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Full Version: Code 34 - Driving in bus lane - Cardiff (custom house street)
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Smokey71
Hi, I wonder if anyone has made an appeal to Cardiff Council against a PCN imposed for driving in a bus lane at Custom House Street? I had one dated 4 Jan (deemed served on 6 Jan).

I have copied out below my draft appeal letter (not sure how to append a Word document).

I think I'll lodge the appeal anyhow since have just found out that under the appeal Regs, if they refuse my appeal then they have to offer me another 21 days to pay the reduced charge of £35 (see Reg 6(3) of the The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013).

See draft grounds of challenge below. They are self explanatory.

Many thanks

Gareth

GROUNDS OF CHALLENGE TO PCN FOR SENDING TO CARDIFF COUNCIL VIA THEIR WEBSITE

I feel aggrieved to have had the issuing of a PCN for entering of a Bus Lane in Custom House Street Cardiff on the 14/12/2015 on the following grounds:
(a) Signage gives drivers turning right into Custom House Street from St Mary’s Street no realistic chance of avoiding entering the bus lane
At the time of the alleged contravention, I was turning right at the traffic light junction between Penarth Road, St Mary’s Street and Custom House Street. The appended screenshot from google maps shows the way in which I came up St Mary’s Street to the junction and then inadvertently turned right into the bus lane in Custom House Street.

In respect to the road, the markings/signs showing the bus lane these are minimal to say the least. The signage is insufficient to convey the restriction on St Mary’s Street Cardiff. I had no idea that turning right into Custom House Street would take me into a bus lane.
The directional sign on St Mary’s Street is angled away from the driver and is quite wordy so can easily be missed, then once the turn is made you are committed, before you see the bus lane signs. The signage is insufficient to convey the restriction on St Mary’s Street Cardiff.
I unintentionally entered the Bus Lane after turning right and I had no other option but to continue on the road, due to the driving conditions were both wet and visibility was not great, with also having, another car behind me so could not stop and nor reverse out of the road.
When you are coming up St Mary’s Street from the direction of Cardiff Bay going towards the city centre and are turning right at the traffic light junction between St Mary’s Street, Mill Lane and Custom House Street, it’s VERY difficult to see the bus lane sign painted on the surface of the road in time to be able to avoid driving into it. As you turn right, the Bus Lane sign painted on the surface of the road only becomes readable properly as you enter Custom House Street, by which time it’s too late to do anything about it.

(b) The PCN is not correctly worded and not in accordance with the Regulations
I would also like to highlight the PCN to be defective under the following –
• Informs the payee of incorrect timescales for payment
• Informs the payee of incorrect to make representations
The Civil Enforcement of Bus Lane and Moving Traffic Contraventions (City and County of Cardiff)
Designation Order 2014 is made under Part 6 of the Traffic Management Act 2004.
Both the following Regulations are also made under the TMA 2004:-

• The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 - (i.e General Regulations)
• The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013 - (i.e. Appeal Regs)

Regulation 8 of the General Regulations relates to the form and validity of such “penalty charge notices”:

“Regulation 8(1) - In these Regulations a “penalty charge notice” means a notice which—
(a) was served in accordance with regulation 9 or 10 in relation to a road traffic contravention; and
(b) complies with the requirements of—
(i) paragraph (2) below;
(ii) the Schedules to these Regulations; and
(iii) regulation 3 of the Representations and Appeals Regulations which so apply.”

Consequently, a notice which fails to comply with any of the above mandatory requirements is not a ‘penalty charge notice’ for the purpose of the Regulations.

Regulation 8(2) requires that, “a penalty charge notice must be in the form set out in Schedule 2 to these regulations or a form to the like effect, provided that it contains all of the prescribed particulars as set out in Schedule 1 to these regulations and regulation 3 of the Representations and Appeals Regulations”.

Any PCN issued by the Council, as above, must comply with Schedule 1 of the General regulations and Reg 3 of the Appeal Regulations. That’s all the law requires. Schedule 2 cannot take precedence or trump 8(2).

