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Michael86
Hello,


It looks like I accidentally drove my car down a bus road, and have been sent a PCN. I don't dispute that fact, but I had no idea it was a bus lane at the time.

It was my first time driving in the city and the satnav took me that way, although neither of these are excuses. My main argument is that the signage is quite poor and doesn't give any advance warning that the bus lane is coming up on the left. From looking at Google Street view of the junction, the first sign indicating the bus lane is positioned about 10 m after the turn-off. I don't see any signage that is clearly visible from traffic queuing at the junction itself (see attached images for the route I drove).

My point is that by the time a road user sees these signs, he is probably travelling at at least 10 mph and likely to be unable to slow down or change lane.

Cardiff is quite far away and I don't have any opportunity to revisit it in the near future.

The PCN scans are quite large so I have uploaded them on another site:

PCN page 1: http://oi57.tinypic.com/2zpi8th.jpg
PCN page 2: http://oi58.tinypic.com/14vtrnc.jpg
PCN page 3: http://oi57.tinypic.com/16a1eoj.jpg


Thanks for any help,

Mike
Mad Mick V
Interesting, I thought a Code 33 only applied to London. No doubt the new Welsh legislation will shed some light.

This is the legislation noted on the PCN:-

http://www.legislation.gov.uk/uksi/2013/362/contents/made

This is the Designation Order:-

http://www.legislation.gov.uk/cy/wsi/2014/...made?view=plain

There is a will/may issue in that the PCN implies a Charge Certficate will be served. Although Schedule 2 of the above legislation denotes the form PCNs should take and would you believe it --it contains the "will".

So how does one prove a PI in these circumstances?

I've said in another post that approved devices must be approved by Welsh ministers --worth checking as is whether this is a bus lane under a local TRO.

Mick
DancingDad
Patrol don't show a Code 33, should be 34 according to them.

But having said that, the descriptive of 33 seems to fit so really is down to what Welsh Assembly have deemed fit to use.
Michael86
Thanks for your replies. I am not an expert in the legalities of these- do you think I have a case based on sign position, or should I just pay?
Edmund
Good morning Michael

I made exactly the same mistake on Tuesday of this week. I have not yet received my PCN but am confident that I will!

I do not know Cardiff (first time driving there) and so completely reliant on signal phe and road markings to stay safe and legal. The bus lane in Custom House Street seems to be a trap if you don't know it is there.

My intention is to challenge the enforcement of the Bus Lane on the grounds of incorrect signage and lane markings. So far I have discovered that there should be signage informing drivers of the start of a bus lane 30m before it commences (regulations 23 & 24) and that there should be a dotted white line tapering out to the start of the Bus Lane. The Blue sign on the right of the road is set behind the start of the bus lane. if you do not know the area, by the time you see the start of the bus lane markings on the road (first words are in Welsh!) you are trapped alongside the area of hatched markings, which the Department of Transport state 'you should not enter unless it is necessary and you can see it is safe to do so'.

I also believe that the fact that the Bus Lane cameras in Cardiff are 'catching' 114 drivers a day suggests that the bus lanes are not easy to see, understand and comply with - I find it difficult to accept that this number of people choose to disregard the rules and risk fines.

Happy to continue to communicate on this with you!

Edmund
Michael86
Thanks Edmund,

I'm going to write my challenge today as I'm away for the next week. I'll try some similar wording, it seems like there is a reasonable appeal to me. If anyone has any advice on wording it would be great.

Michael
Karenwillo
Hi Michael and Edmund,

We've also just had a ticket for driving down Custom House Street whilst lost in Cardiff. Just wondering how you got on with the challenge about the signage? We had no idea it was a bus lane until we were committed.

Thanks
Karen
PASTMYBEST
IMO what you have is a bus gate, so signs' 953 are there and O K.

What does appear from GSV to be missing on St Mary st is sign 877

chapter 15 page 133 of the following link doc

https://www.gov.uk/government/uploads/syste...-chapter-03.pdf


Also just before the lights at St Mays you have an end of bus lane sign 964

This has got to be confusing to anyone a stranger to the area.

I would expect that any appeal would have to go to adjudication, so if your up for the fight

GSV LINK

https://www.google.co.uk/maps/@51.476733,-3...oTsz8Tw!2e0
Calkeo
My husband received a PCN for driving down Custom House Road in Cardiff recently which apparently is a bus lane. Our driver has been driving for 40 years and did not see any signage to say it was a bus lane as we crossed the junction from Penarth Road. In the car were 5 experienced drivers and none of us remember any 'bus lane' indications. We were just about to pay up as we clearly made a mistake until we googled Custom House Road only to find it is a notorious Council money making exercise! This is scandalous and despicable!!!!

