Help - Search - Members - Calendar
Full Version: TRO doesnt match length of marking and T-bar missing
FightBack Forums > Queries > Council Tickets & Clamping and Decriminalised Notices
Domb
Hello

I would appreciate any help in my situation which i am struggling to find any direct reference to:

I received a PRN and have checked the wording, codes etc which appear to be correct. I wrote to the council as follows after checking out the TRO and have received a email from the council dismissing my attenpt to challenge. What should i do next?

Many thanks, Dominic


****The council's response:

We have considered everything in your letter but do not feel that you have made grounds for cancelling the Penalty Charge Notice. We have rejected your reasons for cancellation because we are satisfied that the lines in this location are correct and sufficiently clear to indicate that a restriction applies.

If you have not paid before the end of the period of 28 days beginning with the date of service of the PCN then we will issue a Notice to Owner to the registered keeper of the vehicle. Formal representations against the PCN may be made at that stage and the procedure for doing so will be explained on the Notice to Owner.


****My email:


Dear Sir

I write with reference to PCN Number FA00824646 served on 08/01/2011 on the west side of Avondale Road, Truro. Vehicle registration number WL10 DLV.

I wish to challenge the PCN on the following grounds:

1.The contravention did not occur. The information on the TRO does not match the roadmarkings on the street making the restriction unenforceable.

On inspection of the TRO "The County of Cornwall (Truro) (Various Streets) (On-Street Parking Places and Restrictions on Waiting) (Consolidation) Order 2010" dated 29 January 2010 I have identified a significant discrepancy between the TRO and actual markings in respect of their length.

Ref 7 on the TRO - Avondale Road (U6077) states: (b) on the west side from its junction with Station Road for a distance of 14 metres in a southerly direction.

Having measured the double yellow lines (diagram 1018.1 markings), with a calibrated measuring device, it extends 12.7m on the west side from the junction with Station Road in a southerly direction. This is a discrepancy of 1.3m. The information on the TRO does not match the roadmarkings on the street and therefore the restriction is unenforceable.

2. The contravention did not occur. The roadmarkings do not conform with the Traffic Signs Regulations and General Directions (TSRGD) 2002.

TSRGD 2002 states on diagram 1018.1 that there should be a 50mm end bar at the termination of the double yellow lines. It can be clearly seen from the attached photographs that the end bar is missing. I also question the quality and therefore the validity of the lining. There should be two yellow lines, 50mm width with a spacing of 50mm (+/- stated tollerances) as specified in the TSRGD 2002. From the photos attached it can be seen that there are four yellow lines all of differing widths with varied spacing which is non-compliant with the Regulations and therefore the restriction is unenforceable.

Due to the reasons above I trust the PCN will be cancelled.
Domb
Please find attached photos of missing t-bar and lines

Thanks

Dominic

Click to view attachment

Click to view attachment

clark_kent
If the yellow line is shorter than its meant to be the road on which its painted is still restricted its only invalid if its longer.
quickboy
QUOTE (Domb @ Tue, 1 Feb 2011 - 22:53) *
****The council's response:

We have considered everything in your letter but do not feel that you have made grounds for cancelling the Penalty Charge Notice. We have rejected your reasons for cancellation because we are satisfied that the lines in this location are correct and sufficiently clear to indicate that a restriction applies.

I think you would have a job convincing the adjudicator that the lines are misleading from your pics. The missing T Bar issue has consistently been rejected by the adjudicator unfortunately.

However please post up both sides of the PCN, as there may be faults in the wording. Will be interesting to see how the "new" Cornwall Council branded PCN shapes up.
Bogsy
In any further appeal include all the text below in the same format. It is based on the traffic order you mention above and available here.

The alleged contravention did not occur. The traffic regulation order fails to define what a “restricted street” is and it does not prescribe that it is a contravention to park in a restricted street during prescribed hours.

Contravention code 01 was originally devised by the London Councils and reflected the fact that London council’s traffic orders made specific reference as to what is to be considered “restricted street”. This can be seen in the example below (for reference, Schedule 1 concerned No Waiting restrictions);

“restricted street” means any street within the London Borough of Lewisham specified in Schedule 1 (hereinafter referred to as a “scheduled street”) and includes, except where the context otherwise requires, so much of every other street within that London borough which is not a scheduled street or a street specified in Schedule 4 and which joins any scheduled street as lies between the kerb line of the scheduled street and a point 18.29 metres distant therefrom and any reference in this order to any restricted street shall be construed accordingly, provided that the expression “restricted street” shall not for the purposes of this order include–

