Help please - pcn received, appealed and response received.

[oodly]

Hello

 

We have received a PCN for stopping where prohibited (on a red route or clearway). I sent an appeal and have received a response. The PCN, appeal and response are attached. I also attach the section from the manual that is referred to in our appeal.

 

Points that I would love some help on are:

 

1.

(i) Surely the stance taken on CCTV would not survive an appeal to the adjudicator?

(ii) Also, how can they ignore a case that held that a PCN was invalid because there were no signs in the location.

(iii) TFL also states in their letter that "the general presence of warning signs in the area leading up to the point where enforcement takes place is sufficient" but I cannot see ANY signs even nearby!

 

2. The response does not address some of my grounds of appeal, namely points 1(a), 1(f) and 2(b). In relation to my point 1(e) in the appeal, they do not confirm that our PCN was sent out first class, merely what happens in general, which is not specific to our PCN. I also asked them to send a copy of the relevant traffic order and proof that the camera is an approved device with their rejection, but nothing was attached. TFL says it will answer this request separately. Are freedom of information requests meant to be dealt with separately?

 

3. Overall, is it worth pursuing this i.e. appealing again?

 

4. Also - the red lines are really quite faded and sections are non-existent. I didn't mention this is the first appeal. How much strength does this point have?

 

Thank you in advance for any comments.

 

oodly

redroute.pdf

appeal1.pdf

response1.pdf

PCN1.pdf

Edited December 23, 2010 by oodly

[buzby]

No additional signage is required for Double Yellow Lines, and I would expect the same holds true for Red Routes apart from the start and end plates, there being no requrement for 'repeaters'. Similarl,y CCTV evidence is not mandatory and can be disregarded by the adjudicator. Lines being faded is not a great defence, as there is no expectation of unrestricted parking, so the driver would be anticipating some form of restriction and should explore this possibility. You've only made a Representation (and had it rejected) any Appeal will be to the Adjudicator - and you have to balance whether this will be worth pursuing based on the possibility of losing at Appeal. In most cases it is a gamble....

[sailor sam]

In addition to what buzby has said, there is no legal requirement to have signs warning of CCTV traffic enforcement. Are you saying that you would of obeyed the red route had you have known there was CCTV in operation? I have taken a look at the location on street view and all the lines seem compliant to me and it is quite obvious it is a red route. As far as the lines being 'faded', there may be some mileage in that if the CCTV image shows that you were stopped on such a spot where the lines are faded but they would have to be significantly so.

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

 

Please click my reputation 'star' button at the bottom of my profile window on the left if you found my advice useful.

[green_and_mean]

I think you are grasping at straws with your appeal you appear to be stopped on the bus stop which has its own sign only feet from where you are parked and the cctv excuse has been tried many times at PATAS and failed every time.

[Bernie_the_Bolt]

If you feel that TfL have not responded adequately or at all to your representations then you can appeal on the grounds that they have failed in their obligation to treat you fairly. (The PATAS adjudicators cover this point in their reviews.)

 

I'm not too sure that their response that you were in a "Bus Cage" holds any water. What is a Bus Cage? Where does it appear in the traffic signs manual? Had they responded to say you stopped at a bus stop, that would be different but they did not.

 

I'd appeal for a personal hearing but it's up to you.

[sailor sam]

If you feel that TfL have not responded adequately or at all to your representations then you can appeal on the grounds that they have failed in their obligation to treat you fairly. (The PATAS adjudicators cover this point in their reviews.)

 

I'm not too sure that their response that you were in a "Bus Cage" holds any water. What is a Bus Cage? Where does it appear in the traffic signs manual? Had they responded to say you stopped at a bus stop, that would be different but they did not.

 

I'd appeal for a personal hearing but it's up to you.

 

I would imagine their description of the road markings of the bus stop?

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

 

Please click my reputation 'star' button at the bottom of my profile window on the left if you found my advice useful.

[Bernie_the_Bolt]

Yes, I too have an imagination. But I don't think that relying on the imagination of a recipient is acceptable in a notice of rejection do you? After all few people have the same imagination!

[sailor sam]

Yes, I too have an imagination. But I don't think that relying on the imagination of a recipient is acceptable in a notice of rejection do you? After all few people have the same imagination!

 

Are you suggesting that the way the bus stop is described provides a valid defence to the OP for stopping on a red route? The OP is already clutching at straws in his appeal letter. Unfortunately if the OP stopped on a red route and the PCN has no flaws then I can't see where there's a defence.

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

 

Please click my reputation 'star' button at the bottom of my profile window on the left if you found my advice useful.

