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Ealing Currey Road PCN 51J
creative123
post Sat, 13 Jan 2018 - 00:01
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Hello,

Arrived home to this PCN letter from Ealing council.

I remember struggling with the narrowness of the road and being worried about kerbing the wheels, decided it was better to cross the mini bus lane and come back in. I knew I was asking for trouble when I did that dry.gif

Anything in the no entry signage perhaps? I read that no entry signs are generally used at the end of a road, not when there is two way traffic?

GSV: https://goo.gl/maps/QcUgCuwYLgp



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stamfordman
post Sat, 24 Feb 2018 - 21:28
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QUOTE (creative123 @ Sat, 24 Feb 2018 - 20:05) *
QUOTE
cancellation of this PCN would set a precedent which would be unfair to other motorists with similar contraventions




What an extraordinary thing for them to say - I almost fell off my chair. There must be something to get our teeth into here.

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Mr Meldrew
post Sat, 24 Feb 2018 - 23:47
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OP, this is blatant neglect on the part of the enforcement authority towards its duty to accord requisite consideration and respect to wholly relevant and material elements in your representations. Please read the linked thread below, which demonstrates how the authority’s failure to discharge its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007, can be considered by an adjudicator as ‘procedural impropriety’ on the part of the enforcement authority, meaning a failure to observe any requirement imposed on it by the Traffic Management Act 2004 or Regulation 4(5)(a) of the 2007 regulation previously mentioned. Regulation 7(2) of the 2007 regulation provides that if an adjudicator concludes that a ground specified in Regulation 4(4) applies, he or she shall allow the appeal:

http://forums.pepipoo.com/index.php?showto...t=0&start=0

I would have no hesitation in putting this matter before an adjudicator, but your personal circumstances may differ and it is always understandable if this would not suit you.

You must rely upon the enforcement authority’s response in the Notice of Rejection to your representations (assumed to be post #17) in order to make an informed decision as to whether or not to appeal to an adjudicator, and clearly you deserved a proper consideration and a detailed response to the relevant and material points you raised, but there was no response to the following, not even in the included Traffic Order, or charming pictures, and that is not fair:

You argued that the route for buses to the right of the 'Keep Left' sign on the traffic island appears to conflict with s.36 of the Road Traffic Act 1988, namely the statutory indication given by the sign to diagram 610 of TSRGD 2016, Schedule 3, Part 2, meaning vehicular traffic including buses passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left, and that this conflict is not sustainable in a valid Traffic Management Order, thus the Traffic Order is not valid (there was no contravention of a valid Traffic Order).

Slight modification to the above may serve towards your appeal, if you so wish.

QUOTE
Do I understand correctly that 2(a) only prohibits vehicles exceeding 6 feet 6 inches from entering the traffic island? Therefore, vehicles less than that (or buses, ambulances etc.) are therefore permitted?

As above, buses are prohibited by statute from passing to the right of the 'Keep Left' sign on the traffic island, but not to the left (the fact that if over 6' 6" they would not fit is the council's problem). Exempt vehicles such as ambulances can pass to the right if hindered and not likely to endanger any person, but I understand that they must adhere to a ‘No Entry’ sign so I’m unsure what they should do. A bus is not an exempt vehicle (in spite of the plate legend on the separate 'No Entry' sign), by virtue of TSRGD 2016 Schedule 3, Part 4, 3(2)-(5) and I consider the council has exceeded its authority in this respect.

Are the council being disingenuous and trying to play dumb...?

Absolutely, on this matter raised by you and ignored by them.

Edited to address the OP's questions.

This post has been edited by Mr Meldrew: Sun, 25 Feb 2018 - 10:22


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Mad Mick V
post Sun, 25 Feb 2018 - 10:58
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Am I missing something here?

The NTO clearly shows a vehicle in the red tarmac area about to go past a no entry sign. The contravention given is for failing to comply with a no entry prohibition not about the 6'6" chicane nor a bus gate. Whether a bus has right of way is immaterial if the no entry sign is there to prevent head on collisions. That photo will make it nigh on impossible to win this case at adjudication IMO.

Any Sect 36 argument might fail because the sign in the photo is not conditional on buses being exempt, although we don't know which sign the Council is relying on. However if the OP entered on the left then cut across onto the red tarmac did he contravene the first sign? IMO no he would have to make an approach in the R/H lane because the no entry prohibition does not relate to the L/H lane. So we are left with the no entry sign in the photograph which is sufficient to carry this case.

All in all the OP needs to decide whether the grounds advanced are strong enough to risk the full amount of the penalty.

Mick

This post has been edited by Mad Mick V: Sun, 25 Feb 2018 - 11:03
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Mr Meldrew
post Sun, 25 Feb 2018 - 18:25
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QUOTE (Mad Mick V @ Sun, 25 Feb 2018 - 10:58) *
Am I missing something here?

