Author Topic: 52M Failing to comply with a prohibition..., 52M Failing to comply with a prohibition...Waltham Forest  (Read 73 times)

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philou

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Dear All,


Had posted the above-referenced on behalf of a relative of mine on the other forum and was wondering if anyone here can share their thoughts as well please.


Summary of it is that on the night of the alleged contravention, the person's visibility was impaired due to heavy rain. He also thought:
1) the planters were too wide apart (which didn't seemingly act as a prohibition to motor vehicles,
2) the "closed road" signage was referrig to the location further ahead.

The link (http://tinyurl.com/Nash52M) is the PCN's and below ones are some pics of the location:

https://tinyurl.com/yc34drhe
https://tinyurl.com/4bdxdnpt
https://tinyurl.com/r262jfwu

The below was the representation sent:

Dear Waltham Forest

Ref: PCN VRM

I make these representations against the said PCN as follows:

1. The signage is confusing as the ROAD CLOSED sign is positioned before the junction and the road ahead appeared to be free to enter. Furthermore, the restriction signs are also placed before the road ahead. Therefore, this is very unclear.

2. I refer you to Case No 2220655455

ETA Register of Appeals
Register kept under Regulation 20 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993, as amended and Regulation 17 of the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022.
Case Details
Case reference 2220655455
Appellant Bysshe Wallace
Authority London Borough of Waltham Forest
VRM PK65WZA
PCN Details
PCN FR57211309
Contravention date 17 Jul 2022
Contravention time 14:12:00
Contravention location Forest Road / Russell Road
Penalty amount GBP 130.00
Contravention Entering and stopping in a box junction
Referral date
Decision Date 27 Oct 2022
Adjudicator Henry Michael Greenslade
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice.
Reasons This decision has been amended under Regulation 15 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993.

At this scheduled personal hearing the Appellant was represented in person by Mr Morgan and her husband, Mr Emamally, also attended.
The Enforcement Authority did not attend and were not represented.
Under Paragraph 11(1) in Part 7 of Schedule 9 to the Traffic Signs Regulations and General Directions 2016 a box junction marking conveys the prohibition that a person must not cause a vehicle to enter the box junction so that the vehicle has to stop within the box marking due to the presence of a stationary vehicle.
The Penalty Charge Notice was issued under Section 4(1) of the London Local Authorities and Transport for London Act 2003 ('the 2003 Act') on the basis of information provided by a camera or other device. There appears to be no dispute that the vehicle was at this location, as shown in the closed-circuit television (cctv) images produced by the Enforcement Authority.
The Appellant’s case is that she was trying to steer clear of a scooter rider who was cruising around on the main carriageway and weaving in and out of the traffic. The Appellant submits that she was deeply concerned and anxious that there could be an accident and thinking it would minimise the chance of that, she pulled up behind the car which was already stationary at the lights.
The closed circuit television (cctv) images show that the Appellant’s vehicle did enter this box junction marking when the vehicle ahead was still in it and then had to stop within the box due to the presence of a stationary vehicle. The images do also show a scooter but it is some way behind the Appellant’s vehicle even after it had stopped in the box.
It does remain the responsibility of the motorist to check carefully at all times whilst driving their vehicle, so as to ensure that they do so only as permitted. The contravention can occur if any part of the vehicle’s wheels are stopped within the box marking. No actual obstruction need be caused for the contravention to occur.
Rule 174 of the current edition of the Official Highway Code refers to box junctions. It explains that these have criss-cross yellow lines painted on the road and warns: ‘You MUST NOT enter the box until your exit road or lane is clear. However, you may enter the box and wait when you want to turn right, and are only stopped from doing so by oncoming traffic, or by other vehicles waiting to turn right. At signalled roundabouts you MUST NOT enter the box unless you can cross over it completely without stopping.’
A box junction is the yellow criss-cross marking prescribed by Diagram 1043 at item 25 in Part 6 of Schedule 9 to the 2016 Regulations. The images produced show that in this case the marking does appear to comply. I am satisfied that it is clear to the motorist that this is a box junction.
Mr Morgan also submits that the Enforcement Authority failed to address properly the original representations to the Enforcement Authority and that the wording of the Penalty Charge Notice is non-compliant.
As to the latter, Section 4(8) of the 2003 Act provides that:
A penalty charge notice under this section must-
(a) state-
(i) the grounds on which the council or, as the case may be, Transport for London believe that the penalty charge is payable with respect to the vehicle;
(ii) the amount of the penalty charge which is payable;
(iii) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(iv) 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;
(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
(vi) the amount of the increased charge;
(vii) the address to which payment of the penalty charge must be sent; and
(viii) that the person on whom the notice is served may be entitled to make representations under paragraph 1 of Schedule 1 to this Act; and
(b) specify the form in which any such representations are to be made.
Paragraph 3 of the Schedule to Act provides:
Where any representations are made under paragraph 1 above but the enforcing authority do not accept that a ground has been established, the notice served under sub-paragraph (7) of the said paragraph 1 (in this Schedule referred to as "the notice of rejection") must-
(a) state that a charge certificate may be served under paragraph 5 below 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 a traffic adjudicator against the penalty charge; and
(b) describe in general terms the form and manner in which such an appeal must be made,
and may contain such other information as the enforcing authority consider appropriate.
Regulation 4(2)(a) of the Road Traffic (Parking Adjudicators) (London) Regulations 1993 provides that the local authority shall produce a copy of the relevant Penalty Charge Notice.
Page 3 of the Penalty Charge Notice states:
"If you fail to pay the Penalty Charge or make representations before the end of a period of 28 days beginning with the date of service of this notice an increased charge of £195 may be payable. We may send you a Charge Certificate seeking payment of this increased amount. At this stage it would be to [sic] late to make representations".
There is a clear, and incorrect, confluence of the two provisions. The wording on the Penalty Charge Notice produced to me does not comply with the legal requirements.
It might be said that the Appellant is not prejudiced as, in effect, the time limit for initial payment of the penalty charge is increased
However, the Appellant’s representative has referred to the decision in R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin).
Although that case involved a Penalty Charge Notice issued under different statutory provisions, it makes clear that the fact that an appellant may not have been prejudiced is not a "cure" to the substantive defect. The defect renders the penalty unenforceable. make clear the importance of complying with the requirements of the legislation. Mr Justice Jackson said in that case "Prejudice is irrelevant and does not have to be established. The 1991 Act created a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."
I cannot find that there is any serious possibility of real prejudice here but the wording is not correct and, accordingly, for the reasons set out this appeal must be allowed.
It follows that no other issue need be determined.

