Tower Hamlets PCN for Bus Lane travel -Blackwall Way Options

[Derekhunt]

Hi another month another PCN...

This time my missus drove through Blackwall Way. Just after East India Dock DLR there are two bus stops and there is signage just immediately before the bus stops indicating these are cycle or bus lanes. But they are just right before the bus stops!

Effectively make Blackwall Way impassable to non-cycles or non-bus vehicles.



I think quite unfair and confusing signage and setup as I would have thought motorists would breeze through which is what happened here.

Any advice appreciated as I think by letter of law they have got us but certainly very confusing signage wise! Also not sure that the "bus lane" is the full 5 car lengths!

Thanks!

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[makara]

Is that all of the front of the PCN? And post up the back part too

[stamfordman]

Loads of other cases for this one if you do a search:

https://www.google.com/search?q=blackwall+w...40&bih=1042

"Effectively make Blackwall Way impassable to non-cycles or non-bus vehicles."

That's the point! Road was blocked off for ages and only reopened with this bus gate to prevent rat running.


This post has been edited by stamfordman: Wed, 14 Feb 2018 - 21:22

[Derekhunt]

Unfortunately our formal challenge was rejected. Any help is much appreciated

The rejection notice is below:









Our wording for the challenge was as follows:

Representation Reason F, G

I'm believe the PCN should be cancelled for a number of reasons.

1. The sign for the bus route at the bottleneck gives insufficient warning.

2. The sign needs to be illuminated. It's difficult to see when approaching in the dark.

3. The bottleneck is inappropriate to do a u-turn. Firstly it's marked as a bus stop so buses could be approaching at any time. Also, the cars parked are obstructing a u-turn in road.

4. The bus stop markings aren't sufficient and confusing. There needs to be appropriate road markings to go with the blue signs (953). I.e bus gate or buses and cycles only.

2170469229
The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.

Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .

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

The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it.’

[PASTMYBEST]

Reckon an adjudicator might have a good laugh at that they practically admit the signs are wrong

[Derekhunt]

I must have missed this - where does it say that in the rejection notice? How should I draft the appeal?

[PASTMYBEST]

I must have missed this - where does it say that in the rejection notice? How should I draft the appeal?

they say its not a bus gate, but use the bus gate signage. Plenty of time for advice on your appeal yet don't panic and rush in we will help

[Mad Mick V]

OP--read this thread:-

http://forums.pepipoo.com/index.php?showto...t&p=1350757

You have all the appeal points plus Post 14-- lack of road markings.

Mick

[Derekhunt]

Thanks Mick and All.

So the appeal basically is the following. I've lifted parts verbatim from Mick's post on the DVU thread and then slight altered for the third ground for appeal which is lack of bus markings. Any comments before I submit. Thanks for all your help in advance.


APPEAL AGAINST PENALTY CHARGE NOTICE-- NO. ???????????

The Charge

Contravention 33H - Using a route restricted to certain vehicles (buses and cycles only)

The major impetus of this Appeal is that the Enforcement Authority cannot serve a PCN which relates to a conditional contravention relating to certain vehicles whilst using a Section 36 sign which is unconditional. In addition, the signage leading up to this bottleneck is wholly inadequate and the Enforcement Authority has failed to sign it properly.

My appeal is therefore based on three principal grounds:-

1) The contravention given is untenable.

The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).

With respect, I would refer the adjudicator ETA 2170058483 and the Review of that Decision.

In that case the adjudicator ruled as follows:-

Extract

“Mrs Imeybore does not dispute that she did indeed drive through a “bus gate” along a section of Rye Lane reserved for buses and cycles. However Mr Dishman has put forward a number of arguments on her behalf. Although I went through these in some detail with him at the hearing, I confine this decision to only one of them, on the basis of which I will allow both appeals. It relates to the wording of the allegation contained in each of the PCNs, as follows.

“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.

Section 4 of the 2003 Act provides, so far as is material to this case,

“(1) This section applies where

(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or

(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.

(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice

(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and

(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following

(i) the person appearing to them to be the operator of the vehicle; and

(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.

…

(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

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

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

(6) No penalty charge shall be payable under subsection (5)(a) above where

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

What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.

Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)

I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.

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

This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.

The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:

An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong

It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.

Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .

"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

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

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

Section 4 (6) goes on to provide:

" No penalty charge shall be payable under subsection (5)(a) above where

the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)

It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.

The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.

The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.

The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.”


Since my case is predicated on the same basis the contravention given on the PCN must be incorrect and that document thereby invalid and a nullity.


2) The signage in my case was inadequate


My contention is that the lines and signs at the spot where I joined the carriageway were insufficient to inform a diligent motorist that a bus gate covering both sides of the road lay ahead. Since I was not adequately informed I would argue that the Council has failed in its duty to comply with Reg 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.

3) Bus stop markings were not adequate

The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.
Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .

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

The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it.

I would respectfully ask that the PCN be cancelled on each of the above grounds.

Yours faithfully

Mrs D Hunt

[Derekhunt]

Hi Mick - saw that you replied to DVU's thread, any words of wisdom for me on this thread?

[Mad Mick V]

The last point isn't really about the bus stop markings being inadequate; it's that road markings are missing.

I would retitle that sub-para as "Road Markings are not compliant" and you must quote the case--2170469229.

Otherwise go for it!

Mick

[Derekhunt]

Have submitted the case. Unfortunately not enough space to put through the full wordings so I cut down the extract from the first case.

Fingers crossed. It is ridiculous as well that they threaten the full force of the fine £130 if this appeal does not work. It is there to inherently discourage appeals!

[John U.K.]

Have submitted the case

Omline, presumably? If so, make sure you have kept a hard copy.

they threaten the full force of the fine £130 if this appeal does not work. It is there to inherently discourage appeals!

Indeed. It's legal and it works (for the Councils).

Creeping up to 100,000 members here since 2002, which means perhaps 90,000 contested PCNs.
A drop in the ocean compared with the millions of PCNs issued and paid in the same period

[Ravon123]

Hi Derekhunt,

Did this work please, I got the same PCN.
I had no idea it was a bus lane until I got a ticket! it get you so angry!

Thanks,
Ravon