The NTO clearly shows a vehicle in the red tarmac area about to go past a no entry sign. The contravention given is for failing to comply with a no entry prohibition not about the 6'6" chicane nor a bus gate. Whether a bus has right of way is immaterial if the no entry sign is there to prevent head on collisions. That photo will make it nigh on impossible to win this case at adjudication IMO.

Any Sect 36 argument might fail because the sign in the photo is not conditional on buses being exempt, although we don't know which sign the Council is relying on. However if the OP entered on the left then cut across onto the red tarmac did he contravene the first sign? IMO no he would have to make an approach in the R/H lane because the no entry prohibition does not relate to the L/H lane. So we are left with the no entry sign in the photograph which is sufficient to carry this case.

All in all the OP needs to decide whether the grounds advanced are strong enough to risk the full amount of the penalty.

Mick

Mick you’re quite correct, contravention of the no entry prohibition is unarguable and no attempt has been made to do so. However, I believe that the council is subject to the doctrine of ultra vires and can only do things in respect of which it has an express or implied authority, or which are incidental to doing those things. You will know that councils derive their powers in these cases from Traffic Management Orders made under various provisions of The Road Traffic Regulation Act 1984. Bearing this in mind, the council imply that no restriction applies to local buses entering the carriageway which lies between the island sites situated in this length of Currey Road, whereas in fact a statutory restriction applies to local buses entering the carriageway, and this reads as follows: Except as provided in sub-paragraphs (2) to (5), the requirement conveyed by the sign is that vehicular traffic passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left. My opinion is that the council has neither express nor implied authority under the 1984 Act to have no regard to a statutory restriction.

Opinion on the matter is unimportant to an adjudicator, and mine is that there was no contravention of a valid Traffic Management Order (the Traffic Order was invalid), and you may have yours, nevertheless I believe that the OP submitted a substantially similar argument to the council, which has been wholly ignored in the NtO, creating the ground of procedural impropriety, and here I will avoid repeating what I have said in post #22 above, although I agree that the OP should weigh everything up and come to his own decision.


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creative123
post Sun, 25 Feb 2018 - 18:42
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Mick, thanks for your response.

How do I know which road the no entry sign in the photograph applies to? Could it not apply to the road on the far right with the give way markings? As you say, it is possible to have approached on the left and then cut across onto the red tarmac. The video evidence might show differently (can't remember, would need to check it). Would the adjudicator rely on just the photos or the video evidence too?

This post has been edited by creative123: Sun, 25 Feb 2018 - 18:43
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4101
post Sun, 25 Feb 2018 - 19:26
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I have not read all this thread, lazy.

but it seems that the sign contravened was a no entry - except buses.

This is a scheduled s.36 sign, however note:

4The traffic sign with diagram number 616 is a scheduled traffic sign for the purposes of section 4 (Penalty charges for road traffic contraventions) of this Act only if it indicates a restriction or prohibition which may be indicated by another sign listed in the table.

Sign 953 (variant cycles omitted)

Route for use by buses and pedal cycles only 953

http://www.legislation.gov.uk/ukla/2003/3/...graph/4/enacted


So the restriction is Sign only, not TMO.

ps
my legislation is out of date, dont have Westlaw for now.
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creative123
post Mon, 26 Feb 2018 - 13:31
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QUOTE (4101 @ Sun, 25 Feb 2018 - 19:26) *
I have not read all this thread, lazy.

but it seems that the sign contravened was a no entry - except buses.

This is a scheduled s.36 sign, however note:

4The traffic sign with diagram number 616 is a scheduled traffic sign for the purposes of section 4 (Penalty charges for road traffic contraventions) of this Act only if it indicates a restriction or prohibition which may be indicated by another sign listed in the table.

Sign 953 (variant cycles omitted)

Route for use by buses and pedal cycles only 953

http://www.legislation.gov.uk/ukla/2003/3/...graph/4/enacted


So the restriction is Sign only, not TMO.

ps
my legislation is out of date, dont have Westlaw for now.


No, I don't think this is right. The sign in the photo is a no entry only sign, therefore should be section 36. I can only assume this is the only sign the council is referring to.

I think any appeal needs to centre around the TMO not being valid, but that's only possible if the no entry sign requires a valid TMO. Can someone advise if that is the case?
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Mr Meldrew
post Thu, 8 Mar 2018 - 16:35
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creative123, you recently PM’d me mentioning that you did not “get around” to settling at the discount stage and have since confirmed that you are happy for me to respond on the forum. You say it is worth putting in an appeal, so to save effort my reply to you is also written for an adjudicator (it can easily be made first-person) and I see no need to respond to your questions regarding the diagram 616 (no entry) signs.

