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Full Version: Barnet - PCN 34 Being in a Bus Lane
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AlienUK
Hello, this case is almost identical to the one here: http://forums.pepipoo.com/index.php?showtopic=124695
Identical time frame and exactly the same camera and location. The only extra is after the bus lane the driver of the vehicle indicates to turn left - this can be seen in the video.

PCN Photo 1: Click to view attachment

PCN Photo 2: Click to view attachment

PCN Video: https://imgur.com/a/PfEwXh8

The driver will be using the de minimis rule. But any other thoughts and ideas?
- The 20 meter rule? The stretch of this bus lane appears to be under 20 meters.
- In the video you will see the driver indicated to turn left to enter a Lidl car park.
- Not all wheels entered the bus lane until at the end of the bus lane.
- Strange place to put such a tiny bus lane at the entrance to a busy supermarket?

Evidence 1: Click to view attachment

Evidence 2: Click to view attachment

Any feedback is appreciated and thank you for reading.
cp8759
Don't hijack other people's threads. You gained an advantage over other traffic which won't help. Upload the pcn, all sides of all pages.
AlienUK
Thank you, here is the PCN, all pages:
Page 1: Click to view attachment
Page 2: Click to view attachment
Page 3: Click to view attachment

Any help appreciated smile.gif
Mr Mustard
The de minimis rule isn't applied to short stretches of bus lane as otherwise there would be no point in installing them.

There is a stupid error on page 2 of the PCN where it says that if you get an Enforcement Notice you will have 28 days from the PCN date in which to make representations (days which will already have expired). They mean from the date of the Enforcement Notice.
cp8759
You could challenge on the error in the wording identified by Mr Mustard, but any challenge to the contravention itself would be hopeless IMO.
AlienUK
Thank you so much for your responses and looking into this case for me. How do I go about challenging for the error in the wording? Are there any examples or other posts that you can refer me to? I need help structuring my reply please.

The wording in Page 2 of the PCN states:
QUOTE
If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Pentalty Charge Notice to make formal representations against liability for payment of the penalty charge.
AlienUK
So no point challenging the contravention itself. What about the reasons for placing such a short bus lane at the entrance to a busy supermarket? Bus lanes are not supposed to be revenue generating for Councils.

In any case, both of you have mentioned the error in the wording on Page 2 of the PCN. Any tips on how to word my challenge? I'm stuck.
cp8759
QUOTE (AlienUK @ Tue, 15 Jan 2019 - 00:54) *
So no point challenging the contravention itself. What about the reasons for placing such a short bus lane at the entrance to a busy supermarket? Bus lanes are not supposed to be revenue generating for Councils.

In any case, both of you have mentioned the error in the wording on Page 2 of the PCN. Any tips on how to word my challenge? I'm stuck.

Bump in the morning and I'll draft something.
AlienUK
Bump smile.gif
cp8759
This is an akward one because under the legilsation, there is little scope for a collateral attack. Nonetheless it's worth a shot, ultimately at the tribunal you can simply argue that the purported PCN isn't a PCN at all. For the sake of consistency, you should never accept that the PCN is a PCN, just refer to it as a purported PCN. Keep all italics, bold and underlined text exactly as I have used it below:
---------------
Dear Sir or Madam,

I dispute liability for the purported PCN that has been served by the enforcement authority. The London Local Authorities Act 1996 specifies under section 4(3) that:

(3) A penalty charge notice under this Part of this Act must state—
...
(e) that, if the penalty charge is not paid before the end of the 28 day period, an enforcement notice may be served by the council or, as the case may be, Transport for London on the person appearing to them to be the owner of the vehicle;
...
(g) the effect of paragraph 2 of Schedule 1 to this Act.


Paragraph 2 of Schedule 1 specifies, insofar as is relevant, that:

2 (1)Where it appears to a person on whom an enforcement notice has been served under paragraph 1 above (in this Schedule referred to as “the recipient”) that one or other of the grounds mentioned in sub-paragraph (4) below is satisfied, he may make representations to that effect to the enforcing authority.
...
(3) The enforcing authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the enforcement notice in question was served.


While the wording of the legislation does not need to be followed verbatim, the substantive meaning must be correctly conveyed. The purported Penalty Charge Notice issued by the authority states that:

"If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will then have 28 days beginning with the date of this Penalty Charge Notice to make formal representations against liability for payment of the penalty charge."

