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[Adjudication win] Nuttall Street Hackney 50 Prohibited Turn
ohnoes
post Sun, 19 Aug 2018 - 20:59
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Hello all,

My father has been stung at the above location.

Here is a copy of the PCN: https://imgur.com/a/aJ7CT9I

Based on another active thread, I have put together the following initial appeal to Hackney Council.
Can you please critique it and let me know if there are any other grounds that I have missed?

Ground 1: The amount demanded exceeds the amount due in the circumstances of the case: The signage of the restriction is inadequate.

The “No Turn” signage consists of one sign mounted high on a street lighting pole to the left of the carriageway, directly before a pedestrian crossing.
The mounting height of the sign is outside of guidance in the Sign Manual and is too high to be noticed by a motorist, who will be concentrating on the crossing. Therefore the signage is inadequate.

Whilst previous decisions are not binding, they can be persuasive and I submit Edward Dixon v London Borough of Haringey (case reference 2160444800) as persuasive authority in this instance. In the case the tribunal held that:

"The Appellant said he did not see the sign on the side of the street he parked because it was low down and obscured by furniture and other items that were being loaded or unloaded. He looked across the street and saw a the pay & display ticket machine and pay and display sign and assumed it applied to where he was parked and bought and displayed a ticket.

The Sign Manual gives the following recommendations for the placement of signs:

MOUNTING

1.21 The normal mounting height measured to the lower edge of a sign or backing board (or any supplementary plate) is between 900 mm and 1500 mm above the carriageway alongside. The greater height should be used where vehicle spray is likely to soil the sign, or above planted areas. Careful consideration should be given to any proposal to mount signs at a low height, such as on railings or bollards, as there is a risk of drivers not noticing them, especially at night or when they could be obscured by parked vehicles or pedestrians. Where signs are erected above footways, or in areas likely or intended to be used by pedestrians (e.g. pedestrian refuges), a headroom of 2300 mm is recommended, with 2100 mm as an absolute minimum. A clearance of at least 2300 mm should be maintained over a cycle track or shared cycleway / footway.

The effect of this that the sign should have been placed with a headroom of 2300mm and clearly the sign here was not; indeed it is not clear whether it was 900 mm above the pavement. The justification that the Enforcement Authority give is that it was in a preservation area, but they provide no evidence of that or the restrictions on the mounting of signs that were in force, if any. As such they have not established good reason why they did not follow the guidelines and the signage is therefore inadequate.
"

In Edward Dixon v London Borough of Haringey, the sign has been mounted low, and outside of the Sign Manual guidelines resulting in the tribunal finding that the signage was inadequate. I submit that my case, the signage being mounted high and outside of the Sign Manual guidelines has the same effect and therefore the appeal must be allowed. There are no road markings or other signs to make clear and convey the restriction in my case.


Ground 2: The amount demanded exceeds the amount due in the circumstances of the case: The PCN does not state the grounds on which the enforcement authority believe a penalty charge is payable:


Although these proceedings are civil in nature, it is a long established principle of law that anyone accused of wrongdoing must be given unambiguous particulars of the nature of the accusation he faces. The penalty charge served by the enforcement authority does not specify whether the prohibited turn is a left turn, a right turn or a u-turn, it simply states “50 Performing a prohibited turn

While previous decisions are not binding they can be persuasive and I submit Austin Biesty v London Borough of Brent (case reference 2130412623) as persuasive authority in this instance. In that case the tribunal held that:

The Penalty Charge Notice ('PCN') in this case describes the alleged traffic contravention as Failing to comply with a sign indicating a prohibited turn. However, the PCN fails to particularise what turn is prohibited, left or right. Also, whilst the Penalty Charge Notice ('PCN') includes superimposed pictures, it is impossible to see in the copy filed any actual traffic sign(s) that the appellant is alleged to have failed to comply with and there is no copy of the sign(s) themselves superimposed on the PCN. 

In the circumstances, I find that the PCN is invalid and unenforceable as it fails to comply with the requirements of section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 ('LLA & TFL 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".

In these circumstances, I must allow this appeal.


In this case, as in Austin Biesty v London Borough of Brent, the PCN fails to particularise what turn is prohibited and the signs which are alleged to have been contravened are not visible on the PCN.

It follows that the PCN in this case fails to comply with section 4(8)(a)(i) of the London Local Authorities and Transport for London Act 2003 and the appeal must be allowed.

