafety.

Having given consideration to your case, I have taken the decision to cancel the PCN. I would add that this should not be viewed as a precedent for any future cases as we look at each and every case individually upon its merits. Furthermore, the City expects all drivers to comply with any restrictions that are in place and should you receive a PCN in similar circumstances it may be enforced. I can confirm that the case is now closed and you have no further outstanding liability for this
particular PCN.
Go to the top of the page
 
+Quote Post
Saintpt
post Tue, 20 Feb 2018 - 18:19
Post #10


New Member


Group: Members
Posts: 2
Joined: 11 Jan 2018
Member No.: 95,919



QUOTE (bribri @ Tue, 21 Nov 2017 - 16:57) *
Amended appeal

I will appeal as follows:

1 - The contravention is for travelling into a zone restricted to buses and cycles. I did not see any sign to inform me of that restriction. Furthermore, the council have provided no evidence in video or photo form that my vehicle passed any notices announcing the restriction under consideration. The map of the signs shows no detail as to their location. Even if a sign was in place at the time of the contravention, the presence of the bus on my left hand side as clearly shown in the video evidence would have eliminated it from view. The report in the Daily Mail (http://www.dailymail.co.uk/news/article-5094259/London-junction-sees-drivers-fined-7m-just-four-months.html) of over 100,000 fines being issued between May 2017 and September 2017 supports my contention that there is insufficient signage.

2 - From the advice literature sent by the council, the signage I would have seen if visible was a bus and cycle only sign. The Traffic Signs Manual (P137 and others) clearly calls this a route for use by bus and cycle- which requires a different contravention code and one would have expected appropriate road markings which would have alleviated the issue in point 1 above. the traffic signs manual also suggests other signs should have been used to indicate access restricted to buses and cycles.

3) The contravention description states a prohibition on motor vehicles except buses - yet this restriction does not apply to cash-in transit vehicles and local authority vehicles. Therefore this it is wrong to use this contravention.

4) On the front page the PCN it states that a charge certificate may be issued if there is a failure to pay the charge before the end of the 28 day period. This point misstates the legal position that the charge certificate cannot be issued until after 28 days after date of service of the PCN if no representations received. This fetters my ability to appeal within the allowed time limits.

i respectfully ask you to cancel the PCN for the above reasons

--------------------------------------------------------------------------------------------------
I am aware of the two appeals allowed at tribunal whihc appear o support points 1 and 2 above but I feel it is best to hold on to those until tribunal if required. Unless others disagree.


BIG THANK YOU TO YOU..
JUST RECEIVED MY CANCELLATION LETTER USING YOUR INFORMATION.. VERY HAPPY
THANK YOU biggrin.gif biggrin.gif
Go to the top of the page
 
+Quote Post
4101
post Tue, 20 Feb 2018 - 18:35
Post #11


Member


Group: Members
Posts: 353
Joined: 19 Dec 2017
Member No.: 95,634



I have not read the thread because I am fat and lazy, but that sign is bus gate sign, not a no motor vehicles sign.

So the pcn is a joke.
Go to the top of the page
 
+Quote Post
Jo Carn
post Wed, 21 Feb 2018 - 10:09
Post #12


Member


Group: Members
Posts: 628
Joined: 22 Mar 2016
Member No.: 83,162



Had a few PCNs here. Managed to win at Tribunal. The adjudicator focused on the signs being incorrect. City of London say that a Traffic Management Order has been contravened but an Act of Parliament says that the signs are incorrect. The law trumps a TMO.
Here is the paperwork we put together re the signs - got a huge amount of assistance from PePiPoo contributors. I'm sure you could write it a lot better than I could, hope it helps

Our appeal is in three main parts.

1. The contravention is invalid.

On the PCN and twice in their Letter of Rejection, the City of London have stated that no motor vehicles (other than a bus) is permitted. This contradicts the relevant Traffic Management Order 2017 (no8) of 8 May 2017. This TMO clearly states that some motor vehicles are permitted through the junction. Namely:
“3(e) any vehicle when used in the service of a local authority in pursuance of statutory powers or duties provided that in all the circumstances it is reasonably necessary in the exercise of such duties for that vehicle to enter that street or length of street;
3(g) CVIT vehicles en route to or from St Mildred’s Court.”

That makes the PCN invalid as it fails to comply with section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 which states that the PCN “must (a) state (i) the grounds on which the council… believe that the penalty charge is payable with respect to the vehicle”. If there are exempt vehicles, the PCN cannot be correct by describing the alleged traffic contravention as “failing to comply with a prohibition on certain types of vehicles (motor vehicles)”. The PCN fails to give the correct grounds as it does not particularise the vehicles to which the TMO applies, namely all motor vehicles except buses and authorised vehicles (Cash & Valuables In Transit and Local Authority vehicles).

