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Deborah*
Hello,

I was wondering if anyone could help me. I received a PCN for entering and stopping in the box junction at the intersection of Bagley’s Lane and New Kings Road while turning right onto New Kings Road. I thought that the law was clear on this matter that you are allowed to stop in order to turn right in box junctions for so long as you are prevented from completing the right turn by oncoming vehicles or other vehicles which are stationary whilst waiting to complete a right turn.

I was behind another vehicle also turning right and due to the red lights further down New King’s Road backing traffic up to the box junction, I had to stop in the box junction. I appealed the PCN on the basis that I was turning right and stopped behind another stationary vehicle waiting to complete his right turn. My appeal was rejected with the reasoning from Hammersmith and Fulham that,

"No vehicle is supposed to be driven onto a box junction unless and until the exit can be seen to be
clear. The only exception to this rule is that a vehicle may enter the box junction &
wait in it when turning right against oncoming traffic. This exemption does not
apply at the junction of Bagleys Lane with New Kings Road to vehicles turning right
out of Bagleys Lane. There is no oncoming traffic as it is a T junction & traffic on New
Kings Road is held at signals west of Bagleys Lane allowing drivers to turn right out
of Bagleys Lane without waiting for a gap in oncoming traffic. Your claim that there
was no contravention of the box junction regulations is rejected."

I called up and asked where this is a written rule and they said this is their interpretation of the Highway Code. I would like to know if anyone could advise me on this matter as I can't find examples of any similar case either winning or losing at adjudication. I am attaching the rejection. It has images at the bottom.



Border_Collie
QUOTE
174
Box junctions. These have criss-cross yellow lines painted on the road (see 'Road markings'). You MUST NOT enter the box until your exit road or lane is clear. However, you may enter the box and wait when you want to turn right, and are only stopped from doing so by oncoming traffic, or by other vehicles waiting to turn right. At signalled roundabouts you MUST NOT enter the box unless you can cross over it completely without stopping.


[Law TSRGD regs 10(1) & 29(2)]


It's pretty clear to me.
Deborah*
I thought it was clear too. Do Hammersmith and Fulham have a valid argument here? Family and friends are telling me just to pay and let it go.
southpaw82
The Highway Code is not the law. The law says:

QUOTE
7.—(1) Except when placed in the circumstances described in paragraph 8, the road markings shown in diagrams 1043 and 1044 shall each convey the prohibition that no person shall cause a vehicle to enter the box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles.

(2) The prohibition in sub-paragraph (1) does not apply to any person—

(a) who causes a vehicle to enter the box junction (other than a box junction at a roundabout) for the purpose of turning right; and

(b) stops it within the box junction for so long as it is prevented from completing the right turn by oncoming vehicles or other vehicles which are stationary whilst waiting to complete a right turn.
Deborah*
What I am trying to understand is whether H&F's argument that you cannot stop when turning right in a box junction if it is a T Junction is valid. They claim that because it is a T Junction and there is no oncoming traffic then you cannot stop when turning right and that the exemption "(b) stops it within the box junction for so long as it is prevented from completing the right turn by oncoming vehicles or other vehicles which are stationary whilst waiting to complete a right turn" does not apply.

It seems to me that this is potentially "H&F using wording incompatible with legislation on Notice of Rejection following a yellow box junction contravention" which I saw on someone else's post.

Any insight would be much appreciated.
southpaw82
Without knowing the junction in question it's difficult to comment. You tell us - were you prevented from turning right by oncoming traffic or not?
d-evil
If you search that junction in google there is LOADS and i mean LOADS about it. It is basically a cash cow. my uncle is a taxi driver and just the other day got caught. This is the reps that i sent, not had a response yet tho.

There is no way any vehicle can actually make the turning without being in the YBJ due to the set of traffic lights and their timings. Its basically entrapment.


QUOTE
I require you to cancel the above PCN and supply me with written confirmation that I do not owe Hammersmith and Fulham any money under PCN (Your PCN number here).

Please see below why I require the cancellation of the PCN.


1) The alleged contravention did not occur.

The alleged contravention as defined in legislation is as quoted below:

"Prohibition conveyed by markings in diagram 1043 or 1044
7. - (1) Except when placed in the circumstances described in paragraph 8, the road markings shown in diagrams 1043 and 1044 shall each convey the prohibition that no person shall cause a vehicle to enter the box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles."

