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Barnet (Burnt Oak Broadway) Bus Lane PCN
cyrus1
post Mon, 4 Nov 2019 - 16:07
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Dear all,

I would very much appreciate your help with this PCN. At the time, I felt that I had to move into the bus lane momentarily to avoid an accident as I believed there to be an obstruction on the road. I haven't caused an obstruction to a vehicle in the bus lane either. Have I got grounds to appeal?

Here's the video: https://streamable.com/uey4o

I am driving the blue Saab.

Thank you in advance.
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post Mon, 4 Nov 2019 - 16:07
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Incandescent
post Sat, 16 Nov 2019 - 00:09
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Barnet clearly need to refill their coffers !
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cyrus1
post Mon, 25 Nov 2019 - 09:54
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I just received this from Barnet.

What are your thoughts?

https://imgur.com/a/Tz84k39
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stamfordman
post Mon, 25 Nov 2019 - 10:21
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Standard fob off letter with a total failure to consider triviality and CP's points (assuming you sent his draft).

See what others say but I would await the enforcement notice to which you can repeat the reps and say they were not considered.
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cp8759
post Mon, 25 Nov 2019 - 15:17
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I would also wait for the Enforcement Notice and then you can add failure to consider to your previous grounds.


--------------------
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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cyrus1
post Wed, 27 Nov 2019 - 12:35
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Thank you for your replies.

Once I wait for the notice, do I send the same draft again, but highlight that my points have not been addressed?

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cp8759
post Thu, 28 Nov 2019 - 01:18
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Once you get the EN post it on here and we'll draft a formal representation for you.


--------------------
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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cyrus1
post Wed, 11 Dec 2019 - 11:56
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QUOTE (cp8759 @ Thu, 28 Nov 2019 - 01:18) *
Once you get the EN post it on here and we'll draft a formal representation for you.


I just received the Enforcement Notice: https://imgur.com/a/abC9ZMk

Your help would be greatly appreciated with the next steps.

This post has been edited by cyrus1: Thu, 12 Dec 2019 - 18:37
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cyrus1
post Thu, 12 Dec 2019 - 18:41
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Bump
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cp8759
post Sun, 15 Dec 2019 - 20:26
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Here's a new draft with an added section about the failure to consider:

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

Dear London Borough of Barnet,

Liability for the penalty is denied on the following grounds. Firstly, the contravention is of a de-minimis nature. Vehicles are normally allowed to enter a bus lane to pass a stationary vehicle that is turning right, in fact the vehicle ahead of me did exactly the same thing. While the council might argue that I should have promptly returned to the right hand lane, the distance covered was minimal and inconsequential. The purpose of bus lane enforcement is to ensure buses are not delayed, the purpose of bus lane enforcement is not to raise revenue for the sake of it. Any attempt to pursue such a trivial contravention would be petty and could bring the council's bus lane enforcement policy into disrepute.

In any event, the PCN is defective. The London Local Authorities Act 1996 provides as follows at section 4(3):

(3) A penalty charge notice under this Part of this Act must state—
...
(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement
notice may be served by the council or, as the case may be, Transport for London on the
person appearing to them to be the owner of the vehicle;
...
(g) the effect of paragraph 2 of Schedule 1 to this Act.


The tribunal has long held that where a discretionary power is bestowed upon the council by Parliament, that discretion cannot be fettered. The council always has a discretion not to pursue enforcement. However although the PCN attempts to pay lip-service to the regulations on page 1, page 2 states the following:

If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge.

The PCN, when read as a whole, conveys unequivocally that if the PCN is not paid or successfully challenged, service of an Enforcement Notice is a foregone conclusion. This is an unlawful fettering of discretion because the power to serve an Enforcement Notice is discretionary, the council is not allowed to say that something "will" happen when the regulations prescribe that something "may" happen.

Further to this, the PCN fails to convey the effect of paragraph 2 of Schedule 1 to the Act, which provides at sub-paragraph 3 that:

The enforcing authority may disregard any such representations which are received by them
after the end of the period of 28 days beginning with the date on which the enforcement notice in
question was served.


The PCN says that the 28 day period for representations to be made against the Enforcement Notice starts with the date of the Penalty Charge Notice, but that 28 day period will have expired before the Enforcement Notice is served. While a motorist might hazard a guess that the information given is the result of a drafting error and should not be taken literally, the motorist has no way of knowing what the correct period might be. It could be inferred that the council means 28 days from the date of the Enforcement Notice, or 28 days from the date of service of the Enforcement Notice, but this would be guesswork and the law requires certainty. The council might argue that the exact period does not need to be given at all at this stage, but that is besides the point: if the council chooses to include details from paragraph 2 of Schedule 1 in the PCN, those details must be accurate and must not mislead or confuse.

Therefore when read as a whole, the PCN does not comply with the requirements of the 1996 Act. In London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) the High Court held at para 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.