2. No evidence has been provided of any contravention.

No evidence has been provided at the time of the incident of the vehicle passing any prohibition sign. The cctv footage does not show any signs prohibiting certain traffic nor are there any road markings indicating any prohibition.

No proof has been provided giving the diagram number for the signs and no work orders have been given proving when the signs were put in place. If the diagram in the document “Bank Junction Allowed Vehicle Movement” is accurate, then plate 953 has been used. This is a bus gate sign and relates to “a route for use by buses and pedal cycles only”. There is no mention in the Traffic Management Order of a bus lane implementation and there are certainly no corresponding road markings.

A 953 plate comes under a Section 36 sign. I refer you to Section 4 of the Transport for London Act 2003. Namely:
“(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle—
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign.
(6) No penalty charge shall be payable under subsection (5)(a) above where—
(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign;
In other words, a section 53 PCN cannot apply if a driver goes through a section 36 sign (bus gate sign 953 in 6(a)).

3. Lack of Notice
The document “Bank Junction Allowed Vehicle Movement” does not have Mansion House Street listed but it shows that the prohibition sign is after the cul-de-sac Grocers’ Hall Court. The document shows no other warning signs. The driver was in a 7-tonne vehicle and was left with the option of driving through the junction or performing a U-turn in a busy narrow street. The driver took the safer option but was put in this dilemma by the lack of adequate notice. It is incumbent on the City of London to provide adequate notice in order for a driver to take averting action


The Adjudicator adjourned for further arguments to be submitted. This is what we sent

Further to the instruction of the adjudicator on 18 October, I make these further submissions in relation to the Company’s ongoing appeal against the above PCN.

Having conducted extensive research we further submit:

1. That our right to a fair hearing has been impeded by the authority’s failure to provide evidence when requested.

2. Contrary to The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, the signage in place is sited in such a manner as to fail to comply with regulation 18(1)(a).

3. Contrary to The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, the signage used is not adequate to convey the restriction created by the ETMO and so fails to comply with regulation 18(1)(a).

4. That the authority in using the signs placed and demanding a penalty for breach of the ETMO, contravenes the London Local Authorities and Transport for London Act 2003 at regulation 4(6)(a).


Point 1

The practicalities of the decriminalised enforcement of traffic contraventions, effectively makes the authority both the accuser and prosecutor, and at the first level (formal representations), the judge. It is incumbent on them, therefore, that they be scrupulous in their adherence to the common law duty to act fairly.

No evidence was adduced on service of the PCN other than one dark image where only the licence plate could be distinguished. No evidence of signage has been provided via video footage or photographs on the City of London website. We made a request for photographs showing the location of the signage in place within our representations, these were not forthcoming.

Article 6 (3)(b) of the European Court of Human Rights requires that adequate time be given to prepare a defence. The principal of Equality of Arms and right to adversarial proceedings has been found to place on prosecuting authorities the obligation to provide any evidence they have or can reasonably obtain that may help prove innocence. None of these requirements have been met, placing us at real prejudice and rendering enforcement a nullity.

This is and must be of particular importance, where, as in this case (and no doubt many others), the owner of the vehicle and person liable for the penalty was not the driver. Time is needed to investigate by questioning the driver over the content of any photos/video received. To supply the evidence only at adjudication does not meet any of the above requirements.

As a direct result of withholding information, the City of London has increased the liability to the Company. Had the City of London provided evidence when requested, the liability to the Company would have been £65. (This £65 would actually have been paid by the driver as per their T&Cs of employment). By delaying the submission of evidence, this liability has risen to £130.00.


Point 2

I make this submission on the adequacy of the sighting of both the principal sign (953) and of the temporary advance warning sign. I will discuss the content of the signs in Point 3.

The advance warning sign. Although photographs of advance warning signs have been adduced at tribunal, they are of a temporary nature and none evidence that they were in in Queen Victoria Street at the time of the alleged contravention. Furthermore, advanced warning signs need to be reflective if that is a requirement for the principal sign. Again, this has not been proven, despite our request.

I refer to The Queen on the Application of Neil Herron and Parking Appeals Limited - and - The Parking Adjudicator and Others [2011] EWCA Civ 905 the Court of Appeal (Civil Division)

The Court noted: “It has long been recognised that the enforceability of a TRO [Traffic Regulation Order being in Greater London and Traffic Management Order or TMO] requires that adequate notice of the applicable restriction is given to the road user.’

