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Contravention 47 - Stopped in bus stop (BUT NO ROAD MARKINGS!), colchester special
geordiemike
post Sun, 4 Feb 2018 - 20:29
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Contravention 47 - Stopped in bus stop (BUT NO ROAD MARKINGS!)


Hi all I wonder if you could help please?

This is another Colchester special! , and is pretty well much the same as :

previous Colch Code 47

Incandescent and PeterUK kindly suggested its better to start a new thread

Colchester High Street, I stopped at a bus stop to let my girlfriend out, got snapped by the Spy Car going past. There are no yellow marking (or any markings) but there is a yellow "no stopping at Any Time except buses" plate. (my PCN and links to the google streetview are below)

I know that people have put work into this in the other post (DancingDad, MAd Mick V, PASTMYBEST) I summarised what I understood your comments are here:

1) ITs a Restricted Parking Zone so cannot have different styles of waiting and parking and bus stops throughout (in particular bus stop/stand):
"13.2 Waiting and loading restrictions, which must be uniform throughout the zone, are indicated by zone entry signs and time plates within the zone, but without yellow lines or kerb marks. Restricted parking zones are therefore suitable only for single streets or clearly defined small areas. They are not suitable for through routes with heavy traffic or facilities which create a demand for parking greater than can be accommodated in the on-street bays (unless convenient off-street parking is available). Unlike a pedestrian zone, there is no restriction on entry into a restricted parking zone."

2) The definition of a bus stop clearway in the TRO requires there to be road markings. No markings means the TRO has not been contravened.

3) The TSRGD also has not been contravened since Part 6 schedule 7 also requires there to be road markings (and there are no Variants to allow no road markings).


I tried to PM cserki (the OP ) directly to see if he had any luck , but no reply, so I dont know if he succeeded or not!

MIck had suggested in previous post a line of appeal as indicated further down this post - which looks great - unless there is anything different about my situation which i havent spotted?

I have a couple of newbie questions. (which have probably answered so many times before but cant find in FAQ)
1) do I do this using Informal Appeal first or is that just a waste of time - should I go straight to formal appeal
2) Will the penalty stay at 50% discount (£35) while I appeal ? I seem to remember they used to use this as a way to encourage not appealing as people weree happy to accept 50% . (letter is dated 30 Jan)
3) Can I send the appeal on the website, or legally must it be by post?


Thanks for helping , I am always amazed that this website has people this generous with their time!


Micks suggested letter is :
<<
Dear Sirs,

I wish to appeal against PCN number ????? which alleges I stopped on a bus stand.

This contravention cannot be sustained for the following reasons:-

1) There are no road markings or traffic signs denoting a bus stop/clearway as required by your traffic order and the traffic signs legislation;

2) The yellow plate which indicates a no stopping restriction except buses cannot constitute a bus stand situation;

3) If the Council regards this as a bus clearway, then the contravention given is incorrect it should be Code 46 "Stopped where prohibited (on a red route or clearway)";

4) The yellow plate denotes a stopping restriction, not a bus stand, therefore the use of camera enforcement is not permitted.

The signage at this location is totally inadequate and does not properly inform a motorist of whichever restriction is relevant. Had there been road markings I would not have stopped for less than a minute to drop someone off.

Overall the Council have failed in their duty not to confuse or mislead under Reg 18 The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.

Yours ....

---------------
See if others want to add anything.

>>>
















Image from Google maps:

https://www.google.co.uk/maps/@51.8896569,0...3312!8i6656


Its a restricted parking zone:
https://www.google.co.uk/maps/@51.8896933,0...3312!8i6656

Colchesters TRO:
colchester TRO

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post Sun, 4 Feb 2018 - 20:29
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geordiemike
post Mon, 10 Dec 2018 - 18:25
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Thanks . I was surprised that TPT didnt publish copies of their decisions on their website
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geordiemike
post Tue, 11 Dec 2018 - 12:17
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The council have uploaded some evidence : namely the SoS authorisation. Interestingly they have included a New map, which was not presented to me previously (they gave me a different map, shown on this bulletin board before).
The new map has a handwritten note by the council refering to para 10 of the SoS authorisation

here is para 10 again:


here is the new map provided this morning



Interestingly, the council notes on the map point to a different place to the one in question, I dont know if that makes any difference?
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hcandersen
post Tue, 11 Dec 2018 - 12:41
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OP, is that all you have of the authorisation?

