MANCHESTER, Allleged Bus Lane Contravention -Oxford RD (Nelson Street to Hathersage) |
MANCHESTER, Allleged Bus Lane Contravention -Oxford RD (Nelson Street to Hathersage) |
Tue, 29 May 2018 - 12:22
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#1
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Dear ALL.
I am sending the information about my work colleague, who had received a letter through the post for the bus lane ticket in Manchester on 24/03/2018. This car is a lease car and the letter or email must of went to the Audi Finance group, as he spoke to the Audi and told him, we informed the Manchester city council on 16/04/2018 of the lease holder of the car. So the date OF DETECTION 24/03/2018 DATE OF PENALTY CHARGE NOTICE : 25/05/18 Date of Previous PCN Cancelled : 07/05/2018. Has my work colleague got a chance for out of time, i dont know about the Signage. as i am sure they have put up another sign close up to the road. Just requested for the Video, as it was showing the below message. View CCTV Evidence There is a delay in processing your request, the site may be delayed during periods of high demand, administrators have been notified. If you opted to be notified via email or text message then you will receive notification as soon as your still images and video footage are ready for viewing. Alternatively please try again a little later. This post has been edited by CYRIL: Tue, 29 May 2018 - 14:42 |
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Tue, 29 May 2018 - 12:22
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Tue, 27 Nov 2018 - 11:39
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#21
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Cp8759,
i will re draft it again and re send for your approval. |
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Mon, 3 Dec 2018 - 15:01
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#22
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Guys,
What do you think of the appeal letter or do i need to change and re draft. thanks Xxxx xxxx Xxxxxx xxxxx xxxxxx xxxxx Monday 03rd December 2018 Independent Adjudicator Traffic Penalty Tribunal Marie Edge Business Support Officer Parking Services Highways Appeal against the imposition of Penalty Charge Notice: (PCN) number MC Vehicle registration mark: B Online Code: 88 Dear Sir /Madame/ Adjudicator, Submission by the appellant in response to the authorities’ evidence My appeal consisted of 3 points. In response to this the authority presents their summary and evidence I would respond as follows. Point 1:- Delay in replying I believe the council response to my letter, which fails to answer any of my appeal grounds. Secondly Council reply is about 6 months from the appeal so such undue delay, without explanation causes unfairness, and in my opinion it is prejudice, because the Council have tinkered about with lines and signs at that location since the original contravention in May. Point 2:- the contravention did not occur As the signage was inadequate, the alleged contravention did not occur. At the time of the alleged contravention, I saw no bus lane signs, there were no advance warning signs and there was nothing that gave a reasonably observant motorist warning that they are entering a bus lane. Upon viewing the Photo evidence I note there are two "no motor vehicle" signs either side of the cycle lane on the near-side, but these appear to relate to the cycle lane rather than the main carriageway. At the time of the alleged contravention no signs were visible to me on my offside due to the presence of oncoming buses. There were no road markings to suggest the road ahead was a bus lane or bus gate. I am to date still not sure which signs the council is relying on for the purposes of this alleged contravention. I have since learnt that a large number of motorists have found themselves in this position and the signage has been found to be inadequate at numerous adjudications. The tribunal has consistently ruled that the signage at this location is inadequate, as illustrated by MC00060-1801 where the adjudicator descried the signage as "hopeless": "Mr XXX (senior) took part in the telephone hearing on behalf of his son, the Appellant. Mr YYY represented the Council. Mr YYY told me that the Council had not changed the signage in this location since two previous decisions had made plain that the signage was inadequate. Mr YYY said the Council were urgently looking at the possible remedies but that this was not a matter with which he was personally involved. Mr YYY reiterated that in their view the signage was technically correct but conceded that its placement was not ideal. Indeed it is fair to say that the signage in this location, technically correct or not, is hopeless. It gives the distinct impression of applying only to the adjacent cycle lane and not to that part of the carriageway which is intended to be restricted to buses (and other authorised vehicles) only. The signage fails to satisfy Regulation 18 of the Local Authority Traffic Orders (Procedure) Regulations 1996. The appeal is therefore allowed for one reason: first, that no contravention occurred because the signage intended to warn motorists of the restriction was inadequate. The situation has not improved over time, as demonstrated by the following appeals: MC00752-1712 (29 January 2018) MC00816-1712 (30 January 2018) MC00729-1711 (31 January 2018) MC00014-1801 (14 February 2018) MC00642-1805 (7 June 2018) I