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THEGMAN
Hi All,

Seasonal Greetings.


Here we have Exhibit A and B being the latest PCN issued to me by the Infamous Merton Council Anti Motorcycling department aka.Traffic Enforcment.





Looks like this maybe a case of Fettered Options of appeal yet again??

I will look at firing up the images of the alledged contravention that are available through the facility of viewing online from Merton.
They appear to provide 4 images, 3 of a motorcycle front view apparantly in a Bus Lane, the 4th a zoomed image of a motorcycle with a Registration plate NOT in a bus lane.








Any help as always welcomed from you wonderful people!

L
THEGMAN








Hopefully these come out reasonably clearly.
This is the available evidence on the Merton website.

There is a 15 second time elapse between Picture 3 and Picture 4, surely too much time to establish the same vehicle?
EDW
(3) A penalty charge notice under this Part of this Act must state—

(a) the grounds on which the council believe that the penalty charge is payable with respect to the vehicle;

(b) the amount of the penalty charge which is payable;

© that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;

(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;

(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 on the person appearing to them to be the owner of the vehicle;

(f) the address to which payment of the penalty charge must be sent; and

(g) the effect of paragraph 2 of Schedule 1 to this Act.















Representations against enforcement notice

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 council who served the notice on him.

(2) Any representations under this paragraph must be made in such form as may be specified by the councils, acting through the Joint Committee.

(3) The council 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.

(4) The grounds referred to in sub-paragraph (1) above are—

(a) that the recipient—

(i) never was the owner of the vehicle in question;

(ii) had ceased to be its owner before the date on which the penalty charge was alleged to have become payable; or

(iii) became its owner after that date;

(b) that there was no breach of an order or regulations of the type described in subsection (2) of the said section 4; or

© that at the time the alleged breach of such order or regulations 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 states the grounds that will be on the EN, so no fettered this or that.



This is a rubbish PCN, it needs to go to patas for a shakedown.
THEGMAN
Thanks EDW,

Im trying to tune in to your line of rubbish PCN but cant quite see it
EDW
(g) the effect of paragraph 2 of Schedule 1 to this Act -

this has not been complied with.

Wait for the Enf Notice to arrive then you can make formal reps.

Do not contact them until then.

I will destroy them, worry not.
Hippocrates
Their predicted EN is ridiculous in terms of the grounds: there are only four.

http://www.patas.gov.uk/tmaadjudicators/en...ent_buslane.htm
Hippocrates
QUOTE (EDW @ Sun, 23 Dec 2012 - 19:53) *
(g) the effect of paragraph 2 of Schedule 1 to this Act -

this has not been complied with.

Wait for the Enf Notice to arrive then you can make formal reps.

Do not contact them until then.

I will destroy them, worry not.


This was amended in the 2000 Act.

EDW
QUOTE (Hippocrates @ Sun, 23 Dec 2012 - 20:38) *
QUOTE (EDW @ Sun, 23 Dec 2012 - 19:53) *
(g) the effect of paragraph 2 of Schedule 1 to this Act -

this has not been complied with.

Wait for the Enf Notice to arrive then you can make formal reps.

Do not contact them until then.

I will destroy them, worry not.


This was amended in the 2000 Act.



what i have put above is the combined 1996 and 2000 and is correct.
THEGMAN
Ok, so Ill just sit tight until the EN drops on the mat.

Predictably I am expecting this type of EN;

http://forums.pepipoo.com/index.php?showto...53845&st=40 POST #53 and #60
EDW
Merton are doomed.

Doomed

Doomed


TFL have made a better attempt.

Make formal representations (written challenge) which can be made on receipt of an enforcement notice on
the grounds that: 1) I never owned the vehicle in question/I ceased to be the owner of the vehicle before
the date on which the penalty charge was alleged to have become payable/I became the owner after that
date. 2) There was no breach of the bus lane order or regulation. 3) The vehicle was taken and being driven
without my consent at the time of the contravention. Transport for London may disregard representations
received 28 days after the enforcement notice has been served. T
ransport for London has a duty to
consider your representation and serve notice of their decision. If you are not the owner of the vehicle you
must give the name and address of the owner if in your possession. You may informally challenge the
penalty charge notice in the 28 days beginning with date of this notice by writing to the postal or email
address given on the front of this notice. However, if you wish to take advantage of the discount amount,
you must ensure that your representation is received in the 14 days period beginning with the date of this
notice. The representation may include mitigating circumstances, as to why you believe that a penalty
charge is not payable or that no penalty charge is payable as you have received a Police fixed penalty notice
or notice of intention to prosecute.
THEGMAN
Whats the mileage in awaiting the EN,I assume its the fact it adds weight to appeal when more pee poor worded paperwork arrives, I guess informal reps at this stage generally fall on deaf ears at parking too.
EDW
you can makes reps if you want, they will refuse.
Hippocrates
QUOTE (THEGMAN @ Mon, 24 Dec 2012 - 17:59) *
Whats the mileage in awaiting the EN,I assume its the fact it adds weight to appeal when more pee poor worded paperwork arrives, I guess informal reps at this stage generally fall on deaf ears at parking too.