(a) any area on a highway or any place within the London Borough of Lewisham for the time being designated or described as a parking place by any order made or having effect as if made under section 6 or section 45 of the Road Traffic Regulation Act 1984;

(b) in its application to a street specified in column (2) of Schedule 5, that length of street which extends 18.29 metres measured in the direction specified in column (3) of that schedule from the kerb line of the scheduled street specified in column (4) of that schedule, and in this definition the expression “kerb line” in relation to a scheduled street shall mean that imaginary line which is the projection of the line formed by the edge of the main carriageway of the scheduled street adjacent to its junction with the side in question of any other street;

© any length of street designated as red route;


The London boroughs would not go to the trouble of taking great care to specifically define what is a “restricted street” if it served no purpose and was unnecessary. Without a traffic order defining “restricted street” then it is reasonable to apply common language. The commonplace definition of “restricted” is thus; “place limits on, confine, restrain”. Therefore, in essence, the PCN informed me that I parked in a street during hours that the street is subject to parking restraints. It does not however inform me of how the vehicle contravened a particular parking restraint or even what parking restraint was contravened. It is highly important to note that not all parking restrictions prohibit parking (eg: parking place restrictions) and so parking in a restricted street during prescribed hours is not a contravention by default since it can be lawful. It is only a contravention if the traffic order is drafted correctly in the manner exampled above.

A street is often subject to a number of differing parking restrictions. For example, one particular parking bay in a street may be restricted to permit holders only between the prescribed hours of 9am to 6pm while another parking bay may be restricted to Pay & Display between the prescribed hours of 8am to 6pm. However, a person who lawfully parks their vehicle in ether bay during the prescribed hours is doing just as my vehicle was also doing, that being, “parked in a restricted street during prescribed hours”. Quite simply, the ground stated on the PCN is not fit for purpose since it does not distinguish between a vehicle that is lawfully parked in a restricted street during prescribed hours and one that is not.

The use of this equivocal ground is potentially prejudicial as a person may prepare an appeal focusing on a parking restriction that is not actually relevant to the reason why the PCN was served. For instance, many PCN’s are served upon vehicles that are parked partly in a parking space with either their front or rear end slightly overhanging an adjacent single or double yellow line. Often where this happens a PCN is served upon the vehicle for being “parked in a restricted street during prescribed hours”. However, due to the diverse meaning in plain English of this ground, the recipient of the PCN may wrongly but reasonably assume that they contravened the parking place restriction rather than be aware that they fractionally infringed upon the “No Waiting” yellow line restriction. In the interest of justice a person needs to easily comprehend why their vehicle was not considered lawfully parked so that they can either avoid doing so again or gather the relevant evidence for any subsequent appeal.

It must also be remembered that the ground on the PCN will be repeated on the NtO and the owner may not have been the driver. Therefore, unless an NtO is accompanied each and every time by adequate photos of the signage, the owner when applying common language will not be able to deduce with certainty what parking restriction the expression “restricted street “concerns and was allegedly contravened. The general principles of law dictate that a person should not have to decipher the ground stated on a PCN or guess what restriction was allegedly contravened; it should be unequivocal. In a day and age when the UK is host to a wealth of visitors and residents whose first language is not English and when central and local Government both readily advocate the use of plain English on all public forms and documents it is nonsensical to use language on a PCN that is ambiguous or may require a person to refer to the glossary of a far away traffic order to gain a degree of understanding of what they allegedly did wrong.

The council may be using the standard contravention codes but it should be remembered that these contravention codes have no statutory authority and cannot be relied upon as a defence as made clear in the key adjudication case between Metrick v Camden (Case no 207034396A).

I find the ground of “parked in a restricted street during prescribed hours” to be unsupported as a parking contravention prescribed by the traffic order. The order may prohibit waiting in certain lengths of road at certain times but the order does not define and correlate waiting restrictions with being "restricted street" nor does it define and correlate what is considered "prescribed hours". Consequently the ground given on the PCN is ineffective in conveying what I allegedly did wrong and as such it does not satisfy paragraph 1(e) contained within the Schedule to “The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and the penalty charge should be cancelled forthwith rather than drag this matter to adjudication.

Yours with love, hugs and kisses.
quickboy
QUOTE (Bogsy @ Wed, 2 Feb 2011 - 19:28) *
In any further appeal include all the text below in the same format. It is based on the traffic order you mention above and available here.

Just an observation. The TRO cites RTRA 1984, whereas the council website mentions TMA 2004. Any merit in this discrepancy?