[Bernie_the_Bolt]

If I were the OP I'd go to adjudication and the main thrust of my appeal would be on the failure by TFL to act fairly. I would rely on this from the Parking Adjudicators Annual Report of 2002-03 (my bold):

FAIRNESS

The fact that the Local Authority is under a legal duty to act fairly was first highlighted in Davis v Kensington & Chelsea (PATAS Case Number 1970198981). The Adjudicator said that where an Adjudicator finds that an authority has acted ultra vires in failing to comply with this duty, it is open to him to uphold a collateral challenge and find that the authority cannot pursue a penalty based upon its own unlawful act.

That case was particularly concerned with the obligation to enforce a parking penalty within a reasonable time. However, there are many aspects to the duty, which applies to all stages of the enforcement process.

But irrespective of the legal duty to act fairly, we would hope that Local Authorities would aspire to the highest standards in carrying out enforcement and wish to deal with the motoring public in a way that is fair and is seen to be fair. This is what Central Government expects of them. ‘Traffic Management and Parking Guidance for London’ issued by the Government Office for London states that ‘Local authorities should operate the system fairly’ and contains commentary on what this should mean in practice. The message is echoed in ‘Guidance on Decriminalised Parking Enforcement Outside London’ issued by the Department of Transport and the Welsh Office. This contains extensive practical guidance based on the operation of decriminalised enforcement in London.

We will now look at some topical issue relating to fairness.

. . .

�� The Notice of Rejection

It is this notice that informs the motorist that the Local Authority does not accept his representations and triggers his right to appeal to the Adjudicator. As the ‘Guidance on Decriminalised Parking Enforcement Outside London’ says (paragraph 14.25),

The notice of rejection should also contain the authority’s reasons for rejecting the representation. This is not just a courtesy to the motorist. Experience in London suggests that it also reduces the number of cases taken to adjudication by frustrated motorists.

We endorse these comments, but would add that giving a specific response to the points raised in the representations is more than just a courtesy, important though that is; it is also an element in fair dealing. For if the motorist does not receive an explicit, reasoned response to his points, how is he to make an informed judgement whether to appeal?

 

However I would also seek to argue that as TFL are asserting that the contravention was "being in a bus cage" and a bus cage does not exist in law (if I became confident that that was the case), there was no contravention. Further, in using non-prescribed terminology, TFL have confused the issue and have therefore failed in their duty to act fairly.

 

Many a case has been won by clutching at straws, there ain't nothing wrong with that!

[green_and_mean]

A bus stop does not exist in law either if you wish to go down that line, I think you mean a Bus stop clearway? A 'cage' is a marked bay and used in the Traffic signs manual, bus stop clearways are not used on a red route instead yellow 'cages' are marked on the red route to indicate where buses may stop to pick up/drop off passengers and are restricted 24/7. Tfl would have been more accurate by including 'on a red route' after the use of 'bus cage' but I'd certainly not gamble £60 on it winning at PATAS.

[oodly]

Hello everyone.

 

Thanks for all of your replies. I had no idea that there were so many replies as I stopped receiving alerts for some reason!

 

I have recently noticed something else about the Notice of Rejection which may be useful.

 

It regards the paragraph that states:

 

"Unless you appeal within 28 days, beginning with the date of service of this notice of rejection, you must pay the penalty charge of £120 to Transport for London (see the attachment for details of How to Pay). Regretfully, failure to pay may result in the issue of a Charge Certificate, which will increase the charge due to £180."

 

However, regulation 6 of The Civil Enforcement of Parking Contraventions (England) Respresentations and Appeals Regulations 2007 (si 2007/3482) states:

 

6.— Rejection of representations against notice to owner

 

(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall—

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

(i) the penalty charge is paid; or

 

(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge;

 

 

(b) indicate the nature of an adjudicator's power to award costs; and

 

© describe in general terms the form and manner in which an appeal to an adjudicator must be made.

 

 

(2) A notice of rejection served in accordance with paragraph (1) may contain such other information as the enforcement authority considers appropriate.

 

I have emboldened the relevant wording above.

 

As far as I can tell, TFL's wording does not state the part required by Reguation 6(1)(a)(i). It does not say that unless you pay before the end of the period...that a charge certificate may be served. It only says that unless you appeal within 28 days, beginning with the date of service of this notice of rejection, you must pay and then failure to pay may result in a charge certificate. The time at which a charge certificate could be served is vague, whereas according to the statutory instrument quoted above, the wording must be more specific and state when exactly a charge certificate may be served.