Ground 3: The amount demanded exceeds the amount due in the circumstances of the case: The PCN does not particularise the location of the alleged contravention:

Google maps shows that Nuttall Street extends from the junction with Hoxton Street in the West to the A10 in the East, along its length it intersects approximately 7 junctions and the PCN does not specify where on Nuttall Street the contravention is said to have occurred.

I submit Matthew Kelly v London Borough of Harrow (case reference 216029138A) as persuasive authority:

Mr Kelly has appeared in person with his son, Mr Sean Kelly.
This PCN was issued for the alleged contravention of being in a bus lane in Northolt Road Northbound at 12.49pm on 12 March 2016.
Mr Kelly appeals because he says that the PCN does not sufficiently identify the location of the alleged contravention. His evidence shows that there are 5 camera enforcement locations in Northolt Road.
Although the Council says in its case summary that the location is Northolt Road at the junction with Shaftesbury Avenue, this is not clear from the PCN.
The PCN must state the grounds on which the Council believe that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to know not just the nature of the alleged contravention but exactly where it is said to have occurred. I agree with Mr Kelly that this PCN did not sufficiently identify the location of the alleged contravention and I allow the appeal for this reason.


I aver that the PCN does not allow the recipient to understand where on Nuttall Street the allegation is said to have occurred and the appeal must therefore be allowed.

This post has been edited by ohnoes: Wed, 7 Nov 2018 - 12:31


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post Sun, 19 Aug 2018 - 20:59
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stamfordman
post Wed, 17 Oct 2018 - 09:38
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QUOTE (ohnoes @ Wed, 17 Oct 2018 - 09:58) *
GSV seems to confirm the second sign has been in place since at least April 2018.

https://www.google.co.uk/maps/@51.5341577,-...6384!8i8192



Yes. My point is how long it has not been visible owing to being knocked around.
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ohnoes
post Wed, 17 Oct 2018 - 10:52
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Now that we cannot rely on the ground about the sign height, can anyone suggest how best to modify the grounds?
I am sure that second sign has been knocked about for a number of months now, it isn't in their interest to fix it.



--------------------
PCNs sucessfully contested with the help of this forum:
Newham 1/1
Enfield 1/1
Hackney 3/4
Ealing 0/1
LCC 1/1
CoL 1/1

PPC successfully contested with the help of this forum:
UKPC 1/1
TPS 1/1
ECP 0/1

Overall success rate getting tickets overturned: 75%
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cp8759
post Wed, 17 Oct 2018 - 18:28
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Rebuttal re grounds 2 & 3:

Even if the signs at the location of the alleged contravention were clearly visible (which is not accepted), this does not exempt the council from the requirement to issue a Penalty Charge Notice that particularises the alleged wrongdoing in such a manner that the recipient can clearly understand both what is alleged to have been done, and where the wrongdoing is said to have taken place. This is of fundamental importance as anyone withing to contest an allegation of wrongdoing needs to understand the nature of the accusation as well as the exact location, so that evidence may be gathered, enquiries may be made of any potential witnesses and so on. The tribunal has repeatedly ruled that a Penalty Charge Notice must specify what type of prohibited turn is alleged to have been taken and exactly where the alleged contravention is said to have taken place, and this information must be included in the PCN itself, there should be no requirement for the recipient to consult the council's website in order to appreciate the exact nature and location of the accusation. One should only have to look at information extraneous to the PCN when looking at evidence of the contravention, rather than simply in order to understand the nature of the accusation itself.

While it is true that it is the responsibility of any driver to comply with all road traffic signs, it is equally the responsibility of every enforcement authority to act in a fair and impartial manner and to issue PCNs which comply both with the regulations and the common law rules of fairness, which is a trite principle of public law.

The council submits that each cases is decided on its own merits and other cases have no relevant to a correctly issued PCN. While it is true that each cases is decided on its own facts, and each adjudicator is entitled to make his own findings on points of law, the consistent jurisprudence of the tribunal has been that a PCN must state both the nature of a prohibited turn (no left turn, no right turn or no u-turn) and the exact location where the contravention is said to have taken place, the council makes no submissions as to why the tribunal should make a different finding of law in this instance. The council therefore misses the central point: it may well be that the cases I have quoted would have no bearing on a correctly issued PCN, but in this instance the PCN was not issued correctly and it follows that the appeal must be allowed.


