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FightBack Forums _ Council Tickets & Clamping and Decriminalised Notices _ Ealing Currey Road PCN 51J

Posted by: creative123 Sat, 13 Jan 2018 - 00:01
Post #1346657

Hello,

Arrived home to this PCN letter from Ealing council.

I remember struggling with the narrowness of the road and being worried about kerbing the wheels, decided it was better to cross the mini bus lane and come back in. I knew I was asking for trouble when I did that dry.gif

Anything in the no entry signage perhaps? I read that no entry signs are generally used at the end of a road, not when there is two way traffic?

GSV: https://goo.gl/maps/QcUgCuwYLgp




Posted by: Mr Meldrew Sat, 13 Jan 2018 - 01:30
Post #1346663

The signs at this place are the means of putting into effect a valid traffic management order. The sign to diagram 610 (TSRGD 2016, Schedule 3, Part 2) is subject to section 36 of the Road Traffic Act 1988. The statutory requirement conveyed by sign 610 is that vehicular traffic passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left (TSRGD 2016 Schedule 3, Part 4, 3.—(1)), and that includes buses. I cannot see how a route for buses that appears to contradict a statutory requirement is sustainable in a valid TMO, and I would be surprised if the Secretary of State for Transport would be able to change a statutory requirement in this way. Accordingly, I cannot see how the layout is lawful; I’m assuming it has not been altered. Street View of July 2017 shows it to be the same as the stock picture below.

https://goo.gl/maps/vvRG2SCJd972

https://www.legislation.gov.uk/ukpga/1988/52/section/36
http://www.legislation.gov.uk/uksi/2016/362/schedule/3/made


Posted by: creative123 Sat, 13 Jan 2018 - 09:24
Post #1346679

Thank you Mr Meldrew.

Correct, the road layout is unchanged since then.

Could the council not argue that the offence was still committed because my vehicle was not to the left of the sign?

I am wondering if there is another point worth arguing with the stop sign because also according to schedule 3, the "except" variant does not apply to no entry signs? So no entry means no entry for all vehicles judging by that.

Posted by: Mr Meldrew Sat, 13 Jan 2018 - 11:44
Post #1346722

The council haven’t alleged that you failed to comply with a section 36 Keep Left sign, as I think that would be a little awkward as presumably their buses do the same. Your argument as I see it, would be that the TMO cannot be valid as explained, and therefore no contravention of a valid order occurred.

Regarding the No Entry diagram 616 sign, an exception is available for “trams”, “buses”, “local buses”, “cycles”, “buses and cycles” or “local buses and cycles”, (TSRGD 2016 Schedule 3, Part 3, 11.).

There is no exception available that I know of for buses regarding the statutory requirement to keep to the left of the diagram 616 610 sign where the arrow is pointed downwards to the left.

Further edit: '610'

Posted by: PASTMYBEST Sat, 13 Jan 2018 - 11:50
Post #1346723

QUOTE (Mr Meldrew @ Sat, 13 Jan 2018 - 11:44) *
The council haven’t alleged that you failed to comply with a section 36 (Keep Left) sign, as I think that would be a little awkward as presumably their buses do not either. Your argument as I see it, would be that the TMO cannot be valid as explained, and therefore no contravention of a valid order occurred.

Regarding the No Entry diagram 616 sign (which is dependant on a valid TMO) an exception is available for “trams”, “buses”, “local buses”, “cycles”, “buses and cycles” or “local buses and cycles”, (TSRGD 2016 Schedule 3, Part 3, 11.).

There is no exception available that I know of for buses regarding the statutory requirement to keep to the left of the diagram 616 sign where the arrow is pointed downwards to the left.


IIRC from December 13th the TSRGD has been amended to make the no entry 616 sign section 36 again so the argument re reg 4(6) of LLA 2003 comes into play


http://www.legislation.gov.uk/ukla/2003/3/section/4/enacted

Posted by: Mr Meldrew Sat, 13 Jan 2018 - 12:05
Post #1346726

QUOTE (PASTMYBEST @ Sat, 13 Jan 2018 - 11:50) *
QUOTE (Mr Meldrew @ Sat, 13 Jan 2018 - 11:44) *
The council haven’t alleged that you failed to comply with a section 36 (Keep Left) sign, as I think that would be a little awkward as presumably their buses do not either. Your argument as I see it, would be that the TMO cannot be valid as explained, and therefore no contravention of a valid order occurred.

Regarding the No Entry diagram 616 sign (which is dependant on a valid TMO) an exception is available for “trams”, “buses”, “local buses”, “cycles”, “buses and cycles” or “local buses and cycles”, (TSRGD 2016 Schedule 3, Part 3, 11.).

There is no exception available that I know of for buses regarding the statutory requirement to keep to the left of the diagram 616 sign where the arrow is pointed downwards to the left.


IIRC from December 13th the TSRGD has been amended to make the no entry 616 sign section 36 again so the argument re reg 4(6) of LLA 2003 comes into play


http://www.legislation.gov.uk/ukla/2003/3/section/4/enacted

Thanks, amended to reflect the update. Would the argument re reg 4(6) of LLA 2003 depend on a valid TMO?

Posted by: PASTMYBEST Sat, 13 Jan 2018 - 12:16
Post #1346730

QUOTE (Mr Meldrew @ Sat, 13 Jan 2018 - 12:05) *
QUOTE (PASTMYBEST @ Sat, 13 Jan 2018 - 11:50) *
QUOTE (Mr Meldrew @ Sat, 13 Jan 2018 - 11:44) *
The council haven’t alleged that you failed to comply with a section 36 (Keep Left) sign, as I think that would be a little awkward as presumably their buses do not either. Your argument as I see it, would be that the TMO cannot be valid as explained, and therefore no contravention of a valid order occurred.

Regarding the No Entry diagram 616 sign (which is dependant on a valid TMO) an exception is available for “trams”, “buses”, “local buses”, “cycles”, “buses and cycles” or “local buses and cycles”, (TSRGD 2016 Schedule 3, Part 3, 11.).

There is no exception available that I know of for buses regarding the statutory requirement to keep to the left of the diagram 616 sign where the arrow is pointed downwards to the left.


IIRC from December 13th the TSRGD has been amended to make the no entry 616 sign section 36 again so the argument re reg 4(6) of LLA 2003 comes into play


http://www.legislation.gov.uk/ukla/2003/3/section/4/enacted

Thanks, amended to reflect the update. Would the argument re reg 4(6) of LLA 2003 depend on a valid TMO?


This might be a bit cheeky, but the wording of the contravention description was changed to reflect that the sign was not a section 36. So it should once again now be failing to comply with a sign not failing to comply with a restriction or it does not accurately describe why they believe a penalty is due

Posted by: creative123 Sun, 14 Jan 2018 - 12:54
Post #1346953

Thanks for the replies guys.

I will draft up my informal reps on the basis of the keep left sign and as PASTMYBEST pointed out, the description of the contravention being inaccurate. I found the amendment PMB described here: http://www.legislation.gov.uk/uksi/2017/1086/regulation/6/made

No doubt they will reject it but something to start with.