Schedule 6 to the 1994 Regs?

And it says ...'except where such markings are indicated..'

In what, a map or plan?

And where is this map or plan - not some bespoke update, the map or plan issued with the authorisation.
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geordiemike
post Tue, 11 Dec 2018 - 12:50
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In addition the council have today provided diagrams to the TSRGD , as supporting evidence to their case (2002 not 2016). I notice that they seem to come from the outdated regs (2002), since they refer to reg 29, and the second diagram , is not even in the current 2016 - (diagram 1025.3) . They submitted this even though my grounds had already been uploaded to the system, and they were in a position to read them (Ground 7.)



diagram 1025.3


Thanks HCA. A different map had previously been sent to me, which I attached earlier in the year on this newsthread. It isnt the same map as they are providing for evidence in this case ( I havent seen this new map before). Here is also the full authorisation that was sent to me on May 1st 2018

http://forums.pepipoo.com/index.php?s=&...t&p=1378840


Thanks HCA. A different map had previously been sent to me, which I attached earlier in the year on this newsthread. It isnt the same map as they are providing for evidence in this case ( I havent seen this new map before). Here is also the full authorisation that was sent to me on May 1st 2018

http://forums.pepipoo.com/index.php?s=&...t&p=1378840
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hcandersen
post Tue, 11 Dec 2018 - 13:08
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Evidence must be exact. If they rely on a direction needed to support the erection of an otherwise non-prescribed sign then they must produce the actual plan in evidence to the adjudicator otherwise how could they evaluate its effect and the authority's compliance?

And IMO as the Restricted sign is now prescribed, which includes clear meanings then IMO the direction lapses

How can you have a time plate whose extent is infinite? No markings = no limits.

IMO 'directs that the road markings 1025.1 ..need not be used..' must include permitted variants.

Or have they tried to indicate limits by the use of contrasting patterns, in which case where is the authority for this because the 2016 TSRGD make no such provision?

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geordiemike
post Tue, 11 Dec 2018 - 13:24
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These are really good points.

In the SoS Auth the reference is to Plan: GT46/9/4(Pt3) – 4

The plan above provided by the council is: COLCHESTER TOWN CENTRE STRATEGY PHASE 1 1034449/D/401/1200/12088

The plan sent to me on May 1st may or may not be the one referred to in the SoS Auth, but as I say in Ground 4, is unreadable
# http://forums.pepipoo.com/index.php?s=&...t&p=1378840
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geordiemike
post Tue, 11 Dec 2018 - 15:57
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Additionally the council have added this message to their case:

"Whilst the Council notes the many points raised in Mr XXXXX ‘Grounds for Appeal’ (evidence item 12), the Council believes a full response was given to Mr XXXX representations at the time of the Notice of Rejection being served. The Council also believes that all processes have been carried out correctly prior to Mr XXXX’s witness statement being filed. Nonetheless, in support of the contravention, the Council has added two further evidence items, i.e. evidence items 13 (Road Traffic Regulation Act 1984 Sections 64 & 65 Authorisation of Traffic Signs and Special Directions) and 14 (Declaration of Compliance for Certification in England)."