I contend that the PCN issued fails to comply with London Local Authorities and Transport for London Act 2003 (LLATLA 2003), s.4(8)(a)(i) as quoted below:

"(i) the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;"

The alleged ground is found wanting in the fact that it states only "Entering and stopping in a box junction when prohibited" and I assert that it must further state "due to the presence of stationary vehicles". In support of this point I cite PATAS case Jennings v Transport for London (Case No. MV0285GT01), the findings of which were advised to all London Boroughs in the Joint Adjudicators Report 2005/06 as quoted below:

"Yellow Box contravention

The case of Jennings v Transport for London (see Cases Digest) demonstrates the importance of understanding the precise nature of the contravention, as defined in legislation or regulations. A contravention does not occur simply because a vehicle stops in a yellow box; it only occurs when it does so due to the presence of stationary vehicles. Authorities need to assess if this has occurred before they issue a Penalty Charge Notice, and should also ensure that the wording on the Penalty Charge Notice reflects this second element of the contravention."

I contend that the PCN issued does not substantively, correctly or lawfully state the precise nature of the contravention and therefore fails to satisfy the conditions imposed by statute with respect to LLATLA 2003, s.4(8)(a)(i).

On this point I refer to the binding High Court ruling of Jackson J in R v The Parking Adjudicator (ex p Barnet), who at paragraph 41, states:

"Mr Lewis submits that even if there was non-compliance in this respect, nevertheless no prejudice was caused, PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

The pertinent points to this case being, "Prejudice is irrelevant and does not need to be established." and "If the statutory conditions are not met, then the financial liability does not arise."

Any further attempt to enforce such a fatally flawed PCN would be ultra vires and I thus require you to cancel the PCN forthwith.


2) The penalty exceeded the amount applicable in the circumstances of the case.

I contend that the PCN issued is again fatally flawed as it unlawfully fetters the ground for appeal of Taken Without the Owners Consent (TWOC). The ground as stated in LLATLA 2003, Schedule 1, s.1(4)© is as quoted below:

"c) that at the time the alleged contravention or failure took place the person who was in control of the vehicle was in control of the vehicle without the consent of the owner;"

The PCN as issued unfairly and unlawfully restricts the ground by requiring that I supply proof either from the police or an insurance company. However in the case where the vehicle had been taken without consent by a family member with the belief that consent would have been given had they been able to ask, no such proof would be available, this is a clear and unequivocal restriction of the ground as prescribed in law and I submit in support of this point PATAS case Geffen v Kensington and Chelsea (Case No. 1970002274) and refer again to R v The Parking Adjudicator (ex p Barnet), paragraph 41 as quoted above.

The statutory conditions have not been met and financial liability has not arisen.

In the event that the enforcement authority wish to argue that this ground is not applicable in the circumstance of the case I refer them to the findings in PATAS case Elaine Patricia Lavall v London Borough of Hammersmith and Fulham (Case No: 2040135996) , where adjudicator Martin Wood at paragraph 8 states:

"As to the argument that the circumstances do not fall within one of the statutory grounds for contesting liability in paragraph 2(4) of Schedule 6 to the 1991 Act, they seem to me to fall within ground (f): that the penalty charge exceeded the amount applicable in the circumstances of the case. If the PCN was not valid, the penalty payable would be nil and therefore would exceed the penalty claimed by the local authority. In any event, in R v Parking Adjudicator Ex p. Bexley [1998] RTR 128, the Court expressly rejected the argument that challenges on collateral matters of law could only be brought by way of judicial review and held that parking adjudicators have the power to consider issues of collateral challenge. The arguments put forward in this case have in truth already been considered by the Court in Bexley and rejected. I would also note Wandsworth LBC v Winder [1985] 1 AC 461 in which the House of Lords held that a defendant in civil proceedings brought by a public authority could raise a public law issue in his defence."

Again any further attempt to enforce such a fatally flawed PCN would be ultra vires and I thus require you to cancel the PCN forthwith.


The alleged contravention did not occur.