I've seen their video footage now and towards the end it shows other cars passing the no entry sign, but obviously they are doing so from the left lane. Is there anything worth mentioning around that or leave it?

Posted by: Mr Meldrew Mon, 15 Jan 2018 - 15:52
Post #1347306

QUOTE (creative123 @ Sun, 14 Jan 2018 - 12:54) *
Thanks for the replies guys.

I will draft up my informal reps on the basis of the keep left sign and as PASTMYBEST pointed out, the description of the contravention being inaccurate. I found the amendment PMB described here: http://www.legislation.gov.uk/uksi/2017/1086/regulation/6/made

No doubt they will reject it but something to start with.

I've seen their video footage now and towards the end it shows other cars passing the no entry sign, but obviously they are doing so from the left lane. Is there anything worth mentioning around that or leave it?

Thanks for locating the No Entry sign /S.36 amendment. It is a bizarre layout indeed when the authorised way for non-buses around the no entry restriction is well beyond where the applicable sign is located, but to be honest I’m not exactly sure what it is you asked.

If you intend to challenge what has been alleged, I think you should challenge on the validity of the traffic order behind the bus gate, and on other valid points too. You may have contravened an invalid traffic order (there was “no contravention” of a valid traffic order) and so I believe the PCN must be withdrawn.

Your main challenge could be uncomplicated and self-evident by reference to the image above, and Schedule 3, PART 4 of The Traffic Signs Regulations and General Directions 2016 (TSRGD):

PART 4
Provisions applicable to signs in Part 2

1. Section 36 of the 1988 Act applies to the circular sign.

[ … ]

3.—(1) Except as provided in sub-paragraphs (2) to (5), the requirement conveyed by the sign is that vehicular traffic passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left, or to the right of the sign where the arrow is pointed downwards to the right.

(2) Sub-paragraph (3) applies on an occasion where a vehicle is being used for at least one of the purposes set out in sub-paragraph (4) and the observance of the requirement in sub-paragraph (1) would be likely to hinder the use of the vehicle for that purpose.

(3) The requirement conveyed is that the vehicle must not proceed beyond the sign in such a manner or at such a time as to be likely to endanger any person.

(4) The purposes are—

a) fire and rescue authority;
b) Scottish Fire and Rescue Service;
c) ambulance;
d) blood service;
e) providing a response to an emergency at the request of an NHS ambulance service;
f) bomb or explosive disposal;
g) special forces
h) police; and
i) National Crime Agency.

(5) The requirement in sub-paragraph (1) does not apply to a tramcar or trolley vehicle.

I think you could argue that clearly in the relevant traffic order the route for buses to the right of the sign on the island where the arrow is pointed downwards to the left (TSRGD, Schedule 3, Part 2 sign table, diagram 610) is at variance with the requirement in 3.—(1) that vehicular traffic passing the sign must keep to the left; thus the bus gate, and the traffic order are for that reason, not lawful.

If the penalty charge is pursued, I think you are entitled to an explanation as to exactly why the ‘BUS ONLY’ route is exempt from the statutory requirement, so that you are at ease with any decision you may have to make whether to settle at the discount stage.

Posted by: cp8759 Tue, 16 Jan 2018 - 15:43
Post #1347617

Maybe I've missed something obvious, but as I understand it, where there are two no-entry signs, it is an offence / contravention to proceed along the road between the two signs. There is nothing to indicate that the "no entry" restriction extends as far as the keep left bollard, I would appeal on the grounds that as you didn't drive between the two no-entry signs, the no entry restriction was not contravened.

Posted by: Mr Meldrew Tue, 16 Jan 2018 - 23:22
Post #1347814

QUOTE (cp8759 @ Tue, 16 Jan 2018 - 15:43) *
Maybe I've missed something obvious, but as I understand it, where there are two no-entry signs, it is an offence / contravention to proceed along the road between the two signs. There is nothing to indicate that the "no entry" restriction extends as far as the keep left bollard, I would appeal on the grounds that as you didn't drive between the two no-entry signs, the no entry restriction was not contravened.

You may be correct that there is nothing on site to indicate that the No Entry restriction extends as far as the keep left bollard, but as I understand it the Road Traffic Regulation Act 1984, s. 6. (1) empowers the authority to make an order, (a) for any of the purposes, or with respect to any of the matters, mentioned in Schedule 1 to the Act, and Schedule 1 / 3 regulates the relative position in the roadway of traffic of differing speeds or types. Under s. 8. (1), any person who acts in contravention of, or fails to comply with, an order under section 6 shall be guilty of an offence. A lawful order likely regulates the traffic in Currey Road in the desired way, but not in a way that is at variance with a statutory requirement as far as I am aware.

Posted by: cp8759 Wed, 17 Jan 2018 - 18:08
Post #1348055

QUOTE (Mr Meldrew @ Tue, 16 Jan 2018 - 23:22) *
QUOTE (cp8759 @ Tue, 16 Jan 2018 - 15:43) *
Maybe I've missed something obvious, but as I understand it, where there are two no-entry signs, it is an offence / contravention to proceed along the road between the two signs. There is nothing to indicate that the "no entry" restriction extends as far as the keep left bollard, I would appeal on the grounds that as you didn't drive between the two no-entry signs, the no entry restriction was not contravened.

You may be correct that there is nothing on site to indicate that the No Entry restriction extends as far as the keep left bollard, but as I understand it the Road Traffic Regulation Act 1984, s. 6. (1) empowers the authority to make an order, (a) for any of the purposes, or with respect to any of the matters, mentioned in Schedule 1 to the Act, and Schedule 1 / 3 regulates the relative position in the roadway of traffic of differing speeds or types. Under s. 8. (1), any person who acts in contravention of, or fails to comply with, an order under section 6 shall be guilty of an offence. A lawful order likely regulates the traffic in Currey Road in the desired way, but not in a way that is at variance with a statutory requirement as far as I am aware.

I'm sure the Highways Authority can restrict traffic in Currey Road in the desired way, the TRO may even be correct, the issue is more down to whether they have installed signs that give effect to that restriction (absent signs, there is no offence or contravention or else the council could dispense with the need to install signs altogether).

I would therefore appeal on the grounds that no contravention occurred, because you did not drive between the No Entry signs.

One of the (many) correct ways to signpost these restrictions would have been to put the 6'6'' restriction either side of the road with an "except local buses" plate, and then pursue people who drive a vehicle wider than 6'6'' in contravention of those signs.

Posted by: Mr Meldrew Wed, 17 Jan 2018 - 22:52
Post #1348186

QUOTE (cp8759 @ Wed, 17 Jan 2018 - 18:08) *
QUOTE (Mr Meldrew @ Tue, 16 Jan 2018 - 23:22) *
QUOTE (cp8759 @ Tue, 16 Jan 2018 - 15:43) *
Maybe I've missed something obvious, but as I understand it, where there are two no-entry signs, it is an offence / contravention to proceed along the road between the two signs. There is nothing to indicate that the "no entry" restriction extends as far as the keep left bollard, I would appeal on the grounds that as you didn't drive between the two no-entry signs, the no entry restriction was not contravened.