QUOTE
There can be no question that the Council seeks to enforce its Penalty Charge Notice (“PCN”) under Section 4(5)(a) of the London Local Authorities and Transport for London Act 2003 (“2003 Act”) when considering that the PCN expressly states that there had been a failure to comply with a no entry restriction without so much as a hint that you had failed to comply with a sign, let alone a scheduled section 36 traffic sign. As required, the Council has conveyed in comprehensible terms what it is you are alleged to have done wrong (Portch v London Borough of Camden, 2070385620). The wording used on the PCN, together with the simple, unmistakable wording used on the Council’s order relating to Currey Road, makes it perfectly clear that in effect entry or passage between defined points is prohibited for vehicles “exceeding 6 feet 6 inches”.

1) The alleged contravention did not occur: You did not fail to comply with the no entry restriction conveyed to you for the reason that you were driving a common or garden family saloon car not of a category of vehicles exceeding 6 feet 6 inches.

2) The Traffic Management Order is invalid (there was no contravention of a valid traffic order): The council is subject to the doctrine of ultra vires and can only do things in respect of which it has an express or implied authority, or which are incidental. Bearing this in mind, entering the carriageway that lies between the island sites in Currey Road from either direction entails passing to the right of a keep left sign, plainly a scheduled section 36 Road Traffic Act 1988 sign indicating a statutory requirement. Regardless of this, the prescribed order disapplied the 6 feet 6 inches restriction in respect of local buses entering between the island sites, the road surface to the right of the keep left sign is marked ‘BUS ONLY’, the area is signed ‘Except local buses’, and it is maintained. Suffice it to say buses are not excepted from the statutory requirement that vehicular traffic passing a scheduled section 36 sign must keep to the left of the sign where the arrow is pointed downwards to the left. You would submit that this is not an insignificant matter. The Council had neither express nor implied authority under the Road Traffic Regulation Act 1984 to effectively redefine the keep left requirement prescribed by a scheduled section 36 sign when planning, marking, signing and maintaining the carriageway between the island sites for the use of local buses.

3) There has been procedural impropriety on the part of the authority: If by some anomaly of which you are not aware, the above state of affairs can perversely co-exist with a valid traffic order, then you would have considered whether subsection 4(6)(a) of the 2003 Act applied. The fact of the matter is that you alerted the Council at the outset of your legitimate expectation as regards a proper consideration and response in respect of all your relevant and material representations concerning this confusing site. Notwithstanding that it had been reminded of its duty, the Council failed to accord requisite consideration as it is obliged so to do to a number of arguments raised in your representations, in particular why the traffic order is invalid. This argument was substantially similar to 2) above and it was appropriate to give it proper consideration and a proper response at an early stage, not least because of the potential wider significance if accepted. Moreover, you intended to rely upon the response in order to make an informed decision as to how to appeal as mentioned earlier, or whether or not to appeal at all and avail yourself of the discount offered; however, the Council were silent on the matter, which was not fair. You would submit that the Council has not discharged its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 which you believe to be a procedural impropriety on the part of the Council. In this context you would submit procedural impropriety means a failure by the Council to observe any requirement imposed on it by the Traffic Management act 2004, or Regulation 4(5)(a) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.
...


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cp8759
post Sun, 11 Mar 2018 - 23:15
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Mr Meldrew I'm not sure the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 have any relevance to the matter, as this is a moving traffic PCN issued under the London Local Authorities and Transport for London Act 2003.

creative123, have you already lodged your appeal?


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creative123
post Sun, 11 Mar 2018 - 23:19
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Yes, I lodged the appeal earlier today.
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cp8759
post Mon, 12 Mar 2018 - 00:25
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QUOTE (creative123 @ Sun, 11 Mar 2018 - 23:19) *
Yes, I lodged the appeal earlier today.

Ah, well, never mind. It looks like you might have appealed quoting the wrong regulations (Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 are to with, well, parking). It matters not, you can make additional submissions, I will draft something for you over the next couple of days as I think there are some other points that can be made.


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creative123
post Mon, 12 Mar 2018 - 07:26
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Ok that would be most helpful cp8759.

I submitted the appeal because I was nearing the 28 day window, so had to get something in.
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Mr Meldrew
post Tue, 13 Mar 2018 - 15:55
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QUOTE (cp8759 @ Sun, 11 Mar 2018 - 23:15) *
Mr Meldrew I'm not sure the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 have any relevance to the matter, as this is a moving traffic PCN issued under the London Local Authorities and Transport for London Act 2003.

Thank you CP8759.

creative123’s alleged moving traffic contravention is the backdrop. Procedural impropriety on the part of the authority (ground 3) is the ‘matter’ believed relevant to the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.