The same circumstances exist here: The 1996 Act creates a scheme for the civil enforcement of bus lane controls. As the statutory conditions in this case are clearly not met, the financial liability does not arise and no penalty is due.

Finally, there has been a complete failure by the enforcement authority to give any proper consideration to my informal representations. My representations against the PCN were the same as those made above against the Enforcement Notice, and yet the council's response makes no mention of my representations regarding the wording of the PCN: the council does not say those representations were accepted, but it does not say they were rejected either. Instead, the representations made with regard to the wording of the PCN were completely ignored.

The council is under a duty to act fairly, the council can of course accept or reject any representation as it sees fit but the council is not entitled to disregard representations without giving them any consideration at all. This is a breach of the common law duty to act fairly, as per R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8 and in light of that, liability to pay the penalty does not arise.


--------------------
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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cyrus1
post Fri, 20 Dec 2019 - 19:59
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QUOTE (cp8759 @ Sun, 15 Dec 2019 - 20:26) *
Here's a new draft with an added section about the failure to consider:

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

Dear London Borough of Barnet,

Liability for the penalty is denied on the following grounds. Firstly, the contravention is of a de-minimis nature. Vehicles are normally allowed to enter a bus lane to pass a stationary vehicle that is turning right, in fact the vehicle ahead of me did exactly the same thing. While the council might argue that I should have promptly returned to the right hand lane, the distance covered was minimal and inconsequential. The purpose of bus lane enforcement is to ensure buses are not delayed, the purpose of bus lane enforcement is not to raise revenue for the sake of it. Any attempt to pursue such a trivial contravention would be petty and could bring the council's bus lane enforcement policy into disrepute.

In any event, the PCN is defective. The London Local Authorities Act 1996 provides as follows at section 4(3):

(3) A penalty charge notice under this Part of this Act must state—
...
(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement
notice may be served by the council or, as the case may be, Transport for London on the
person appearing to them to be the owner of the vehicle;
...
(g) the effect of paragraph 2 of Schedule 1 to this Act.


The tribunal has long held that where a discretionary power is bestowed upon the council by Parliament, that discretion cannot be fettered. The council always has a discretion not to pursue enforcement. However although the PCN attempts to pay lip-service to the regulations on page 1, page 2 states the following:

If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge.

The PCN, when read as a whole, conveys unequivocally that if the PCN is not paid or successfully challenged, service of an Enforcement Notice is a foregone conclusion. This is an unlawful fettering of discretion because the power to serve an Enforcement Notice is discretionary, the council is not allowed to say that something "will" happen when the regulations prescribe that something "may" happen.

Further to this, the PCN fails to convey the effect of paragraph 2 of Schedule 1 to the Act, which provides at sub-paragraph 3 that:

The enforcing authority may disregard any such representations which are received by them
after the end of the period of 28 days beginning with the date on which the enforcement notice in
question was served.


The PCN says that the 28 day period for representations to be made against the Enforcement Notice starts with the date of the Penalty Charge Notice, but that 28 day period will have expired before the Enforcement Notice is served. While a motorist might hazard a guess that the information given is the result of a drafting error and should not be taken literally, the motorist has no way of knowing what the correct period might be. It could be inferred that the council means 28 days from the date of the Enforcement Notice, or 28 days from the date of service of the Enforcement Notice, but this would be guesswork and the law requires certainty. The council might argue that the exact period does not need to be given at all at this stage, but that is besides the point: if the council chooses to include details from paragraph 2 of Schedule 1 in the PCN, those details must be accurate and must not mislead or confuse.

Therefore when read as a whole, the PCN does not comply with the requirements of the 1996 Act. In London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) the High Court held at para 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.

The same circumstances exist here: The 1996 Act creates a scheme for the civil enforcement of bus lane controls. As the statutory conditions in this case are clearly not met, the financial liability does not arise and no penalty is due.

Finally, there has been a complete failure by the enforcement authority to give any proper consideration to my informal representations. My representations against the PCN were the same as those made above against the Enforcement Notice, and yet the council's response makes no mention of my representations regarding the wording of the PCN: the council does not say those representations were accepted, but it does not say they were rejected either. Instead, the representations made with regard to the wording of the PCN were completely ignored.

The council is under a duty to act fairly, the council can of course accept or reject any representation as it sees fit but the council is not entitled to disregard representations without giving them any consideration at all. This is a breach of the common law duty to act fairly, as per R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8 and in light of that, liability to pay the penalty does not arise.


Thank you very much again, for your kind help. I'll be sending this off now.
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cyrus1
post Fri, 10 Jan 2020 - 12:16
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I have fantastic news guys. To all who helped, especially CP, thank you very much! What you're doing on this forum is invaluable.

https://imgur.com/a/i53y3dL
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Incandescent
post Fri, 10 Jan 2020 - 16:00
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Well done !! Make sure you tell all your mates and family about our forum.
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