 

Also, the notice of rejection reads as if after 28 days, £120 is due. However further up in the notice, it states "If you do not pay by the date given, the full charge of £120 will be due". The date given is 8 January 2010. (They have even got the year wrong!! We're in 2011!!!) So there are conflicting statements as to when the £120 is due.

 

What do people think of the above?

 

Many thanks once again in advance.

 

oodly

[Bernie_the_Bolt]

Go for it!

 

List everything in minute detail in an appeal to PATAS.

 

Its all procedural impropriety and failure to act fairly in ways that cause potential prejudice.

 

There is no excuse for this.

[oodly]

A bus stop does not exist in law either if you wish to go down that line, I think you mean a Bus stop clearway? A 'cage' is a marked bay and used in the Traffic signs manual, bus stop clearways are not used on a red route instead yellow 'cages' are marked on the red route to indicate where buses may stop to pick up/drop off passengers and are restricted 24/7. Tfl would have been more accurate by including 'on a red route' after the use of 'bus cage' but I'd certainly not gamble £60 on it winning at PATAS.

 

In the Traffic Signs Regulations and General Directions si 2002/3113, both "clearway" and "bus stop clearway" are defined:

 

SCHEDULE 19

BUS STOP AND BUS STAND CLEARWAYS AND BOX JUNCTIONS

PART I SIGNIFICANCE OF BUS STOP AND BUS STAND CLEARWAY MARKINGS

Law In Force

1. Interpretation of Part I of Schedule

Regulation 29

For the purposes of this Part of this Schedule—

(a) “clearway” means an area of carriageway bounded by the continuous and broken straight

yellow lines comprised in the road marking in diagram 1025.1, 1025.3 or 1025.4 and “bus

stop clearway” means a clearway on which the words “BUS STOP” are marked; and

(b) a vehicle shall be taken to have stopped within a clearway if—

(i) any point in the clearway is below the vehicle or its load (if any); and

(ii) the vehicle is stationary.

 

In the notice of rejection, TFL has stated that being stationary within a bus cage under any circumstance constitutes a contravention and that it was for that reason that the PCN was issued. However, on the PCN the contravention is Code 46: Stopped where prohibited (on a red route or clearway). According to the above definitions, the wrong code has been used if the reason for the PCN being issued was because of the car being stationary within a bus cage?! A clearway and a bus stop clearway are defined as two different things.

If TFL's reasoning had been that the car was on a red route, then the code would have been correct.

Does anyone agree with this logic?

Also, I could argue that even if "clearway" in the code 46 included a bus stop clearway then it is still not a clearway because the definition requires an area of carriageway bounded by the continuous and broken straight yellow lines but there are sections of the lines that are completely faded, so they are not continuous. Surely this wouldn't be classed as de minimus?

Also, if TFL are trying to argue the "clearway" part of code 46 instead of the "red route" part, then should there not be clearway signs in place? I do not recall there being any signs.

Thanks again,

oodly

[sailor sam]

You are obviously in need of a refresher in the highway code in relation to red routes and clearways.

 

A clearway is designated by a sign at the start of the restriction;

It is an offence to stop within a clearway other than the purpose of an emergency. Some bus stops have clearway restrictions outside actual clearway routes and are marked with a thick yellow line and should be supported with a yellow plate stating 'except buses' and bearing the above symbol.

 

Red routes are designated by double red lines and carry the same restrictions as a clearway. Bus stops within a red route do not have to the above signage/markings but again it is an offence to stop on them (unless you are a bus operating along that route of course).

 

I have again looked on streetview where your PCN was issued and as far as I can see, the markings and signage are in place and compliant. However, if you can post more recent pics of the exact place where you stopped then we could possibly advise further. But the bottom line is really that you either stopped on the red route or didn't.

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

 

Please click my reputation 'star' button at the bottom of my profile window on the left if you found my advice useful.

[Bernie_the_Bolt]

I think that the issue at hand is rather less than whether the driver stopped where they shouldn't have. The question at hand is really whether TfL have operated the enforcement process correctly and it appears to me that there is a perfectly good argument that they haven't.

 

Under our system of decriminalised enforcement, if that argument is accepted, it means that no penalty is due.

[green_and_mean]

I think that the issue at hand is rather less than whether the driver stopped where they shouldn't have. The question at hand is really whether TfL have operated the enforcement process correctly and it appears to me that there is a perfectly good argument that they haven't.

 

Under our system of decriminalised enforcement, if that argument is accepted, it means that no penalty is due.