Packman01’s alleged moving traffic contravention was the background to the allowed appeal linked below. Procedural impropriety on the part of the authority was the matter relevant to the 2007 Regulation in question when learned adjudicator Belinda Pearce allowed the appeal. I am not qualified to question her judgement; I copied and pasted it:

QUOTE
The points raised by an Appellant in Representations deserve proper consideration and response at that stage, not in the Case Summary. An Appellant relies upon the response to representations in order to make an informed decision as to whether or not to Appeal. Receiving a detailed answer in the Case Summary is too late a stage in the process.

I conclude therefore that the Enforcement Authority had not discharged its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 which I find to be a ‘procedural impropriety’ on the part of the Enforcement Authority.

In this context, ‘procedural impropriety’ means a failure by the Enforcement Authority to observe any requirement imposed on it by the Traffic Management act 2004 or Regulation 4(5)(a) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.

Regulation 7(2) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 provides that if I conclude that a Ground specified in Regulation 4(4) applies I shall Allow the Appeal.

https://postimg.org/image/arl29tat9/
https://postimg.org/image/65oy1i7al/
https://postimg.org/image/qpts002h9/

In any event, agree with you that it matters not. An adjudicator would not expect creative123 to have a flawless understanding of the relevant regulations and would look to the facts of the matter.


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cp8759
post Tue, 13 Mar 2018 - 23:51
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I think Belinda Pearce got her regulations mixed up, but it's immaterial (obviously if this had been pointed out to her she would have just said the amount demanded exceeded the amount payable in the circumstances, the amount due in the circumstances being nil). I'm going to make an FOI request for the TRO which creates the restriction, as it will be easier to write an appeal with that to hand (I want to to look like an open and shut case as the council's understanding of the law is ludicrously wrong in this instance).


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Mad Mick V
post Wed, 14 Mar 2018 - 08:19
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If the traffic order replicates the Notice (already posted earlier) then I would contest this PCN on the following points:-

In essence the TMO prohibits any vehicle with a width exceeding 6' 6" using the middle section of the road:-

THE EALING (PRESCRIBED ROUTES) (NO 73) TRAFFIC ORDER 2005 CURREY ROAD/EASTCOTE LANE

"a) prohibit vehicles exceeding 6 feet 6 inches from entering or proceeding in Currey Road between a point 4.5 metres south-east of the common boundary of Nos 94 and 96 Currey Road and the common boundary of Nos 98 and 100 Currey Road."

First, your vehicle did not exceed 6'6" therefore you are not prohibited from using the middle section of the road.

Second, the TMO does not prescribe a general no entry prohibition (only certain vehicles),

Third, the contravention given must be incorrect as per the above,

Fourth, if we have a route restricted to certain vehicles as they allege, even in the traffic order title, the TMO v Sect 36 ground applies.

Sight of the actual TMO is critical.

Mick

This post has been edited by Mad Mick V: Wed, 14 Mar 2018 - 12:52
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cp8759
post Wed, 14 Mar 2018 - 09:35
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QUOTE (Mad Mick V @ Wed, 14 Mar 2018 - 08:19) *
Sight of the actual TMO is critical.

Agreed, FOI request is in, I'll post it as soon as I get it.

creative123, please make sure you let us know of any updates from the tribunal regarding hearing dates / council evidence and so on.


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Mr Meldrew
post Wed, 14 Mar 2018 - 16:48
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Whatever the TMO says, it cannot change grounds 2 and 3 on the submitted Appeal.


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cp8759
post Wed, 14 Mar 2018 - 16:55
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QUOTE (Mr Meldrew @ Wed, 14 Mar 2018 - 16:48) *
Whatever the TMO says, it cannot change grounds 2 and 3 on the submitted Appeal.

I don't disagree and I'm not looking to detract from anything you've said. But if additional reasons can be put to the adjudicator as to why the PCN is invalid, then so much the better.


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creative123
post Thu, 15 Mar 2018 - 22:02
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QUOTE (cp8759 @ Wed, 14 Mar 2018 - 09:35) *
QUOTE (Mad Mick V @ Wed, 14 Mar 2018 - 08:19) *
Sight of the actual TMO is critical.

Agreed, FOI request is in, I'll post it as soon as I get it.

creative123, please make sure you let us know of any updates from the tribunal regarding hearing dates / council evidence and so on.


Hi cp8759,

I received the letter from the tribunal which states the last day to give any further evidence is 4th April 2018.

Thanks
creative

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cp8759
post Fri, 16 Mar 2018 - 00:57
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QUOTE (creative123 @ Thu, 15 Mar 2018 - 22:02) *
Hi cp8759,

I received the letter from the tribunal which states the last day to give any further evidence is 4th April 2018.

Thanks
creative

That's fine, you should get the council evidence well before that. Ping me a message when you do.


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