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34J Being in a Bus Lane (PCN) - Hagley Road West, Oldbury
HowDareYou
post Thu, 25 Jul 2019 - 12:37
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I've received a PCN today, but I've been in the same lane another two times since the detection date (16th July) - will I be getting another two PCN's? dry.gif

I've also been using this lane whenever there aren't any buses for the last 3 years (in the same manner as in images), but it seems they are now enforcing it since early last month (but there are no enforcement signage). Shouldn't they be required to put up enforcement signs considering the circumstances of them having never enforced it before?

PCN Images: https://imgur.com/a/YFbxwWk
Google Maps Location: https://www.google.com/maps/@52.4656159,-1....,45.52h,85.78t/
Location Layout from Council: http://www.sandwell.gov.uk/downloads/file/...ldbury_bus_lane
Enforcement announcement from Council: http://www.sandwell.gov.uk/news/article/52...d_west_bromwich
3D View: https://i.imgur.com/bDznrKY.png

**EDITED**
Here's a short snippet of the CCTV video: https://gyazo.com/344f95867832c00dd725fff7934d9f18

I'd appreciate any advice.

This post has been edited by HowDareYou: Thu, 25 Jul 2019 - 13:31
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post Thu, 25 Jul 2019 - 12:37
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PASTMYBEST
post Thu, 25 Jul 2019 - 13:46
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Two things I note from GSV and your pics.


The bus lane is broken about 10 metres before the side road as it should, but where it recommences a sign is required, I cannot see one. You appear from the photos to have entered the bus lane at that point so could argue the signage.



The PCN is required by regulation to state

()that the recipient may, by notice in writing to the authority, request them—

(i) to make available at an office of theirs specified by him, free of charge and at a time during normal office hours so specified, for viewing by him and by his representative (if any), the record of the contravention produced by the approved device pursuant to which the penalty charge was imposed; or

(ii) to provide him, free of charge, with such still images from that record as, in the authority’s opinion, establish the contravention.

(6) Where the recipient of the notice makes a request under paragraph (5)(m), the authority shall comply with the request within a reasonable time.

I cannot see that, or anything that conveys the same information anywhere


For a parking ticket this would be a procedural impropriety. a statutory ground for appeal and if proven reason that the PCN must be cancelled. For bus lanes this ground does not exist, even though the PCN says it does. Another ground for appeal.


Go online and see if you can get the photo


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HowDareYou
post Thu, 25 Jul 2019 - 13:59
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Thank you for your quick and informative response.

I've added a snippet of the CCTV in the first post as a GIF.

QUOTE (PASTMYBEST @ Thu, 25 Jul 2019 - 14:46) *
The bus lane is broken about 10 metres before the side road as it should, but where it recommences a sign is required, I cannot see one. You appear from the photos to have entered the bus lane at that point so could argue the signage.

QUOTE (PASTMYBEST @ Thu, 25 Jul 2019 - 14:46) *
For a parking ticket this would be a procedural impropriety. a statutory ground for appeal and if proven reason that the PCN must be cancelled. For bus lanes this ground does not exist, even though the PCN says it does. Another ground for appeal.

Is there anything that I can quote to reference these requirements in the appeal?

If "procedural impropriety" isn't meant to be an appeal option, what option would I appeal under? https://i.imgur.com/9tbrnPw.png (these are the same options as on the PCN - though the option Z on the letter is option I on the website)
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stamfordman
post Thu, 25 Jul 2019 - 14:06
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Looks like there is or was a sign but in the tree...?

https://www.google.com/maps/@52.4656295,-1....3312!8i6656

https://www.google.com/maps/@52.4656167,-1....3312!8i6656

Doesn't look good though - undertaking like that in a live bus lane is frowned on.

This post has been edited by stamfordman: Thu, 25 Jul 2019 - 14:07
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PASTMYBEST
post Thu, 25 Jul 2019 - 14:19
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Looking at the video. You have a hurdle to overcome it was a definite entry into the bus lane to gain an advantage (undertaking, and at quite a speed) so I would recommend a full representation to the council.