What is seems they are saying is that they think only the points raised in my original representations should be considered. However conversely they themselves are adding further evidence.
In addition I would want to comment that :
1. Then new map they have added in support of the SoS Authorisation, is not the map referred to be the SoS Auth (see above)
2. In support of their evidence they have again provided references and examples of outdated regs (non-exsitant TSRGD) - surely this compounds their procedural impropriety that I already raised in Ground 7 ? ( There has been a procedural impropriety on the part of the enforcement authority: The authority considered the wrong legislation when considering my representations)
3. Would their be a way to strengthen Ground 1 with the additions of further evidence? Since the SoS Auth seems to permit their not being the 1025.1 lines ?

Many thanks



<<Ground 1: The alleged contravention did not occur: Diagram 1025.1 is absent from the road surface and this diagram is required to support the alleged contravention:

The authority’s allegation is that my vehicle was stationary at a restricted bus stop or stand, contrary to article 6 of The Essex County Council (Colchester Borough) (Permitted Parking and Special Parking Area) Order 2014, this being the only provision of the TRO which creates a no stopping restriction in relation to bus stops.

For this contravention to be established, the authority would need to show that my vehicle was in contravention of diagram 1025.1 of the Traffic Signs Regulations and General Directions 2016, which, pursuant to Paragraph 1 of Part 6 of Schedule 7 to those regulations, conveys the prohibition that a person driving a vehicle must not cause it to stop within the clearway during its times of operation.

Diagram 1025.1 is not present at the location in question, as shown by the council’s own photographic evidence, therefore the contravention has not been established and for this reason alone, the PCN should be cancelled.>>

This post has been edited by geordiemike: Tue, 11 Dec 2018 - 16:13
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cp8759
post Tue, 11 Dec 2018 - 19:00
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I've asked the DFT for their copy of the authorisation, I don't really trust the council.


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geordiemike
post Tue, 11 Dec 2018 - 19:03
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I was told at TPT admin that the Adjudicator can weigh pretty much at will, and , looking at the evidence, decide how to proceed . Do you think I should get any further comments, grounds, evidence etc up ASAP ?
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cp8759
post Tue, 11 Dec 2018 - 21:13
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Put the council to proof that the map they have now provided forms part of the SoS's authorisation, and challenge them to explain why it was not previously disclosed. I've asked the DFT for a full copy of all maps and plans associated to that authorisation, but it could take them up to 20 working days to respond.

No waiting and no stopping are substantially different contraventions, they ultimately they can't escape the fact that the SoS authorisation only relates to a no waiting restriction, there is no authorisation as far as a no stopping restrictions is concerned. Neither the council nor the tribunal can second guess what changes the SoS would have made to the authorisation, if the council has asked for an authorisation to convey a no stopping restriction. I would emphasise this point.

Are you going for a postal, telephone or personal hearing?

This post has been edited by cp8759: Tue, 11 Dec 2018 - 21:14


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geordiemike
post Wed, 12 Dec 2018 - 00:26
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Thanks CP

"Are you going for a postal, telephone or personal hearing? " - as far as I understand there is an initial stage where the Adjudicator can look at the evidence as provided so far and make a decision to
i) make an immediate judgement based on the internet submissions, or
ii) to make room for an actual hearing where the arguments are considered in more depth (whether i am present or not)

I believe a postal submission is unnecessary , due the system being on their website as a series of submission


I need to clear up if there is a cut of date for more submissions. At the moment it is very much a back and forth process on their website ie, I submit something, the council respond, then I submit more etc. I wasnt entirely clear from the conversation I had with the TPT (though they are very helpful)

There is nothing to suggest that the council could pull out a changed version of the SoS Auth to convey Stopping instead of Waiting

I think my problem is , how to convey succinctly the points you raise (plus my concerns about them even now providing out-dated regulations to support their case) - since the submissions system is a bit like a chat-room , like this pepipoo bulletin board


For some reason they have also included a "certificate of compliance " for the camera car that takes the photos. IMO this has no relevance to either my arguments or theirs
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geordiemike
post Wed, 12 Dec 2018 - 01:02
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Should I be concerned that the council appears to be asking that only my initial representations are to be considered (in resopnse to the original PCN), rather than the grounds now submitted to the TPT?