attach copies of these decisions for reference. In light of the consistent decisions of the tribunal over a period of many months, not only is the council's decision to contest this appeal unreasonable, but it is wholly unreasonable, as any reasonable authority in the position of Manchester City Council would understand that it is bound to lose the appeal and it will continue to lose appeal after appeal until the signage issues identified by the tribunal are addressed. Until then, for the council to push these cases to adjudication is not only wholly unreasonable, I submit it is also an abuse of process. Causing a motorist to appeal to the tribunal when the authority knows (or should know) that the appeal is virtually bound to be successful cannot be anything other than an abuse of process. In light of this I invite the tribunal to make an order for costs against the respondent in the amount of £72, calculated as 4 hours at £19 per hour which represents the time I have spent researching the law and preparing my submissions. Point 2:- collateral challenge The authority make no reference to this point in their evidence. I conclude from this they accept the point. I have requested the Video Evidence and till today’s date I have not received video footage and I have been visiting the website Viewmypcn.co.uk daily and still getting the same message as below View CCTV Evidence Your contravention viewing request has been accepted, we are now in the process of securely preparing the still images and moving footage of your alleged contravention. This process may take up to 24 hours. If you would like to be notified via email once still images and video footage are ready for viewing then please fill out your contact details below. Alternatively you can simply revisit the ViewMyPCN web site shortly to see if your evidence pack is ready for viewing. Note that your contact details will not be used for any other purpose other than notifying you that your evidence pack is ready for viewing. I would ask the adjudicator when giving this point their consideration to have regard to the findings of TPT adjudicator Kind Regards Xxxx xxxx This post has been edited by CYRIL: Mon, 3 Dec 2018 - 15:19 |
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Tue, 4 Dec 2018 - 23:21
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#23
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
Needs rewording, will look at again in the morning.
-------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Wed, 5 Dec 2018 - 08:57
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#24
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
Hi CYRIL, do not change anything in the text below, just copy/paste it. In particular do not change ground 2 where it says "The appeal is therefore allowed for two reasons: first, that no contravention occurred because the signage intended to warn motorists of the restriction was inadequate; and, second, because the PCN itself was served later than the Regulations permit.", this text must not be changed.
Appeal against the imposition of Penalty Charge Notice: (PCN) number MC Vehicle registration mark: B Online Code: 88 Dear Sir /Madame/ Adjudicator, Submission by the appellant in response to the authority's’ evidence My appeal consisted of 3 grounds. In response to this the authority presents their summary and evidence I would respond as follows. Point 1:- Delay in replying The Notice of Rejection of Representations was served approximately six months after representations were served on the enforcement authority. Absent an explanation, such undue delay causes unfairness, and can be prejudicial, not least because the council has made changes to the lines and signs at the location since the original contravention in May. Although there is no statutory time limit for a Notice of Rejection to be served, I draw the tribunal's attention to Elizabeth Kehinde v Royal Borough of Greenwich (case reference 2180261257): "Evidentially I am satisfied that the contravention occurred. I note that the Appellant's informal representation was lodged on 15th January 2018 by email, the receipt being virtually instantaneous as opposed to postal receipts. Notwithstanding that, by legislative prescription, a Notice to Owner will issue 28 days after a Penalty Charge Notice remains unpaid or unchallenged, and an Enforcement Authority has a statutory obligation to respond to formal representations [those made in response to the Notice to Owner] within 56 days, the Enforcement Authority allowed 99 days to pass before responding to the Appellant's initial representation. No acknowledgement of receipt was issued, nor an explanation, let alone apology, for such inordinate delay. I find this to be wholly unacceptable. I acknowledge and endorse the Appellant's interpretation of such silence to be acceptance of those representations. I note the Enforcement Authority's statement to the effect that the Appellant was not disadvantaged due to the re-offer of the discounted penalty, I do not find that to be appeasing particularly in light of the stringent time constraints set for those challenging Penalty Charge Notices and the consequences of their non-compliance. I do not find that the Enforcement Authority has considered the Appellant's representation in a timely manner, and I consider that action to be tantamount to procedural impropriety. Indeed I conclude that by not duly considering the Appellant's representation in a timely