The contravention did not occur


in that the signage in situ does not comply with the regulations

www.legislation.gov.uk/uksi/1996/2489/regulation/18/made


copy and paste this link into your browser.

also see para 9.3 5 and fig 9.3 6 page 93 here

https://assets.publishing.service.gov.uk/go...-chapter-03.pdf


Fr te procedural grounds the statutory ground of the penalty exceeds etc is used. this is because if the pCN (or other required document does not comply with the regulations then no penalty can be demanded on the strength of it so the only penalty could be £0.00


You can argue 2 points under this ground. the first being the strongest. The missing requirement. Next the inclusion of PI as a ground for representation

I would suggest you post any draft here before you send it let us check it out




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cp8759
post Fri, 26 Jul 2019 - 21:47
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There is also another flaw on the PCN, it states that if a NoR is served and the penalty is not paid or appealed, the charge will increase to £90 and a charge certificate will be served. The council cannot foresee the future and they cannot say that in these circumstances they will increase the charge, they can only say that they may increase the charge.


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HowDareYou
post Sat, 27 Jul 2019 - 09:56
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QUOTE (cp8759 @ Fri, 26 Jul 2019 - 22:47) *
There is also another flaw on the PCN, it states that if a NoR is served and the penalty is not paid or appealed, the charge will increase to £90 and a charge certificate will be served. The council cannot foresee the future and they cannot say that in these circumstances they will increase the charge, they can only say that they may increase the charge.

Can you provide a source/quote as to why they aren't allowed to do this?
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PASTMYBEST
post Sat, 27 Jul 2019 - 10:20
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QUOTE (HowDareYou @ Sat, 27 Jul 2019 - 10:56) *
QUOTE (cp8759 @ Fri, 26 Jul 2019 - 22:47) *
There is also another flaw on the PCN, it states that if a NoR is served and the penalty is not paid or appealed, the charge will increase to £90 and a charge certificate will be served. The council cannot foresee the future and they cannot say that in these circumstances they will increase the charge, they can only say that they may increase the charge.

Can you provide a source/quote as to why they aren't allowed to do this?


This case is probably the most recent

https://1drv.ms/b/s!AtBHPhdJdppVsynDL9k2WRV9WUQ5


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cp8759
post Sat, 27 Jul 2019 - 17:51
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QUOTE (HowDareYou @ Sat, 27 Jul 2019 - 10:56) *
QUOTE (cp8759 @ Fri, 26 Jul 2019 - 22:47) *
There is also another flaw on the PCN, it states that if a NoR is served and the penalty is not paid or appealed, the charge will increase to £90 and a charge certificate will be served. The council cannot foresee the future and they cannot say that in these circumstances they will increase the charge, they can only say that they may increase the charge.

Can you provide a source/quote as to why they aren't allowed to do this?

The best decision I have for a case under the bus lane regulations is Anthony Hall v Kent County Council (with Tunbridge Wells BC) (JU-00042-1810, 07 December 2018) http://bit.ly/2DmNq7N

The Coventry case is more recent but it falls under the parking regulations.


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HowDareYou
post Sun, 28 Jul 2019 - 09:38
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Thank you everyone for your help! I've included the representation/appeal wording below that I intend to use:
---------------------------------------------------------------------

1) The signage relied upon does not comply with the following law: http://www.legislation.gov.uk/uksi/1996/24...ulation/18/made

I also refer to the Traffic Signs Manual, Chapter 3: https://assets.publishing.service.gov.uk/go...-chapter-03.pdf and I refer to where Section 9.3.5 states "to ensure that drivers, whether entering from a side road or proceeding alongside the bus lane, are informed or reminded of the restriction, a sign should normally be placed just beyond each side road". And as indicated in Figure 9-1, the sign (Diagram 959B) beyond the side road is required.

I have attached "20190727_194646.jpg" (https://i.imgur.com/fcyUmfI.jpg) which shows that the required sign is not visible due to it being obstructed by the tree - as such, the bus lane is not adequately and/or lawfully signed.

2) In addition, I would also like to refer to the law: http://www.legislation.gov.uk/uksi/2005/27...gulation/8/made and where Regulation 8(5)(k)(ii) states: "the penalty charge has not been paid, the authority may increase the penalty charge by a half and take steps to enforce payment of the charge as so increased".

The PCN is defective since the use of the word "will" as opposed to "may" vis-a-vis the enforcement process runs contrary to the above regulation. Not only is it nonsensical in terms of grammar, it clearly mis-states the legal position as to what must be stated. The PCN served by the council states: "Failure to either pay the amount due or make an appeal with the Adjudicator, within the prescribed time, will result in a Charge Certificate being served and the amount due increased by 50% to £90.00". I rely upon the following case in this regard: KU00042-1810 (a copy has been attached).

3) Furthermore, I again refer to the The Bus Lane Contraventions law, where Regulation (8)(5)(h) states: "what are the statutory grounds of appeal".