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ohnoes
post Sat, 20 Oct 2018 - 17:44
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This is what I have so far to upload for the adjudicator.
If you could have a read and see if it makes sense/is sensible, I'd really appreciate it.
I plan on raising the issue with the lower mounted sign using stratfordman's photograph from the 25th September, is this a reasonable argument/point to make?


Draft of letter to the adjudicator:

The council has a statutory obligation to consider my representations. The Notice of Rejection received from the council does not deal with or address grounds 2 and 3 from my original representations; therefore the council has not performed its statutory duty to consider my representations and the only penalty that can be demanded is nil. I submit Jaffer Husseyin v Royal Borough of Greenwich (Case reference 2170256432) as persuasive authority:

"The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed."

Having received the Notice of Rejection from the council, I have asked for the assistance of any motorists passing the location of the alleged offence to document the state of the signage. The following photograph was taken on the 25th September 2018 and passed on to me that demonstrate that there is one ‘No left turn’ sign mounted high, above the zebra crossing. This sign is mounted outside of the mounting height range specified in the Sign Manual, and this formed part of my original representations to the council. Unbeknownst to me, there is also a second sign that is mounted at normal height, but has seemingly been knocked out of place and is not clearly visible to any drivers approaching the ‘No left turn’ restriction, as demonstrated by the photograph, which is taken from the point of view of the driver approaching the restriction. It stands to reason, the sign, which is mounted at a reasonable height to be seen by approaching drivers, was also not visible to me on the date of the alleged offence due to the same issue.


Additionally, even if the signs were clearly visible (which is not accepted), this does not exempt the council from the requirement to issue a Penalty Charge Notice that particularises the alleged wrongdoing in such a manner that the recipient can clearly understand both what is alleged to have been done, and where the wrongdoing is said to have taken place. This is of fundamental importance as anyone wanting to contest an allegation of wrongdoing needs to understand the nature of the accusation as well as the exact location, so that evidence may be gathered, enquiries may be made of potential witnesses and so on. The tribunal has repeatedly ruled that a Penalty Charge Notice must specify what type of prohibited turn is alleged to have been taken and exactly where the alleged contravention is said to have taken place, and this information must be included in the PCN itself. There should be no requirement for the recipient to consult the council’s website in order to appreciate the exact nature and location of the accusation. One should only have to look at the information extraneous to the PCN when looking at evidence of the contravention, rather than to simply understand the nature of the accusation itself.

While it is true that it is the responsibility of any driver to comply with all road traffic signs, it is equally the responsibility of every enforcement authority to act in a fair and impartial manner and to issue PCNs, which comply with both the regulations and the common law rules of fairness, which are a trite principle of public law.

The council submits that each case is decided on its own merits and other cases have no relevance to a correctly issued PCN. Whilst it is true that each case is decided on its own facts, and each adjudicator is entitled to make their own findings on points of law, the consistent jurisprudence of the tribunal has been that a PCN must state both the nature of a prohibited turn (no left turn, no right turn, no u turn) and the exact location where the contravention is said to have taken place, the council makes no submissions as to why the tribunal should make a different finding of law in this instance. The council therefore misses the central point: it may well be that the cases I have quoted have no bearing on a correctly issued PCN, but in this instance the PCN was not issued correctly and it follows that the appeal must be allowed.

This post has been edited by ohnoes: Sat, 20 Oct 2018 - 17:47


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Enfield 1/1
Hackney 3/4
Ealing 0/1
LCC 1/1
CoL 1/1

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stamfordman
post Sat, 20 Oct 2018 - 18:01
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Drove past yesterday and the lower sign is now back in position.
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cp8759
post Sun, 21 Oct 2018 - 09:31
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I don't think we can add much to that, good luck.


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ohnoes
post Mon, 22 Oct 2018 - 09:27
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Thanks. I have submitted it and will let you know the outcome.


--------------------
PCNs sucessfully contested with the help of this forum:
Newham 1/1
Enfield 1/1
Hackney 3/4
Ealing 0/1
LCC 1/1
CoL 1/1

PPC successfully contested with the help of this forum:
UKPC 1/1
TPS 1/1
ECP 0/1

Overall success rate getting tickets overturned: 75%
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ohnoes
post Wed, 7 Nov 2018 - 09:43
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Hi all,

Adjudication is today.