You may be correct that there is nothing on site to indicate that the No Entry restriction extends as far as the keep left bollard, but as I understand it the Road Traffic Regulation Act 1984, s. 6. (1) empowers the authority to make an order, (a) for any of the purposes, or with respect to any of the matters, mentioned in Schedule 1 to the Act, and Schedule 1 / 3 regulates the relative position in the roadway of traffic of differing speeds or types. Under s. 8. (1), any person who acts in contravention of, or fails to comply with, an order under section 6 shall be guilty of an offence. A lawful order likely regulates the traffic in Currey Road in the desired way, but not in a way that is at variance with a statutory requirement as far as I am aware.

I'm sure the Highways Authority can restrict traffic in Currey Road in the desired way, the TRO may even be correct, the issue is more down to whether they have installed signs that give effect to that restriction (absent signs, there is no offence or contravention or else the council could dispense with the need to install signs altogether).

I would therefore appeal on the grounds that no contravention occurred, because you did not drive between the No Entry signs.

One of the (many) correct ways to signpost these restrictions would have been to put the 6'6'' restriction either side of the road with an "except local buses" plate, and then pursue people who drive a vehicle wider than 6'6'' in contravention of those signs.

Are you saying that the Highways Authority can vary the legal requirement specified in the TSRGD applicable to the regulatory section 36 sign, ‘all vehicles must keep left’, so that concerning specific keep left signs buses need not comply with the compulsory movement? In an attempt to help the OP, I searched extensively but could not discover why such an exception would apply and was careful in each posting to add something like, ‘as far as I am aware’. Would you care to enlighten me?

You would appeal on the grounds that no contravention occurred, because you did not drive between the No Entry signs. Direction 8(3) of TSRGD 2002 required the placing of one terminal sign on each side of a single-carriageway road. In 2011 this requirement was set aside in England, and, to the best of my knowledge, this relaxation has been included in TSRGD 2016. The relevant Part 5, Schedule 3, General Directions 1. and 2. certainly refer to ‘the sign’ and ‘a sign’. Would the authority not respond with something like, you no longer need to drive between No Entry signs for a contravention to occur?


Posted by: cp8759 Wed, 17 Jan 2018 - 23:11
Post #1348202

QUOTE (Mr Meldrew @ Wed, 17 Jan 2018 - 22:52) *
QUOTE (cp8759 @ Wed, 17 Jan 2018 - 18:08) *

One of the (many) correct ways to signpost these restrictions would have been to put the 6'6'' restriction either side of the road with an "except local buses" plate, and then pursue people who drive a vehicle wider than 6'6'' in contravention of those signs.

Are you saying that the Highways Authority can vary the legal requirement specified in the TSRGD applicable to the regulatory section 36 sign, ‘all vehicles must keep left’, so that concerning specific keep left signs buses need not comply with the compulsory movement? In an attempt to help the OP, I searched extensively but could not discover why such an exception would apply and was careful in each posting to add something like, ‘as far as I am aware’. Would you care to enlighten me?

No, in the scenario I suggested (i.e. placing the 6'6'' restriction either side of the road and simply enforcing that sign), the keep left sign would not be placed there at all (it is in any event unnecessary).

QUOTE (Mr Meldrew @ Wed, 17 Jan 2018 - 22:52) *
You would appeal on the grounds that no contravention occurred, because you did not drive between the No Entry signs. Direction 8(3) of TSRGD 2002 required the placing of one terminal sign on each side of a single-carriageway road. In 2011 this requirement was set aside in England, and, to the best of my knowledge, this relaxation has been included in TSRGD 2016. The relevant Part 5, Schedule 3, General Directions 1. and 2. certainly refer to ‘the sign’ and ‘a sign’. Would the authority not respond with something like, you no longer need to drive between No Entry signs for a contravention to occur?

I'm sure they would argue that, and I would ask them how one is meant to know how far the "no entry" restriction is meant to extend. How do you know, without having to second guess the authority's intentions, that the whole road isn't "no entry except local buses"? The signage is at the very least ambiguous.

Posted by: PASTMYBEST Wed, 17 Jan 2018 - 23:11
Post #1348203

The signage is a dogs breakfast. If you look to the orientation of the two no entry signs the restricted area can only be the narrow way on the right with a give way on the floor.
otherwise you cannot proceed to the width restriction.

You have no entry on one side give way and width restriction on the other, got to be confusing

Posted by: cp8759 Wed, 17 Jan 2018 - 23:16
Post #1348207

QUOTE (PASTMYBEST @ Wed, 17 Jan 2018 - 23:11) *
The signage is a dogs breakfast. If you look to the orientation of the two no entry signs the restricted area can only be the narrow way on the right with a give way on the floor.
otherwise you cannot proceed to the width restriction.

+1

Posted by: creative123 Thu, 18 Jan 2018 - 22:37
Post #1348527

Is this good enough for the first appeal?

QUOTE
Dear Sir,
Penalty Charge Notice: XXXXXXXXXX

I wish to make representations against this Penalty Charge Notice (PCN) under ground 2 - There was no contravention of a prescribed order.

Firstly, having viewed the photographic and video evidence, it is clear the vehicle did not drive between the two no entry signs places on Currey Road and therefore, no contravention has occurred. For a contravention to have occurred, the vehicle would have had to go through two no entry signs on either side of the road, but the evidence shows this not to be the case. Can this be backed up with any of the regs?

Secondly, I argue that the layout of the road and placement of signage must be in contravention of any valid Traffic Management Order on Currey Road.

For instance, the keep left sign on the bollard (Diagram 610 of TSRGD 2016, Schedule 3, Part 2) is subject to section 36 of the Road Traffic Act 1988. The statutory requirement conveyed by sign 610 is that vehicular traffic passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left (TSRGD 2016 Schedule 3, Part 4, 3.—(1)), and that includes buses. I cannot see how a route for buses that appears to contradict a statutory requirement is sustainable in a valid TMO, and I would be surprised if the Secretary of State for Transport would be able to change a statutory requirement in this way.

Given the flaws described above, I request that the PCN be cancelled.

Should you reject my representations, I require you to supply a full response to all the issues raised above plus the following additional information to allow me to consider whether to appeal to the London Tribunals:

1. A copy of the full Traffic Regulation Order including any drawings/schematics covering Currey Road.

2. Evidence that the road was appropriately signed and marked at the time that the contravention is alleged to have occurred.

3. Evidence that the device used to record the alleged contravention is an approved device in accordance with the Regulations.

Yours faithfully,
xyz

Posted by: cp8759 Fri, 19 Jan 2018 - 10:32
Post #1348577

QUOTE (creative123 @ Thu, 18 Jan 2018 - 22:37) *
Firstly, having viewed the photographic and video evidence, it is clear the vehicle did not drive between the two no entry signs places on Currey Road and therefore, no contravention has occurred. For a contravention to have occurred, the vehicle would have had to go through two no entry signs on either side of the road, but the evidence shows this not to be the case. Can this be backed up with any of the regs?

