@satsuki726 My view is that the arguments against PCNs at Camrose Avenue are strong. But you need to understand that you are taking a risk as logic and legal argument may not prevail.
I suggest the representations below (which are not specific to your case and could be used by anyone who receives a PCN on Camrose Avenue).
While point 1 may seem abstruse, it's a bit like a "poison pill" which companies put in place to protect against takeovers. Most people, adjudicators included, like a simple life. They are on a treadmill of cases and have a fixed time allocation for each one. They prefer to avoid issues which are challenging. This is especially true if allowing an appeal on those grounds would lead to a demand from the council for a review.
In this case, allowing an appeal on ground 1 would amount to finding that the TMO, although legally valid (because, by legislation, that follows automatically if it hasn't been challenged within 6 weeks of its being made) was unenforceable. That would raise the question of whether all the PCNs issued since 2007 would have been wrongful and needed to be refunded.
While Harrow might just sit out a few losses, if lots of appeals went against them on these grounds or the political heat rose, Harrow would eventually seek judicial review. This is the last thing which the Environment and Traffic Adjudicators want. They have a budget and have to bear the costs of defending themselves in judicial reviews. The appellant against the PCN is named as a third party in the judicial review but usually does not appear: the case is between the council and the adjudicators as a public body.
The consequence is that adjudicators inevitably shy away from considering tough issues, especially if they may lead to a finding that the TMO is unenforceable. But they're obliged to be fair and they are trained lawyers. So they prefer to allow an appeal on another, less controversial, ground. The council is happy with this as it, too, much prefers the
status quo.
By far the best outcome for both the adjudicators and the council is if the adjudicator can allow the appeal on grounds which do not set a precedent for other cases. This applies if the appellant appears at the hearing and the adjudicator can then say:
Mr X appeared before me and said ... I found him a credible witness and find, as a matter of fact, that ... I therefore allow the appeal.
Such findings of fact cannot be overturned except in extreme cases.
I would therefore advise you, if at all possible, to add your own final grounds of appeal. This should be something which happened to you which you argue means that they should allow your appeal. Don't worry if it seems a bit feeble. It's a get-out which enables them to allow the appeal without setting a precedent.
Representations against PCN no. XXXXX for Contravention 33E on Camrose AvenueThe PCN alleges contravention 33E - USING A ROUTE RESTRICTED TO CERTAIN VEHICLES BUSES CYCLES AND TAXIS ONLY.
I reject this allegation. No contravention occurred for the following reasons:
1. The Harrow (Bus Priority) Traffic Order 2016, which supposedly underlies the allegation, does not, in fact, restrict traffic using the inside lane between the traffic island and the footway to buses, cycles and taxis only. Instead the restrictions which it defines apply in each direction between the traffic island and the central median strip. This is because the Council made a mistake in 1999 when consolidating bus restrictions into a single TMO.
The Harrow (Prescribed Routes) (No. 2) Traffic Order 1976 was the original TMO for Camrose Avenue. It defined both the width restriction and the bus-only restriction (as they then were). The latter applied:
on the south-eastern side of the north-easternmost island site [and] on the north-west side of the south-westernmost island site
In 1999 Harrow consolidated the various individual TMOs into two TMOs, one for width restrictions and one for bus-priority restrictions.
The Harrow (Prescribed Route) (Width Restriction) Traffic Order 1999 defined "prohibited lengths" between "the eastern island" and "the southern kerb-line" and between the "western island" and the "northern kerb-line". All traffic was banned here unless permitted under another TMO.
The Harrow (Bus Priority) Traffic Order 1999 defined the areas of road to which bus-restrictions applied as:
Westbound: the carriageway to the south of the southern traffic island immediately to the west of its junction with Dale Avenue;
Eastbound: the carriageway to the north of the northern traffic island immediately to the west of its junction with Dale Avenue.
Thus the 1999 consolidated orders transformed the north-eastern traffic island into "the eastern traffic island" in the width-restriction order but "the southern traffic island" in the bus-priority order. Likewise, the orders transformed the south-western traffic island into "the western traffic island" in the width-restriction order but "the northern traffic island" in the bus-priority order. The mistakes in the bus-priority order have been repeated in subsequent TMOs up to and including the current ones.
