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Bus route PCN, Questionable pictures from TFL
Afrochap
post Thu, 26 Mar 2020 - 21:43
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Hello good people,

So, I got this PCN from TFL back in early feb and I challenged it based on the fact that the pictures tfl is relying on are of extremely low quality and you cant even make out the car in two of them and then the third was a zoom in of the rear plates and you can only see the plate number and a bit of asphalt behind the car.

My challenge contained two points and the full wordings can be found below.

I received notice of rejection last week and the reasons behind their rejection failed to address the 2 points I've raised. I have now decided to appeal to the adjudicator, but before sending off anything, I'll appreciate your advise regarding my chances.

Links to images on imgBB -

https://i.ibb.co/m6FkP4w/PCN-pg-2.jpg
https://i.ibb.co/5MsYSMC/PCN-pg-1.jpg
https://i.ibb.co/mJ8g9yF/P3.png
https://i.ibb.co/fkW3M3T/P2.png
https://i.ibb.co/ZTH3rGd/P1.png
https://i.ibb.co/8KBcJNv/Notice-of-rejection-pg-1.jpg
https://i.ibb.co/ZMWhJ7j/Notice-of-rejection-pg-2.jpg

Many thanks




I make representation against the imposition of this PCN (GT83382160) based upon the following points –

1. TFL seeks to enforce the PCN without providing adequate evidence that shows the vehicle passing any prohibition sign. It relies on 3 still images taken from what seem to be a considerable distance away. Furthermore, only one of these pictures shows the plate number and there was no context as to the location where it was taken.

I have been to TFL’s website in the hope of obtaining further proof of the contravention but all I can see are the 3 stills mentioned above.
As evidence, I have captured (video and stills) of my laptop’s screen while on TFL’s website.

2. The Contravention given cannot be sustained.

The contravention referred to on the PCN states "Using a route restricted to certain vehicles".

It is a tenet of English law that a defendant must know the precise charge raised against him. How therefore, is he able to determine the nature of the restriction and which vehicles have right of way or not?

For these 2 reasons alone the document does not comply with the regulations and is therefore invalid as a PCN. I contend therefore that no charge is payable.

I therefore invite TFL to cancel the PCN at this stage rather than to subject me and possibly the adjudicator to unnecessary inconvenience in respect of what would ultimately be an inevitable outcome.


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post Thu, 26 Mar 2020 - 21:43
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stamfordman
post Thu, 26 Mar 2020 - 21:59
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Did you ask for the video - that's the key evidence. TFL sends DVDs.

The pics look very clear to me and you may be throwing away the discount.

The signage could be the main thing to look at.

This post has been edited by stamfordman: Thu, 26 Mar 2020 - 22:00
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PASTMYBEST
post Thu, 26 Mar 2020 - 22:29
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You may have inadvertently dropped an a shot at adjudication in that the cited contravention does not identify the restricted vehicles. But on top of that the sh1t about special authorisation is just that. The sign used is a s36 traffic sign and it must be used with a road legend " bus gate" and I don't know what all the rubbish about they are allowed to have moving traffic signs parallel to the kerb nor the load of tosh re the TSM being guidance. It is but nothing in your representation made any reference to the positioning of the signs

See

2180198194

Representations are made by Mr Dogan on the basis that the signage in Lombard Street does not comply with the requirements of the Traffic Signs Regulations and General Directions 2016. The appellant refers to a decision of Adjudicator Edward Houghton appeal 2170469229. In that appeal the Adjudicator initially adjourned the appeal and asked the City of London to explain why the legend Bus Gate was not on the carriageway. The Enforcement Authority did not reply. The appeal was allowed on the basis that the requirement for the legend Bus Gate was mandatory. No application for review was made.
In this appeal the local authority argues that the legend Bus Gate is not mandatory because there is no link from the Route for Bus and Cycle Only sign in the Traffic Signs Regulations and General Directions 2016. The case summary does not refer to Schedule 9 Part 5 para 1 TSRGD 2016 which provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3. The legend bus gate is one of the items in column 3 of part 6 of Schedule 9.