An extract from the TRO: "THE CORNWALL COUNCIL in exercise of their powers under Sections 1, 2, 32 and 35 (and Part IV
of Schedule 9) to the Road Traffic Regulation Act 1984 (hereinafter referred to as “the Act of 1984”)
and of all other enabling powers, and after consultation with the Chief Officer of Police in
accordance with Part III of Schedule 9 to the Act of 1984"
Bogsy
QUOTE (quickboy @ Wed, 2 Feb 2011 - 21:56) *
QUOTE (Bogsy @ Wed, 2 Feb 2011 - 19:28) *
In any further appeal include all the text below in the same format. It is based on the traffic order you mention above and available here.

Just an observation. The TRO cites RTRA 1984, whereas the council website mentions TMA 2004. Any merit in this discrepancy?

An extract from the TRO: "THE CORNWALL COUNCIL in exercise of their powers under Sections 1, 2, 32 and 35 (and Part IV
of Schedule 9) to the Road Traffic Regulation Act 1984 (hereinafter referred to as “the Act of 1984”)
and of all other enabling powers, and after consultation with the Chief Officer of Police in
accordance with Part III of Schedule 9 to the Act of 1984"


Hi QB.......I don't follow.

The order is made under the RTRA 1984 as it should be and then its provisions are enforced under the TMA 2004 by virtue of schedule 7.

quickboy
QUOTE (Bogsy @ Wed, 2 Feb 2011 - 22:07) *
The order is made under the RTRA 1984 as it should be and then its provisions are enforced under the TMA 2004 by virtue of schedule 7.

Now I see! I had thought that RTRA 1984 had been completely superceded by TMA 2004 including all references to it!
Domb
Click to view attachment

Clark-Kent, Quick Boy and Bogsy

Thank you very much for your responses.

Quick Boy - I have attached a copy of the PCN for your review. Many thanks

Bogsy - your comments regarding use of the 01 code appear to be a fundamental error by the Council. Is this a widespread problem with other Local Authorities? Are you aware of the success rate with your proposed approach? How would you rate chances of success?

Thanks again
Bogsy
QUOTE (Domb @ Thu, 3 Feb 2011 - 12:49) *
Bogsy - your comments regarding use of the 01 code appear to be a fundamental error by the Council. Is this a widespread problem with other Local Authorities? Are you aware of the success rate with your proposed approach? How would you rate chances of success?


Outside London it is reasonably widespread. I'll be honest and confess that as yet there has been no definitive determination on the argument, so no successess or failures yet. The truth is, is that it is a radical argument and challenges the cemented view that code 01 is appropriate wherever yellow lines are placed.

At the end of the day the contravention described on the PCN has to correlate to a contravention as described by the traffic order and Cornwall's order does not do this explicitly. Yes it's true that you, in common language terms, were parked in a restricted street during prescribed hours but so was anybody else whether lawfully parked or unlawfully parked. The PCN gives no clarity of what was contravened or how, surely this hinders a persons ability to learn what they did wrong? The purpose of a PCN is to encourage people to park lawfully so it stands to reason that a person needs to know what they did wrong to avoid doing so again. The PCN is not fit for purpose in my view.

Ideally I'm hoping that the council will not want to risk having thousands of their code 01 PCN's ruled as unlawful all for your dosh and will pul out just before any adjudication hearing. Only push this argument if you feel it is fitting and has merit as I cannot guarantee that it will succeed.
Domb
Bogsy, thanks for your explanation. I am always someone who likes to test a weakness! If I persue along these lines does it mean I must be prepared to go to an adjudication hearing? My 28 day period has now expired so I am expecting an NTO to be sent to the owner of the car - my employer the Council! If it does go to a hearing and I loose will the penalty be higher, will there be costs? I have not yet made a further appeal based on the 01 code and am assuming i will get the opportunity at the NTO stage.

Many thanks for your help, your knowledge is extensive. Are you in a legal profession or a traffic engineer?
hcandersen
Send in an informal NOW - the council may still consider after the end of the 28-day period.

If you don't, you risk being out of the loop and not being able to do anything. As driver you have no rights under the TMA to make any other representations: it's owner liability and the owner might decide to pay and, if your contract of employment permits, might stop this from you.

As regards your challenge:
Agree with Bogsy and the OP as regards the lines of challenge, but would put these in a slightly different way.

As regards the issues of the incorrect termination of the DYL and its incorrect length, I would stress that the main fault is that is does not terminate correctly at the end of its permitted length as opposed to it terminating incorrectly at a location where is shouldn't be anyway. You still get both points in, but with the emphasis revised.

As regards the issue of "restricted street", at this stage I'd be tempted to keep my powder dry and only require the council to give you what might be termed further and better particulars of this alleged contravention because you've not been able to find any reference to a "restricted street" in any of the council's on-line documents and therefore you're unable to give proper consideration to your challenge.