Inspection of a plan of the site shows that the entire south-western traffic island (which splits eastbound traffic) lies to the south of the entire north-eastern traffic island (which splits westbound traffic). There is only one possible interpretation of "southern traffic island" and it is what the 1976 TMO referred to as "the south-westernmost island site". No amount of creative interpretation can turn "southern" into "western" or "northern". The bus-priority TMOs contain mistakes in their compass-points. The consequences must be allowed to play out.
The TMOs are local legislation. They define the restrictions which apply. The signage is placed to show the effect of the TMOs. The presence of signage purportedly restricting the lanes between the traffic islands and the footway to buses, cycles and taxis does not create such a restriction. Nor does the placing of signage assist the courts in interpreting what the TMO means. The TMOs themselves do that.
2. The Council has failed to provide adequate information about the restrictions which it imposes.
Regulation 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (LATOR) requires the placing of such traffic signs as the Council
consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road
In
R (Oxfordshire CC) v The Bus Lane Adjudicator [2010] EWHC 894 (Admin), Beatson J found:
65. The Defendant's submission that the fact that signs are prescribed or authorised does not mean they are sufficient for securing adequate information as to the effect of an order is made available to road users is clearly correct. If the signs do not in fact provide adequate information no offence is committed; see James v Cavey [1967] 2 QB 676.
In
James v Cavey, Winn LJ wrote (Ashworth and Widgery JJ concurring):
The short answer in my view which requires that this appeal should be allowed is that the local authority here did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken and which clearly would have been practicable to cause adequate information to be given to persons using the road by the signs which they erected. ...
This paragraph was quoted with approval by Burnton LJ at paragraph 36 of the judgment in
R (Neil Herron et al) v The Parking Adjudicator [2011] EWCA Civ 905 (Aikens LJ and Sir David Keene concurring). It remains current jurisprudence binding on the High Court as well as on tribunals and adjudicators.
The assessment of the adequacy of the signage therefore covers not only signs which were present but also
signs which could have been placed but which had not.
The first signage of a bus restriction which motorists see are the blue roundels (diagram 953) at the restrictions. Long before this, there are notices of the width restriction ahead, including on side roads warning of the width restriction if motorists turn towards the restriction. Those advance notice signs show one of the effects of the width-restriction TMO: the width-restriction which applies to the outer lane at the restriction.
But the width-restriction TMO actually applies restrictions to both lanes westbound and both lanes eastbound. In the inside lane, it allows vehicles which are permitted by other TMOs. The Council asserts that the bus-priority TMO allows buses, cycles and taxis in the inside lanes. It follows that, as far as the Council is concerned, the effects of the width-priority TMO include permitting buses, cycles and taxis to avoid the width restriction in the outer lane. Yet the Council has chosen not to show these as effects of the width-restriction TMO. This means, for instance, that drivers of vehicles with 8 or more seats for passengers (the definition of "bus"), such as those used by schools and care homes, are not told that they can bypass the width restriction in the outer lane.
If the full effects of the width-restriction TMO were shown in advance, motorists who are not driving buses would be aware that a bus restriction lay ahead in the inside lane while a 2m width restriction applied to the outer lane (such a sign has only been prescribed since 2016; before then, special permission would have been required).
Motorists would also be aware of the bus restriction ahead if signs to diagram 877 were placed 20m before the restrictions. This sign, which shows that the inside lane turns into a bus lane at the junction ahead, has been available since 1975.
Since 2016, more explicit "lane gain" signs have also been available under Schedule 12 of TSRGD 2016. These can be configured to show that a single lane splits into two lanes ahead and the restrictions which apply to each: in this instance, that the inside lane is for buses, cycles and taxis, while the outer lane has a 2.0m width restriction. These signs can also show where turns can be made into side roads.
In an important
report into the bus gate on John Dobson Street, Newcastle, the Chief Adjudicator observed:
5.17. ... Buses can reasonably be anticipated on a bus route, in both directions, and in bus lanes. There will inevitably be frequent times when a driver is following a bus, which is also likely to stop at a bus stop. Therefore, the presence of buses must be factored in to sign design and engineering.