So the regulations have been relaxed a lot, but there's still a lot of helpful material we can quote. I would start with the https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/223943/traffic-signs-manual-chapter-03.pdf, which, although not binding law, has persuasive value.

Pages 26-27 confirm that "Although the Directions permit supplementary plates to diagram 954 (Except buses) and 954.2 (Except local buses) to be used with diagram 616, this is no longer recommended, as the primary use of the “no entry” sign is to protect the end of a one-way road, where it would be hazardous and endanger the safety of road users should the sign be ignored."

Page 136 includes some examples of how "no entry" signs should be used, although they don't exactly match your situation you may find these helpful; otherwise do a general search in the document for diagram 616.

I would add that you can be 99% confident your reps will be rejected, no matter what you say, because otherwise the council would be accepting their signage is wrong, all the PCNs they've issued are invalid and that they need to spend money fixing the signs.

Posted by: creative123 Sat, 20 Jan 2018 - 09:29
Post #1348764

Thanks cp8759. It's true they'll reject whatever I write so first stage representations have now been submitted online.

Will post back when I get their response.

Posted by: creative123 Sat, 24 Feb 2018 - 20:05
Post #1361394

Good evening,

Response FINALLY received a response from Ealing as below:






Do I understand correctly that 2(a) only prohibits vehicles exceeding 6 feet 6 inches from entering the traffic island? Therefore, vehicles less than that (or buses, ambulances etc.) are therefore permitted?

Are the council being disingenuous and trying to play dumb when they write:

QUOTE
cancellation of this PCN would set a precedent which would be unfair to other motorists with similar contraventions


dry.gif

Posted by: stamfordman Sat, 24 Feb 2018 - 21:28
Post #1361410

QUOTE (creative123 @ Sat, 24 Feb 2018 - 20:05) *
QUOTE
cancellation of this PCN would set a precedent which would be unfair to other motorists with similar contraventions




What an extraordinary thing for them to say - I almost fell off my chair. There must be something to get our teeth into here.


Posted by: Mr Meldrew Sat, 24 Feb 2018 - 23:47
Post #1361440

OP, this is blatant neglect on the part of the enforcement authority towards its duty to accord requisite consideration and respect to wholly relevant and material elements in your representations. Please read the linked thread below, which demonstrates how the authority’s failure to discharge its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007, can be considered by an adjudicator as ‘procedural impropriety’ on the part of the enforcement authority, meaning a failure to observe any requirement imposed on it by the Traffic Management Act 2004 or Regulation 4(5)(a) of the 2007 regulation previously mentioned. Regulation 7(2) of the 2007 regulation provides that if an adjudicator concludes that a ground specified in Regulation 4(4) applies, he or she shall allow the appeal:

http://forums.pepipoo.com/index.php?showtopic=117460&st=0&start=0

I would have no hesitation in putting this matter before an adjudicator, but your personal circumstances may differ and it is always understandable if this would not suit you.

You must rely upon the enforcement authority’s response in the Notice of Rejection to your representations (assumed to be post #17) in order to make an informed decision as to whether or not to appeal to an adjudicator, and clearly you deserved a proper consideration and a detailed response to the relevant and material points you raised, but there was no response to the following, not even in the included Traffic Order, or charming pictures, and that is not fair:

You argued that the route for buses to the right of the 'Keep Left' sign on the traffic island appears to conflict with s.36 of the Road Traffic Act 1988, namely the statutory indication given by the sign to diagram 610 of TSRGD 2016, Schedule 3, Part 2, meaning vehicular traffic including buses passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left, and that this conflict is not sustainable in a valid Traffic Management Order, thus the Traffic Order is not valid (there was no contravention of a valid Traffic Order).

Slight modification to the above may serve towards your appeal, if you so wish.

QUOTE
Do I understand correctly that 2(a) only prohibits vehicles exceeding 6 feet 6 inches from entering the traffic island? Therefore, vehicles less than that (or buses, ambulances etc.) are therefore permitted?

As above, buses are prohibited by statute from passing to the right of the 'Keep Left' sign on the traffic island, but not to the left (the fact that if over 6' 6" they would not fit is the council's problem). Exempt vehicles such as ambulances can pass to the right if hindered and not likely to endanger any person, but I understand that they must adhere to a ‘No Entry’ sign so I’m unsure what they should do. A bus is not an exempt vehicle (in spite of the plate legend on the separate 'No Entry' sign), by virtue of TSRGD 2016 Schedule 3, Part 4, 3(2)-(5) and I consider the council has exceeded its authority in this respect.

Are the council being disingenuous and trying to play dumb...?

Absolutely, on this matter raised by you and ignored by them.

Edited to address the OP's questions.

Posted by: Mad Mick V Sun, 25 Feb 2018 - 10:58
Post #1361486

Am I missing something here?

The NTO clearly shows a vehicle in the red tarmac area about to go past a no entry sign. The contravention given is for failing to comply with a no entry prohibition not about the 6'6" chicane nor a bus gate. Whether a bus has right of way is immaterial if the no entry sign is there to prevent head on collisions. That photo will make it nigh on impossible to win this case at adjudication IMO.

Any Sect 36 argument might fail because the sign in the photo is not conditional on buses being exempt, although we don't know which sign the Council is relying on. However if the OP entered on the left then cut across onto the red tarmac did he contravene the first sign? IMO no he would have to make an approach in the R/H lane because the no entry prohibition does not relate to the L/H lane. So we are left with the no entry sign in the photograph which is sufficient to carry this case.

All in all the OP needs to decide whether the grounds advanced are strong enough to risk the full amount of the penalty.

Mick

Posted by: Mr Meldrew Sun, 25 Feb 2018 - 18:25
Post #1361621

QUOTE (Mad Mick V @ Sun, 25 Feb 2018 - 10:58) *
Am I missing something here?

The NTO clearly shows a vehicle in the red tarmac area about to go past a no entry sign. The contravention given is for failing to comply with a no entry prohibition not about the 6'6" chicane nor a bus gate. Whether a bus has right of way is immaterial if the no entry sign is there to prevent head on collisions. That photo will make it nigh on impossible to win this case at adjudication IMO.

Any Sect 36 argument might fail because the sign in the photo is not conditional on buses being exempt, although we don't know which sign the Council is relying on. However if the OP entered on the left then cut across onto the red tarmac did he contravene the first sign? IMO no he would have to make an approach in the R/H lane because the no entry prohibition does not relate to the L/H lane. So we are left with the no entry sign in the photograph which is sufficient to carry this case.

All in all the OP needs to decide whether the grounds advanced are strong enough to risk the full amount of the penalty.

Mick

Mick you’re quite correct, contravention of the no entry prohibition is unarguable and no attempt has been made to do so. However, I believe that the council is subject to the doctrine of ultra vires and can only do things in respect of which it has an express or implied authority, or which are incidental to doing those things. You will know that councils derive their powers in these cases from Traffic Management Orders made under various provisions of The Road Traffic Regulation Act 1984. Bearing this in mind, the council imply that no restriction applies to local buses entering the carriageway which lies between the island sites situated in this length of Currey Road, whereas in fact a statutory restriction applies to local buses entering the carriageway, and this reads as follows: Except as provided in sub-paragraphs (2) to (5), the requirement conveyed by the sign is that vehicular traffic passing the sign must keep to the left of the sign where the arrow is pointed downwards to the left. My opinion is that the council has neither express nor implied authority under the 1984 Act to have no regard to a statutory restriction.