In light of the above, I request that the PCN be cancelled.

Yours faithfully

Name (Registered keeper)

Address


Followed by NOR:
https://tinyurl.com/3he8ewtw

Worth noting they've not addressed the point mentioned in the Representation about position of signage etc.

Your thoughts are appreciated.

Many thanks
« Last Edit: April 08, 2024, 11:00:31 pm by cp8759 »

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Hippocrates

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There were a few illustrious observers in attendance at that hearing! In this particular case, I would say let's go for it my friend!
There are known knowns which, had we known, we would never have wished to know. It is known that this also applies to the known unknowns. However, when one attends a hearing, Mr Rumsfeld's idea that there are also unknown unknowns fails to apply because, anyone who is in the know, knows that unknown unknowns are purely a deception otherwise known as an aleatory experience or also known as a lottery. I know that I know this to be a fact and, in this knowledge, I know that I am fully prepared to present my case but, paradoxically, in full knowledge that the unknown unknowns may well apply in view of some adjudicators' lack of knowing what they ought to know through no fault of their own.

"Hippocrates"

cp8759

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The TRO is The Waltham Forest (Prescribed Routes) (Winns Avenue Pennant Terrace region) (No.1) Experimental Traffic Order 2023.

Sorry to say it but the signs look clear as day, even at night:

https://www.youtube.com/watch?v=kF6RUisguFg

The case you've cited is negated by paragraph 5 of Schedule 1 to the London Local Authorities and Transport for London Act 2003, which provides that:

5(1) Where a penalty charge notice is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (in this paragraph referred to as a “charge certificate”) to the effect that the penalty charge in question is increased by 50 per cent.

(2) The relevant period, in relation to a penalty charge notice is the period of 28 days beginning—

(a)where no representations are made under paragraph 1 above, with the date on which the penalty charge notice is served;

Maybe Hippocrates can come up with something else?

One argument I can see is that the traffic order says:

2.7 No person shall cause or permit any motor vehicle to enter or proceed in Winns Avenue, E17, between the eastern kerb line of South Countess Road eastwards for 16.5 metres.

However the signs are not placed at that distance:



This has won for instance in Michael Dempsey v London Borough of Enfield (2230348292, 26 August 2023), as Mr Teper accepted the regulations require that "When the sign is placed to indicate the point at which a restriction, requirement or prohibition begins or ends, it must be placed as near as practicable to that point."

The counter argument is: would it have made any difference if the signs were placed where they should have been?

One that could go either way depending on the adjudicator.
« Last Edit: April 08, 2024, 11:29:25 pm by cp8759 »
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law. Section 6 of the Interpretation Act 1978 applies to everything I post as it would apply to an Act of Parliament. I am a Conservative councillor, this means some people think I am "scum". I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

philou

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Hi CP/Hippo,

Thank you both very much for your input. I relayed the observations/thoughts to the OP who, I believe however, isn't confident enough to risk it at adjudication stage, unlike some of us. :(

Nevertheless, many thanks again for the pointers! :)

Cheers
Philou

Hippocrates

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Now that's a conflation indeed!  No worries.  His money/his decision. We respect.
There are known knowns which, had we known, we would never have wished to know. It is known that this also applies to the known unknowns. However, when one attends a hearing, Mr Rumsfeld's idea that there are also unknown unknowns fails to apply because, anyone who is in the know, knows that unknown unknowns are purely a deception otherwise known as an aleatory experience or also known as a lottery. I know that I know this to be a fact and, in this knowledge, I know that I am fully prepared to present my case but, paradoxically, in full knowledge that the unknown unknowns may well apply in view of some adjudicators' lack of knowing what they ought to know through no fault of their own.

"Hippocrates"