I also do appeal against the penalty charge served upon me on the grounds that the council has failed in their statutory duty to sign the restriction in accordance with the law. The s.36 traffic sign used is not a permitted variant of any diagram from the TSRGD 2002. The traffic sign as marked on the road matches neither of the prescribed diagrams 1043 or 1044 or any permitted variation thereof. The sign used by the Council does not comply with the aforementioned diagrams as it does not meet the curb at all of the corners that are adjacent to the curb as clearly depicted in TSRGD 2002 diagram 1043. In support of this point I submit the case of Robert Arthur Fielden v Transport for London (case No. 2060436860), where the adjudicator Anthony Edie, found that:

“I have considered the diagrams in schedule 6 of The Traffic Signs and General Directions 2002. I have considered in particular diagram 1043. There is no other diagram indicating a box junction at a crossroads. I note that 1043 requires all four corners of the road marking to meet the curb line…

I have decided that this appeal should be allowed because the road markings are not compliant with diagram 1043 in The Traffic Signs and General Directions 2002.”

As this is clearly not the case with respect to the box junction that the Council are trying to enforce, which fails to meet the curb line at any corner, it is necessary for it to be legally enforceable that special approval from the DfT has been sought and I put Hammersmith and Fulham Council to proof of this.

The council operates moving traffic enforcement under the provisions of the London Local Authorities and Transport for London Act 2003 this act sets out that:

(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.

Section 64(1) of the Road Traffic Regulation Act 1984 defines a traffic sign as either being.
(a) specified by regulations made by the Ministers acting jointly, or (b)authorised by the Secretary of State, Section 64(2) of the RTRA 1984 adds further that;
(2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character.

The regulations referred to in section 64(1)(a) of the RTRA 1984 are known as the Traffic Signs Regulations and General Directives 2002. DfT circular 02/2003 informs about their purpose;

The TSRGD 2002 prescribe the designs and conditions of use for traffic signs to be lawfully placed on or near roads in England, Scotland and Wales.

Regulation 11 within the TSRGD 2002 reiterates this circular and section 64(2) of the RTRA 1984.
11. — (1) Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, Part II of Schedule 10 and Schedule
12 to traffic on roads shall be of the size, colour and type shown in the diagram.

Further to the TSRGD 2002 the DfT has compiled and published numerous manuals known as the “Traffic Signs Manuals” to provide deliberate and extensive detail and information on how Local Authorities are to apply and interpret the plethora of regulations and directions given within the TSRGD 2002. These manuals contain no confusion as to how the DfT expect Local Authorities to interpret the law on traffic signs.

The TSM Chapter 1 advises;

1.15 Authorities may only use signs–
including carriageway markings–of a
size, colour and type prescribed or
specially authorised by the Secretary of
State, The prescribed signs are included
in The Traffic Signs Regulations and
General Directions 2002.

1.18 The use on Public highways of
non-prescribed signs which have not
been authorised by, or on behalf of,
the Secretary of State, is illegal and
Authorities who so use unauthorised
signs act beyond their powers.
Additionally, an unauthorised sign in
the highway is an obstruction.

The TSM Chapter 3 advises;

2.1 All traffic signs placed on a highway or on a
road to which the public has access (right of passage
in Scotland), as defined in section 142 of the Road
Traffic Regulation Act 1984 and amended by the
New Roads and Street Works Act 1991, must be
either prescribed by Regulations or authorised by the
Secretary of State for Transport……. and that no non-prescribed
sign is used unless it has been formally authorised
in writing. Failure to do so may leave an authority
open to litigation, or make a traffic regulation order
unenforceable.

The TSM Chapter 5 advises;

2.1 All road markings placed on a highway or road
to which the public have access must be either
prescribed by Regulations or authorised by the
Secretary of State for Transport.

2.5 Care should be taken to ensure that markings
are used only in the manner prescribed in the
Regulations, and that no non-prescribed marking is
used unless it has been authorised in writing. Failure
to do so may leave an authority open to litigation, or
make a traffic regulation order unenforceable.

In addition the DfT has compiled and published more than 14 series of extensive detailed works known as “Working Drawings” to assist Local Authorities in ensuring that they get the design of traffic signs correct. It is nonsensical that the DfT would go to such extreme lengths of detail and precision if they believed legislators intended Local Authorities to be allowed freedom of action or any degree of autonomy in traffic sign design.

Although both the RTRA 1984 and the TSRGD 2002 were enacted prior to the LLATLA 2003 they are both still active and form the legal foundation for traffic enforcement under the LLATLA 2003.