Please could you let us know if you have been successful with your challenge as we are putting together our evidence. Unfortunately we live 300 miles away so cannot take photos of the signing as it is now.

Thank you

Calkeo
MWJN
Hi All

I have recently driven down Custom House Street and got a PCN. Just wondering how you got on with the challenge about the signage? We had no idea it was a bus lane until we were committed.

Look forward to hearing back from you all

Thanks

Max
Incandescent
Nothing has been posted about the case since early this year, so may I suggest you both post up your PCNs in the normal manner and we'll see what advice can be given. As well as the PCN we need some description of the circumstances and a GSV reference if possible.
MWJN
Hi Incandescent

I will make sure it is posted as soon as possible

Thanks

MWJN
Hi Incandescent

Driving along Penarth Road Cardiff turned left onto St Marys Street and then stopped at lights and turned right into Custom House, normally turn into Mill Lane

However, I followed the Car in Front of me, as seen on the Photos and didn't realise that the Road was a Bus Lane until to late and had no where else to go

Attached photos from Cardiff Council PCN

GSV is here from Penarth Road to St Marys and then to turn right into Custom House/Mill Lane - https://www.google.co.uk/maps/@51.4755817,-...3312!8i6656

GSV shows the first Sign for the Bus Lane on St Mary's Street https://www.google.co.uk/maps/@51.4762466,-...3312!8i6656

GSV for the Custom House Street is https://www.google.co.uk/maps/@51.4766434,-...3312!8i6656

PCN Information also shown in Photos

- PCN 1

- PCN 2

- Photo

Thanks for the advice

PASTMYBEST
]You could make an argument that the signage is insufficient to convey the restriction.

The directional sign on St Mary's st is angled away from the driver and is quite wordy so can easily be missed , then once the turn is made you are committed ,before you see the bus lane signs

the governing regulations are The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013
Made



Schedule 1(2)(f) that if after the last day of the period referred to in sub-paragraph
(d)— (i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased


The PCN states they will make this increase. This is not in accord with the regs and as such may make the PCN invalid


The argument re the signs would be at best 50/50 or less re the regulations that should be quite strong
MWJN
Hi PastMyBest

Will review everything you have said and will look to write up a challenge & give it a go

Thanks for the advice given
Mad Mick V
QUOTE (PASTMYBEST @ Thu, 31 Dec 2015 - 15:49) *
]You could make an argument that the signage is insufficient to convey the restriction.

The directional sign on St Mary's st is angled away from the driver and is quite wordy so can easily be missed , then once the turn is made you are committed ,before you see the bus lane signs

the governing regulations are The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013
Made



Schedule 1(2)(f) that if after the last day of the period referred to in sub-paragraph
(d)— (i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased


The PCN states they will make this increase. This is not in accord with the regs and as such may make the PCN invalid


The argument re the signs would be at best 50/50 or less re the regulations that should be quite strong



Have to be careful here because the PCNs noted in the Schedules to The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 contain this "will" insert. The legislation is badly drafted if it presents this dichotomy--- but would any adjudicator be prepared to raise his/her head above the parapet to criticise standing legislation? I doubt it.

Mick
Incandescent
QUOTE (Mad Mick V @ Sat, 2 Jan 2016 - 10:10) *
QUOTE (PASTMYBEST @ Thu, 31 Dec 2015 - 15:49) *
]You could make an argument that the signage is insufficient to convey the restriction.

The directional sign on St Mary's st is angled away from the driver and is quite wordy so can easily be missed , then once the turn is made you are committed ,before you see the bus lane signs

the governing regulations are The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013
Made



Schedule 1(2)(f) that if after the last day of the period referred to in sub-paragraph
(d)— (i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased


The PCN states they will make this increase. This is not in accord with the regs and as such may make the PCN invalid


The argument re the signs would be at best 50/50 or less re the regulations that should be quite strong



Have to be careful here because the PCNs noted in the Schedules to The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 contain this "will" insert. The legislation is badly drafted if it presents this dichotomy--- but would any adjudicator be prepared to raise his/her head above the parapet to criticise standing legislation? I doubt it.

Mick

This case in Wales illustrates the complete dog's breakfast the legislation is in the UK. There is no ground of "Procedural Impropriety" in England for bus lane PCNs, yet there is in Wales !! Plus the "will", "may" argument. What a mess !!
PASTMYBEST
QUOTE (Mad Mick V @ Sat, 2 Jan 2016 - 10:10) *
QUOTE (PASTMYBEST @ Thu, 31 Dec 2015 - 15:49) *
]You could make an argument that the signage is insufficient to convey the restriction.