Opinion on the matter is unimportant to an adjudicator, and mine is that there was no contravention of a valid Traffic Management Order (the Traffic Order was invalid), and you may have yours, nevertheless I believe that the OP submitted a substantially similar argument to the council, which has been wholly ignored in the NtO, creating the ground of procedural impropriety, and here I will avoid repeating what I have said in post #22 above, although I agree that the OP should weigh everything up and come to his own decision.

Posted by: creative123 Sun, 25 Feb 2018 - 18:42
Post #1361628

Mick, thanks for your response.

How do I know which road the no entry sign in the photograph applies to? Could it not apply to the road on the far right with the give way markings? As you say, it is possible to have approached on the left and then cut across onto the red tarmac. The video evidence might show differently (can't remember, would need to check it). Would the adjudicator rely on just the photos or the video evidence too?

Posted by: 4101 Sun, 25 Feb 2018 - 19:26
Post #1361640

I have not read all this thread, lazy.

but it seems that the sign contravened was a no entry - except buses.

This is a scheduled s.36 sign, however note:

4The traffic sign with diagram number 616 is a scheduled traffic sign for the purposes of section 4 (Penalty charges for road traffic contraventions) of this Act only if it indicates a restriction or prohibition which may be indicated by another sign listed in the table.

Sign 953 (variant cycles omitted)

Route for use by buses and pedal cycles only 953

http://www.legislation.gov.uk/ukla/2003/3/schedule/3/paragraph/4/enacted


So the restriction is Sign only, not TMO.

ps
my legislation is out of date, dont have Westlaw for now.

Posted by: creative123 Mon, 26 Feb 2018 - 13:31
Post #1361873

QUOTE (4101 @ Sun, 25 Feb 2018 - 19:26) *
I have not read all this thread, lazy.

but it seems that the sign contravened was a no entry - except buses.

This is a scheduled s.36 sign, however note:

4The traffic sign with diagram number 616 is a scheduled traffic sign for the purposes of section 4 (Penalty charges for road traffic contraventions) of this Act only if it indicates a restriction or prohibition which may be indicated by another sign listed in the table.

Sign 953 (variant cycles omitted)

Route for use by buses and pedal cycles only 953

http://www.legislation.gov.uk/ukla/2003/3/schedule/3/paragraph/4/enacted


So the restriction is Sign only, not TMO.

ps
my legislation is out of date, dont have Westlaw for now.


No, I don't think this is right. The sign in the photo is a no entry only sign, therefore should be section 36. I can only assume this is the only sign the council is referring to.

I think any appeal needs to centre around the TMO not being valid, but that's only possible if the no entry sign requires a valid TMO. Can someone advise if that is the case?

Posted by: Mr Meldrew Thu, 8 Mar 2018 - 16:35
Post #1365102

creative123, you recently PM’d me mentioning that you did not “get around” to settling at the discount stage and have since confirmed that you are happy for me to respond on the forum. You say it is worth putting in an appeal, so to save effort my reply to you is also written for an adjudicator (it can easily be made first-person) and I see no need to respond to your questions regarding the diagram 616 (no entry) signs.

QUOTE
There can be no question that the Council seeks to enforce its Penalty Charge Notice (“PCN”) under Section 4(5)(a) of the London Local Authorities and Transport for London Act 2003 (“2003 Act”) when considering that the PCN expressly states that there had been a failure to comply with a no entry restriction without so much as a hint that you had failed to comply with a sign, let alone a scheduled section 36 traffic sign. As required, the Council has conveyed in comprehensible terms what it is you are alleged to have done wrong (Portch v London Borough of Camden, 2070385620). The wording used on the PCN, together with the simple, unmistakable wording used on the Council’s order relating to Currey Road, makes it perfectly clear that in effect entry or passage between defined points is prohibited for vehicles “exceeding 6 feet 6 inches”.

1) The alleged contravention did not occur: You did not fail to comply with the no entry restriction conveyed to you for the reason that you were driving a common or garden family saloon car not of a category of vehicles exceeding 6 feet 6 inches.

2) The Traffic Management Order is invalid (there was no contravention of a valid traffic order): The council is subject to the doctrine of ultra vires and can only do things in respect of which it has an express or implied authority, or which are incidental. Bearing this in mind, entering the carriageway that lies between the island sites in Currey Road from either direction entails passing to the right of a keep left sign, plainly a scheduled section 36 Road Traffic Act 1988 sign indicating a statutory requirement. Regardless of this, the prescribed order disapplied the 6 feet 6 inches restriction in respect of local buses entering between the island sites, the road surface to the right of the keep left sign is marked ‘BUS ONLY’, the area is signed ‘Except local buses’, and it is maintained. Suffice it to say buses are not excepted from the statutory requirement that vehicular traffic passing a scheduled section 36 sign must keep to the left of the sign where the arrow is pointed downwards to the left. You would submit that this is not an insignificant matter. The Council had neither express nor implied authority under the Road Traffic Regulation Act 1984 to effectively redefine the keep left requirement prescribed by a scheduled section 36 sign when planning, marking, signing and maintaining the carriageway between the island sites for the use of local buses.

3) There has been procedural impropriety on the part of the authority: If by some anomaly of which you are not aware, the above state of affairs can perversely co-exist with a valid traffic order, then you would have considered whether subsection 4(6)(a) of the 2003 Act applied. The fact of the matter is that you alerted the Council at the outset of your legitimate expectation as regards a proper consideration and response in respect of all your relevant and material representations concerning this confusing site. Notwithstanding that it had been reminded of its duty, the Council failed to accord requisite consideration as it is obliged so to do to a number of arguments raised in your representations, in particular why the traffic order is invalid. This argument was substantially similar to 2) above and it was appropriate to give it proper consideration and a proper response at an early stage, not least because of the potential wider significance if accepted. Moreover, you intended to rely upon the response in order to make an informed decision as to how to appeal as mentioned earlier, or whether or not to appeal at all and avail yourself of the discount offered; however, the Council were silent on the matter, which was not fair. You would submit that the Council has not discharged its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 which you believe to be a procedural impropriety on the part of the Council. In this context you would submit procedural impropriety means a failure by the Council to observe any requirement imposed on it by the Traffic Management act 2004, or Regulation 4(5)(a) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.
...

Posted by: cp8759 Sun, 11 Mar 2018 - 23:15
Post #1365930

Mr Meldrew I'm not sure the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 have any relevance to the matter, as this is a moving traffic PCN issued under the London Local Authorities and Transport for London Act 2003.

creative123, have you already lodged your appeal?

Posted by: creative123 Sun, 11 Mar 2018 - 23:19
Post #1365932

Yes, I lodged the appeal earlier today.

Posted by: cp8759 Mon, 12 Mar 2018 - 00:25
Post #1365948

QUOTE (creative123 @ Sun, 11 Mar 2018 - 23:19) *
Yes, I lodged the appeal earlier today.