Ive seen the following successful case allowed by an adj recently, is it worth drawing the attention of the adj to the particulars as my arguments about location and the unspecific turn on the PCN are similar?


Case reference 2180380223
Appellant Ahmed Bakare
Authority London Borough of Hackney

A number of submissions made by the appellant are lacking in merit, but there are some which are meritorious and have been taken into account by me. There is no credible evidence demonstrating that on this occasion signage was obstructed, and if the contravention was proved, then the penalty amount is appropriate. However, for reasons which follow I allow this appeal, and in so doing should iterate that whilst I have borne in mind previous decision[s] they are not binding on me, but can be persuasive.
It would appear that Nuttall Street has a number of intersections along its length,and bearing this in mind it is incumbent on the Authority when issuing a PCN to act with a reasonable degree of precision. Whilst I do not necessarily find that on certain occasions, in respect of certain other roads, an endorsement of performing a prohibited turn might be sufficiently precise, on this occasion,it is not.
The PCN is lacking in particularity and precision. It is simply not possible to view the relevant offending signage, which is particularly significant in respect of this precise location, noting that the PCN simply refers to a prohibited turn, and not precisely what turn has been contravened. Most of the contemporaneous images are either too dark, or signage cannot be observed in the context of the appellant's vehicle. The appellant has made the point that new signage was erected subsequent to the alleged contravention, and whilst I accept that this did not necessarily mean that the previous signage was inadequate, it might add weight to the appellant's account, and I also note that the Authority failed to respond to this part of the appellant's submission.
I intend to allow this appeal bearing in mind the narrow findings above. My decision in this matter is not intended to act as a precedent in terms of either, signage at the location, or the issue relating to this particular appellant's PCN.


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PCNs sucessfully contested with the help of this forum:
Newham 1/1
Enfield 1/1
Hackney 3/4
Ealing 0/1
LCC 1/1
CoL 1/1

PPC successfully contested with the help of this forum:
UKPC 1/1
TPS 1/1
ECP 0/1

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ohnoes
post Wed, 7 Nov 2018 - 12:35
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I've just been to adjudication, the adjudicator gave me a bit of a grilling but allowed the appeal based on two points.
I will post the full wording when it is available.

The points of appeal allowed:

1. 50 Performing a prohibited turn - doesn't convey the turn that was alleged to have been contravened.

2. Signage (SPECIFIC TO MY CASE AND MAY NOT BE ACCEPTED IN FUTURE CASES)- Hackney provided stock images from before the contravention, and I provided one after the contravention from stratfordman that showed one of the signs had been knocked out of place. As the onus is on the authority to prove the signage was intact at the time of the contravention and Hackney didn't do this, he thought that the signage was inadequate (if the second sign wasn't visible to an approaching driver).

The points of appeal that he did not agree with:

1. Location - there was a picture on the PCN that showed a big sign saying 'HOXTON MARKET', so he deemed the location to be clear enough even if it wasn't stated.
2. Procedural impropriety due to Hackney not addressing my representations in full - he said that there is no procedural impropriety defense for a moving traffic contravention and this was only applicable to parking matters.


Full wording:

2180376339

The Appeal is based essentially on three grounds, set out in detail in the written appeal and in the Appellant’s submissions to me in person. He submits that the signage was inadequate, that the PCN was defective, and that the Council failed to deal adequately or at all with his representations.

So far as the latter point goes there is no ground of procedural impropriety in moving traffic cases and although it does the Council no credit that it failed to produce any response to two of the Appellant’s rather technical representations the Appeal could not be allowed on this ground.

However in the other two issues I am with the Appellant. His photographs taken in September show that one of the two no left turn signs was twisted round. The Council’s site photographs taken in June show the signs correctly positioned. The CCTV does not show clearly the position of the signs at the date of the alleged contravention but the onus is on the Council to prove its signage and on balance I am not satisfied it has proved that both signs were clearly visible. Although a single sign is the legal minimum I note the proximity of a pedestrian crossing to distract the motorists attention and no doubt for this reason the Council decided that for clarity two signs were necessary. In the – effective – absence of one of them it seems to me the signage fell below the standard the motorist should expect.

The PCN is also in my view non-compliant. Although I do not accept that the location is not sufficiently identified (very clearly in the photograph), the Council should specify (as other Councils routinely do) what sort of turn is relied on.

