Keep Left/Right Signs on BollardsI have now found a definitive statement from the Department for Transport that it is "never appropriate" to put Keep Left/Right signs on bollards where it is intended that some vehicles should pass on the "other" side. It is in
Traffic Advisory Leaflet 3/13: Traffic bollards and low level
traffic signs. On page 11 there is a section about "Cycle gaps". These are where there is a build-out and traffic in one direction is forced to give way to traffic coming in the other direction. In some cases the build-out is actually an island and the gap between the island and the footway is wide enough for cycles to pass through. This is a "cycle gap". TAL 3/13 advises:
Where a traffic island is used to create a cycle gap, it is never appropriate to use a keep left/right sign on the
island.
The keep right sign in Figure 15 essentially prohibits cyclists from using the cycle gap and a plain traffic bollard
would have been more appropriate
The reason that the Keep Right sign is inappropriate at the cycle gap is that the only vehicles (including pedal cycles) which may pass to its left are those listed in
TSRGD 2016 Schedule 3 Part 4 Paragraph 3 (the emergency services plus some related ones).
Figure 15 is at the bottom of this post.
Passing the Bollards on Charlton RoadThe same argument applies to vehicles passing to the right of the Keep Left signs on Charlton Road. Bin lorries providing services to residents of Charlton Road are required to obey the sign. If they cannot, they must turn round or reverse back.
If Harrow Borough Council does not issue 38L PCNs to bin lorries and other vehicles which use the central lane, it breaks a fundamental rule of administrative law: that in its actions a public authority must not take account of irrelevant considerations. In issuing 38L PCNs, Harrow is using powers granted to it under
Section 4 of the London Local Authorities and Transport for London Act 2003 in respect of contraventions of
Section 36 of the Road Traffic Act 1988. There's nothing in RTA 1988 about TMOs which may permit other vehicles to use a lane to the right of a Keep Left sign. In any case, Harrow's TMO only permits its vehicles to use the central lane if they are being "lawfully used", which they aren't if they are disobeying a traffic sign.
The consequence of breaking this fundamental rule is that the public authority's actions are
ultra vires (beyond its powers). The courts strike them down as unlawful. While it requires Judicial Review (which doesn't come cheap) to obtain such a declaration, Adjudicators should understand the principle and entertain the argument.
Wrong SignageThis argument only arises because Harrow has been using the wrong signage at the restrictions. To paraphrase the advice of Traffic Advisory Leaflet 3/13: it is never appropriate to use Keep Left/Right signs where it is intended that "special" vehicles should be permitted to pass the sign on the other side. The correct approach is to leave the bollard blank.
That doesn't mean that the TMO is unenforceable. On the contrary,
Regulation 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (LATOR) imposes this duty:
18.(1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a) before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;
(b) the maintenance of such signs for so long as the order remains in force;
Google Street View shows that in 2008 there was a gate across the central lane with 600mm-diameter No Entry Signs and a plate which read "EMERGENCY ACCESS // DO NOT OBSTRUCT". It is permitted to have a gate across the highway, provided it is not locked. The obligation under Regulation 18 of LATOR refers only to traffic signs, so the locking of the gate didn't count. Harrow evidently considered that the "requisite" signage to make adequate information available to persons using the road was to put 600mm-diameter No Entry signs on the gate across the central lane. That also avoided complaints about its obstructing the highway by locking the gate.
By 2012, Harrow had replaced the gate with another one which didn't have the No Entry signs but which did have a red-and-white-striped top rail.
2012 Update to the TMOThe TMOs for Charlton Road have always allowed use of the central lane by the emergency services. In 2012 Harrow made Traffic Order LBH 2012/30 which added
(e) any vehicle being lawfully used in connection with the maintenance of public services maintained by the London Borough of Harrow.
As noted above, this TMO only allows vehicles which are being "lawfully used" to use the central lane. If there is a Keep Left sign to the left of the lane, any vehicle using it (other than an emergency services vehicle) is not acting lawfully. If there isn't a Keep Left sign to its left, vehicles on Harrow business can use it.
Removal of the GateWhen Harrow removed the gate between 2019 and 2020, the absence of proper signage of the restriction on the central lane became glaring. The proper signage would have been No Entry (or possibly No Vehicles) signs with "Except authorised vehicles" plates on poles on the traffic islands. The bollards on either side would then have been left blank.
The hatching which Harrow put across the central lane has a broken border and is to diagram 1040 (item 23 in
TSRGD 2016 Schedule 11 Part 4). It means
Part of the carriageway which vehicular traffic should not enter unless it is seen by the driver to be safe to do so
Rather than use the correct signage (which would have required special permission from the Department for Transport for the "Except authorised vehicles" plates), Harrow chose to use the wrong signage - Keep Left signs on the bollards at the traffic islands - and issue PCNs selectively.
Challenging Harrow's ActionsIt will be interesting to see how Adjudicators respond to this argument, if it is deployed by someone who gets a 38L on Charlton Road.
As to those who have already paid, I see parallels between this and sub-postmasters who were bankrupted when the Post Office sued them for losses reported by the Horizon system. It took many years for those wrongs to be righted. I hope it doesn't take as long here.