The directional sign on St Mary's st is angled away from the driver and is quite wordy so can easily be missed , then once the turn is made you are committed ,before you see the bus lane signs

the governing regulations are The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013
Made



Schedule 1(2)(f) that if after the last day of the period referred to in sub-paragraph
(d)— (i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased


The PCN states they will make this increase. This is not in accord with the regs and as such may make the PCN invalid


The argument re the signs would be at best 50/50 or less re the regulations that should be quite strong



Have to be careful here because the PCNs noted in the Schedules to The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 contain this "will" insert. The legislation is badly drafted if it presents this dichotomy--- but would any adjudicator be prepared to raise his/her head above the parapet to criticise standing legislation? I doubt it.

Mick


Can you point me to it Mick. I can only find as I inserted above. and the word May is used, also used in part 5(18)(2)(g) and (20)
Mad Mick V
Its Schedule 2--- a PCN served by post. Says will be increased by 50% if not paid or appealed.

Mick
Neil B
Both PCNs we've actually seen seem to have miss-advised the period in which the discount may be paid; from service rather than issue
- unless there has been a subsequent change to the legislation?

See Sch 2 of the leg.

Puts recipients at risk of financial loss.
PASTMYBEST
QUOTE (Mad Mick V @ Sat, 2 Jan 2016 - 11:19) *
Its Schedule 2--- a PCN served by post. Says will be increased by 50% if not paid or appealed.

Mick



Thanks Mick.

I think you a right, the regs are messed up, but I cannot see an adjudicator allowing an appeal on this alone. The case re signage is not strong and as far as i can ascertain Cardiff do not re-offer the discount, so reluctantly ,OP I think your best course is to pay the discount
Neil B
QUOTE (PASTMYBEST @ Sat, 2 Jan 2016 - 11:31) *
so reluctantly ,OP I think your best course is to pay the discount

Really?
See post#20.

When exactly must he/she do that by?

Ok, we don't have a date of issue (OP what was that?) but if, for example, it was 23/12/15 the discrepancy I noted would
be considerably magnified.
Mad Mick V
Sect 3 here will give more bones to this:---

http://www.legislation.gov.uk/uksi/2013/359/contents/made

The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 reinforces the fact that PCNs shown in the Schedules have effect BUT provide a get out at 8(2)as to what they should include ---for instance payment period = 28 days begining on the date the notice is served.

Penalty charge notices

8.—(1) In these Regulations a “penalty charge notice” means a notice which—

(a)was served in accordance with regulation 9 or 10 in relation to a road traffic contravention; and

(b)complies with the requirements of—

(i)paragraph (2) below;

(ii)the Schedules to these Regulations; and

(iii)regulation 3 of the Representations and Appeals Regulations which so apply.

(2) A penalty charge notice must be in the form set out in Schedule 2 to these regulations or a form to the like effect, provided that it contains all of the prescribed particulars as set out in Schedule 1 to these regulations and regulation 3 of the Representations and Appeals Regulations.

(3) The Schedules have effect with regard to penalty charge notices.


So with the 8(2) instruction the OP can argue that the PCN is deficient on dates and deficient as to the will/may situation because it does not comply with Schedule 1 nor Reg 3 of the representations and appeals regulations.

Mick
Neil B
Sorry if I'm being thick Mick but you've linked English leg. then quoted from Welsh.

On PCN period to pay at discount is wrong and at odds with the leg.

Not the 28 days you mention?
PASTMYBEST
QUOTE (Neil B @ Sat, 2 Jan 2016 - 11:44) *
QUOTE (PASTMYBEST @ Sat, 2 Jan 2016 - 11:31) *
so reluctantly ,OP I think your best course is to pay the discount

Really?
See post#20.

When exactly must he/she do that by?

Ok, we don't have a date of issue (OP what was that?) but if, for example, it was 23/12/15 the discrepancy I noted would
be considerably magnified.


We have the same situation as the will/may. Schedule one say's MAY schedule two say's will Schedule one say's served schedule two say's issued

Is the consensus that an adjudicator would rule on this and through the regs into disarray or not. They should apply the principal that where an ambiguity exists in law then the findings should normally be in favour of the disadvantaged party( the person charged with a breech of the regs)

I do not think we can advise the OP that this is what will happen, so with nothing else then I would still advise they pay the discount.

Of course if a strong valid case can be made of if the discount is gone then, let's do it
Neil B
QUOTE (PASTMYBEST @ Sat, 2 Jan 2016 - 12:59) *
QUOTE (Neil B @ Sat, 2 Jan 2016 - 11:44) *
QUOTE (PASTMYBEST @ Sat, 2 Jan 2016 - 11:31) *
so reluctantly ,OP I think your best course is to pay the discount

Really?
See post#20.