And would the submission of incorrect evidence (wrong map) and outdate regulations - even within their submission to the TPT (!) also count as further procedural improprieties ?

This post has been edited by geordiemike: Wed, 12 Dec 2018 - 01:15
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geordiemike
post Wed, 12 Dec 2018 - 01:14
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.

This post has been edited by geordiemike: Wed, 12 Dec 2018 - 01:17
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Mad Mick V
post Wed, 12 Dec 2018 - 10:23
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OP-----Been a bit since I re-read this case----it's got a lot more complicated since my last visit.

I would hazard a guess that the adjudicator isn't going to look at all the hard work put into this case on lines and signs. He or she will concentrate on the will/may issue and decide that there is a procedural impropriety and accept the appeal without consideration of the other grounds.

That would be disappointing because it let's the Council off the hook and still doesn't give closure on the key issues.

So you will win but perhaps not in the manner you would like.

Mick
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geordiemike
post Wed, 12 Dec 2018 - 11:31
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Thank you

If the council is submitting out-dated regulations or incorrect evidence, even now in presenting to the TPT - do I state these as further grounds for procedural impropriety (and thus annul their claim), or simply make a comment/reply about my belief or the incorrectness?

IMO there is a sense of frivoulousness/vexationess about this - since I have already submitted (and they have read) my claims of incorrectness, yet go onto to submit the incorrect regs all over again to the TPT. It smacks of attrition on their side, hoping the motorist will give up. ( Although prob not enough to claim costs)
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cp8759
post Wed, 12 Dec 2018 - 19:20
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At some point the tribunal will ask you if you want a hearing or a decision solely on the basis of the written submissions.

The tribunal will consider everything you submit.


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geordiemike
post Wed, 12 Dec 2018 - 23:15
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Thanks CP. I want to send one more batch of concise submission. I wont go to a hearing - I mean, the fine was only £35 originally!!

This post has been edited by geordiemike: Wed, 12 Dec 2018 - 23:15
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cp8759
post Thu, 13 Dec 2018 - 18:15
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I would make a final submissions pointing out all the issues in their case summary. Don't forget to close by saying that even if you are wrong about everything else, the will/may flaw in the NoR means the appeal must be allowed, and draw the tribunal's attention to Anthony Hall v Kent County Council


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geordiemike
post Thu, 13 Dec 2018 - 18:27
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The council are relying on the "No stopping at any time except buses" sign. This is not referred to anywhere in the Secretary of State Authorisation - can they use it anyway?

Thanks CP . When I point out a previous case, should I be use the language that you used before along the lines " whilst previous cases are not binding , I submit that in this instance is a persuasive authority" ?
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cp8759
post Thu, 13 Dec 2018 - 18:36
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The tribunal will have read the previous submissions so they will understand that you understand that tribunal cases are not binding, so I don't think you need to repeat yourself.

As for the "No stopping at any time except buses", they cannot rely on it. Under the TSRGD 2016, see http://www.legislation.gov.uk/uksi/2016/362/schedule/7/made and in particular Part 6. It says:

Clearways (diagram 1025.1)
1.—(1) Subject to sub-paragraph (3) and paragraph 4, the road marking provided for at item 9 of the Part 4 sign table conveys the prohibition that a person driving a vehicle must not cause it to stop within the clearway—

(a) if the relevant upright sign placed in conjunction with the marking does not show a time period, at any time; or
(b) if the relevant upright sign shows a time period, during that period.


The relevant upright sign, on its own, doesn't convey a clearway restriction. It goes back to, if the road marking isn't there, the prohibition is not conveyed. If the SoS had decided to issue a special authorisation saying that at this location, the relevant upright sign conveys that "a person driving a vehicle must not cause it to stop" it would be different, but that's not what the authorisation says. The authorisation is only about waiting, it makes no reference to stopping at all.

This post has been edited by cp8759: Thu, 13 Dec 2018 - 18:38


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