Ah, well, never mind. It looks like you might have appealed quoting the wrong regulations (Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 are to with, well, parking). It matters not, you can make additional submissions, I will draft something for you over the next couple of days as I think there are some other points that can be made.

Posted by: creative123 Mon, 12 Mar 2018 - 07:26
Post #1365957

Ok that would be most helpful cp8759.

I submitted the appeal because I was nearing the 28 day window, so had to get something in.

Posted by: Mr Meldrew Tue, 13 Mar 2018 - 15:55
Post #1366432

QUOTE (cp8759 @ Sun, 11 Mar 2018 - 23:15) *
Mr Meldrew I'm not sure the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 have any relevance to the matter, as this is a moving traffic PCN issued under the London Local Authorities and Transport for London Act 2003.

Thank you CP8759.

creative123’s alleged moving traffic contravention is the backdrop. Procedural impropriety on the part of the authority (ground 3) is the ‘matter’ believed relevant to the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.

Packman01’s alleged moving traffic contravention was the background to the allowed appeal linked below. Procedural impropriety on the part of the authority was the matter relevant to the 2007 Regulation in question when learned adjudicator Belinda Pearce allowed the appeal. I am not qualified to question her judgement; I copied and pasted it:

QUOTE
The points raised by an Appellant in Representations deserve proper consideration and response at that stage, not in the Case Summary. An Appellant relies upon the response to representations in order to make an informed decision as to whether or not to Appeal. Receiving a detailed answer in the Case Summary is too late a stage in the process.

I conclude therefore that the Enforcement Authority had not discharged its duty under Regulation 5(2)(b) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 which I find to be a ‘procedural impropriety’ on the part of the Enforcement Authority.

In this context, ‘procedural impropriety’ means a failure by the Enforcement Authority to observe any requirement imposed on it by the Traffic Management act 2004 or Regulation 4(5)(a) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007.

Regulation 7(2) of the Civil Enforcement of Parking Contraventions (England) Representations & Appeals Regulations 2007 provides that if I conclude that a Ground specified in Regulation 4(4) applies I shall Allow the Appeal.

https://postimg.org/image/arl29tat9/
https://postimg.org/image/65oy1i7al/
https://postimg.org/image/qpts002h9/

In any event, agree with you that it matters not. An adjudicator would not expect creative123 to have a flawless understanding of the relevant regulations and would look to the facts of the matter.

Posted by: cp8759 Tue, 13 Mar 2018 - 23:51
Post #1366614

I think Belinda Pearce got her regulations mixed up, but it's immaterial (obviously if this had been pointed out to her she would have just said the amount demanded exceeded the amount payable in the circumstances, the amount due in the circumstances being nil). I'm going to make an FOI request for the TRO which creates the restriction, as it will be easier to write an appeal with that to hand (I want to to look like an open and shut case as the council's understanding of the law is ludicrously wrong in this instance).

Posted by: Mad Mick V Wed, 14 Mar 2018 - 08:19
Post #1366645

If the traffic order replicates the Notice (already posted earlier) then I would contest this PCN on the following points:-

In essence the TMO prohibits any vehicle with a width exceeding 6' 6" using the middle section of the road:-

THE EALING (PRESCRIBED ROUTES) (NO 73) TRAFFIC ORDER 2005 CURREY ROAD/EASTCOTE LANE

"a) prohibit vehicles exceeding 6 feet 6 inches from entering or proceeding in Currey Road between a point 4.5 metres south-east of the common boundary of Nos 94 and 96 Currey Road and the common boundary of Nos 98 and 100 Currey Road."

First, your vehicle did not exceed 6'6" therefore you are not prohibited from using the middle section of the road.

Second, the TMO does not prescribe a general no entry prohibition (only certain vehicles),

Third, the contravention given must be incorrect as per the above,

Fourth, if we have a route restricted to certain vehicles as they allege, even in the traffic order title, the TMO v Sect 36 ground applies.

Sight of the actual TMO is critical.

Mick

Posted by: cp8759 Wed, 14 Mar 2018 - 09:35
Post #1366681

QUOTE (Mad Mick V @ Wed, 14 Mar 2018 - 08:19) *
Sight of the actual TMO is critical.

Agreed, FOI request is in, I'll post it as soon as I get it.

creative123, please make sure you let us know of any updates from the tribunal regarding hearing dates / council evidence and so on.

Posted by: Mr Meldrew Wed, 14 Mar 2018 - 16:48
Post #1366841

Whatever the TMO says, it cannot change grounds 2 and 3 on the submitted Appeal.

Posted by: cp8759 Wed, 14 Mar 2018 - 16:55
Post #1366844

QUOTE (Mr Meldrew @ Wed, 14 Mar 2018 - 16:48) *
Whatever the TMO says, it cannot change grounds 2 and 3 on the submitted Appeal.

I don't disagree and I'm not looking to detract from anything you've said. But if additional reasons can be put to the adjudicator as to why the PCN is invalid, then so much the better.

Posted by: creative123 Thu, 15 Mar 2018 - 22:02
Post #1367253

QUOTE (cp8759 @ Wed, 14 Mar 2018 - 09:35) *
QUOTE (Mad Mick V @ Wed, 14 Mar 2018 - 08:19) *
Sight of the actual TMO is critical.

Agreed, FOI request is in, I'll post it as soon as I get it.

creative123, please make sure you let us know of any updates from the tribunal regarding hearing dates / council evidence and so on.


Hi cp8759,

I received the letter from the tribunal which states the last day to give any further evidence is 4th April 2018.

Thanks
creative


Posted by: cp8759 Fri, 16 Mar 2018 - 00:57
Post #1367315

QUOTE (creative123 @ Thu, 15 Mar 2018 - 22:02) *
Hi cp8759,

I received the letter from the tribunal which states the last day to give any further evidence is 4th April 2018.

Thanks
creative

That's fine, you should get the council evidence well before that. Ping me a message when you do.

Posted by: cp8759 Wed, 21 Mar 2018 - 17:16
Post #1368852

TRO attached. It has many problems. Send it, together with the text below, to the Tribunal:

---------------------------------------------------------------------------------------------------------------------------
Further to my original grounds of appeal, I would like to submit the following additional grounds of appeal to the tribunal, and I submit a copy of the relevant TRO in evidence:

4) There has been no contravention of a prescribed order or failure to comply with an indication given by a No Entry sign: My car did not pass between the two No Entry signs, therefore, on the council's own evidence, no contravention of the No Entry signs has occurred.

5) There was no contravention of a valid traffic order (The Traffic Management Order is invalid): Further to the submissions already made under ground two, I add that section 4 of the TRO purports to disapply the requirement of the keep left sign, which is a scheduled 36 sign, from local buses. Needless to say there is no provision of law that allows the authority to disapply the legal effect of a diagram 610 sign from a particular class of vehicle. This shows that in making the order the council acted ultra-vires. If section 4 of the TRO is outwith the power of the authority, because this section goes to the heart of what the TRO is trying to achieve, the whole TRO must be held to be invalid.