When exactly must he/she do that by?

Ok, we don't have a date of issue (OP what was that?) but if, for example, it was 23/12/15 the discrepancy I noted would
be considerably magnified.


We have the same situation as the will/may. Schedule one say's MAY schedule two say's will Schedule one say's served schedule two say's issued

Is the consensus that an adjudicator would rule on this and through the regs into disarray or not. They should apply the principal that where an ambiguity exists in law then the findings should normally be in favour of the disadvantaged party( the person charged with a breech of the regs)

I do not think we can advise the OP that this is what will happen, so with nothing else then I would still advise they pay the discount.

Of course if a strong valid case can be made of if the discount is gone then, let's do it

Sch 1 isn't relevant as those notices are 'served' by CEOs.

You are certainly right in saying the regs are in disarray. As an aside (not relevant to this case) note how Sch1 for reg 9s describes the periods in line with English Regs - 'period beginning with --'
but Sch2 uses 'from --'. Very distinct difference per 'Al's Bar', adding a day. This means that all Welsh EAs enforcing moving traffic would need to set different progression points in their computer systems for MTCs vs Parking contraventions. I've got a confident bob they haven't - or even realised.

But with OP now likely thoroughly confused - I'd like to hear from them - and would they like a simple explanation of what is wrong (seriously wrong imo) with the PCN.

Then we can decide.
Mad Mick V
Apologies Neil I clicked on the wrong tab. These are the Welsh Regs:-

http://www.legislation.gov.uk/uksi/2013/359/contents/made

I've amended my original post.

You will find Reg 3 deals with PCNs relating to camera enforcement.

Mick
Neil B
Edit.
Brain not in gear.
Mad Mick V
Yes, the OPs PCNs have been altered from the Sch 2 format but they still have faults:-

  • Payable within 28 days of issue, should be of service--- wrong;
  • 50% reduction 21 days from service rather than issue-- correct;
  • Increase of penalty charge within 28 days of date of issue, should be served---wrong;
  • Will increase penalty charge, should be may----wrong;
  • Challenge within 28 days of date of notice conflates payment date (28 days from service) ----wrong;
As Incandescent points out 4(5) of the Appeals Regs denotes there is a procedural impropriety route and this coupled with 8(2) of the General Provisions should allow an adjudicator scope to consider in depth.




Mick


Neil B
Edit.
Brain not in gear.
Mad Mick V
I have really missed you Neil! Do you think this one might tempt Hippocrates out of hibernation/retirement?

Let me have a gander at the legislation and I'll come back on each point.

Mick
PASTMYBEST
PCN STATES


A penalty charge of £70.00 is payable within 28 days
of the date of issue of this notice

SCHEDULE ONE STATES

28 day's beginning with the date
on which the penalty charge notice is served

SCHEDULE TWO STATES

Is payable within 28 days of the date of this PCN


APPEALS REGS STATE the period of 28 days

the representations period is beginning with the date on
which the penalty charge notice is served


Re the discount period

PCN If payment is received within
21 day's of the
date of service of this notice
( presumed to be date of issue plus two working day's)


SCHEDULE ONE

the penalty charge is paid not later than
the applicable date

The applicable date being

the last day of the period of 21 days beginning with the date on which the notice was served;




SCHEDULE TWO

If payment is received within 21 day's of the date of issue


APPEALS REGS

Not relevant

RE issue of charge certificate

PCN

The penalty charge will be increased

28 day's date of issue of PCN

SCHEDULE ONE

28 days beginning with the date on which the penalty charge notice is served;

enforcement authority may increase the penalty charge


SCHEDULE TWO

The penalty charge will be increased

28 day's date of issue of PCN


APPEALS REGS

state that a charge certificate may be served unless within the period of 28 days beginning with the date of service of the notice of rejection—


It is clear that the PCN is in accord with schedule two, but completely out of step with schedule one and the appeals regs.

As Mick points out

8.2) A penalty charge notice must be in the form set out in Schedule 2 to these regulations or a form to the like effect, provided that it contains all of the prescribed particulars as set out in Schedule 1 to these regulations and regulation 3 of the Representations and Appeals Regulations. (3) The Schedules have effect with regard to penalty charge notices.

The template shown in schedule two or something similar of like effect must be used. IMO this does not extend to the wording(although Cardiff have taken it to)

So the wording should/must comply with schedule one and the appeals regs

How would an adjudicator deal with the ambiguity?To my mind they should find for the OP as

There is obvious ambiguity,that causes a clear prejudice.