But whatever, get a challenge in NOW, then come back and we can consider what else to do in the float time provided by the process.

HCA
Domb
Thanks for your proposal HCA, for your and Bogsy's information I have emailed the Council as follows:


Dear Ms Wyllie

Penalty Charge Notice No: FA00824646

Thank you for your email.

Following consideration of the alleged contravention, my initial informal challenge, and consultation with my advisors, I would like to revise my informal challenge as follows:

The contravention did not occur. The diagram 1018.1 double yellow line markings do not terminate correctly at the end of their permitted length. Please refer to photographs contained in my previous email.

However more fundamentally can you please provide me with further and better particulars of this alleged contravention [(01) Parked in a restricted street during prescribed hours] because I have not been able to find any reference to a "restricted street" in any of the council's on-line documents, specifically TRO "The County of Cornwall (Truro) (Various Streets) (On-Street Parking Places and Restrictions on Waiting) (Consolidation) Order 2010" dated 29 January 2010 and therefore I am unable to give full and proper consideration to my challenge.

Many thanks

Regards



HCA, nice approach to tee this one up with the restricted street issue, i can see what you are doing!

Thanks for yourt help,

Domb
Domb
Dear all

Please see below the response I have received from Cornwall Council. As the 28 days has expired I guess I will now receive a NTO via my employer (also Cornwall Council) who the car is registered to and will have to make a formal representation against the PCN.

The council confirm there is a T-bar in place, from the photos you can see the oringinal 100mm lines which include a T-bar have been overlaid with 50mm lines and there is no 50mm T-bar.

I also dont think there are time plates which the council claim along with yellow lines denotes a restricted street, see below.

If I make a formal representation will my fine increase or will I be liable for further costs?

Many thanks

Domb


01 Parked in a restricted street during prescribed hours

Date of contravention: 08/01/2011 10:17:00
Location of Contravention: AVONDALE ROAD (Truro)(FA)

I refer to your second letter relating to the issue of the above Penalty Charge Notice.

I can note the content and can advise that there is a T-bar in place at the end of the section of yellow lines on which your vehicle was parked.

I note your query regarding the contravention description and can advise that the definition of a restricted street is any street or part of a street where parking restrictions are in force, denoted by time plates and yellow lines. This would therefore apply to this section of Avondale Road.

If you are unhappy with your first reply and wish to make a further challenge, you should await the Notice to Owner upon which you can make your formal representations. Should your representations be rejected at this stage, you will be sent a Notice of Rejection together with a leaflet telling you how to appeal.

The Council is not obliged to respond to any further representations unless they are made after the Notice to Owner document has been issued.

The Notice to Owner will be sent to the registered keeper of the vehicle, once these details have been requested and received from the DVLA. As the Notice to Owner is a legal document, the registered keeper details must be obtained directly from the DVLA before it can be legally issued. We cannot account for the length of time that it will take to obtain this information, however it is usually within 14 days of a request being sent.

You can make payments on-line or by telephone with a Credit or Debit Card or by Cheque. Please log onto
www.cornwall.gov.uk/parkingpayments or call 0845 452 4538 to make a Credit or Debit Card payment or make cheques payable to Cornwall Council and send them to Parking Services, PO Box 664, Truro, TR1 9DH. You will need to quote the Penalty Charge number when making any payment.

If you have not paid before the end of the period of 28 days beginning with the date of service of the PCN then we will issue a Notice to Owner to the registered keeper of the vehicle. Formal representations against the PCN may be made at that stage and the procedure for doing so will be explained on the Notice to Owner.

Yours sincerely
Bogsy
QUOTE (Domb @ Fri, 18 Feb 2011 - 21:25) *
I note your query regarding the contravention description and can advise that the definition of a restricted street is any street or part of a street where parking restrictions are in force, denoted by time plates and yellow lines. This would therefore apply to this section of Avondale Road.


Really.......If I were you I'd ask them to specify where this definition can be found. I don't see it in any of their traffic orders.
Lew
QUOTE (Domb @ Sun, 6 Feb 2011 - 08:12) *
My 28 day period has now expired so I am expecting an NTO to be sent to the owner of the car - my employer the Council!


Am I missing something here or does the council own the vehicle?
If so are they not liable and not the driver?
if so - why fight it?
they can't make you pay out of your wages unless you agree, it's their vehicle

Obviously that doesn't stand if I did read it wrong and the owner of the ehicle - your employer isn't the council
This is a "lo-fi" version of our main content. To view the full version with more information, formatting and images, please click here.
Invision Power Board © 2001-2024 Invision Power Services, Inc.