The Appeal is allowed on both grounds.


This post has been edited by ohnoes: Mon, 12 Nov 2018 - 11:38


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PCNs sucessfully contested with the help of this forum:
Newham 1/1
Enfield 1/1
Hackney 3/4
Ealing 0/1
LCC 1/1
CoL 1/1

PPC successfully contested with the help of this forum:
UKPC 1/1
TPS 1/1
ECP 0/1

Overall success rate getting tickets overturned: 75%
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DancingDad
post Wed, 7 Nov 2018 - 14:24
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Well done, any win is a good one.

The PI ground..... for future.
Ground is Penalty demanded exceeds the penalty due in the circumstances of the case.
Logic is that if the authority fail to perform a statutory duty, failing to consider, they are acting outside the law, ultra vires and as such cannot enforce a penalty.
The phrase akin the a procedural impropriety is one that adjudicators have been known to accept and indeed state.
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Incandescent
post Wed, 7 Nov 2018 - 17:38
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QUOTE
2. Procedural impropriety due to Hackney not addressing my representations in full - he said that there is no procedural impropriety defense for a moving traffic contravention and this was only applicable to parking matters.

This is quite correct and people get confused on this. Before the Traffic Management Act introduced the appeal ground of "procedural impropriety" for parking, the grounds of "the penalty exceeded the relevant amount in the circumstances of the case" were used. In fact, I think the TMA has this grounds for other contraventions, but they have not yet been authorised for enforcement outside London. London has its own act, of course, (LLA & TFL Act 2003) but this doesn't have Procedural Impropriety as a statutory ground either.

This post has been edited by Incandescent: Wed, 7 Nov 2018 - 17:40
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StanH
post Mon, 21 Jan 2019 - 20:46
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As an interesting outcome of the FOI request I made, Hackney Council has disclosed that: "A total of 4826 PCNs have been issued at the location from 20 June 2018
until 4 October 2018."


That's 45 per day... on a small side street.
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stamfordman
post Mon, 21 Jan 2019 - 20:54
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Well you owe me one for that - I cycled down there from my house to take those pics. Well done. It's the second win at this location - the other was a DNC.

This post has been edited by stamfordman: Mon, 21 Jan 2019 - 20:55
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StanH
post Mon, 21 Jan 2019 - 21:07
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QUOTE (stamfordman @ Mon, 21 Jan 2019 - 20:54) *
Well you owe me one for that - I cycled down there from my house to take those pics. Well done. It's the second win at this location - the other was a DNC.


My appeal date is next week. But I'll also be using your photos to show that at least one sign was not visible. Cheers.
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StanH
post Tue, 29 Jan 2019 - 13:43
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My appeal to this was successful (2180488004).

In my evidence I showed that the sign had been twisted (thank you to stamfordman for the images). I also challenged based on the lack of detail on the PCN (didn't say what type of turn). The Adjudicator, suggested that the images on the PCN are enough to identify the type of turn and was a little surprised that this had been grounds for a successful appeal in the past. I gave a few recent and relevant cases at the end of my evidence. They included 2180376339, referred to in the judgement.

I also made a case that the actual Traffic Management Order was flawed. This really surprised the Adjudicator as he had "read it many many times before". He makes no mention of it in his decision. I strongly suspect that this is because it would cause significant complications going forward. The Adjudicator appeared to agree with the argument in our meeting. I have posted a separate topic on this as it could help many appeals against Hackney Council (Please see this Topic here)



Adjudicator's Reasons

The Appellant attended in person.
The Appellant's case is partially by reference to appeal no. 2180376339. The Adjudicator allowed the
appeal on two grounds.

The Adjudicator found that one of the no left turn signs was twisted round in September 2018 despite
the Authority's site photographs taken in June showing the signs correctly positioned. The Adjudicator
was not satisfied that both signs were clearly visible. He noted that although a single sign is the legal
minimum, the proximity of a pedestrian crossing may distract motorists' attention which probably
explained the presence of two signs on the same side of the carriageway. It follows that the absence
of one of them fell below the standard the motorist should expect.

The Adjudicator also found that the PCN was not compliant. I do not necessarily agree with the
Adjudicator on the second point but I see no reason to disagree with the first point, especially when
the Authority gave no information as to when the sign was twisted and restored. I allow the appeal.


This post has been edited by StanH: Tue, 29 Jan 2019 - 15:21
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