In finding for Cardiff the adjudicator would have to completely disregard the wording and intent of the Appeals regs
Mad Mick V
The short answer is that Sch 2 does not count for enforcement purposes because it contradicts the main body of the legislation. It is not set in tablets of stone and becomes a nullity when examined closely. At best it provides a template for PCNs.

The long answer is here (my bold throughout):-

As I understand it, in Wales, only Cardiff is a designated area for bus lane enforcement under this legislation:- The Civil Enforcement of Bus Lane and Moving Traffic Contraventions (City and County of Cardiff) Designation Order 2014:-

http://www.legislation.gov.uk/wsi/2014/2725/note/made

That designation is made under Part 6 of the TMA 2004.

Both the following Regulations are made under the TMA 2004:-

The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013---(i.e General Provisions)
The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013 --(i.e. Appeal Regs)

The attributable PCNs in this case are in Post 1 --Recorded by an approved device --served by post.

It is important to note that these PCNs do not correspond exactly to the PCN format shown in Sch 2 to the General Provisions. Why?---because the Council has seen fit to alter them as it has a right to do under 8(2) of the General Provisions:-

“A penalty charge notice must be in the form set out in Schedule 2 to these regulations or a form to the like effect, provided that it contains all of the prescribed particulars as set out in Schedule 1 to these regulations and regulation 3 of the Representations and Appeals Regulations”.

Any PCN issued by the Council, as above, must comply with Sch 1 of the General Provisions and Reg 3 of the Appeal Regs. That’s all the law requires. Sch 2 cannot take precedence or trump 8(2).

So if we limit ourselves to that consideration and what the PCNs state, here’s the bullet points again in terms of 8(2) requirements (the subtitle is what the PCNs say) :-

(1) PCN Payable within 28 days of issue

Sch 1 (2)(d)------- that the penalty charge must be paid within the period of 28 days beginning with the date on which the penalty charge notice is served; Ergo the OP has been prejudiced because his time to pay is truncated.

(2) 50% reduction 21 days from service


Sch 1 (2)(e) that if the penalty charge is paid not later than the applicable date, the penalty charge will be reduced by the amount of any applicable discount;

3. In paragraph 2 for the purposes of sub-paragraph (e), the “applicable date” is—

(a) in the case of a penalty charge notice served by virtue of regulation 10(1)(a) (on the basis of a record produced by an approved device), the last day of the period of 21 days beginning with the date on which the notice was served; --so that part of the PCN complies.

(3) Increase of penalty charge within 28 days of date of issue

Sch 1(f) that if after the last day of the period referred to in sub-paragraph (d) (i.e. 28 days beginning with the date on which the penalty charge notice is served)

(i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased;

Ergo the OP is prejudiced by a truncated timescale.

4. Will increase penalty charge,

Sch 1 2(f)(ii) the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased;

The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted. This is therefore a procedural impropriety.

5. Challenge within 28 days of date of notice

The correct period for reps, per 3 (4)(a) of the Appeal Regs, is 28 days beginning with the date on which the penalty charge notice is served. Again the OP faces a truncated timescale which is prejudicial.

Certainly these issues provide adequate grounds to contest any Bus Lane PCNs issued by Cardiff.

Mick
Neil B
Thanks Mick.

I haven't time at mo to read all but looks like I got a lot wrong by failing to notice the significance of or
read Sch 1.

I'll delete my erroneous comments later, to prevent confusion to readers, and have a further look at the detail.
PASTMYBEST
If I'm reading 6(3) of the appeals regs correctly then should be a risk free first challenge


(3) Where the notice of rejection relates to a penalty charge notice served under regulation 10 of the General Provisions Regulations that notice of rejection must state that the enforcement authority will allow the applicable discount to apply for a further 21 days beginning with the date upon which the notice of rejection is served.
Incandescent
Although the PCN is a bit of a mess, I do think that Wales is trying hard to be a bit less severe in how bus lane contraventions are enforced. Maybe they realise the legislation for all PCN issues is a complete dog's breakfast and have tried to put something together that is sensible, albeit not perfect just yet !

Just look at Notttingham (an other) PCNs using the English bus lane legislation that allows no additional period for discount payment following an appeal.
Neil B
Yay. I've finally woken up (as well as finding an internet connection) - so here goes again Mick. (you'll be happier)
QUOTE (Mad Mick V @ Sun, 3 Jan 2016 - 17:35) *
The short answer is that Sch 2 does not count for enforcement purposes because it contradicts the main body of the legislation. It is not set in tablets of stone and becomes a nullity when examined closely. At best it provides a template for PCNs.
Yes, having now realised the strong relevance of Sch1 (and actually read it this time) I agree that it must take precedence, along with the main body of the Regs, over Sch2. In particular that the Regs and Sch 1 use the word must in relation to the particulars for inclusion whereas Sch 2 'form' and not specifically 'words' or 'wording', i.e. a template, as you said.
And as you reinforce below.