The ETMO led to a substantial change to extremely busy roads and junctions. The City of London has not provided any evidence of any warning prior to the prohibition sign. This cannot be construed as “adequate notice”. Once the driver had passed this one sign, he was left with the option of driving through the junction or turning round a 7.5 tonne vehicle in a busy narrow street. The driver took the safer option but was put in this dilemma by the lack of adequate notice.

The principal sign (953). Examination of the published map and reference to the image provided by the authority places this sign just beyond the junction with Bucklersbury on the right, when heading towards bank junction. Bucklersbury is the only escape route a vehicle can take to avoid contravention of the order.

An examination of GSV and the timeline shows from a driver’s eye view (the nature and positioning of the camera on the google street cars is a good approximation of the eye level view of the driver) that even a small vehicle can obscure any signs until it would be too late to execute a right turn into Bucklersbury. Reversing in order to make that turn or attempting to make a U-turn would be so dangerous as to make it unthinkable. The driver’s only option was to continue into the restricted area.

To sign a restriction in such a way as to leave a driver with no viable option other than to transgress is, we contend, is a complete failure to comply with regulation 18 (1)(a) of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996*. As such, the ETMO cannot be enforced.

The honourable Mr Justice Beatson at paragraph 69 of neutral citation number [2010] EWHC 894 (admin) the Queen on the application of Oxford City Council (the claimant) and the Bus Lane Adjudicator (the defendant), outlines an effective 2 part test as to the adequacy of signage.

1:- does the sign comply with the departmental guidance?
2:- is the sign placed so that it can be easily seen and is not obscured?

We contend that the evidence to hand shows that the second part of this test has not been met.


Point 3

The ETMO is worded thus: “No person shall cause any motor vehicle to enter or proceed in any street or length of street in the City of London specified in column 2 of Schedule 1 to this Order between 7 a.m. and 7 p.m. on Mondays to Fridays inclusive.” Although it then lists a number of exemptions, it is a prohibitive order.

We contend that as the sign does not convey the ETMO but rather a differing restriction, it does not pass the test laid out and submit in support paragraph 55 of Nottingham City Council and the Bus Lane Adjudicator neutral citation number: [2017] EWHC 430 (Admin)Case No: CO/4348/2016**

We would respectfully ask that the adjudicator also consider the words in paragraphs 35 and 36 of Herron and the parking adjudicator. Neutral citation number [2011] EWCA Civ905 case number c1/2010/1446

We assert that the authority failed to give notice of the applicable restriction. TSRGD 2016 Schedule 3.2.12 - a sign specific to this restriction it is (619) colloquially known as the flying motorbike. The use ascribed to the sign is (motor vehicles prohibited). The council submit that this was considered but rejected for two reasons. Both, we contend, are in error and lead to the failure to adequately sign the restriction.

The council submit that in order to use the sign (619) they would have to obtain Department for Transport approval because the “authorised vehicles” plate is not authorised by TSRGD and that the use of this plate would mean three supplementary plates would be needed and that this would be confusing.

Our submission would be that to apply for DfT authorisation is something that is reasonably practical to do and should be done and that to reject sign (619) due to the number of plates is smoke and mirrors. The inference in their statement on 18 October 2017 was that they chose the easier option (diagram 953) rather than the correct option (diagram 619).

In the same document, they claimed (incorrectly) that the required information would need to be on three separate plates yet submitted an image (from Poultry) evidencing it could be placed all on one plate. This sign, including words and symbols amounts to 9 items. The use of (619) and required supplementary plates would require that 11 be used. The advanced warning sign adduced into evidence by the authority contains 13 words. We submit that the possibility of confusion to drivers has not been considered or not been considered to the necessary degree. Furthermore, the Authority has contradicted itself in claiming that 9 words and symbols are more confusing than 13 words.

Application to the SoS for authority to use the required supplementary plate would serve a dual purpose, in that should the SoS refuse authorisation, the City of London would be on sure ground as to their signage choice; if it were granted then their concerns re the potential to confuse would be allayed.

The City of London had the opportunity to use the correct sign and correct wording but chose not to seek the approval required. This means that they have used a sign that does not convey the restriction laid out in the ETMO and that they did not, by their own admission, take all reasonably practicable steps to ensure that they did.

We have previously called into question whether the advanced warning sign was present at the time of the contravention. We also take this opportunity to bring to the Tribunal’s attention that the wording on the sign refers to “access” rather than a “prohibition” rendering the content of the sign both inaccurate and misleading.


