PCN 52m Princes Street Options

[Tony Prince]

Hello,

I would like some advice for appealing against a PCN, Code 52M, I received for driving through Princes Street in Bank, on a Tuesday at 18:15. Help will be very much appreciated.

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[makara]

Back of PCN too.

[Mad Mick V]

OP---- cut and paste:-

This one----

http://forums.pepipoo.com/index.php?showto...t&p=1334087

And this:----

http://forums.pepipoo.com/index.php?showto...t&p=1350849

And this:-

http://forums.pepipoo.com/index.php?showto...t&p=1337761

And this---

http://forums.pepipoo.com/index.php?showto...t&p=1332882

That should frighten them off.

Mick

[Jo Carn]

Won a few at tribunal. Here were my arguments, although the only one that held merit with that particular adjudicator was the issue of non-compliance with the signs. Change as necessary. Good luck

Further to the instruction of the adjudicator on 18 October, I make these further submissions in relation to the Company’s ongoing appeal against the above PCN.

Having conducted extensive research we further submit:

1. That our right to a fair hearing has been impeded by the authority’s failure to provide evidence when requested.

2. Contrary to The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, the signage in place is sited in such a manner as to fail to comply with regulation 18(1)(a).

3. Contrary to The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, the signage used is not adequate to convey the restriction created by the ETMO and so fails to comply with regulation 18(1)(a).

4. That the authority in using the signs placed and demanding a penalty for breach of the ETMO, contravenes the London Local Authorities and Transport for London Act 2003 at regulation 4(6)(a).


Point 1

The practicalities of the decriminalised enforcement of traffic contraventions, effectively makes the authority both the accuser and prosecutor, and at the first level (formal representations), the judge. It is incumbent on them, therefore, that they be scrupulous in their adherence to the common law duty to act fairly.

No evidence was adduced on service of the PCN other than one dark image where only the licence plate could be distinguished. No evidence of signage has been provided via video footage or photographs on the City of London website. We made a request for photographs showing the location of the signage in place within our representations, these were not forthcoming.

Article 6 (3)(b) of the European Court of Human Rights requires that adequate time be given to prepare a defence. The principal of Equality of Arms and right to adversarial proceedings has been found to place on prosecuting authorities the obligation to provide any evidence they have or can reasonably obtain that may help prove innocence. None of these requirements have been met, placing us at real prejudice and rendering enforcement a nullity.

This is and must be of particular importance, where, as in this case (and no doubt many others), the owner of the vehicle and person liable for the penalty was not the driver. Time is needed to investigate by questioning the driver over the content of any photos/video received. To supply the evidence only at adjudication does not meet any of the above requirements.

As a direct result of withholding information, the City of London has increased the liability to the Company. Had the City of London provided evidence when requested, the liability to the Company would have been £65. (This £65 would actually have been paid by the driver as per their T&Cs of employment). By delaying the submission of evidence, this liability has risen to £130.00.


Point 2

I make this submission on the adequacy of the sighting of both the principal sign (953) and of the temporary advance warning sign. I will discuss the content of the signs in Point 3.

The advance warning sign. Although photographs of advance warning signs have been adduced at tribunal, they are of a temporary nature and none evidence that they were in in Queen Victoria Street at the time of the alleged contravention. Furthermore, advanced warning signs need to be reflective if that is a requirement for the principal sign. Again, this has not been proven, despite our request.

I refer to The Queen on the Application of Neil Herron and Parking Appeals Limited - and - The Parking Adjudicator and Others [2011] EWCA Civ 905 the Court of Appeal (Civil Division)

The Court noted: “It has long been recognised that the enforceability of a TRO [Traffic Regulation Order being in Greater London and Traffic Management Order or TMO] requires that adequate notice of the applicable restriction is given to the road user.’