The PCN is defective since it states that I can appeal on the statutory grounds of procedural impropriety, however procedural impropriety does not apply to Bus Lane Regulations. I would like to bring your attention to this case, which concludes that in bus lane cases there is no statutory ground of appeal of procedural impropriety.

Case Reference: 2130265267
Declarant: Mrs Felicia Ogunyemi
Authority: Barking and Dagenham
VRM: KW54MHZ
PCN: BZ93418562
Contravention Date: 21 Mar 2012
Contravention Time: 16:52
Contravention Location: High Road, Chadwell Heath
Penalty Amount: £130.00
Contravention: Being in a bus lane
Referral Date: 01 Jun 2013
Adjudicator: Edward Houghton
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons: The Appellant's case is that the end of the bus lane was not clearly indicated. Her photographs, lifted from Streetview ( which I have looked at myself) show that although there is a blue end of bus lane sign correctly adjacent to the point where the thick white line ends the coloured carriageway surfacing ends some distance before, more or less, it seems tome , where the Appellant's vehicle is seen in the CCTV to break out of the adjacent lane of queuing traffic. Coloured road surfacing is not part of the signage prescribed by the Traffic Signs Regulations and General Directions 2002 for indicating bus lanes; it is, as it were, an optional extra.. However it seems to me that where an enforcement authority makes use of it it ought to ensure it covers the entirety of the bus lane. In my judgement in the present case the discrepancy between the end of the coloured surfacing and the signed end point has the effect of undermining the clarity of the signage, particularly in view of the absence of a splitter arrows to Diagram 1050 TSRGD at the end of the lane emphasising the move-over point. On the particular facts of this case I am not satisfied the bus lane was sufficiently clearly indicated and the Appeal is therefore allowed. It is therefore unnecessary to consider the procedural aspects raised by the Appellant, though she should note that in bus lane cases there is no statutory ground of appeal of "procedural impropriety".
---------------------------------------------------------------------

This post has been edited by HowDareYou: Sun, 28 Jul 2019 - 09:40
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PASTMYBEST
post Sun, 28 Jul 2019 - 10:35
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QUOTE (HowDareYou @ Sun, 28 Jul 2019 - 10:38) *
Thank you everyone for your help! I've included the representation/appeal wording below that I intend to use:
---------------------------------------------------------------------

1) The signage relied upon does not comply with the following law: http://www.legislation.gov.uk/uksi/1996/24...ulation/18/made

I also refer to the Traffic Signs Manual, Chapter 3: https://assets.publishing.service.gov.uk/go...-chapter-03.pdf and I refer to where Section 9.3.5 states "to ensure that drivers, whether entering from a side road or proceeding alongside the bus lane, are informed or reminded of the restriction, a sign should normally be placed just beyond each side road". And as indicated in Figure 9-1, the sign (Diagram 959B) beyond the side road is required.

I have attached "20190727_194646.jpg" (https://i.imgur.com/fcyUmfI.jpg) which shows that the required sign is not visible due to it being obstructed by the tree - as such, the bus lane is not adequately and/or lawfully signed.

2) In addition, I would also like to refer to the law: http://www.legislation.gov.uk/uksi/2005/27...gulation/8/made and where Regulation 8(5)(k)(ii) states: "the penalty charge has not been paid, the authority may increase the penalty charge by a half and take steps to enforce payment of the charge as so increased".

The PCN is defective since the use of the word "will" as opposed to "may" vis-a-vis the enforcement process runs contrary to the above regulation. Not only is it nonsensical in terms of grammar, it clearly mis-states the legal position as to what must be stated. The PCN served by the council states: "Failure to either pay the amount due or make an appeal with the Adjudicator, within the prescribed time, will result in a Charge Certificate being served and the amount due increased by 50% to £90.00". I rely upon the following case in this regard: KU00042-1810 (a copy has been attached).

3) Furthermore, I again refer to the The Bus Lane Contraventions law, where Regulation (8)(5)(h) states: "what are the statutory grounds of appeal".

The PCN is defective since it states that I can appeal on the statutory grounds of procedural impropriety, however procedural impropriety does not apply to Bus Lane Regulations. I would like to bring your attention to this case, which concludes that in bus lane cases there is no statutory ground of appeal of procedural impropriety.