fashion the Enforcement Authority had not discharged its duty under the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 which I do find to be a procedural impropriety on the part of the Enforcement Authority. Accordingly, I allow this Appeal." I submit that the same principle applies under the bus lane regulations, and absent an explanation for such a significant delay, the enforcement authority should be proscribed from pursuing the PCN any further. Point 2:- the contravention did not occur As the signage was inadequate, the alleged contravention did not occur. At the time of the alleged contravention, I saw no bus lane signs, there were no advance warning signs and there was nothing that gave a reasonably observant motorist warning that they are entering a bus lane. Upon viewing the Photo evidence I note there are two "no motor vehicle" signs either side of the cycle lane on the near-side, but these appear to relate to the cycle lane rather than the main carriageway. There were no road markings to suggest the road ahead was a bus lane or bus gate. I am to date still not sure which signs the council is relying on for the purposes of this alleged contravention. I have since learnt that a large number of motorists have found themselves in this position and the signage has been found to be inadequate at numerous adjudications. The tribunal has consistently ruled that the signage at this location is inadequate, as illustrated by MC00060-1801 where the adjudicator descried the signage as "hopeless": "Mr XXX (senior) took part in the telephone hearing on behalf of his son, the Appellant. Mr YYY represented the Council. Mr YYY told me that the Council had not changed the signage in this location since two previous decisions had made plain that the signage was inadequate. Mr YYY said the Council were urgently looking at the possible remedies but that this was not a matter with which he was personally involved. Mr YYY reiterated that in their view the signage was technically correct but conceded that its placement was not ideal. Indeed it is fair to say that the signage in this location, technically correct or not, is hopeless. It gives the distinct impression of applying only to the adjacent cycle lane and not to that part of the carriageway which is intended to be restricted to buses (and other authorised vehicles) only. The signage fails to satisfy Regulation 18 of the Local Authority Traffic Orders (Procedure) Regulations 1996. The appeal is therefore allowed for two reasons: first, that no contravention occurred because the signage intended to warn motorists of the restriction was inadequate; and, second, because the PCN itself was served later than the Regulations permit." The situation has not improved over time, as demonstrated by the following appeals: MC00752-1712 (29 January 2018) MC00816-1712 (30 January 2018) MC00729-1711 (31 January 2018) MC00014-1801 (14 February 2018) MC00642-1805 (7 June 2018) I attach copies of these decisions for reference. In light of the consistent decisions of the tribunal over a period of many months, not only is the council's decision to contest this appeal unreasonable, but it is wholly unreasonable, as any reasonable authority in the position of Manchester City Council would understand that it is bound to lose the appeal and it will continue to lose appeal after appeal until the signage issues identified by the tribunal are addressed. Until then, for the council to push these cases to adjudication is not only wholly unreasonable, I submit it is also an abuse of process. Causing a motorist to appeal to the tribunal when the authority knows (or should know) that the appeal is virtually bound to be successful cannot be anything other than an abuse of process. In light of this I invite the tribunal to make an order for costs against the respondent in the amount of £76, calculated as 4 hours at £19 per hour which represents the time I have spent researching the law and preparing my submissions. Point 2:- collateral challenge The authority make no reference to this point in their evidence. I conclude from this they accept the point. I have requested the Video Evidence and as of today’s date I have not received video footage and I have been visiting the website Viewmypcn.co.uk daily and still getting the same message as below: "View CCTV Evidence Your contravention viewing request has been accepted, we are now in the process of securely preparing the still images and moving footage of your alleged contravention. This process may take up to 24 hours. If you would like to be notified via email once still images and video footage are ready for viewing then please fill out your contact details below. Alternatively you can simply revisit the ViewMyPCN web site shortly to see if your evidence pack is ready for viewing. Note that your contact details will not be used for any other purpose other than notifying you that your evidence pack is ready for viewing." Regulation 8(6) provides that where a motorist requests CCTV evidence of a contravention, the enforcement authority "shall comply with the request within a reasonable time", that has not occurred in this instance. It follows that no penalty may be demanded because the enforcement authority has failed to comply with the regulations. -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Wed, 5 Dec 2018 - 11:31
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#25
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Cp8759,