6) The penalty charge exceeded the amount applicable in the circumstances of the case: In my representations to the authority, I pointed out that "the vehicle did not drive between the two no entry signs places on Currey Road", in the Notice of Rejection the authority simply stated that "Drivers are not allowed to drive through a No Entry restriction". The authority has ignored the fact that I did not drive through the No Entry signs and it has not provided any explanation of how it has established that, despite of what can be seen in the council's own photographs, my car did in fact pass between the signs.

I further submitted the substance of what is now ground 5 of this appeal (Namely that the council has acted ultra-vires by purporting to dis-apply the legal effect of a diagram 610 sign from a certain class of vehicle), however those representations were completely ignored and are not mentioned at all in the Notice of Rejection.

I submit that the decision of adjudicator Edward Houghton in appeal number 2170256432 is relevant in this instance. In that decision, adjudicator Houghton stated, in so far as is relevant:

The Rejection Notice has every appearance of a pro-forma letter and does not deal at all with the representations made. The response required was a very simple one, namely words to the effect that that whilst we accept that you had a permit on display you were not parked in the road to which it applied – see terms of permit. Motorists are entitled to have their representations properly considered and an explanation, even if brief, why they are rejected. I am unable to be satisfied that in issuing this rejection notice the Council had properly performed its statutory duty to consider representations and this amounts to procedural impropriety. The Appeal is therefore allowed”.

In this case the Notice of Rejection should have included words to the effect that the the authority was satisfied that my vehicle had passed through the No Entry signs, or that it was satisfied that (for whatever reason) a contravention of the No Entry signs had been established notwithstanding that my vehicle did not pass between them. The Notice of Rejection should have also contained words to convey that the council does, contrary to my understanding, have a power to dis-apply the effect of a diagram 610 sign from certain classes of vehicles, or else that (for whatever reason) the TRO and the signs are valid notwithstanding that the council does not have such a power. However niether of these issues were given any consideration, in fact they are not mentioned at all in the Notice of Rejection. It follows that the council could not have properly considered the representations made, and this failure to consider means that the amount of the penalty which is payable in the circumstances of this case is now zero. It follows that even if this appeal fails on all other grounds, the Penalty Charge Notice should now be cancelled.
-----------------------------------------



I would add that, if you win on any given ground, you can ask the adjudicator to rule on the other grounds as well, on the basis that any decision he makes as to the validity of the signs or the TRO will impact any other motorist who has been issued a PCN at this location.
EDIT: Updated for The Traffic Signs (Amendment) (England and Wales) Regulations and General Directions 2017

 2005_No._50_Currey_Road_bus_lane_and_wdth_restriction.pdf ( 277.29K ) : 43
 

Posted by: Mad Mick V Wed, 21 Mar 2018 - 17:40
Post #1368864

Hang fire on Paras 4 &5----a 616 has been restated as a Sect 36 sign after not being quoted as such in the TSRGDs 2016---- someone will quote the legislation amendment.

Mick



Posted by: PASTMYBEST Wed, 21 Mar 2018 - 17:41
Post #1368865

Like it CP except that (616) was reinstated as a schedule 36 sign by the Dec amendments


http://www.legislation.gov.uk/uksi/2017/1086/regulation/6/made

Posted by: cp8759 Wed, 21 Mar 2018 - 17:46
Post #1368868

I've updated the wording in post 41 to reflect the updated legislation.

Posted by: Mr Meldrew Thu, 22 Mar 2018 - 02:06
Post #1369038

cp8759, would the following line not benefit from a stronger tone of certitude as proposed below? Authorisation to dis-apply the effect of a S.36, diagram 610 sign, from local buses could be ultra vires even at the highest level of the Secretary of State for Transport.

https://www.londontribunals.gov.uk/sites/default/files/keycases/Sam-Yorke%3B%20yellow%20box%3B%20special%20authorisation%3B%20box%20entering%20beyond%20junction%3B%20authorisation%20ultra%20vires.doc

QUOTE
The Notice of Rejection should have also contained words to convey how the council, contrary to my understanding, has power to dis-apply the effect of a diagram 610 sign from local buses, or else how the TRO and the signs are valid notwithstanding that no such power exists.

Posted by: cp8759 Thu, 22 Mar 2018 - 02:45
Post #1369039

QUOTE (Mr Meldrew @ Thu, 22 Mar 2018 - 02:06) *
cp8759, would the following line not benefit from a stronger tone of certitude as proposed below? Authorisation to dis-apply the effect of a S.36, diagram 610 sign, from local buses could be ultra vires even at the highest level of the Secretary of State for Transport.

https://www.londontribunals.gov.uk/sites/default/files/keycases/Sam-Yorke%3B%20yellow%20box%3B%20special%20authorisation%3B%20box%20entering%20beyond%20junction%3B%20authorisation%20ultra%20vires.doc

QUOTE
The Notice of Rejection should have also contained words to convey how the council, contrary to my understanding, has power to dis-apply the effect of a diagram 610 sign from local buses, or else how the TRO and the signs are valid notwithstanding that no such power exists.


Not really, the logic behind ground 6 is that, even if none of the other grounds have any merits, the failure to consider your representations means the penalty charge must be cancelled. Going back to the merits of the ultra-vires point in ground 6 would actually weaken the argument, it's better to keep each ground of appeal compartmentalised .

However, the case you have referenced above could be used to bolster ground 5 (that the TRO is invalid), as it illustrates that where a traffic authority acts beyond its powers, the restrictions are invalid.

Posted by: creative123 Thu, 22 Mar 2018 - 16:27
Post #1369194

Council response below:





Posted by: creative123 Thu, 22 Mar 2018 - 16:37
Post #1369200

Council seem a little confused what the contravention is - perhaps talking about the keep left signage has confused them.

cp8759, I haven't submitted the additional appeal yet. Is there anything else you would suggest adding before going ahead with what you wrote?

Could another avenue of procedural impropriety be the council only disclosing the full TMO upon appeal, whereas in the NoR, they gave me a copy of the traffic order that only mentioned a width restriction on Currey Rd. However, the TMO talks about the width restriction AND vehicles having to pass to the left of the traffic island - this was a materially significant point in my initial appeal.

Should I work this into my additional reps?

Thanks again!

Posted by: Mad Mick V Thu, 22 Mar 2018 - 18:39
Post #1369222

OP--I doubt you need submit any other grounds at this stage.

I am intrigued by the two camera admission which might be explored if the case implodes. They are supposed to have a camera shot of the VRM and a wider camera shot of the general location but whether they can use two cameras is debatable no matter if they are in sync.

Mick

Posted by: cp8759 Thu, 22 Mar 2018 - 23:35
Post #1369312

They've got themselves into a right muddle, their response is nothing short of embarrassing. I would submit the additional reps as per post 41, I don't think you need anything more.

QUOTE (Mad Mick V @ Thu, 22 Mar 2018 - 18:39) *
I am intrigued by the two camera admission which might be explored if the case implodes. They are supposed to have a camera shot of the VRM and a wider camera shot of the general location but whether they can use two cameras is debatable no matter if they are in sync.