Firstly, the document wrongly states that if the penalty charge is not paid, the authority will issue an Enforcement Notice. This is an unlawful fetter of the council's discretion, the council cannot state on the face of a PCN that it has no discretion to decide whether or not to issue an Enforcement Notice, even if in practice that discretion will never be exercised in the motorist's favour, see James Demery v London Borough of Bexley (case reference 2180251300) where the tribunal held that:

"It seems to me that the Authority has been given a discretion to issue a Charge Certificate and the PCN must state that this discretion exists. The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.

The PCN is non-compliant. It is invalid and cannot be enforced. It also amounts to a procedural impropriety. I allow the appeal.
"

Furthermore, the purported PCN does not convey the meaning of paragraph 2(3): The enforcement authority may only disregard representations made against the enforcement notice if they are received more than 28 days after the date of service of the enforcement notice, but the purported PCN wrongly states that the enforcement authority may disregard representations made against the enforcement notice more than 28 days after the date of service of the penalty charge notice.

As the purported Penalty Charge Notice fails to convey the meaning required by the 1996 Act, I submit that it is a nullity and in the circumstances no penalty can be demanded on the back of it. In other words, because the document served by the enforcement authority is not a Penalty Charge Notice that complies with the 1996 Act it is not a Penalty Charge Notice at all, therefore the statutory conditions under the Act have not been met and as such there is no liability to pay a penalty charge.
AlienUK
Thank you so much for your help. I see what you've done there.. you've combined the will and the EN vs PCN dates together.

What's stopping the Council from correcting the wording of that particular paragraph and the date then reissue the bloody PCN again now that I am bringing it up to their attention in my appeal? Is this something they are allowed to do?
TigerRob
QUOTE (AlienUK @ Tue, 15 Jan 2019 - 18:13) *
What's stopping the Council from correcting the wording of that particular paragraph and the date then reissue the bloody PCN again now that I am bringing it up to their attention in my appeal? Is this something they are allowed to do?

They are not allowed to do that.
cp8759
QUOTE (AlienUK @ Tue, 15 Jan 2019 - 18:13) *
Thank you so much for your help. I see what you've done there.. you've combined the will and the EN vs PCN dates together.

What's stopping the Council from correcting the wording of that particular paragraph and the date then reissue the bloody PCN again now that I am bringing it up to their attention in my appeal? Is this something they are allowed to do?

As TigerRob says, they can't do that, they only get one chance at getting it right.
AlienUK
Update: I sent my appeal including all the above (with the fantastic help of cp8759) and have now received a reply back from the council rejecting my appeal.

Here is a copy of the letter both sides:
https://imgur.com/a/1HB8lbj

They have offered the 50% discount again. I have asked about the accuracy of the timing of the CCTV machine and they have stated the relevant department will be in touch in due course. Shouldn't the PCN be put on hold until I am in receipt of the CCTV timing accuracy information that I have requested? What do you recommend?
Mr Mustard
The traffic order probably contains an exemption for picking up and setting down passengers

Traffic order

cp8759
In which case it's a no brainer to take this all the way
AlienUK
The CCTV footage shows the vehicle using the indicator and slowing down/stopping but doesn't actually show the act of picking up / setting down passengers. Is this enough evidence to argue this point?

What is the process now? Just wait 28 days and receive the EN then make a formal representation?
cp8759
Well were you actually there to pick up or drop of passengers?

The next step is to wait for the enforcement notice.
AlienUK
Yes at the supermarket car park right at the end of the video clip.
cp8759
QUOTE (AlienUK @ Mon, 4 Feb 2019 - 20:30) *
Yes at the supermarket car park right at the end of the video clip.

I don't think that will help in this instance.
AlienUK
Today is the last day of the 50% discount. If I wait for the EN then make a formal representation and this gets rejected will the council offer the 50% discount again? Or does it go straight to appeal to the Parking Adjudicator?

I just want to understand the process please.
cp8759
QUOTE (AlienUK @ Thu, 7 Feb 2019 - 21:21) *
Today is the last day of the 50% discount. If I wait for the EN then make a formal representation and this gets rejected will the council offer the 50% discount again? Or does it go straight to appeal to the Parking Adjudicator?

I just want to understand the process please.

In case you have not yet paid, in most instances the discount is re-offered at the EN stage.
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