Schedule 1 of the General Regulations requires that, “a regulation 10 penalty charge notice, in addition to the matters required to be included in it by regulation 3(4) of the Representations and Appeals Regulations, must state—

(d) that the penalty charge must be paid within the period of 28 days beginning with the date
on which the penalty charge notice is served;”

The notice served upon me fails to comply with (d) above. The notice I received is dated the 4th January 2016. It states that a penalty charge of £70 “is payable within 28 days of the issue of this notice”. Regulation 3(2) of the General Regulations states that “Unless the contrary is proved, service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted is to be taken to have been effected on the second working day after the day of posting”. Thus, the date of the service of the notice dated 4th January 2016 would have been the 6th January 2016. The notice should have stated that I had 28 days from the date of service in which to pay the penalty charge. As a recipient of such a notice, I have been prejudiced because my time to pay is truncated.

Further, this error as to the statement of the 28 day period also results in a failure to comply with Schedule 1, paragraph 2(f), since it states that the penalty charge will be increased by 50% “if payment is not made within 28 days of the date of issue”. Again, this 28 day period should refer to it starting with the date of the service of the notice, which would be deemed to be 2 working days after the date of the issue of the notice.

Schedule 1, paragraph 2 of the General Regulations goes on to require that a penalty charge notice also states the following:

“(h) that the penalty charge notice is being served by post for whichever of the following
reasons applies—
(i) that the penalty charge notice is being served by post on the basis of a record
produced by an approved device;
(ii) that it is being so served, because a civil enforcement officer attempted to serve a
penalty charge notice by affixing it to the vehicle or giving it to the person in charge
of the vehicle but was prevented from doing so by some person; or
(iii) that it is being so served because a civil enforcement officer had begun to prepare a
penalty charge notice for service in accordance with regulation 9, but the vehicle was
driven away from the place in which it was stationary before the civil enforcement
officer had finished preparing the penalty charge notice or had served it in
accordance with regulation 9.”

The notice you served on me contains no such explanation as to why it was served by post. Indeed, the form of notice prescribed by Schedule 2 also sets out why the notice is being served by post. The failure on the notice served upon me to set out such an explanation means that it is non complaint with Schedule 1, paragraph 2(h) of the General regulations and also is not “in the form set out in Schedule 2 to these regulations or a form to the like effect”.

A further non-compliance of the notice with the General Regulations is that it states that if I don’t pay £35 within 28 days then “the penalty charge will be increased by 50%”. Under Schedule 1, paragraph 2(f)(ii) of the General Regulations, the notice must state that the enforcement authority “may increase the penalty charge” by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased. The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted. This is therefore a procedural impropriety and a fettering by the authority of its own discretion by determining that it will (rather than may) increase the penalty charge if payment is not made within the timescale.

A further non-compliance rendering the notice invalid is Challenge within 28 days of date of notice
Is that he correct period for representations under Regulation 3(4)(a) of the Appeal Regulations, is 28 days beginning with the date on which the penalty charge notice is served. Again the payee faces a truncated timescale which is prejudicial, since the notice served upon me states that I have “28 days from the date of this notice”. The notice is incorrect to state that I have 28 days from the 4th January 2016 in which to appeal. Rather, it is 28 days from the date of deemed service on 16th January 2016.

Due to the above numerous failures by the notice to comply with the mandatory requirements of the General Regulations and the Appeal Regulations, the notice fails to comply with Regulation 8(1) of the General regulations and hence is not a valid penalty contravention notice.

I look forward to hearing back from you in due course.


MWJN
Hi Smokey71

I submitted my Challenge on the 14th January

Acknowledgement Letter on the 18th January

Once I have more news I will update you

You have nothing to lose by appealing

Thanks
Smokey71
Thanks MWJN, good luck with your appeal.

I'll submit mine now and let you know how I get on.
lewisdp
Good luck, where did you enter the junction from ? I've had a PCN and came from Penarth Road / Saunders Road (from Train Station / Milti storey car park
MWJN
Hi Smokey71

How did you get on?

Good News?
Neil B
You're our only 'hero' so far it seems MWJN.

Probably worth these others chasing up after this amount of time.
MWJN
Hi NeilB

Without your help and from MadMickV and Others

I would not have contested it

Was totally worth doing and also so glad I won

Hopefully some good news soon for the others

Cardiff Council have been publishing figures again this week on the amount of Revenue the Bus Lane Fines have Generated!

Nice Money Making Scheme! £££
MWJN
Hi Smokey71

How did you get on?

Good News?
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