My approach re these contraventions is that you make informal reps./enquiries, and ask for the usual items re TMO, all evidence and an appointment to view the video. Whether they are bound to refuse or not is somewhat irrelevant: their reasons are entirely relevant and, if this goes the distance, the adjudicator will take note of all correspondence between the parties, whether the informal reps. are enshrined in legislation or not. This is my experience. It is in your interests to challenge the PCN with your arguments at the earliest opportunity so that you are not, in turn, challenged about not doing so at PATAS.
Hippocrates
QUOTE (THEGMAN @ Mon, 24 Dec 2012 - 17:59) *
Whats the mileage in awaiting the EN,I assume its the fact it adds weight to appeal when more pee poor worded paperwork arrives, I guess informal reps at this stage generally fall on deaf ears at parking too.


Not necessarily.
THEGMAN
I thought it was time to "let the Games Begin".

Dear Merton Parking (aka. The Fraud squad),

RE: Subject Above,

Firstly I would like to note that I have viewed 4 "evidential" images available via your website.
3 of them appear to show a several vehicles driving towards the image, the 4th showing a vehicle displaying a VRN of LB09 RGO at the rear, this is timestamped at (15:16:09) 15 seconds later than the 3rd image (15:16:24).

In none of these images is the vehicle #### ### identified as commiting a Contravention Code 34J.

Therfore, at this stage it would be prudent that I clarify this cannot be deemed as a "Representation against the PCN's alleged specific contravention", as I may not be party to all the Evidence held by yourselves, however it should be noted this may be used as "Representation against the Issuing of a PCN" should it now be apparent that No such Contravention has occurred.

It would seem completely rational that as you (being London Borough of MERTON) have assumption that a contravention has occurred by the vehicle in question I be party to ALL EVIDENCE held by yourselves.
The PCN makes note of Video Evidence and advises that an appointment be made to view.

I would therefore like to exercise this right and propose a viewing for Friday 28th December at ~~~~.

In addition I would like to view a copy of the relevant Traffic Managment Order that allows the categorization of the Public Highway at the specific location as an Enforcable Bus Lane.

I would also like to view the legislation directive from the Secretary of State which approves the Camera equipment used to gather said "evidential images".

I would also like to make note of the fact that in December 2011 TfL approved the use of Motorcycles in Bus Lanes throughout Central London, after an unprecedented succesful trial it was PROVEN that motorcyclists were safer and visible whilst using the Bus Lanes. It was also advised from the Trial that all Boroughs followed suit allowing motorcycles such use.

Could you please advise on the LbM's official policy denying motorcycles the very same PROVEN safety benefit and all reasoning behind the contradicting non compliance with the TfL POLICY.

I look forward to your response.


Yours Sincerely,

GMAN
THEGMAN
I have now viewed the cctv footage.
Without giving anything away, Id be keen for some in the know on here to please give me some of the guidance or actual requirements that the footage MUST SHOW to prove the contravention.
There is a masive rabbit in hat here from what Ive seen, but Id like to know if the procedure to lead to a PCN has been followed.
Hippocrates
The adjudicator will need to be satisfied that all the correct signage was in place on the day and that you passed it. Library photos and/or diagrams will not do.
THEGMAN
What about this scenario;

The camera only captured an alleged contravention whilst traffic was flowing towards it,(a motorcycle is unidentifiable from this view).
Camera does not follow suspected contravening motorcycle.
Camera turns through 90 degrees,
Camera locates a motorcycle from which 2 traffic directions have now merged
Camera now several seconds laterzooms in on a motorcycle VRN.

Hippocrates
Sorry, I am not good at abstract thinking - would need to see the video. I am also concerned that you have not submitted an informal challenge and may lose the discount period, unless they extend as a matter of course in response to enquiries. I would ask for the TMO by e-mail - they may not be able to provide at the council!
Hippocrates
QUOTE (THEGMAN @ Sun, 23 Dec 2012 - 20:57) *
Ok, so Ill just sit tight until the EN drops on the mat.