Point 4

Sign (953) is a section 36 traffic sign and, as per the RTA 1988 regulation 36, failing to comply with this sign is an offence. The RTA would always take precedence over a local traffic order being primary legislation. Therefore, any penalty for contravention must be for the breach of RTA reg 36 - failing to comply with the instruction given by the traffic sign.

Furthermore, given that the City of London has chosen to use a bus lane sign then a motorist could expect to encounter a bus lane prohibition, ergo the Bus Lanes (Approved Devices) (England) Order 2005 applies regardless of the PCN wording. This raises two further issues:

i. The cctv does not show the vehicle going past the 953 sign and
ii. no has evidence been provided to prove that the camera used was approved under the 2005 legislation.

The enforcement regulation used the London Local Authorities and Transport for London Act 2003. This states in regulation 4(5) “Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle—

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign”

4(6) states “No penalty charge shall be payable under subsection (5)(a) above where—

(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign; or

(b) the contravention of the prescribed order would also give rise to a liability to pay a penalty charge under section 77 of the Road Traffic Act 1991 (c. 40).”

By passing the traffic sign (953) and thus entering into a restricted area created by a ETMO a motorist commits both types of offence. In doing so regulation 4(6)(a) is enacted and no penalty can be payable for the breach of the order.

It is likely that a penalty may be due under 4(5)(b) but that is not the alleged contravention.

When giving consideration to this submission, we ask that the findings of adjudicator Hugh Cooper case number 2170058483 be considered. Namely:

“They may only demand payment on the grounds that the motorist had failed to comply with the sign. Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.) I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals”.

We also refer to the decision reviewed by adjudicator Henry Michael Greenslade 2170323030 where he said: “There is no dispute that the sign at this location is a scheduled section 36 traffic sign, as specified in Schedule 3 to the 2003 Act, even though the Traffic Signs Regulations and General Directions 2002 have been superseded by the Traffic Signs Regulations and General Directions 2016. This Penalty Charge Notice does not allege that the vehicle failed to comply with a sign indicating a route restricted to certain vehicles. Considering all the evidence before me carefully the application for review is successful and the appeal must be allowed.”

We thank the adjudicator for allowing these further enhanced submissions and trust they will assist in your considerations.



*18(1) of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996:

“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”.

** Paragraph 55 of Nottingham City Council and the Bus Lane Adjudicator neutral citation number: [2017] EWHC 430 (Admin)Case No: CO/4348/2016: “Adjudicator Garbett found as a fact that the signage was unclear and did not provide adequate information as to the bus gate restriction, which was the basis of the PCN. As Stanley Burnton LJ said in Herron; “the enforceability of a TRO requires that adequate notice of the applicable restriction is given to the road user”. The Adjudicator reviewed her findings, and upheld them. The Council has to overcome a high threshold in establishing that the findings of fact by Adjudicator Garbett, confirmed by the Adjudicator, were Wednesbury unreasonable. The Council has not succeeded in doing so.”


THIS IS THE ADJUDICATOR'S REASONING FOR ALLOWING THE APPEAL


I note that in case reference 2170469229 on 31.10.17 the Adjudicator Edward Houghton wrote to the Enforcement Authority in the following terms:
‘The enforcement authority is offered the opportunity to make further submissions on the question of signage. The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.
Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .

Item 15 of the sign table in part 6 contains the description ” Road or part of a road with access permitted only for buses and other vehicles when so indicated by any of the signs at items 33 to 35 and 37 to 40 in the sign table in Part 2 of Schedule 3”.

The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it.’
The Enforcement Authority failed to reply to the above letter and Mr. Houghton allowed the appeal on 29.11.17.
In the present cases the Enforcement Authority have addressed at some length the rationale for the Experimental Traffic Management Order and the quality of the signage relied upon but they have failed to deal with the issue posed by Mr. Houghton. I have considered whether I should give the Enforcement Authority a further opportunity to advance evidence or arguments in respect of this issue. In light of the failure to respond to Mr. Houghton and of the failings I have identified above in relation to these cases I do not feel it is appropriate to allow the Enforcement Authority a further opportunity.
The Enforcement Authority have provided photographs of the signage relied upon in some of these cases and I have been able to consider this together with Google Streetview. Having done so I am not satisfied that the signage on either approach to Mansion House St. or on the approach to Princes St. was substantially compliant, clear and adequate. Accordingly I allow each of these appeals.
The Appellants should note that my decisions relate specifically to the evidence provided in each of these cases. I have not found that the signage is defective and I would in any event expect them now to inform all of their drivers that these restrictions are in place.


Go to the top of the page
 
+Quote Post

Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Monday, 24th September 2018 - 16:25
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.