Or maybe not...?
Case reference 2240331026
Appellant Gary James Shearin
Authority London Borough of Merton
VRM EN14 NXK
PCN Details
PCN MT87744271
Contravention date 14 Mar 2024
Contravention time 16:34:00
Contravention location Durnsford Road
Penalty amount GBP 130.00
Contravention Entering and stopping in a box junction
Referral date -
Decision Date 22 Aug 2024
Adjudicator Henry Michael Greenslade
Appeal decision Appeal refused
Direction Full penalty charge notice amount stated to be paid within 28 days.
Reasons
At this scheduled personal hearing the Appellant attended in person.
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 (‘the 2016 Regulations’) 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 images clearly show that the vehicle did enter this box junction marking and then had to stop within the box due to the presence of a stationary vehicle.
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.’
The Appellant raises a number of issues. The Appellant submits that the box junction is not compliant as the road joining the main road is a private one; that the statutory grounds of appeal were not set out by the Enforcement Authority for recipients of Penalty Charge Notices making online original representations to the Enforcement Authority; that the Notice of Rejection wrongly suggested the he could not pay the penalty charge and still appeal; and that the time limits stated on the Penalty Charge Notice did not state that further time is allowed when making representations, when they are posted by the date stated.
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.
Paragraph 11(6) in Part 7 of Schedule 9 to the 2016 Regulations provides that for the purposes of this paragraph “box junction” means an area of the carriageway where the marking has been placed and which is-
(a) at a junction between two or more roads;
(b) at a gyratory system or roundabout;
(c) along a length of a two-way road (other than at a junction), the carriageway of which is not greater than 4.5 metres wide at its narrowest point; or
(d) on the length of road adjacent to the vehicular entrance to the premises of a fire, police or ambulance station;
There is no requirement that all the roads be publicly maintained, although in this case, whilst there may be a sign indicating private property beyond the junction, the part of the road adjoining the box is not so designated.
The Appellant submits that the following statutory grounds were not set out on the Enforcement Authority’s website. Paragraph 1(4) of the 2003 Act provides that the grounds for this type of Penalty Charge Notice are:
(a) that the recipient (i) never was the owner of the vehicle in question; (ii) had ceased to be its owner before the date on which the penalty charge was alleged to have become payable; or (iii) became its owner after that date;
(b) that there was no (i) contravention of a prescribed order; or (ii) failure to comply with an indication; or (iii) contravention of the lorry ban order, under subsection (5) or (7) of the said section 4 as the case may be;
(c) that at the time the alleged contravention or failure took place the person who was in control of the vehicle was in control of the vehicle without the consent of the owner;
(d) that the recipient is a vehicle-hire firm and (i) the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and (ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice issued in respect of the vehicle during the currency of the hiring agreement; or
(e) that the penalty charge exceeded the amount applicable in the circumstances of the case.
In the Enforcement Authority’s list these are respectively items 2, 1, 3, 4 and 5. It is open to the Enforcement Authority, as here, to consider other grounds beyond these. The Adjudicator cannot do so.
The Appellant also submits that the Notice of Rejection wrongly stated that he did not have the option to pay and still appeal. There is no right to pay the penalty charge, at either full or reduced rate, and still appeal to the Environment and Traffic Adjudicator. If an Appellant pays the reduced penalty and then seeks to appeal the Enforcement Authority will likely seek the balance in the event of any such appeal sill being registered and then refused. In this case the Enforcement Authority do state this in the Notice of Rejection.
The Appellant further submits that the Notice of Rejection wrongly states that the penalty charge must be paid within 28 days of the service of the Notice of Rejection. However, this complies with the requirement of Paragraph 3 in Schedule 1 to the 2003 Act:
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;
It may be that the Appellant is a little confused as to postal service and two working days. It is not that the Appellant has a right to an extra two days to appeal or pay the penalty charge, but rather the 28 days runs from the date of service of the Notice of Rejection on the recipient, this is deemed to be two working days.
Considering carefully all the evidence before me I must find as a fact that, on this particular occasion, a contravention did occur and the Penalty Charge Notice was properly issued.
The penalty charge is £130. The amount of the penalty charge is set by the Transport, Environment and Planning Committee of London Councils and approved by the Mayor of London with the authority of the Secretary of State. Under Section 4(
(a)(iv) and 4(10) of the 2003 Act the enforcement authority must accept the reduced penalty of £65 if paid within 14 days of the date of the Penalty Charge Notice. This is different from some other types of Penalty Charge Notice, where the relevant date is service. Once this period has expired and, for whatever reason including appealing to the Adjudicator and/or making representations to the authority, the charge remains unpaid then the full penalty becomes due.
Section 4(18) of the 2003 Act provides that in determining, for the purposes of any provision of the Act, whether a penalty charge has been paid before the end of a particular period, it shall be taken to be paid when it is received by the authority concerned.
The Enforcement Authority did, in exercise of its discretion, reoffer the reduced penalty in the Notice of Rejection. Since there is no legal requirement for the Enforcement Authority so to do, there can be no issue as to any time period offered.
Whilst I note all that has been submitted by the Appellant regarding the circumstances, the Adjudicator is only able to decide an appeal by making findings of fact on the basis of the evidence actually produced by the parties and applying relevant law. The Court of Appeal has affirmed that the Adjudicator has no power to consider mitigating circumstances of any description, including reducing the amount of the full penalty charge.
Accordingly, this appeal must be refused.