Predictably I am expecting this type of EN;

http://forums.pepipoo.com/index.php?showto...53845&st=40 POST #53 and #60


http://img834.imageshack.us/img834/9195/ptlimg028.jpg

Yes, that is fettered to theft, definitely. PATAS Case:- 2110212199

http://www.patasregistersofappeals.org.uk/
THEGMAN
@hippocrates

post #15
was in effect my informal challenge,
I have asked for TMO in the course of that.

understand re;my video description.
THEGMAN
Hello,

Got my rejection letter for the informal appeal through today.
What Spiel it is....

Swerving some of my Appeal questions as standard.
And as is common, they have got the dates all wrong
Contravention DATE 12/12/12
PCN Issued DATE 18/12/12
Recieved 19/12/12
Informal APPEAL emailed 27/12/12

"We are unable to offer you a further opportunity to pay the discounted charge because we did not recieve your representations until after the 14 day discount period had expired.
err, 18th + 14 days is 1st JAN, I appealed 27th December!!!





Also got the TMO included,

Think I have found a smoking gun in it, should I post it here also?






Theres the TMO, page 4 drew my interest, dont remember any of it being a contra-flow bus lane???
Hippocrates
Post everything but bear in mind people will be watching the telly as Parking Mad is on at 10.35 on BBC One.
EDW
If the date are mixed-up it's fatal.

And yes, I know they are not using an approved device which I why I told OP to ask.

Without approval they cannot use the cctv evidence at patas.
Hippocrates
The letter of rejection is somewhat confusing re informal reps. One the one hand they state they do consider informal representations, on the other, they are not prepared to consider another one! Please upload the whole TMO as a file.

http://forums.pepipoo.com/index.php?showto...rt=#entry490338
THEGMAN
Ill post the TMO as a file tonight.
Any thoughts about my highlighting the point blank incorectness of it being described as a contraflow BL.
EDW
nothing to do until EN arrives.

Sit back.......
THEGMAN
Ive stuck the TMO into the Uploader on here, not sure how to get the link onto this post though
Hippocrates
QUOTE (THEGMAN @ Sun, 13 Jan 2013 - 17:48) *
Ive stuck the TMO into the Uploader on here, not sure how to get the link onto this post though


Right click on it/Copy link address under Uploader. Right here then left/paste.

http://davidmarq.com/uploaderv6_1/files/7/...%20page%201.pdf

http://davidmarq.com/uploaderv6_1/files/7/...012%20page2.pdf

http://davidmarq.com/uploaderv6_1/files/7/...012%20page3.pdf

http://davidmarq.com/uploaderv6_1/files/7/...012%20page4.pdf
Hippocrates
QUOTE (THEGMAN @ Tue, 8 Jan 2013 - 22:25) *
Hello,

Got my rejection letter for the informal appeal through today.
What Spiel it is....

Swerving some of my Appeal questions as standard.
And as is common, they have got the dates all wrong
Contravention DATE 12/12/12
PCN Issued DATE 18/12/12
Recieved 19/12/12
Informal APPEAL emailed 27/12/12

"We are unable to offer you a further opportunity to pay the discounted charge because we did not recieve your representations until after the 14 day discount period had expired.
err, 18th + 14 days is 1st JAN, I appealed 27th December!!!


Theres the TMO, page 4 drew my interest, dont remember any of it being a contra-flow bus lane???


You count day 1 as from the 18th. Therefore, the 14 days were up on 31st December. Do you have proof of when you made your informal reps.? As this is a big procedural impropriety which, although not one of the grounds, is "akin to procedural impropriety" according to Gerald Styles.

Re your point about contra flow, we really need pictures of the signs, please. The pole-signs and the road markings as the prescribed signage for a contra flow is pretty strict. You were travelling northwards, yes?
THEGMAN
Hi Hippocrates
Yes I have proof I have the emailed acknowledgment from them saying it was received on the 27th December.

Ill get some pics of the signs, I was travelling Northbound (allegedly) and I can assure you the BL is a "with flow" BL not a "contraflow".
Hippocrates
QUOTE (THEGMAN @ Mon, 14 Jan 2013 - 21:16) *
Hi Hippocrates
Yes I have proof I have the emailed acknowledgment from them saying it was received on the 27th December.

Ill get some pics of the signs, I was travelling Northbound (allegedly) and I can assure you the BL is a "with flow" BL not a "contraflow".


OK re proof. Looking forward to seeing the signs! They do seem to have problems with the wording of their orders - and providing them when one turns up at reception!

If the signage is all wrong, and it sounds as if it is, plus the fact they have incorrectly defined it as a contra flow lane, then there was no contravention. Plus, of course, the paperwork issues which would have to be argued under "akin to procedural impropriety" reasoning as per a Gerald Styles decision. I like the statement re not entertaining any more correspondence before the EN. So that makes two examples IMO.

http://s7.postimage.org/spbwzahbv/BUS_LANE...ACK1_page_1.jpg
THEGMAN
Well blow me down, the.first sign is turned and unreadable!There is a thread on here relating to the same BL with a similar situation, except the OP paid up.
Hippocrates
QUOTE (THEGMAN @ Tue, 15 Jan 2013 - 08:00) *
Well blow me down, the.first sign is turned and unreadable!There is a thread on here relating to the same BL with a similar situation, except the OP paid up.