 

There is no argument at all the OP has clearly not understood my post and copied and pasted some irellevant stuff from the TSRGD about bus stop clearways he wasn't stopped on a bus stop clearway he was on a red route in a bus cage. You cannot legally have a bus stop clearway on a red route as you cannot have double red lines and yellow lines along the kerb. If the OP had paid more attention when driving he may have noticed he not only missed at least 6 signs stating no stopping at any time to get to where he stopped but also drove through a no motor vehicles sign to get to his 'bus stop'.

http://maps.google.co.uk/maps?ie=UTF8&q=colliers+wood+tube&hq=&hnear=Colliers+Wood+tube+station&ll=51.417917,-0.178292&spn=0,0.022638&t=h&z=16&layer=c&cbll=51.417387,-0.177997&panoid=tgL8yEZXMCHC5w34KerOIg&cbp=12,346.71,,0,5

[Bernie_the_Bolt]

But what about OPs post #11?

[green_and_mean]

But what about OPs post #11?

 

I cannot see what his problem is the NOR clearly states that unless you have appealled the £120 must be paid with the 28 day period stated or CC may be issued, that is what the regs state. It may not be written exactly the same but thats what it say?

 

"Unless you appeal within 28 days, beginning with the date of service of this notice of rejection, you must pay the penalty charge of £120 to Transport for London (see the attachment for details of How to Pay). Regretfully, failure to pay may result in the issue of a Charge Certificate, which will increase the charge due to £180."

 

The clarification of the period may have confused the OP but it states you have 28 days to pay unless you appeal. The discount period has now been missed so he may as well take his points to PATAS and then we will have an independant expert opinion on his points.

[oodly]

I cannot see what his problem is the NOR clearly states that unless you have appealled the £120 must be paid with the 28 day period stated or CC may be issued, that is what the regs state. It may not be written exactly the same but thats what it say?

 

"Unless you appeal within 28 days, beginning with the date of service of this notice of rejection, you must pay the penalty charge of £120 to Transport for London (see the attachment for details of How to Pay). Regretfully, failure to pay may result in the issue of a Charge Certificate, which will increase the charge due to £180."

 

The clarification of the period may have confused the OP but it states you have 28 days to pay unless you appeal. The discount period has now been missed so he may as well take his points to PATAS and then we will have an independant expert opinion on his points.

 

Hello everyone. Thanks very much again for all of your comments. I really appreciate them.

 

In relation to post #11, I think there may be some confusion, so I thought I would just reiterate the point I was trying to make.

 

Under the Reps and Appeal Regs 2007, the notice of rejection must state:

 

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

(i) the penalty charge is paid; or

(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge"

 

My main point was about the words that have been emboldened. (The bit that is not in bold has been complied with - though the only issue I have is that further up in the notice of rejection it states that the £120 is due from 8 January which is different to what it states in the paragraph beginning "Unless you appeal...".)

 

So, my main issue is:

 

The above legislation has two limbs. The notice of rejection must state that a charge certificate may be served unless the penalty charge is paid. The second limb is that it must state that a charge certificate may be served unless the person appeals.

 

It is very clear that both of these limbs must have been included in the notice of rejection. However, nowhere in the notice of rejection does it say anything to the effect that "unless the penalty charge is paid before the end of the period of 28 days beginning with the date of service of rejection that a charge certificate may be served". Nor is there anywhere that states anything to the effect that "unless the person appeals before the end of the period of 28 days beginning with the date of service of rejection that a charge certificate may be served".

 

The notice merely states that unless you appeal within [the correct timeframe] you must pay £120. Then, if you don't pay, this may result in the issue of a charge certificate. This is not the same as the legislation requires because TFL's wording does not warn you that (1) unless you appeal within [the correct timeframe] you may actually receive a charge certificate immediately following the correct timeframe and (2) unless you pay within the correct timeframe you may actually receive a charge certificate immediately following the correct timeframe. TFL's wording implies that unless you appeal within the correct timeframe, then the £120 is due and then if you do not pay the £120 then a charge certificate may be issued. There is no timescale as to when the £120 is due by and therefore when a charge certificate may be issued, whereas the legislation clearly requires it to be stated that a charge certificate may be issued if either the person doesn't appeal or pay within the correct timeframe. It would have been very easy for TFL to comply with the Regulations.

 

In fact, the PCN has the correct wording. It states:

 

"If after the last day of the period of 28 days beginning with the date on which this PCN is served no such representations have been made, and the penalty charge has not been paid, we may increase the penalty charge by 50% to £180 and may take steps to enforce payment of the increased charge."