Thank you for the drafted letter, I will copy and paste it and send it off to the TrafficPenaltyTribunal, as above and i will not make any changes. I went on the website viewmypcn and today the video has worked, as i was checking my other work colleague video, as he has also received the NOTICE OF REJECTION and it said in this 2nd work colleague letter the video is now working, as he commented on the 1st appeal letter to Manchester city council , that the video is not working, but funny enough it is working today for above letter we are drafting the video is working today, but it was not working few days ago and when we received the 1st letter in May 2018. |
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Wed, 5 Dec 2018 - 12:25
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#26
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New Member Group: Members Posts: 3 Joined: 17 Oct 2017 Member No.: 94,594 |
You have two point 2's
Point 2:- the contravention did not occur and Point 2:- collateral challenge |
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Wed, 5 Dec 2018 - 13:58
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#27
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Angryscot,
Thanks for pointing this out, i will amend it Point 2 and Point 3. Hi Cp8759, There is the below under Point 1, the date do i need to change this , as my work colleague sent this in June 2018. I note that the Appellant's informal representation was lodged on 15th January 2018 by email, the receipt being virtually instantaneous as opposed to postal receipts. |
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Wed, 5 Dec 2018 - 18:04
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#28
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
Hi Cp8759, There is the below under Point 1, the date do i need to change this , as my work colleague sent this in June 2018. I note that the Appellant's informal representation was lodged on 15th January 2018 by email, the receipt being virtually instantaneous as opposed to postal receipts. No, do not change that. You are quoting from a previous case, Elizabeth Kehinde v Royal Borough of Greenwich, the date your colleague sent representations is irrelevant, unless your colleague is Ms Elizabeth Kehinde. -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Thu, 6 Dec 2018 - 14:29
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#29
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Cp8759, There is the below under Point 1, the date do i need to change this , as my work colleague sent this in June 2018. I note that the Appellant's informal representation was lodged on 15th January 2018 by email, the receipt being virtually instantaneous as opposed to postal receipts. No, do not change that. You are quoting from a previous case, Elizabeth Kehinde v Royal Borough of Greenwich, the date your colleague sent representations is irrelevant, unless your colleague is Ms Elizabeth Kehinde. Thanks and i have sent it to the Traffic penalty Tribunal this morning and noted above comments. I have seen Teddylong, who has almost has the same replies as mine. I will send my other colleague next week, who has the same offence and replied after 6 month from the Manchester City Council authorities. This post has been edited by CYRIL: Thu, 6 Dec 2018 - 14:31 |
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Fri, 1 Mar 2019 - 13:57
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#30
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Guys,
I thought i update you guys , still the enquiry ongoing and the MCC are From:Kerry Conway To: xxxx xxxxxx xxxxxx (Appellant), Manchester15/01/2019 11:55 Please be advised that there will be a delay in issuing the decision in your case. This is because Adjudicator has recently undertaken a site visit to review the signage at this location. The Tribunal has therefore put your case on-hold until a decision is made, following which the Adjudicator will decide how your appeal should proceed. We will keep in-touch with you about your appeal by placing a further message on your case. In the meantime, the Council will not enforce the penalty charge whilst the matter is under consideration by the Adjudicator. From:Olivia Bligh (Administrator) To:Kerry Conway, xxxxx xxxxx xxxx (Appellant), Manchester01/03/2019 09:27 By way of an update please be advised that following a site visit the Adjudicator recently issued a decision allowing specific appeals at this location stating that he believed the signage to be inadequate. However Manchester City Council have exercised their right to challenge this decision by requesting a review of the decision. This will be dealt with by a further Adjudicator in due course. There will therefore be a further delay in issuing the decision on your case until a decision on the review application is made, following which the Adjudicator will decide how your appeal should proceed. As before we will keep in-touch with you about your appeal by placing a further message on your case. In the meantime, the Council will not enforce the penalty charge whilst the matter is under consideration by the Adjudicator. Kind regards Traffic Penalty Tribunal |
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Fri, 1 Mar 2019 - 14:07
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#31
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Member Group: Members Posts: 72 Joined: 31 Jan 2019 Member No.: 102,212 |
.