The ETMO led to a substantial change to extremely busy roads and junctions. The City of London has not provided any evidence of any warning prior to the prohibition sign. This cannot be construed as “adequate notice”. Once the driver had passed this one sign, he was left with the option of driving through the junction or turning round a 7.5 tonne vehicle in a busy narrow street. The driver took the safer option but was put in this dilemma by the lack of adequate notice.

The principal sign (953). Examination of the published map and reference to the image provided by the authority places this sign just beyond the junction with Bucklersbury on the right, when heading towards bank junction. Bucklersbury is the only escape route a vehicle can take to avoid contravention of the order.

An examination of GSV and the timeline shows from a driver’s eye view (the nature and positioning of the camera on the google street cars is a good approximation of the eye level view of the driver) that even a small vehicle can obscure any signs until it would be too late to execute a right turn into Bucklersbury. Reversing in order to make that turn or attempting to make a U-turn would be so dangerous as to make it unthinkable. The driver’s only option was to continue into the restricted area.

To sign a restriction in such a way as to leave a driver with no viable option other than to transgress is, we contend, is a complete failure to comply with regulation 18 (1)(a) of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996*. As such, the ETMO cannot be enforced.

The honourable Mr Justice Beatson at paragraph 69 of neutral citation number [2010] EWHC 894 (admin) the Queen on the application of Oxford City Council (the claimant) and the Bus Lane Adjudicator (the defendant), outlines an effective 2 part test as to the adequacy of signage.

1:- does the sign comply with the departmental guidance?
2:- is the sign placed so that it can be easily seen and is not obscured?

We contend that the evidence to hand shows that the second part of this test has not been met.


Point 3

The ETMO is worded thus: “No person shall cause any motor vehicle to enter or proceed in any street or length of street in the City of London specified in column 2 of Schedule 1 to this Order between 7 a.m. and 7 p.m. on Mondays to Fridays inclusive.” Although it then lists a number of exemptions, it is a prohibitive order.

We contend that as the sign does not convey the ETMO but rather a differing restriction, it does not pass the test laid out and submit in support paragraph 55 of Nottingham City Council and the Bus Lane Adjudicator neutral citation number: [2017] EWHC 430 (Admin)Case No: CO/4348/2016**

We would respectfully ask that the adjudicator also consider the words in paragraphs 35 and 36 of Herron and the parking adjudicator. Neutral citation number [2011] EWCA Civ905 case number c1/2010/1446

We assert that the authority failed to give notice of the applicable restriction. TSRGD 2016 Schedule 3.2.12 - a sign specific to this restriction it is (619) colloquially known as the flying motorbike. The use ascribed to the sign is (motor vehicles prohibited). The council submit that this was considered but rejected for two reasons. Both, we contend, are in error and lead to the failure to adequately sign the restriction.

The council submit that in order to use the sign (619) they would have to obtain Department for Transport approval because the “authorised vehicles” plate is not authorised by TSRGD and that the use of this plate would mean three supplementary plates would be needed and that this would be confusing.

Our submission would be that to apply for DfT authorisation is something that is reasonably practical to do and should be done and that to reject sign (619) due to the number of plates is smoke and mirrors. The inference in their statement on 18 October 2017 was that they chose the easier option (diagram 953) rather than the correct option (diagram 619).

In the same document, they claimed (incorrectly) that the required information would need to be on three separate plates yet submitted an image (from Poultry) evidencing it could be placed all on one plate. This sign, including words and symbols amounts to 9 items. The use of (619) and required supplementary plates would require that 11 be used. The advanced warning sign adduced into evidence by the authority contains 13 words. We submit that the possibility of confusion to drivers has not been considered or not been considered to the necessary degree. Furthermore, the Authority has contradicted itself in claiming that 9 words and symbols are more confusing than 13 words.

Application to the SoS for authority to use the required supplementary plate would serve a dual purpose, in that should the SoS refuse authorisation, the City of London would be on sure ground as to their signage choice; if it were granted then their concerns re the potential to confuse would be allayed.

