Another 52M contravention at Bank Junction Options

[Will1980]

I have made a challenge to this PCN but CoL rejected and the letter of objection is attached. Should I go for appeal and is there any chance I could win it. I have seen several old posts saying the sign and carriageway marking at Bank Junction restriction is not quite follow what it should be. Can someone help what should I write as a ground when I appeal. Many Thanks.

Wilson

Attached File(s)

 190A3261AD5F9_2.pdf ( 557.86K ) Number of downloads: 52

 

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[PASTMYBEST]

post all the documents and get and post the video.

How did you get the NOR ?

[Will1980]

Hi PASTMYBEST,

When I received the PCN on 5 August, I search here and found some old post and use it as a template to make my challenge to CoL on 6 August. The template is as follow:

1. The contravention did not occur because of missing road markings.

ETA case 2170469229 is appropriate:-

"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."

2. 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.”

For the above reasons I believe the contravention cannot be sustained and the PCN must be cancelled.

Then I get the NoR from CoL today on 10 Aug.

The video can be download here
https://drive.google.com/file/d/1MwQsY-5V3g...iew?usp=sharing. Thanks

This post has been edited by Will1980: Mon, 10 Aug 2020 - 21:35

[Will1980]

Here is the PCN details:

PCN details
Vehicle Registration Number
Penalty Charge Notice
Date 27/07/2020
Time 18:29
Make BMW
Colour White
Was seen in MANSION HOUSE STREET
Contravention 52M - Failing to comply with a prohibition on certain types of vehicle (motor vehicles) - only buses
and bicycles allowed Monday to Friday between 7am and 7pm

[PASTMYBEST]

should have posted first those arguments are not current and how did you get today a NOR dated today?

Post all the documents

[Will1980]

PCN dated 3 Aug received on 5 August.
PCN: https://drive.google.com/file/d/1IJ8yq6vc7S...iew?usp=sharing
Challenge was made online on 6 August and the content is exactly the template I posted in Post3. (Just copied and pasted from old post)
NoR dated 10 August received today by email.

should have posted first those arguments are not current and how did you get today a NOR dated today?

Post all the documents

As I saw many bros here successfully appeal and they said just copy and paste the whole lot. I didn't realise they may not be current.

This post has been edited by Will1980: Mon, 10 Aug 2020 - 22:01

[PASTMYBEST]

The notice of rejection was dated the 10th yesterday. You posted it here yesterday where did you get it from and Carol Kirkwood is an ITV weather presenter. You will not post the documents i have asked for

I am a bit suspicious of this thread

[Will1980]

The notice of rejection was dated the 10th yesterday. You posted it here yesterday where did you get it from and Carol Kirkwood is an ITV weather presenter. You will not post the documents i have asked for

I am a bit suspicious of this thread

I have already told you that the notice of rejection was received by email yesterday (10 Aug) morning as an attachment, then I open this thread yesterday evening, I am just wondering what is wrong with this? I have already posted the PCN, the video, copy and pasted my content of challenge to CoL(I did it online) and the Notice of Rejection. I really want to ask what else I supposed to be posted? And I am more than happy to post them if anyone could tell me what else is needed and willing to offer me some help.

[PASTMYBEST]

The video will not play. try using youtube or vimo

You can make all the arguments but there are some adjudicators wi ll give them no house room i will give your better cases to quote What is winning ATM is that there is no evidence of signs in the video but i cannot say that yet

And the NOR says that they will increase the charge if you do nothing. the regulations say only that they may and there is a large selection of cases on that it is widely accepted that it is wrong by adjudicators

[Will1980]

The video will not play. try using youtube or vimo

You can make all the arguments but there are some adjudicators wi ll give them no house room i will give your better cases to quote What is winning ATM is that there is no evidence of signs in the video but i cannot say that yet

And the NOR says that they will increase the charge if you do nothing. the regulations say only that they may and there is a large selection of cases on that it is widely accepted that it is wrong by adjudicators

Many Thanks PASTMYBEST. The new link of the video is https://youtu.be/N4aGgpjM9Iw

Yes, the video did not show I drove pass any signs but as what they said the sign were there. So is the chance to win this appeal high?

" And the NOR says that they will increase the charge if you do nothing. the regulations say only that they may and there is a large selection of cases on that it is widely accepted that it is wrong by adjudicators" <---Would that be an argument for appeal and would it affect the chance of winning this appeal?

The notice of rejection was dated the 10th yesterday. You posted it here yesterday where did you get it from and Carol Kirkwood is an ITV weather presenter. You will not post the documents i have asked for

I am a bit suspicious of this thread

I just realised the parking officer got the same name as Carol Kirkwood of ITV weather presenter. Now I know why you said it look suspicious. But it is just coincidence.

[Will1980]

Anyone can give me some advise what ground I could use when i go for appeal, please? I want to know if I use the ground saying the video did not show me drive pass the signs would be strong enough? Or is there anymore stronger argument? Thank you in advance.

[PASTMYBEST]

Bump to remind me in a couple of weeks and i will have a good look

[Will1980]

Bump to remind me in a couple of weeks and i will have a good look

Many thanks PASTMYBEST.