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Bus lane charge...HARROW COUNCIL, Using restricted route for buses and cycles only
medicinechild
post Fri, 2 Nov 2018 - 10:16
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[indent][/indent]Thank you all in advance for taking the time.

Following a family gathering i was returning home on 7th October 2018 at 0230am in the morning, i don't no the area but received this Penalty Charge Notice supposedly from Harrow council on the 31st October 2018.

I definitely did not see and their were no visible notices informing us (mother present in car) that this route/road was for local buses and cycles only.

In the CCTV video photo presented on the PCN there appears to be no signage.

Can anyone assist please?

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post Fri, 2 Nov 2018 - 10:16
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PASTMYBEST
post Fri, 2 Nov 2018 - 12:23
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Here

https://www.google.co.uk/maps/@51.5829056,-...6384!8i8192

If so a road legend " bus gate" or a variant must be used so the signage is not compliant as per this case

2180198194

Representations are made by Mr Dogan on the basis that the signage in Lombard Street does not comply with the requirements of the Traffic Signs Regulations and General Directions 2016. The appellant refers to a decision of Adjudicator Edward Houghton appeal 2170469229. In that appeal the Adjudicator initially adjourned the appeal and asked the City of London to explain why the legend Bus Gate was not on the carriageway. The Enforcement Authority did not reply. The appeal was allowed on the basis that the requirement for the legend Bus Gate was mandatory. No application for review was made.
In this appeal the local authority argues that the legend Bus Gate is not mandatory because there is no link from the Route for Bus and Cycle Only sign in the Traffic Signs Regulations and General Directions 2016. The case summary does not refer to Schedule 9 Part 5 para 1 TSRGD 2016 which 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. The legend bus gate is one of the items in column 3 of part 6 of Schedule 9.

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 10, 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.
I find that the Traffic Signs Regulations and General Directions 2016 state that the bus gate legend is mandatory.
The local authority refers to a decision of Adjudicator John Lane. I am not bound by the decision of any Adjudicator. In this case I follow the decision of Adjudicator Edward Houghton.
The appellant was well aware that the restriction was in operation and to that extent the appeal has little merit. Previous Penalty Charge Notices issued to the appellant had been cancelled.
I am satisfied that the bus gate requirement is mandatory therefore I must allow this appeal.


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medicinechild
post Fri, 2 Nov 2018 - 16:52
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Thank you I will reply to the council now mellow.gif

Also is it right that i only have seven (7), days with which to pay the penalty notice??

This post has been edited by medicinechild: Fri, 2 Nov 2018 - 16:52
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PASTMYBEST
post Fri, 2 Nov 2018 - 17:04
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QUOTE (medicinechild @ Fri, 2 Nov 2018 - 16:52) *
Thank you I will reply to the council now mellow.gif

Also is it right that i only have seven (7), days with which to pay the penalty notice??


no slow down a bit.

first ask for the video

you have 14 days to pay at the discount so until the 8th of November or if you make representations by then the council will usually re offer this amount. Or you have 28 days to pay or make representations Between 14 and 28 days it is at the full amount.


post any draft here before you send


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Mad Mick V
post Fri, 2 Nov 2018 - 17:11
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OP--wait up. This is a Sect 36 sign v TMO type case too--so the contravention you have been given cannot be sustained.

Here's the key case:-

2170058483 (Extract)

“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.
------------------------------

Mick
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medicinechild
post Fri, 2 Nov 2018 - 17:41
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Thanks Mike, the letter states section 33h does this make any difference?

So in reply how should I approach this unsure.gif

This post has been edited by medicinechild: Fri, 2 Nov 2018 - 17:42
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Mad Mick V
post Fri, 2 Nov 2018 - 18:11
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Yes, it would apply to a 33H too.

I would ask the Council to cancel the PCN on the grounds that the contravention is not sustainable when Diagram 953 sign is in place --then copy and paste the case I gave you as your specific grounds. This has been successful with other Harrow cases.