This post has been edited by Mikail-1: Fri, 1 Mar 2019 - 17:45 |
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Fri, 1 Mar 2019 - 14:31
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#32
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
I sent the below on 29/01/2019, as my other friend who had the same Bus gate ticket , at the same location and I gave him the same drafted letter and his appeal was won and MCC did not contest the appeal and withdraw before the appeal.
Hi Adjudicator officer, I would like to add a message, as another colleague same incident as mine, meaning same location, same delay and it has been waived. Mine is exactly the same and they still want to challenge and investigate. There is double standard here, as the Adjudicator decision is final and if other Adjudicator has allowed the appeal, then it should be same for me and my other work colleague has the same reply from the same adjudicator, but my friend appeal was allowed on 29/01/2019. From: To: Tribunal Only 29/01/2019 15:47 Dear Adjudicator Officer, I would like to bring to your attention to the above case Ref: MC00231-1901 his appeal has been allowed and the authority did not contest his appeal. my case is exactly the same so therefore if you can look into this. From: Traffic Penalty Tribunal Sent: Tuesday 29 January, 12:08 Subject: Case ref MC00231-1901: Authority not contesting your appeal To: *|MC_PREVIEW_TEXT|* Dear XXXXX XXXXXX, The authority has decided not to contest your appeal. This means that you have won your appeal and the case is closed. Can I have more information on why the authority has made this decision? Yes, you can view the reasons why the authority is not contesting this appeal in your online case file: https://foam.trafficpenaltytribunal.gov.uk/...sions/decisions If the text above does not appear as a link, please copy and paste it into your web browser to view. Do I need to do anything now? No, you have nothing to pay and need take no further action. This post has been edited by CYRIL: Fri, 1 Mar 2019 - 14:35 |
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Fri, 22 Mar 2019 - 12:43
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#33
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Adjudicator's Decision Adjudicator: Jill Yates | Decision date: 22/03/2019 PCN MC84150501 Mr xxxx xxxxxx , you have won this appeal. There is nothing to pay and the authority will cancel the penalty charge This is because the alleged bus lane contravention did not occur. Adjudicator's reasons Mr XXXX challenged the PCN on the basis that the signage was not adequate, and because of the length of time it had taken the council to deal with his representations. In case number MC01044-1808, following a site visit, Adjudicator Mr Stephen Knapp found that the signage for this bus lane were not sufficiently clear. I have read his findings and, having considered the evidence in this appeal, I agree with him. I find that the signs were not adequate and I allow the appeal which means that there is nothing for the appellant to pay in respect of this PCN. The delay of over 5 months in dealing with the representations was also too long and, had I found that the contravention had occurred, the appeal would have been allowed because of this delay in any event. If either party wishes to see a full copy of Mr Knapp’s decision they should contact the Tribunal Administration. |
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Sat, 23 Mar 2019 - 09:36
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#34
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Member Group: Closed Posts: 9,710 Joined: 28 Mar 2007 Member No.: 11,355 |
OP----it would help others if we could see a copy of Knapp's Decision. Can you get it and post it please?