Case Reference: 2130265267
Declarant: Mrs Felicia Ogunyemi
Authority: Barking and Dagenham
VRM: KW54MHZ
PCN: BZ93418562
Contravention Date: 21 Mar 2012
Contravention Time: 16:52
Contravention Location: High Road, Chadwell Heath
Penalty Amount: £130.00
Contravention: Being in a bus lane
Referral Date: 01 Jun 2013
Adjudicator: Edward Houghton
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons: The Appellant's case is that the end of the bus lane was not clearly indicated. Her photographs, lifted from Streetview ( which I have looked at myself) show that although there is a blue end of bus lane sign correctly adjacent to the point where the thick white line ends the coloured carriageway surfacing ends some distance before, more or less, it seems tome , where the Appellant's vehicle is seen in the CCTV to break out of the adjacent lane of queuing traffic. Coloured road surfacing is not part of the signage prescribed by the Traffic Signs Regulations and General Directions 2002 for indicating bus lanes; it is, as it were, an optional extra.. However it seems to me that where an enforcement authority makes use of it it ought to ensure it covers the entirety of the bus lane. In my judgement in the present case the discrepancy between the end of the coloured surfacing and the signed end point has the effect of undermining the clarity of the signage, particularly in view of the absence of a splitter arrows to Diagram 1050 TSRGD at the end of the lane emphasising the move-over point. On the particular facts of this case I am not satisfied the bus lane was sufficiently clearly indicated and the Appeal is therefore allowed. It is therefore unnecessary to consider the procedural aspects raised by the Appellant, though she should note that in bus lane cases there is no statutory ground of appeal of "procedural impropriety".
---------------------------------------------------------------------


I would drop the case reference. The London bus lanes are different regs for one, and that was just a statement made to the appellant who had used the ground . And lastly don't do the councils work for them, leave the checking to them. I might just go on the to difficult pile or they might mess up the response


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cp8759
post Sun, 28 Jul 2019 - 16:01
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I would also drop the case reference, it's unnecessary.


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HowDareYou
post Tue, 20 Aug 2019 - 16:47
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Hi all,

I've received "Notice of Rejection of Representations" for all 3 PCN's (two PCN's contravention's occured before the first PCN was issued and I did mention this in the appeal for those two). All 3 notice of rejections are exactly the same wording (except the reference numbers) and have the same rejection date.

You can see the Notice of Rejection here: https://imgur.com/a/JTwdEr3

This is the picture of the sign that I had taken and referenced in my appeal: https://i.imgur.com/fcyUmfI.jpg

Should I appeal to TPT with the same reasons?
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PASTMYBEST
post Tue, 20 Aug 2019 - 17:02
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Well that's a crock of sh!t

regulation 8 requires that they tell you about a PCN and what it must contain. The high court have ruled they do not have to follow the wording if the regulations verbatim, but they have missed it out completely.

The sign that is hidden by the trees is a mandatory sign so must be clear and it is where you entered the bus lane

I would be going to adjudication with this


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cp8759
post Tue, 20 Aug 2019 - 20:35
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So would I.


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HowDareYou
post Wed, 21 Aug 2019 - 09:36
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I will be preparing the response and posting it here; though before I start writing it up, I noticed the Traffic Penalty Tribunal allows you to add multiple PCN's in a single appeal - should I do a single appeal for all 3 NoR's or should I have a separate appeal for each NoR?

This post has been edited by HowDareYou: Wed, 21 Aug 2019 - 09:46
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PASTMYBEST
post Wed, 21 Aug 2019 - 09:50
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QUOTE (HowDareYou @ Wed, 21 Aug 2019 - 10:36) *
I will be preparing the response and posting it here; though before I start writing it up, I noticed the Traffic Penalty Tribunal allows you to add multiple PCN's in a single appeal - should I do a single appeal for all 3 NoR's or should I have a separate appeal for each NoR?


Lets get a draft appeal sorted first


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HowDareYou
post Wed, 21 Aug 2019 - 12:11
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Draft below - Also, should I include a new picture of the sign whilst standing in the middle of the road and hope not to get run over just so they can see the sign from the same angle?

1. This appeal relates to three penalty charge notice's (PCN) issued to me for bus lane contravention's alleged to have occured on 16 July 2019, XX July 2019 and XX July 2019 at the same bus lane location.

2. The council have failed to follow the statutory scheme for enforcement of the PCN so the only penalty which may be demanded is zero. This is for two reasons:-

(a) The penalty charge notice was not worded in accordance with Regulation 8(5) of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005; and

(b) The council did not properly consider the representations I put forward in response to the PCN.