Hope you are getting pictures of them. Might pop down there myself under guise of taking the dog for a walk to Ikea. rolleyes.gif
THEGMAN
Ive got the Enforcement Notice, want to see it? biggrin.gif
Hippocrates
As the ex-wife didn't show up, yes please.
THEGMAN

photo sharing sites




image




picture sharing
EDW
I cant read the EN, login reqd.
Hippocrates
Compare the lists of grounds on both the PCN and EN and see how one of them (No 1) on EN is inadequately expressed.

1996 Act:- (b)that there was no breach of an order or regulations of the type described in subsection (2) of the said section 4;

http://www.legislation.gov.uk/ukla/1996/9/schedule/1/enacted

There are not 5 grounds in fact. Just 4. And to confuse you further, only 3 must be stated on the EN, apparently.

So, the ownership grounds are in fact just one ground and the ground that is missing is the Police are taking action.

http://www.legislation.gov.uk/ukla/1996/9/section/9/enacted

However, Merton know this is a ground as they send out many rejection letters accompanied with the PATAS form..............yes, wait for it:- http://www.patas.gov.uk/tmaadjudicators/en...ent_buslane.htm

Making representations

The grounds on which you may make representations are:

You were not the owner of the vehicle at the material time;
There was no breach of the bus lane orders/regulations;
The person in control of the vehicle at the material time was in control of it without the owner's consent;
The police are already taking action (this applies if the driver of the vehicle at the material time has received a Fixed Penalty Notice or a Notice of Intended Prosecution for the same offence).


http://www.patas.gov.uk/tmaadjudicators/en...ent_buslane.htm

So, its omission is "akin to procedural impropriety" as Gerald Styles has coined the phrase in one of his decisions since procedural impropriety is not a ground as such. Also add into the mix the confusion caused by the two ways they have expressed there was no contravention=further p.i.=time to mention Barnet case.

Also, the 2000 amendment re the TWOC ground is fuller and, therefore, compounds the problem with the first ground:-

©that at the time the alleged breach of such order or regulations took place the person who was in control of the vehicle was in control of the vehicle without the consent of the owner.”;
THEGMAN
Thats the first point I noticed, the TWOC has been somewhat ellaborated since in 2010 I had to point it out in my appeal, the ole fettering stance.
Hippocrates
Re grounds: the overview issue is the PCN has given a legitimate expectation of what the grounds are , which the EN does not fulfil. The wording is different and the grounds as such do not agree with the legislation. The alleged contravention does not fully inform you and it is compounded by the TWOC ground which also expresses it differently. Confusion. Barnet case.

http://www.bailii.org/ew/cases/EWHC/Admin/2006/2357.html
THEGMAN
Look what Ive found;

http://www.merton.gov.uk/transport-streets...ment_policy.pdf
Incandescent
Interesting ! It is the first council document I have seen that addresses the issue of "must have regard to" in the Statutory Guidance in relation to CCTV parking enforcement. I have to say that they seem to have had regard to the recommendations; would that other councils do so !
THEGMAN
Interesting, yes indeed.

It will also now be the document that they will be getting many quotes from in my EN appeal.
They have been naughty.
THEGMAN
WERE GOING TO PATAS BABY.

Ill be sure to post up my latest rejection from Merton on Monday, but I can assure you, its the biggest pile of hogwash Ive seen yet from them.
Simply put, theyve not answered or challenged properly any of my representations, just tried to push me into paying with generic reply "legislation is fact, we are correct, pay up now" crud.
EDW
Ask for a copy of their approved device certification.
Hippocrates
Why?

There is no requirement for the specific camera to be approved. All that is required is that it is a “prescribed device” as per the Road Traffic Offenders Act 1988 which defines a prescribed device as “a camera designed or adapted to record the presence of a vehicle on an area of road which is a bus lane or route for use by buses only.”

@OP: forget Guidance and policies as PATAS will have nothing to do with that argument. Waste of energy. TPT would, but not PATAS.
EDW
because only approved device pics are admissible.
THEGMAN
Fundamentaly, no continuous cctv footage identifys my VRN from the alledged offence BL, it could of been any Tom,Dick seen in the BL.
Also, the TMO says its a Contraflow BL, it most definately is WITHflow.
Exiled Yorkshireman
If they've failed to properly consider the points in your representations that's a nice PI to add to your appeal - PATAS 2120313501,
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