Mick |
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Sun, 24 Mar 2019 - 16:34
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#35
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
OP----it would help others if we could see a copy of Knapp's Decision. Can you get it and post it please? Mick Mike it's at row 7 here http://bit.ly/2AR0JNg -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Mon, 25 Mar 2019 - 15:31
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#36
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
CYRIL I can write you an application for costs if you want, in other cases we're asking the council to pay £95
-------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Mon, 25 Mar 2019 - 16:29
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#37
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Cp8759,
By all means please send me the application for the cost and i can then send it to TPT to claim the cost from MCC. Thank you for the offer. |
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Mon, 25 Mar 2019 - 17:53
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#38
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
Here's your draft application: http://bit.ly/2urEM3A
Replace the bits in red with your real name and the correct case reference, then save it as a PDF and send it to the tribunal, together with the following cases: Dr v Manchester City Council (case reference MC00752-1712): http://bit.ly/2HXlPQ0 Mrs v Manchester City Council (case reference MC00816-1712): http://bit.ly/2HYpeOD Ms v Manchester City Council (case reference MC00729-1711): http://bit.ly/2Duu1C3 Ms v Manchester City Council (case reference MC00014-1801): http://bit.ly/2WQXm24 Mr v Manchester City Council (case reference MC00642-1805): http://bit.ly/2WY2Fgu -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Tue, 26 Mar 2019 - 14:25
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#39
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Hi Cp8759,
Thank you for the drafted letter and i will send it to the Tribunal and the following cases. Just sent it to traffic penalty tribunal for cost application and i will keep you upto date. This post has been edited by CYRIL: Tue, 26 Mar 2019 - 17:08 |
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Tue, 2 Apr 2019 - 12:43
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#40
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Member Group: Members Posts: 289 Joined: 2 Dec 2017 Member No.: 95,374 |
Cost has been refused.
XXXX XXXXX XXXXX v Manchester City Council Adjudicator's Reasons: Following the decision to allow the appeal, because of the inadequacy of the signing there is now an application that the Council should pay the company’s costs of conducting the appeal assessed in the sum of £95.00. The application has been researched and the author of it is aware of the provisions of Regulation 24 of the Bus Lane Contraventions (Penalty Charges Adjudication and Enforcement) (England) Regulations 2005. This Regulation makes it clear that costs are not normally to be awarded against either party to an appeal about a PCN. A costs order is only appropriate if the party who is to pay them has conducted the appeal in a way which can properly be described as frivolous or vexatious or the Council’s decision to contest the case was wholly unreasonable. This is a high test and designed to be so because neither party to an appeal about a civil penalty charge should be concerned about paying additional costs. Application for Costs Case number:MC0224X-XXXX Vehicle: XXXXXXXX PCN MC89617XXXXX he application for costs is refused. I am aware that there have been many hundreds of appeals arising out of the bus gate restrictions on Oxford Road and in January this year I issued a decision, following a hearing and a site visit in which I found in four particular appeals that the signing was not adequate. Since then different Adjudicators have adopted the reasoning and allowed appeals on the basis of the signing. It is argued that because the Council did not to have regard to the findings of the independent Adjudicators this is sufficient for a costs order to be made. The Council say that they do not agree with the Adjudicators decisions and are not bound by them. Whilst such a view may be seen as unreasonable and possibly contrary to the general principles of public law the Tribunal is not the forum for such a complaint. I am satisfied that the decision to contest this particular appeal was not wholly unreasonable so that a costs order should not be made. On the facts of this particular case the company appealed on the basis of more than one issue. The Adjudicator did not have to deal with the additional challenges about the availability of the CCTV film or the delay in responding to representations but I am satisfied that those grounds, even taken together would not be a reason for the appeal to be allowed since there is no time limit for the issue of the NOR and the obligation on the council is to make the CCTV film or a still photograph available. A photograph was included on the PCN. Further whilst it is correct that Adjudicators have for some time been questioning the adequacy of the bus gate signing along Oxford Road I cannot find that the Council’s failure to accept the Adjudications was wholly unreasonable. Further my consolidated decision, which followed a site visit and therefore might be expected to carry more weight was not issued until well after the company had started the present appeal. The 2005 Regulations do not include the concept of procedural impropriety and the reference in the costs application to “abuse of process” is not something for the Adjudicator. Therefore, whilst I can see the argument that the decision to ignore Adjudicator decisions is unfair having regard to the very strict test in Regulation 24 and the reason for it I find that the Council’s conduct in this particular appeal is not such that they should be ordered to pay costs. I would also add that even if costs were appropriate in principle they should only represent expenses necessarily and reasonably incurred in the preparation of the appeal and they need to be proportionate to the penalty charge in issue. Any appellant can expend as much time and money as is considered appropriate in defending the appeal but if the costs are disproportionate they will not be recovered. I also doubt that it is appropriate to use an hourly rate to represent a cost of preparing the appeal. The application is therefore refused. Stephen Knapp Adjudicator 02.04.2019 |
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