3. The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 (the regulations) set out the procedure to be adopted in the enforcement of PCNs issued for alleged bus lane contraventions.

4. Regulation 8(5) states:
"(5) A penalty charge notice must state—
(k)that if at the end of the 28 day period—
(i)no representations have been made; and
(ii)the penalty charge has not been paid, the authority may increase the penalty charge by a half and take steps to enforce payment of the charge as so increased;"

5. Regulation 10 states:
‘10.—(1) Where representations are duly made to an authority under regulation 9 and they are made within the 28 day period, it shall be the duty of the authority—
(a) to consider them and any supporting evidence provided;
(b) in relation to each ground on which representations are made, to serve on the person by whom the representations are made notice of their decision as to whether or not they accept that the ground has been established.’

6. The PCN served by the council states "Failure to either pay the amount due or make an appeal with the Adjudicator, within the prescribed time, will result in a Charge Certificate being served and the amount due increased by 50% to £90.00"

7. The use of the word "will" as opposed to "may" vis-a-vis the enforcement process runs contrary to the regulation. Not only is it nonsensical in terms of grammar, it clearly mis-states the legal position as to what must be stated.

8. The councils response to this in the Notice of Rejection of Represenations states "In reference to the wording of the PCN and a previous decision from TPT I would bring to your attention that the wording of regulation 8 is that the PCN precise words are not mandatory, but the wording used in the PCN must accurately convey the information set out in the regulation.".

9. The wording of the regulation makes it clear that the word 'may' applies both to the increase in the penalty charge and to the taking of further steps in enforcement, however, the PCN sent by the council does not reflect this and the wording used does not correctly convey the meaning of the regulation. In addition, the council has not dealt with this issue in accordance with Regulation 10.

10. Regulation 8(5) states:
"(5) A penalty charge notice must state—
(h)what are the statutory grounds of appeal;"

11. The PCN served by the council states that I can appeal on the statutory grounds of procedural impropriety, however procedural impropriety does not apply to bus lane regulations.

12. The councils response to this in the Notice of Rejection of Represenations states "Ground Z gives you the option to submit representations if you believe that the council has failed to comply with Statutory requirements".

13. The wording of the regulation makes it clear that the PCN must state the statutory grounds of appeal, however, the PCN and Notice of Rejection sent by the council does not reflect this since they state procedural impropriety as a statutory ground of appeal even though it is not a statutory ground of appeal for bus lane regulations. And again, the council has not dealt with this issue in accordance with Regulation 10.

14. The signage relied upon does not comply with The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996. This is because the sign is obstructed by the tree, and as such the bus lane is not adequately and/or lawfully signed.

15. Section 9.3.5 of the Traffic Signs Manual (Chapter 3) states "to ensure that drivers, whether entering from a side road or proceeding alongside the bus lane, are informed or reminded of the restriction, a sign should normally be placed just beyond each side road". And as indicated in Figure 9-1, the sign (Diagram 959B) beyond the side road is required.

16. The councils response to this in the Notice of Rejection of Represenations states "The angle of the signage that you have provided is from an unadopted side road and not from the location that your vehicle drove into the bus lane from."

17. The wording of the regulation makes it clear that the sign is required irregardless of whether entering from a side road or proceeding alongside the bus lane.

18. The picture I provided as evidence shows the sign at the location of where the alleged contravention occured. It shows that the sign is obstructed by the tree and as such, it is not adequately and/or lawfully signed.

19. In regards to PCN's, SD456 and SD789, the contravention's occured before the first PCN SD123 was issued and posted. The PCN states "This notice will be taken to have been served on the second working day after the day of posting". It is unfair and unreasonable for the council to issue those two PCN's for the same contravention at the same location before I have the chance to rectify the mistake, especially when considering the sign is not adequately and/or lawfully signed. And despite raising this issue, the council has not dealt with it in accordance with Regulation 10.
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PASTMYBEST
post Wed, 21 Aug 2019 - 15:36
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Its got all the points in but in the wrong order and not emphasising where needed. But you do not need to rush remind me no later than this time next week and I will clean it up and add references in support of each point


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HowDareYou
post Thu, 29 Aug 2019 - 19:41
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QUOTE (PASTMYBEST @ Wed, 21 Aug 2019 - 16:36) *
Its got all the points in but in the wrong order and not emphasising where needed. But you do not need to rush remind me no later than this time next week and I will clean it up and add references in support of each point

Sorry hadn't been able to remind you. Will you still have a chance to help out?
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