[/i]
The long answer is here (my bold throughout):-

As I understand it, in Wales, only Cardiff is a designated area for bus lane enforcement under this legislation:- The Civil Enforcement of Bus Lane and Moving Traffic Contraventions (City and County of Cardiff) Designation Order 2014:-

http://www.legislation.gov.uk/wsi/2014/2725/note/made

That designation is made under Part 6 of the TMA 2004.

Both the following Regulations are made under the TMA 2004:-

The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013---(i.e General Provisions)
The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013 --(i.e. Appeal Regs)

The attributable PCNs in this case are in Post 1 --Recorded by an approved device --served by post.

It is important to note that these PCNs do not correspond exactly to the PCN format shown in Sch 2 to the General Provisions. Why?---because the Council has seen fit to alter them as it has a right to do under 8(2) of the General Provisions:-

“A penalty charge notice must be in the form set out in Schedule 2 to these regulations or a form to the like effect, provided that it contains all of the prescribed particulars as set out in Schedule 1 to these regulations and regulation 3 of the Representations and Appeals Regulations”.

Any PCN issued by the Council, as above, must comply with Sch 1 of the General Provisions and Reg 3 of the Appeal Regs. That’s all the law requires. Sch 2 cannot take precedence or trump 8(2).

So if we limit ourselves to that consideration and what the PCNs state, here’s the bullet points again in terms of 8(2) requirements (the subtitle is what the PCNs say) :-

(1) PCN Payable within 28 days of issue

Sch 1 (2)(d)------- that the penalty charge must be paid within the period of 28 days beginning with the date on which the penalty charge notice is served; Ergo the OP has been prejudiced because his time to pay is truncated.
Yes - but slightly more confused by their wording*
(2) 50% reduction 21 days from service


Sch 1 (2)(e) that if the penalty charge is paid not later than the applicable date, the penalty charge will be reduced by the amount of any applicable discount;

3. In paragraph 2 for the purposes of sub-paragraph (e), the “applicable date” is—

(a) in the case of a penalty charge notice served by virtue of regulation 10(1)(a) (on the basis of a record produced by an approved device), the last day of the period of 21 days beginning with the date on which the notice was served; --so that part of the PCN complies. Well, in comparison to their 28 days above, yes it's better but still has a further error in wording*

(3) Increase of penalty charge within 28 days of date of issue

Sch 1(f) that if after the last day of the period referred to in sub-paragraph (d) (i.e. 28 days beginning with the date on which the penalty charge notice is served)

(i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased;

Ergo the OP is prejudiced by a truncated timescale. Agreed but * again.

4. Will increase penalty charge,

Sch 1 2(f)(ii) the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased;

The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted. This is therefore a procedural impropriety.
I can see there's also some conflict with 'may' appearing in the Regs and 'will' in Sch1 (IIRC). However, there not being a mandatory obligation doesn't directly prohibit them stating an intention. To be fair, you know I agree really but just playing Devil's advocate on the issue. I'm sure that somewhere in TMA there is reference to a requirement of EAs to always be prepared to exercise discretion, i.e. choose not to progress enforcement. Possibly a stronger argument but I wouldn't know where to find that reference now.

5. Challenge within 28 days of date of notice

The correct period for reps, per 3 (4)(a) of the Appeal Regs, is 28 days beginning with the date on which the penalty charge notice is served. Again the OP faces a truncated timescale which is prejudicial.

Certainly these issues provide adequate grounds to contest any Bus Lane PCNs issued by Cardiff.
Yes, indeed.



Mick


* My comments so annotated refer to the choice of wording used by Cardiff (and the inept draughtsman of Sch2).
Specifically that, while they have truncated one or more timescales, they have also increased all of the timescales they have quoted - by one day in each case. This is old stuff, from the earlier days of DPE and is cast in stone as a known error. That is, the difference between the Regs prescribed 'period beginning with' and the 'from' or 'of' as used on these PCNs. The PATAS key case of relevance is 'Al's Bar'. IMO it is important to include because further confusion and prejudice is caused to the recpients.

As I alluded to earlier, I think the various victims who might be reading must be thoroughly confused by these technical discussions.
They will be looking at things in much more real life and tangible terms, e.g. the signage issues or the simple fact they made an honest mistake.
While signage issues might have potential it is difficult to emphasise to readers the really strong value of the technical matters discussed.

So, if I may - in simple terms > FOR ALL THOSE IN RECEIPT OF ONE OF THESE.