Mick
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medicinechild
post Fri, 2 Nov 2018 - 18:33
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MUCH APPRECIATED icon_cheers.gif
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medicinechild
post Mon, 7 Jan 2019 - 22:18
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Hello Mick,

Having replied to Harrow Council on the 5th November 2018, I received the attached letter today 7th November 2019, can you or others suggest how i can reply to this letter.
p.s. Is 3rd January 209, 58days (i.e. 41working days excl. bank holidays) a reasonable amount of time to reply to my correspondence which i sent 1st class post 5th Nov 2018
Thank you in advance
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PASTMYBEST
post Mon, 7 Jan 2019 - 22:43
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Did you include the ground I gave in your representation? Not the end of the world if you did not, you can at appeal.

Do not go rushing in, there are errors in the NoR that can win but not got time ATM


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medicinechild
post Mon, 7 Jan 2019 - 22:59
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Thanks, i have just received the rejection today, i appreciate you are busy but will await your reply.


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Mad Mick V
post Mon, 7 Jan 2019 - 23:27
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OP----I think Harrow have been considering recent cases where adjudicators have ruled against the Sect 36 sign v TMO ground because they regard the legislation has been drafted to prevent double jeopardy. This case will give some background:-

http://forums.pepipoo.com/index.php?showto...t&p=1448133

Therefore you have a choice of paying at the discount or continuing.

My view, along with other members is that the concept of double jeopardy cannot be applied to the Act in question. To do so would prejudice your position because by ignoring the regulations, which are clear, it allows the Council free rein to try it on with a bus lane sign whilst applying a pemitted route TMO.

Indeed this errant Council has no bus lane TMOs so they cannot enforce a bus lane sign (Diagram 953) on its own. Ignoring double jeopardy, this factor has been missed by adjudicators who I believe they should question this Council's proportionality.

Therefore in alleging the specific contravention the Council has to get it right --it is either a contravention of a TMO or a contravention of passing a bus lane sign.

The following thread will give more opinions:-

http://forums.pepipoo.com/index.php?showto...t&p=1445717

Mick

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medicinechild
post Tue, 8 Jan 2019 - 03:00
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Morning all,

Not wishing to lose any further sleep, can i appeal this rejection? Any suggestions most helpful. Thank you

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Incandescent
post Tue, 8 Jan 2019 - 10:55
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QUOTE (medicinechild @ Tue, 8 Jan 2019 - 03:00) *
Morning all,

Not wishing to lose any further sleep, can i appeal this rejection? Any suggestions most helpful. Thank you

Well of course you can, you register an appeal at London Tribunals. This costs nothing extra to the PCN penalty of £130. With our help a good appeal can be constructed and the odds on winning are good, but if you want certainty, pay the discounted amount of £65. Going to the tribunal is, in essence, a double-or-quits gamble.
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cp8759
post Tue, 8 Jan 2019 - 12:02
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Wait for PASTMYBEST to update the thread, but I would appeal.


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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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medicinechild
post Wed, 9 Jan 2019 - 14:56
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thanks, i will thumbsup.gif icon_cheers.gif
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PASTMYBEST
post Wed, 9 Jan 2019 - 16:21
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QUOTE (medicinechild @ Wed, 9 Jan 2019 - 14:56) *
thanks, i will thumbsup.gif icon_cheers.gif


Bump the thread early next week to remind me, I will have time then


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medicinechild
post Wed, 9 Jan 2019 - 17:37
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okies thumbsup.gif
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medicinechild
post Wed, 16 Jan 2019 - 10:56
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Dear Past my best,( or any other kind knowing individuals any assistance with my harrow bus lane appeal would be greatly appreciated

cheers icon_cheers.gif
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medicinechild
post Thu, 17 Jan 2019 - 13:29
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Hello,

Having received a bus lane charge replied to Harrow Council on the 5th November 2018 to the above bus lane charge, I received the attached letter rejection letter on the 3rd January 2019, can the forum group suggest how i can reply to this letter.
p.s. Is 3rd January 209, 58days (i.e. 41working days excl. bank holidays) a reasonable amount of time to reply to my correspondence which i sent 1st class post 5th Nov 2018
Thank you in advance
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