I doubt that, most councils use a pair of cameras, one "normal" camera to capture the contravention, and an infrared ANPR camera to capture the plates. This is why the number plate shot is often a very dark image where the only thing that is visible is the number plate (which is retro-reflective so it sends all the infra-red light straight back to the camera).

Posted by: Mr Meldrew Fri, 23 Mar 2018 - 09:49
Post #1369345

Creative, the adjudicator will see that the Council has obviously not rebutted, among others, your claims that they have no authority to except local buses from the requirement to keep to the left of a keep left sign, that they have no power to effectively redefine the keep left requirement in that way, and that they have manifestly failed to accord requisite consideration to your clear argument that this is why the traffic order is not enforceable. All this, together with the additional reps in post #41, and you want to explore another avenue of procedural impropriety! C’mon show the Council some mercy. smile.gif

Posted by: creative123 Mon, 23 Apr 2018 - 15:34
Post #1376658

Hi guys,

I wanted to update this thread with the decision from the adjudicator.

It was always going to be bit of a long shot and unfortunately, this particular decision did not go in my favour (Mad Mick V was right tongue.gif )

I think it is wise now to put closure on this matter, so will be paying shortly. However, I would like to thank all those who contributed and in particular, Mr Meldrew for helping me tremendously via PM and drafting that appeal letter. I really do appreciate all the views given! smile.gif

So without further ado, here's the response:



Thanks
Creative

Posted by: cp8759 Mon, 23 Apr 2018 - 15:49
Post #1376665

I think quoting the wrong regulations was fatal to this appeal, maybe I should have made it clearer but you really should have removed all reference to the parking regulations. To be honest this is a clear example of why decriminalised enforcement is a terrible idea, had this been pursued criminally, even if the magistrates had been misguided enough to convict, there's no way the High Court would have allowed a conviction for a no entry offence to stand based on the evidence available.

Posted by: Mad Mick V Mon, 23 Apr 2018 - 16:28
Post #1376677

There is no "default" situation in legal terms as my favourite adjudicator states and I would ask for a Review. He (again) relies on the signage in place without considering the TMO in relation to the traffic management reasons for the restriction. Those traffic management reasons and the TMO seek to prevent vehicles over 6'6" using the central section of the carriageway. The OP was therefore not in contravention --end of.

Mick

Posted by: Mr Meldrew Tue, 24 Apr 2018 - 16:16
Post #1376972

Thank you for the compliment Creative. I respond to adjudicator Burke’s decision as follows.

The Council made the TMO in exercise of powers conferred under the Road Traffic Regulation Act 1984. From the Council’s preamble:

QUOTE
in exercise of the powers conferred by Section 6 of the Road Traffic Regulation Act 1984 as amended ... [Ealing Council] hereby make the following Order.

You asserted that by authorising and maintaining the road layout at issue, the Council’s actions were beyond the powers (ultra vires) conferred by the 1984 Act:

QUOTE
The Council had neither express nor implied authority under the Road Traffic Regulation Act 1984 to effectively redefine the keep left requirement prescribed by a scheduled section 36 sign…

London Tribunals’ https://www.londontribunals.gov.uk/sites/default/files/keycases/Sam-Yorke%3B%20yellow%20box%3B%20special%20authorisation%3B%20box%20entering%20beyond%20junction%3B%20authorisation%20ultra%20vires.doc established that enforcement authorities have no power to authorise signs that effectively redefine the prohibition prescribed by law.

Adjudicator Burke understood the above principle and these principles established by the Court, derived from public law cases: The need to come to a decision in a procedurally ‘fair’ way by giving proper weight to representations received, taking relevant factors into account (or not taking into account irrelevant factors), and being clear that this has been done through the process of setting out material findings of fact regarding those relevant factors.

My opinion is that adjudicator Burke failed regarding the principles above. Your assertion was complete and detailed as documented, and your specific assertion was acknowledged. In spite of this, the adjudicator had nothing further to say beyond this on the matter of the 1984 Act, and whether the Council’s actions were ultra vires:

QUOTE
He also argues the Traffic Management Order is invalid and the attempt to enforce ultra vires.

You further asserted that the Council had failed to accord requisite consideration, as it is obliged so to do, to your representation that the Council’s actions were ultra vires. Adjudicator Burke did not give any weight to this or set out any material findings of fact on the matter because as a layperson, you referred to the wrong regulations, which did not change the underlying facts. I now consider that adjudicator Burke failed to come to a decision in a procedurally fair way as already described.

Posted by: cp8759 Thu, 26 Apr 2018 - 11:37
Post #1377559

QUOTE (Mad Mick V @ Mon, 23 Apr 2018 - 17:28) *
There is no "default" situation in legal terms as my favourite adjudicator states and I would ask for a Review. He (again) relies on the signage in place without considering the TMO in relation to the traffic management reasons for the restriction. Those traffic management reasons and the TMO seek to prevent vehicles over 6'6" using the central section of the carriageway. The OP was therefore not in contravention --end of.

Mick

The adjudicator just ignored the law and decided that the OP should have known not to drive that way, with that sort of attitude, no amounts of legal arguments were going to sway him. It might be worth asking for a review but I doubt it would be accepted.

Posted by: creative123 Mon, 30 Apr 2018 - 12:52
Post #1378620

QUOTE (cp8759 @ Thu, 26 Apr 2018 - 11:37) *
The adjudicator just ignored the law and decided that the OP should have known not to drive that way, with that sort of attitude, no amounts of legal arguments were going to sway him. It might be worth asking for a review but I doubt it would be accepted.


That's certainly how it felt. He even mentioned the council might have been better off pursuing the offence as not adhering to a keep left sign. I figured there was a low chance the review would change anything so paid up.

It's not the outcome I had hoped for but it's the risk you take when you appeal dry.gif

Posted by: Mad Mick V Mon, 30 Apr 2018 - 13:05
Post #1378625

You've paid--so what! Send in a Review request--see what happens.

Posts 129/130 here might help you decide:-

http://forums.pepipoo.com/index.php?showtopic=118117&pid=1378382&st=120&#entry1378382

Same type of situation--isolated consideration of the sign without a full appraisal of why it was erected and its traffic management purpose.

Mick

Posted by: Mr Meldrew Wed, 2 May 2018 - 15:34
Post #1379185

Perhaps I was naïve to expect the Environment and Traffic Adjudicator to make any finding of fact on a problematic point that if accepted had the potential for significant repercussions for the authority concerned. The adjudicator failed in particular to make any finding of fact that, contrary to the representations received, the authority had express or implied power conferred under the Road Traffic Regulation Act 1984 to authorise and maintain road markings and signs in Currey Rd that effectively redefine a prohibition prescribed by law.

My experience in circumstances of failure to consider at a similar level has been that after exhausting either the internal or so-called “independent” review” farce (personal view), a letter before action pursuant to the JR pre-action protocol never failed to result in at least one “fresh” consideration only for another decision maker to reach the same decision in a different way. I don’t know why I ever bothered really as I am not a wealthy man.

I take my hat off to the effort shown in the linked appeal above and sincerely wish all concerned a satisfactory outcome.

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