IF YOU ARE GIVEN A £5 NOTE WITHOUT A PICTURE OF THE QUEEN - IT IS NOT A £5 NOTE.
ERGO, WHAT IS BEING SENT OUT BY CARDIFF, WITHOUT INCLUSION OF THE CORRECT INFO
PRESCRIBED BY LAW - IS NOT A PCN. It is a nullity that can be
challenged.
Mad Mick V
Let loose the dogs of war--------they've only got korgis!

Mick
MWJN
Hi All

Thanks for all your advice and replies

PASTMYBEST
Any appeal will be on almost entirely technical grounds , as the signage will be no more than a door opener. MMV is the man to help with this so post any draft here before sending
MWJN
Hi All

The Post by Mad Mick V - Posted Sun, 3 Jan 2016 - 17:35

Should I be using that as a guidance?

Just seen more information since the weekend has been posted

To contest this, what do I need to write to make it specific for the challenge?

Thanks
Neil B
QUOTE (MWJN @ Wed, 6 Jan 2016 - 08:49) *
Hi All

The Post by Mad Mick V - Posted Sun, 3 Jan 2016 - 17:35

Should I be using that as a guidance?

Just seen more information since the weekend has been posted

To contest this, what do I need to write to make it specific for the challenge?

Thanks

As a starting point for understanding what we have all been on about - yes.
But what you actually submit can omit many of the references to detail we exchanged in discussion.

I'm sure Mick will be along - but as a very general outline >

1/. Open with something real life, showing you are either an aggrieved motorist taking issue with,
for example, signage (if any issues) or someone feeling daft for making an honest mistake, etc. Or both?

2/. State you believe the PCN defective and hence invalid and unenforceable.
Specifically, that it does not advise you of the correct timescales, both for payment or to
make representations.
Go on to reference each error and which section(s) of the legislation apply.

That's just a very broad idea for layout.

It's very helpful that the Regs prescribe mandatory re-offering of the discount; you have nothing to lose.

IMO you will most likely get a completely dumb response to this one initially.
MWJN
Hi Neil B

Thanks

I will get cracking on the draft

smile.gif

Just a nice update on the current situation in wales -

http://www.walesonline.co.uk/news/wales-ne...fs-bus-10690226
MWJN
Hi All

For Mad Mick V can I use this?

Thanks

Dear Sir/Madam

PCN Number - to be inserted

I am challenging the PCN under –
7. That the Enforcement Authority did not follow correct procedure in issuing the PCN
8. That the Traffic Regulation Order under which the PCN was issues was invalid
I feel aggrieved to have had the issuing of a PCN for entering of a Bus Lane in Custom House Street Cardiff on the 14/12/2015
In respect to the road, the markings/signs showing the bus lane these are minimal to say the least. The signage is insufficient to convey the restriction on St Mary’s Street Cardiff.
The directional sign on St Mary’s Street is angled away from the driver and is quite wordy so can easily be missed, then once the turn is made you are committed ,before you see the bus lane signs.
I unintentionally entered the Bus Lane, after turning right and I had no other option but to continue on the road, due to the driving conditions were both wet and visibility was not great, with also having, another car behind me so could not stop and either reverse out of the road.
I would also like to highlight the PCN to be defective under the following –
• Informs the payee of incorrect timescales for payment
• Informs the payee of incorrect to make representations
http://www.legislation.gov.uk/wsi/2014/2725/note/made

That designation is made under Part 6 of the TMA 2004.

Both the following Regulations are made under the TMA 2004:-

The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013---(i.e General Provisions)
The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013 --(i.e. Appeal Regs)

“A penalty charge notice must be in the form set out in Schedule 2 to these regulations or a form to the like effect,provided that it contains all of the prescribed particulars as set out in Schedule 1 to these regulations and regulation 3 of the Representations and Appeals Regulations”.

Any PCN issued by the Council, as above, must comply with Sch 1 of the General Provisions and Reg 3 of the Appeal Regs. That’s all the law requires. Sch 2 cannot take precedence or trump 8(2).

So if we limit ourselves to that consideration and what the PCNs state, here’s the bullet points again in terms of 8(2) requirements (the subtitle is what the PCNs say) :-

(1) PCN Payable within 28 days of issue

Sch 1 (2)(d)------- that the penalty charge must be paid within the period of 28 days beginning with the date on which the penalty charge notice is served; Ergo the payee has been prejudiced because his time to pay is truncated.

(2) Increase of penalty charge within 28 days of date of issue

Sch 1(f) that if after the last day of the period referred to in sub-paragraph (d) (i.e. 28 days beginning with the date on which the penalty charge notice is served

(i) no representations have been made in accordance with regulation 4 of the Representations and Appeals Regulations; and

(ii) the penalty charge has not been paid,

the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased;

The payee is prejudiced by a truncated timescale.