Item 15 of the sign table in part 6 contains the description ” Road or part of a road with access permitted only for buses and other vehicles when so indicated by any of the signs at items 10, 33 to 35 and 37 to 40 in the sign table in Part 2 of Schedule 3”.

The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33.
I find that the Traffic Signs Regulations and General Directions 2016 state that the bus gate legend is mandatory.
The local authority refers to a decision of Adjudicator John Lane. I am not bound by the decision of any Adjudicator. In this case I follow the decision of Adjudicator Edward Houghton.

The appellant was well aware that the restriction was in operation and to that extent the appeal has little merit. Previous Penalty Charge Notices issued to the appellant had been cancelled.
I am satisfied that the bus gate requirement is mandatory therefore I must allow this appeal.

2190314291

This PCN was issued for the alleged contravention of using a route restricted to certain vehicles in Oldchurch Rise at 10.31pm on 28 June 2019.
A PCN is required to state the grounds on which the enforcement authority believes that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to properly understand the nature of the alleged contravention.
The Council says that this is a route restricted to buses and cycles only. This is not, however, clear on the face of the PCN which states simply that the vehicle used a route restricted to certain vehicles.
A motorist reading the PCN would not understand from the wording the nature of the alleged contravention because there is nothing to explain that the route was restricted to buses and taxis only. The PCN needs to explain, whether by wording or images, exactly what the prohibition is. There appears to be a space on the face of the PCN for an image but there is no image on the PCN submitted in evidence.
I therefore find that the PCN was invalid.

There is a third ground. In that the regulations do not allow the use of a s36 traffic sign to enforce a local order

219043298A
The contravention alleged on the PCN is that this vehicle 'Used a route restricted to certain vehicles buses, cycles and taxis only'. The appellant submits however that the contravention is correctly stated as being of the council's S.36 sign conveying the restriction rather than of the restriction itself as set out in the Traffic Management Order she citing previous decisions of the adjudicator in support. The council does not appear to make any submissions in response to the point raised. I am satisfied having considered the matter my noting the review decision of the adjudicator under case reference 2170323030 as relied upon by the appellant that she is correct. I accordingly find that the contravention as stated on the PCN did not occur. Given my determination on that point I need make no further findings in this case. The appeal is allowed.


It should be noted that all three of the grounds have had adjudicators find both ways but the first two are fairly strong. The third will need careful wording so don't go it alone


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stamfordman
post Thu, 26 Mar 2020 - 22:42
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here - is this the location?
there's a bus lane legend ahead of the signs. as you turn right. But it's not a London bus lane contravention.

https://www.google.com/maps/@51.4946461,-0....6384!8i8192

This post has been edited by stamfordman: Thu, 26 Mar 2020 - 22:42
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Mad Mick V
post Fri, 27 Mar 2020 - 08:17
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This location is an old, old chestnut which we've looked at many times. There used to be a No Entry sign (Diagram 616) on Wilton Road with an exeption plate for buses and taxis. Not much use if vehicles from the right (Neathouse Place) could enter.

They have altered the sign to a Diagram 953 ---bus gate although without any road markings on Wilton Road! I suspect the OP entered the street from Neathouse Place where the lines and signs look OK.

The video is critical because it HAS to show the OP's vehicle passing the restriction sign.

Why they didn't use a bus lane contravention defeats me. The Code 33 on its own without a suffix is meaningless and should be contested. How is the OP to determine what are permitted vehicles?

And, yes a Sect 36 v TMO ground is feasible.