Obviously this was in the context of receiving representations instead of the person appealing, but it's the same logic. TFL were able to use the correct type of formula on the PCN but were unable to copy the template sentences across to the notice of rejection and simply change "PCN" to "notice of rejection" and "no such representations have been made" to "the person on whom the notice is served has not appealed to an adjudicator against the penalty charge". Instead TFL has chosen to play around with the words. If it had stated the legislation as it is phrased then the adjudicator would not question it, but I am hoping that because of the vague wording the adjudicator will decide that the notice of rejection failed to comply with the Regulations and therefore there has been a procedural impropriety.

 

 

In relation to bus cages, I must admit I am slightly confused myself. If you look at page 86 of chapter 3 of the traffic signs manual, it states:

 

"To enable buses to stop on a red route, bus stop clearways will be needed. The road marking is similar to diagram 1025.1 or 1025.4, except that the broad continuous line alongside the kerb is coloured red as shown in figure 10-10. The remainder of the marking, including the legend BUS STOP, is yellow. The upright sign is shown in figure 10-11."

So I am confused because according the Traffic Signs Manual, you can have a bus stop clearway on a red route. So this would mean that the code 46 is wrong because it only talks about a "clearway" and not a "bus stop clearway" which are defined as two different things in the TSRGD. I've read in one place on the internet that the TSRGD does not apply to red routes. Where does it say this? What are red routes governed by? If they exist by virtue of special permission of the secretary of state then surely there must be some documentation somewhere setting this out? Does anyone know anything about this?

 

Where does it say in the Traffic Signs Manual about a "bus cage"?

 

Thanks once again in advance for everyone's help.

 

oodly

[green_and_mean]

It doesn't address bus cages in the TSRGD because its a generic term like 'traffic sign' or 'bollard'. A 'cage' is a dashed parking bay marking, a bus is a big thing with 9+ seats, therefore a bus cage is as bay intended for buses. The cage you parked in was on a red route clearway, a 'clearway' is a section of road that does not permit stopping, a bus stop clear way and a red route clearway are not the same except for the 'no stopping' bit. Red routes in London had their own signage approved by the govt. The entire red route is covered by a single traffic order and only one contravention is issued on them by Tfl and that is for stopping on a red route because that is the only contravention that exists in the traffic orders. There are no 'loading bays, 'parking bays', disabled bays' or 'bus stop clearways' on red routes, the bays are red route that carry an exemption for specific puposes not a restriction.

[Bernie_the_Bolt]

But surely it behoves TfL in the enforcement process to use specific terminology rather than generic terms. Not to do so undermines the fairness obligations to which I have previously referred.

[green_and_mean]

But surely it behoves TfL in the enforcement process to use specific terminology rather than generic terms. Not to do so undermines the fairness obligations to which I have previously referred.

 

Not really he was parked in a bus cage on a red route and clearly not driving a bus hardly confusing is it? The contravention is stopped on a red route where prohibited, you cannot stop in a bus cage on a red route they are clearly marked no stopping except buses. To get to Colliers wood station where he stopped is impossible without driving down at least 400m of red route clearly signed and then driving past two signs stating no motor vehicles and then stopping on a bus stop. All the points he raised about the PCN have been raised at adjudication before and dismissed and the signage is approved by the appropriate means. Personally I think hes mad turning down the re-offered discount but thats his choice all we can do is offer advice.

[dw190]

Being a bus driver I thought I would have my two penny worth.

 

Forget any contravention to do with Bus Cage, that only releases buses from any other regulations on the road in question.

 

Clearly the op was stationary without obstruction on a Red Route which is a clear contravention however, the NoR is non compliant for reasons that have been stated (wording compliant with legislation) and confusion in the NoR appearing to change the contravention from that on the PCN "stopped where prohibited" (on a red route or clearway) to "Please be advised that being stationary within a bus cage under any circumstances constitutes a contravention. It is for this reason that a penalty charge notice was issued."

 

Being stationary in a bus cage does not constitute any contravention. It has to be some other regulation like Red Lines or the later Bus Stop Clearway, even being stationay on double yellows in a bus cage is ok as long as you are dropping off or picking someone up.

 

As has been said, the discounted period has passed so ther is nothing to lose with a formal appeal to the adjudicators (only your time).

 

Go for it. The NoR should be the saviour of the day.

 

There was an appeal by a woman which was rejected by an adjudicor for the reasons she appealed but he ordered the authority to cancel the PCN because of the wording on the NoR did not comply.

Edited January 9, 2011 by dw190

[oodly]

By way of an update -

 

We wrote a 10 page appeal to the adjudicator and have received a letter stating that TFL are withdrawing because of technical error.

 

SUCCESS!!!!!

 

Thank you to everyone who supported us and gave us helpful advice. It is especially interesting to hear from a bus driver's point of view.

 

Thank you so much!

[Bernie_the_Bolt]

Great result! well done!