4. Will increase penalty charge

Sch 1 2(f)(ii) the enforcement authority may increase the penalty charge by the amount of any applicable surcharge and take steps to enforce payment of the charge as so increased;

The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted. This is therefore a procedural impropriety.

5. Challenge within 28 days of date of notice

The correct period for reps, per 3 (4)(a) of the Appeal Regs, is 28 days beginning with the date on which the penalty charge notice is served. Again the payee faces a truncated timescale which is prejudicial.

I look forward to hearing back from you
Neil B
It's not a bad start at all.
Needs a good bit of tweaking but a nice clear layout imho.

See what Mick thinks/adds.

I'll chip in if I have time.

-------------
PASTMYBEST
QUOTE (Neil B @ Wed, 6 Jan 2016 - 14:22) *
It's not a bad start at all.
Needs a good bit of tweaking but a nice clear layout imho.

See what Mick thinks/adds.

I'll chip in if I have time.

-------------



As Neil say's Mick will most likely be along.IMO he is the one to tweak your appeal, I will like Neil chip in if anything constructive comes to mind.

Keep in mind deadlines!
MWJN
H Neil & Past My Best

Deadline is

Date of Issue of PCN - 29th December

Latest I would submit would be early next week

So around the 13th January to make sure it is in

It can be done online aswell for the Challenge

Thanks for the help so far

Mad Mick V
Keep it short so they have to work it out for themselves. Don't spoon feed them.

Here's something to work on. Chop it about or add to it as you need.

PENALTY CHARGE NOTICE-- NO. ???????????

The Charge

Contravention Code 34: Being in a Bus Lane.

The Circumstances

The markings/signs denoting the bus lane are inadequate and insufficient to convey the restriction on St Mary’s Street Cardiff. The directional sign on St Mary’s Street is angled away from the driver and is quite wordy so can easily be missed, then once the turn is made you are committed ,before you see the bus lane signs. I unintentionally entered the Bus Lane, after turning right and I had no other option but to continue on the road, due to the driving conditions were both wet and visibility was not great, with also having, another car behind me so could not stop and either reverse out of the road.


The Appeal

This appeal relates to the PCN noted above dated 29 December 2015. It sets out a series of major errors, both procedural and statutory, made by Cardiff Council. Each of the appellant points listed below represent substantive issues which impact on the appeal and which can each stand alone in refutation of the Council’s case.

1. The Contravention Did Not Occur

There is insufficient evidence to prove this contravention because the signage for this bus lane is inadequate. There are no CCTV warning signs and no 'end of bus lane' signage. In addition the Council has failed in its duty not to confuse or mislead given the signage in position is slanted away from drivers and is hard to read given its detail. I do not consider that the Enforcement Authority has provided clear signage and cannot therefore enforce this bus lane according to statute.


2. Procedural Impropriety

The PCN noted above is invalid and unenforceable because it does not comply with Schedule 1 of The Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013 nor does it comply with Regulation 3 of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013.

The PCN contains the following errors:-

Payable within 28 days of issue, ----should be of service;
Increase of penalty charge within 28 days of date of issue ---, should be served;
Will increase penalty charge, ------should be may;
Challenge within 28 days of date of notice conflates payment date .

The legislation does not impose a mandatory obligation on the Authority to serve a Charge Certificate where the Penalty Charge Notice remains unpaid and an appeal is not submitted.

Given that the PCN does not follow statutory timescales and insists on the issue of a Charge Certificate it must be regarded as a nullity.

3. Prejudice

The inconsistent timescales on the PCN have the effect of truncating timescales in terms of appeal and payment but more importantly bring forward the date the date of punitive action by the Council --- the issue of a Charge Certificate.

These issues are prejudicial to recipients of a PCN or are potentially prejudicial and therefore the Council is in breach of it’s public law duties, which include the duty of fairness and its duties under the Equality Act 2010.


I look forward to your confirmation that the PCN noted above has been cancelled.

Yours
PASTMYBEST
Most organizations would pay a rather large consultancy fee, to have their legal documents reviewed and corrected. They will probably try to say it doesn't matter
coz you were in a bus lane anyway, so you pay us

Nicely done Mick
Neil B
Your deadlines are 20th and 27th respectively: The former being most important at the mo.

Before you send anything I'd like to input.

I'm not here to shoot anyone down, least of all people who give their time giving great advice.
But it's difficult not to upset people if I offer the now appropriate input here in the thread.

So,
I can't take PMs but >
In my profile page, bottom left, my e-mail button is open.

Mick, can you drop me a line using that please so I can offer comment privately.

MWJN, you are welcome to do the same.
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