Mick

This post has been edited by Mad Mick V: Fri, 27 Mar 2020 - 08:30
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PASTMYBEST
post Fri, 27 Mar 2020 - 10:24
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QUOTE (Mad Mick V @ Fri, 27 Mar 2020 - 08:17) *
This location is an old, old chestnut which we've looked at many times. There used to be a No Entry sign (Diagram 616) on Wilton Road with an exeption plate for buses and taxis. Not much use if vehicles from the right (Neathouse Place) could enter.

They have altered the sign to a Diagram 953 ---bus gate although without any road markings on Wilton Road! I suspect the OP entered the street from Neathouse Place where the lines and signs look OK.

The video is critical because it HAS to show the OP's vehicle passing the restriction sign.

Why they didn't use a bus lane contravention defeats me. The Code 33 on its own without a suffix is meaningless and should be contested. How is the OP to determine what are permitted vehicles?

And, yes a Sect 36 v TMO ground is feasible.


Mick


The bus lane on Neathouse place is a separate animal to the bus gate on Wilton road and it is a contravention of the bus gate that must be answered and the required road marking for that bus gate are not in place all 3 ground suggested are feasible


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Afrochap
post Fri, 27 Mar 2020 - 13:21
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QUOTE (stamfordman @ Thu, 26 Mar 2020 - 21:59) *
Did you ask for the video - that's the key evidence. TFL sends DVDs.

The pics look very clear to me and you may be throwing away the discount.

The signage could be the main thing to look at.


Thanks so much for the speedy response.

No, i wasn't aware that i can for the video there's nothing on the PCN pointing to that end.

Yes, the Google map you attached shows the location.

Re the pics -
We have 2 pics showing the wider environs vehicles are so tiny in the pictures and it was night time, the only other one that shows the plate number has no reference at all.

Finally, there notice of rejection didn't even attempt to address my original points and it only listed them.

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cp8759
post Yesterday, 09:05
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These are the problems I see with TFL's position:

1) It's all well and good for the nature of the restriction to be spelt out on the Notice of Rejection, however the requirement is for the restriction to be spelt out on the PCN. The suffix wording available for code 33 (see https://bit.ly/2UktOLg) is:

33 b) buses only c) buses and cycles only e) buses, cycles and taxis only f) buses and taxis only
g) local buses only h) local buses and cycles only i) local buses, cycles and taxis only k) local buses and taxis only
q) tramcars and local buses only r) tramcars only s) tramcars and buses only


The notes for code 33 says "Code-specific suffixes apply" so the suffix wording is not optional.

2) The Notice of Rejection drones on and on about a special authorisation that is entirely irrelevant, and suggests that the letter has been composed by assembling templated paragraphs that have nothing to do with the circumstances of the case, that has been known to win on its own.

3) TFL says it won't exercise discretion because there was a contravention, this betrays a fundamental error: TFL can only exercise discretion if there has been a contravention, if there's no contravention there is nothing for TFL to consider, see Susan Cook v Trafford Borough Council (TR 05993 K, 25 January 2013):

Discretion is the power to act as one thinks
appropriate in the circumstances, but it is relevant in this context only when a
penalty would otherwise be due. Discretion is not necessary or relevant when no
penalty is due.

If there was no contravention then the Council’s discretion would be irrelevant
because if there was no contravention the penalty must be cancelled regardless
of the surrounding circumstances. The case would end at the first of the two
stages above.

It follows that discretion cannot be refused because a contravention has
occurred; there must have been a contravention otherwise there is
nothing for the Council to consider.


3) Notwithstanding the above, TFL says it considered the mitigating factors present, yet your representation was based solely on statutory grounds of appeal and not on mitigation. So, TFL should be put to task and asked to spell out what mitigating factors it considered (or admit that it was just making it up)

4) The appeal period is described as "within" 28 days which is clearly wrong, as per Al's Bar & Restaurant Ltd v London Borough of Wandsworth (2020106430, 28 October 2002)

5) Just as the cherry on top, the NoR does not describe the tribunal's power to accept a late appeal, contrary to Shelley Sinclair v London Borough of Lewisham (218033612A, 26 September 2018)


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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