Considering all the above, what it is evidently clear, ever since the introduction of the RTRA 1984 up to the publication in 2008 of the DfT “Operational Guidance to Local Authorities”, is that there has been consistent and explicit direction by both the legal profession and Government, as to what is considered to be a lawful traffic sign. The courts have helped confirm this direction, such as in Davies v Heatley[1971] RTR45 where it was determined that the fact that a traffic sign may be clear does not make it legally correct. This finding of fact has been considered correct by numerous adjudicators but most notably in the key cases between Burnett v Buckinghamhire CC (PAS case HIW0003), Mr J Letts v London Borough of Lambeth (PA 1980151656) and Mr Keivan Jalali Bijari v Bolton Metropolitan Council (case no BO05375E).

The legislators did accept that a degree of flexibility would be required by Local Authorities and this is why the law not only prescribes numerous variations of traffic signs but permits a Local Authority to approach the Secretary of State to seek authorisation to use a non prescribed traffic sign. If you as a Local Authority chose not to follow the scope of the law then you must suffer the consequences without complaint rather than act ultra vires by attempting to enforce an unlawfully signed traffic restriction.

If the law intended only that a traffic sign must not mislead a motorist then the law would simply have stated as such and neither the legislators nor Government would have gone to such extreme and costly measures in drafting and publishing volumes of legislation and guidance to assist Local Authorities in regard to the specific design of traffic signs.
If you as a Local Authority ignore the overwhelming evidence that is in my favour and assert that, although the traffic sign fails to comply with the law, it is adequate to convey the restriction and that its non-compliance with the law can be regarded as “de minimis” then I must strongly disagree. I have illustrated above that both the law and Government has gone to great trouble and effort to ensure that throughout the country motorists can be confident of finding identical traffic signs to the restrictions in force. This is not a case, where, for example, there is a very minor degree of wear to the lines or where one of the white lines is a millimetre or two out. The fact of the matter is that the council has simply used non prescribed signage without authorisation and it seems to me to be inappropriate to employ the “de minimis” principle to paper over the error. I certainly do not consider the amount of the penalty charge to be “de minimis” when compared to my disposable income.

If you do argue a case of “de minimis” then I too should be allowed, in the interest of justice and fairness, the same degree of flexibility and leniency when interpreting the traffic sign. Therefore, it is not unreasonable to apply the principle of “de minimis” to the alleged contravention just as equally as you may attempt to apply it in your defense of the unlawful traffic sign.
For the reasons explained above I require the council to acknowledge their signing error and to cancel this penalty charge forthwith or provide proof of their DfT approval.

In light of the above and the fact that, “Local authorities are statutory creatures and can do nothing except that which is expressly or impliedly authorised by statute” - Lord Templeman in Hazell v. Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1. I require the enforcement authority to cancel this penalty charge notice forthwith.

In the event that these representations are rejected I will require the enforcement authority to fully explain in their Notice of Rejection how their “PCN” complies with the above mentioned legislation and provide all of the evidence as required above to prove their case. I will have no hesitation in taking this matter to adjudication, where I will be making a request for costs on the grounds that the enforcement authority have acted frivolously, vexatiously and wholly unreasonably in not accepting valid representations at the earliest opportunity.
hcandersen
The following is an extract from the governing regulations and i.e. Traffic Signs Regs etc.

QUOTE
(b)stops it within the box junction for so long as it is prevented from completing the right turn by oncoming vehicles or other vehicles which are stationary whilst waiting to complete a right turn.


I've highlighted the key words.

The exemption applies only if you are caused to stop by other stationary vehicles in the box and which are waiting to turn right .

The pics you've posted are unclear because I cannot tell which event is the one which the council consider establishes the contravention (for all I know you might have stopped more than once in the box). It appears that you entered the box following another vehicle which completed its manoeuvre by exiting into the inside lane of the carriageway (which appeared to be flowing) but that you were caused to stop by stationary vehicles outside the box in the other lane of the carriageway. If that's the case, then I don't think you've got a case on this point. However, if the event which establishes the contravention is you stopping behind the vehicle which was ahead of you while all or part of it was in the box then IMO a literal interpretation of the regs provides an exemption.

So, what was the actual sequence of events?

In any event, you've got an argument to take to adjudication because the council's statement as to the law is incorrect - IMO oncoming traffic is only one of the criteria which provide an exemption. So, it could be that the council have failed to give your reps proper consideration. But as we haven't seen your reps, we wouldn't know.

I cannot recommend whether to appeal or not because you've not posted the whole of the NOR e.g. did they re-offer the discount?

Pl post the info requested.


HCA
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