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confusedbythecity
Hello,

My partner has received 2 PCNs for contravention 52m on the same day, one at Princes Street and one at Lombard Street. I have no idea if we can appeal? He has driven that route for many years and said he didn't see any signs that said he couldn't drive that way sad.gif I've uploaded the PCN letters and hopefully links to the videos on Youtube?. Any help and guidance would be most welcome. Thanks in advance!

https://youtu.be/6t5cfemtYX0

https://youtu.be/_lyQx6_jf6I
Mad Mick V
OP---have a read of the Bank Junction cases on this site. There should be viable appeals which can transpose to these PCNs

Mick
confusedbythecity
Thanks Mick, I'll have a look.
confusedbythecity
Sorry for huge cut and paste, I'm sure there must be a more efficient way? IS this what I could use for the Lombard Street appeal?

1) Mandatory Road Markings Missing

A Diagram 953 sign requires a road marking which specifies either a Bus Lane or a Bus Gate. This is not present as demonstrated by the video recording and therefore the Authority has not complied with Regulation 18 The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996. To emphasise this deficiency, which I believe renders the PCN invalid, I offer the following case as evidence:-

X-bert Haulage t/a Glynns Skips

2170469229

I adjourned this case for the following reason:

The enforcement authority is offered the opportunity to make further submissions on the question of signage. The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent. Schedule 9 Part 5 para 1 TSRGD 2016 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 .

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 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 of the sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it.

In the absence of any further submissions or evidence from the enforcement authority I am unable to be satisfied the prohibition relied on was correctly indicated. The Appeal is therefore allowed.

2) Contravention does not relate to a Diagram 953 Sign

The sign in place is to Diagram 953 which relates to a Bus Gate therefore anything other than a bus lane contravention is unsustainable. I offer the following case as evidence in support of this ground:-

2170474681 (Princes Street)

A contravention can occur if a vehicle is driven so as to fail to comply with a prohibition on certain vehicles.

There appears to be no dispute that the vehicle was in Princes Street, as shown in the closed circuit television (cctv) images produced by the Enforcement Authority.

The vehicle is seen to pass the sign which indicates the route is restricted to buses and pedal cycles.

This is a permitted variant of Diagram 953 at Item 33 in Part 2 of Schedule 3 to the Traffic Signs Regulations and General Directions 2016, and is a different sign to that which indicates motor vehicle are prohibited, being Diagram 619 at Item 11 of that Schedule.

Considering all the evidence before me carefully I cannot find as a fact that, on this particular occasion, the contravention actually alleged did occur.

Accordingly this appeal must be allowed.


3) No video evidence that the vehicle passed the prohibition sign

The Authority seeks to enforce the PCN without providing adequate evidence that the vehicle passed the prohibition sign. It relies on the video recording which is deficient in this regard. The following case is submitted in evidence to support this ground:-

2170419027

A Personal Hearing was scheduled for 11 a.m. today, 26th October 2017; the Appellant did not attend therefore it falls to me now to determine this matter on the evidence of both parties presently before me.

The Enforcement Authority assert that vehicle LY08FDO, not being of the specified class, was driven at a location restricted for use by vehicles of specific classes only; the Appellant denies liability for the ensuing Penalty Charge Notice on the basis of prevailing circumstances as detailed in the driver's written representations.

The Enforcement Authority who assert that the said vehicle was so driven contrary to, and during the operative period of, a restriction are obliged to adduce evidence to the requisite standard to substantiate that assertion.

The evidence upon which the Enforcement Authority rely comprises the certified copy Penalty Charge Notice, extracts of governing Traffic Management Order provisions, and contemporaneous photographic evidence: CCTV footage and still frames taken there-from revealing the said vehicle in situ.

The Enforcement Authority also adduce a map/plan together with a number of images showing signage at strategic points; these are of limited evidential value since it is not possible to correlate the images to contemporaneous capture. The map/plan indicates that much of the location stated in the Penalty Charge Notice is available to vehicles other than those specified for the purpose of access.

The contemporaneous photographic capture was examined, repeatedly, to evaluate the allegation in conjunction with the Appellant's representations

The contemporaneous photographic capture demonstrates the said vehicle proceeding in a direction away from the camera; no restrictive signage is visible.

Evidentially I cannot satisfied that this contravention occurred, accordingly I allow this Appeal.

4) The Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO

The Authority has attempted to enforce a PCN which relates to conditions within its TMO relating to “Using a route restricted to certain vehicles” whilst a Sect 36 sign is in place. The contravention given is therefore unsustainable because the Authority may only demand payment on the grounds that a motorist failed to comply with the sign in place (Diagram 953).

To reinforce this ground I submit a key case which the Council concerned took to Review:-


2170058483 (Extract)

“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.

Section 4 of the 2003 Act provides, so far as is material to this case,

“(1) This section applies where

(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or

(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.

(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice

(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and

(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following

(i) the person appearing to them to be the operator of the vehicle; and

(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.



(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign.

(6) No penalty charge shall be payable under subsection (5)(a) above where

(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.

Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)

I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.

------------------------------
REVIEW

This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.

The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:

An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong

It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.

Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .

"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign."

Section 4 (6) goes on to provide:

" No penalty charge shall be payable under subsection (5)(a) above where

the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)

It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.

The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.

The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.

The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.

I would be grateful therefore if you would cancel the PCN in this instance.

Yours
-----------------------------------------------

Mick
Mad Mick V
Yes, if you are sure that each of the circumstances relate to your case.

The other PCN should follow along similar grounds but it would be best to make separate appeals.

Mick
confusedbythecity
I'll be honest, I have no clue what I'm doing with this! I don't know if the circumstances are appropriate sad.gif
confusedbythecity
Sorry for the cut and paste again, but can I use this for the second appeal?

2160273606

The appellant does not deny the contravention but states that he was travelling to Highgate hospital and was a stranger to the area and made the same mistake twice in one day as a consequence of which he received two PCN's
I am satisfied form the evidence that the contravention did occur. However I also find that as the there is a time lag in issuing a PCN by post, a motorist can unwittingly continue to make the same mistake until they receive notification of the PCN and in these circumstances I find the second PCN issued to be a continuing contravention and allow the appeal in relation to the second PCN under case number 2160273606 but refuse the first PCN issued under case number 2160273661


What bits do I need to change so that I can use it?
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