When bus lanes start, there is a dashed white line (diagram 1010) 250 or 300mm wide diagonally across the lane which tells motorists that the lane is about to become a bus lane. This isn't present for bus gates, so upright signs such as diagram 877 are vital.
As it is, there is no advance signage on Camrose Avenue of the bus restriction. The first indication motorists see are the blue roundels to diagram 953. These are not advance notice signs: they are regulatory signs which must be placed at the restriction. Those on Camrose Avenue are 600mm diameter. Appendix A to
Chapter 3 of the Traffic Signs Manual specifies that, where the 85th percentile speed of private cars using the road is between 21 and 30 mph, this sign should be 750mm in diameter. As the Appendix notes:
It should be borne in mind that smaller signs are likely to be seen later, and do not become legible until drivers are closer to them, with less time to react.
3. The Council asserts that the restriction is correctly and clearly signed and can be seen at any time of the day. By default, councils are entitled to the Presumption of Regularity. This holds that councils do things correctly in accordance with the law and that what they say is true. The previous two points have shown that Harrow Council have:
- made mistakes in drawing up the 1999 bus-priority TMO which have been repeated ever since;
- placed advance signs for the width-restriction TMO which failed to comply with Regulation 18 of LATOR 1996;
- failed to provide advance signage of the bus-priority restriction.
I shall now demonstrate how some signage which has been placed (and on which Harrow rely) is not as prescribed in the Traffic Signs Regulations and General Directions 2016 (TSRGD). This makes the placing of those signs
ultra vires. While the signs are indeed present on the highway, administrative law dictates that the misfeasor (Harrow Council) cannot use those signs in making its case.
It follows that the adjudicator must disregard the signs in assessing the adequacy of the signage. This is quite different to the latitude granted by the judgment in
R (Neil Herron et al) v The Parking Adjudicator to minor defects in the signage of zones. That case was concerned with a parking zone where there are many signs across the zone. The court held that defects in a few signs, which were remote from the site of the alleged contravention, did not invalidate the zone as a whole. Here we are concerned with whether individual signs have been placed lawfully.
The signs in question are two curved white arrows on the carriageway before the restriction. Harrow calls these "directional white arrows" which "give motorists guidance as to the lane they should be travelling in".
These arrows are known technically as "deflection arrows". They are defined as diagram 1014 at Item 14 in
TSRGD 2016 Schedule 11 Part 4. The description is:
(a) direction in which vehicular traffic should pass a road marking [followed by a list];
(b) obstruction on the carriageway ahead;
(c) reduction in the number to traffic lanes in the carriageway ahead; or
(d) path to be taken by vehicular traffic to avoid a route for tramcars only
Of these, (d) is irrelevant, as is (c). As regards (b), it would be stretching the meaning of “obstruction” to regard a traffic island as an obstruction. That leaves passing one of the specified road markings.
The relevant road markings specified in TSRGD 2016 are:
Schedule 9 Part 6
Item 7: boundary of a mandatory cycle lane (diagram 1049B);
Item11: boundary of a bus lane (diagram 1049A);
Item 23: white line markings which must not be crossed and where it is prohibited to stop (diagram 1013.1);
Schedule 11 Part 4
Item 23: white hatching with broken boundary between opposing directions of travel (diagram 1040);
Item 24: white hatching with a solid boundary at an offside reduction in width (diagram 1040.3);
Item 25: white hatching with a broken boundary at a nearside reduction in width (diagram 1040.4).
None of these is present on Camrose Avenue. The markings in front of the traffic islands are to diagram 1041, which is very similar to diagram 1040 but has chevron hatching rather than diagonal hatching.
As there is no relevant road marking, the signs to diagram 1014 are not as prescribed in TSRGD 2016.
Section 65 of Road Traffic Regulation Act 1984 empowers Councils to
cause or permit traffic signs to be placed on or near a road
Section 64 defines "traffic signs" as signs specified by regulations (i.e. TSRGD) or authorised by the relevant authority (i.e. specially authorised by DfT). Harrow has not obtained special permission to place diagram 1014 in a non-prescribed way on Camrose Avenue.
It follows that the signs have not been placed in accordance with the powers granted to the Council. The Council acted
ultra vires in placing those signs. They must not be considered as present on the carriageway when assessing the adequacy of the signage.
4. Case-specific argument to be written by the appellant.