The City of London had the opportunity to use the correct sign and correct wording but chose not to seek the approval required. This means that they have used a sign that does not convey the restriction laid out in the ETMO and that they did not, by their own admission, take all reasonably practicable steps to ensure that they did.

We have previously called into question whether the advanced warning sign was present at the time of the contravention. We also take this opportunity to bring to the Tribunal’s attention that the wording on the sign refers to “access” rather than a “prohibition” rendering the content of the sign both inaccurate and misleading.


Point 4

Sign (953) is a section 36 traffic sign and, as per the RTA 1988 regulation 36, failing to comply with this sign is an offence. The RTA would always take precedence over a local traffic order being primary legislation. Therefore, any penalty for contravention must be for the breach of RTA reg 36 - failing to comply with the instruction given by the traffic sign.

Furthermore, given that the City of London has chosen to use a bus lane sign then a motorist could expect to encounter a bus lane prohibition, ergo the Bus Lanes (Approved Devices) (England) Order 2005 applies regardless of the PCN wording. This raises two further issues:

i. The cctv does not show the vehicle going past the 953 sign and
ii. no has evidence been provided to prove that the camera used was approved under the 2005 legislation.

The enforcement regulation used the London Local Authorities and Transport for London Act 2003. This states in regulation 4(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”

4(6) states “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; or

(b) the contravention of the prescribed order would also give rise to a liability to pay a penalty charge under section 77 of the Road Traffic Act 1991 (c. 40).”

By passing the traffic sign (953) and thus entering into a restricted area created by a ETMO a motorist commits both types of offence. In doing so regulation 4(6)(a) is enacted and no penalty can be payable for the breach of the order.

It is likely that a penalty may be due under 4(5)(b) but that is not the alleged contravention.

When giving consideration to this submission, we ask that the findings of adjudicator Hugh Cooper case number 2170058483 be considered. Namely:

“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”.

We also refer to the decision reviewed by adjudicator Henry Michael Greenslade 2170323030 where he said: “There is no dispute that the sign at this location is a scheduled section 36 traffic sign, as specified in Schedule 3 to the 2003 Act, even though the Traffic Signs Regulations and General Directions 2002 have been superseded by the Traffic Signs Regulations and General Directions 2016. This Penalty Charge Notice does not allege that the vehicle failed to comply with a sign indicating a route restricted to certain vehicles. Considering all the evidence before me carefully the application for review is successful and the appeal must be allowed.”

We thank the adjudicator for allowing these further enhanced submissions and trust they will assist in your considerations.



*18(1) of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996:

“Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road”.

** Paragraph 55 of Nottingham City Council and the Bus Lane Adjudicator neutral citation number: [2017] EWHC 430 (Admin)Case No: CO/4348/2016: “Adjudicator Garbett found as a fact that the signage was unclear and did not provide adequate information as to the bus gate restriction, which was the basis of the PCN. As Stanley Burnton LJ said in Herron; “the enforceability of a TRO requires that adequate notice of the applicable restriction is given to the road user”. The Adjudicator reviewed her findings, and upheld them. The Council has to overcome a high threshold in establishing that the findings of fact by Adjudicator Garbett, confirmed by the Adjudicator, were Wednesbury unreasonable. The Council has not succeeded in doing so.”

[Tony Prince]

Thanks for all the responses. I'll update on the outcome.

[Tony Prince]

Hi All,

A small slap on the wrist, and they've cancelled the PCN. Thanks again for all the advice.

Regards
Tony

This post has been edited by Tony Prince: Mon, 26 Mar 2018 - 10:44

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[makara]

Well done - am very pleased for you!

[Carl_uk83]

I really hope the person that wrote this topic can read this.

I am in big troubles because of this same penalty and alty and Im desperate for help!

Long story short. Due to a human error at the time I registered my vehicle, I never received a pcn regarding this penalty. The V5 registration didnt have the flat number and I never received this pcn and 9 more that came after the first.

My office was near this street and I never saw the signs... Can someone help?